Idiot
Whenever I marvel at something asinine the Republican controlled government has done, I often wonder how it is that some of these bozos were elected. I was wondering that this weekend when I caught an episode of The Daily Show.
The guest was Chuck Schumer (D-NY). Schumer said that Clarence Thomas thought that states could have churches and that Thomas also thought that the commerce clause meant that congress couldn’t regulate civil rights. Based on Thomas’ judicial philosophy, these are gross oversimplifications of what Thomas’ apparent views are. Then, poor old Chucky, said that DeLay was in trouble over his indictment because in Texas they have the death penalty. Yes, Chucky was joking but I don’t think joking about killing another politician for campaign violations is in good taste. I still await Media Matters’ scathing exposé on the stupidity of that statement.
So, to answer my question about why these Republican bozos are in charge, Schumer gave me the epiphany: Because the other partisan bozos are even more stupid.
October 4th, 2005 at 9:19 am
Flame on!
October 4th, 2005 at 11:37 am
I think the problem was indeed demonstrated by the Shumer appearance, but I came to a different conclusion than you did. It’s not necessarily that the leftist partisan bozos are “even more stupid,” it’s that they’re nowhere near as good at the nasty cheap shot. Shumer tried a few and landed zero. Nothing that would stick, nothing with any ring to it. Until the Democrats get good at that, they’re going to be wating a long time to regain any influence.
October 4th, 2005 at 12:39 pm
It pains me to say this, but Chuckie’s comments on Clarence Thomas are mostly correct. On the first issue, bear in mind that in last year’s Newdow/Pledge case, Justice Thomas wrote a concurring opinion describing the Establishment Clause as ” federalism provision, which … resists incorporation.” Were the court to follow his lead and unincorporate the Establishment Clause, states would indeed be free to establish their own official state churches, as some did in the early days of the republic. The second goes to the scope of the commerce power. No one argues that the commerce clause prohibits the federal government from passing any civil rights laws; the question is whether or not it should be stretched so far as to affirmatively authorize civil rights laws not grounded in other parts of the Constitution. And you don’t have to guess where Clarence Thomas comes down on that issue.
October 4th, 2005 at 12:44 pm
I was of the opinion that he was ‘mostly correct’ but his oversimplified version is what stood out to me.
October 4th, 2005 at 1:18 pm
Fair enough, but saying “he thinks the commerce clause prohibits X” when meaning “he doesn’t think the commerce clause authorizes X” is, alas, a much more common shorthand than you may think. I’ve even heard at least one law professor (Franklin Zimring) say it while debating the desirability of federalizing criminal law. [He opposed it on policy grounds, but also opposed the notion that the commerce clause “probibits” it.]
October 4th, 2005 at 3:11 pm
And actually, although Chuckie did a terrible job executing, I think he had the right idea. Start spelling out the every day implications of Thomas’ jurisprudence and you’ll find — rightly or wrongly — that it’s not at all popular. For example, a whole lot of Republican seniors are all about a strict reading of the Constitution when it comes to gays and abortion, but when you tell them that their medicare and social security goes out the window, too, I suspect their support for such a prospect would cool dramatically.
October 4th, 2005 at 3:16 pm
Tom, I don’t follow that. How does a strict reading of the Constitution affect Medicare aor Social Security at all? The power to tax and spend is plenary.
October 4th, 2005 at 3:41 pm
We get bozos because that’s what the Democrat and Republican party machines will fund.
As regards Thomas, I’m all for his interpretation of the Constitution. If you don’t like states having the ability to establish a state church, pass an amendment to the Constitution. If the amendment is popular enough (and the idea of a State Church that offensive) it will pass easily. I think it would.
I’m all for limiting the power of Congress, but unfortunately so much damage has been done that trying to reverse the entropy might not be the best path now.
October 4th, 2005 at 4:07 pm
My understanding is that setting up a federal pension plan is not within the enumerated powers of Congress, and is thus unconstitutional, and that originalists consider the reading of the general welfare clause that allows this to be “pained” at best. More on this.
October 4th, 2005 at 4:56 pm
If you don’t like states having the ability to establish a state church, pass an amendment to the Constitution.
maybe I’m missing something obvious or about to start a flame war, but isn’t that in the 1st Amendment?
October 4th, 2005 at 5:37 pm
Manish, you are indeed missing something obvious. The entire First Amendment is prefaced by the words “Congress shall make no law…” The states aren’t Congress, so the First Amendment (and, according to the courts, the rest of the Bill of Rights) does not apply to them, at least not directly. Indirectly, however, it does, by way of the rather tortured doctrine of 14th Amendment incorporation. To the extent that the Establishment Clause “resists incorporation,” it would not apply to the states.
October 5th, 2005 at 12:54 pm
So why would any proper civil rights law have anything to do with the Commerce Clause at all, rather than being authorized by the 14th Amendment itself?
October 5th, 2005 at 6:55 pm
It’s also worth noting that most states’ constitutions (even Alabama!) have church/state provisions that are far more explicit and far more restrictive than those of the federal constitution; so with a couple of exceptions, the state church is purely hypothetical.
October 5th, 2005 at 6:59 pm
Xrlq:
This has always bothered me, really, because it means that none of the First Amendment’s protections extend beyond the Congress. Meaning that not only could a state hypothetically establish “Baptist” as the official state religion (if not otherwise hindered by the state constitution), they could equally outlaw the Baptist church with no constitutional violation. Similarly, they could quash your free speech, freedom of the press, etc. It is only the federal congress that could not do those things.
Is there anyone out there who seriously interprets the First Amendment in this way? (Don’t answer that, the response might scare me…)
And what concerns me about Thomas is the rather arbitrary declaration that the establishment clause “resists incorporation” while the other clauses don’t. Why should that particular clause get special treatment, one way or the other?
October 5th, 2005 at 8:02 pm
MarkM, it depends on what you mean by “proper.” Any federal law that merely prohibits discrmination by the states, or by any subdivisions thereof (cities, counties, etc.) can properly be grounded in the equal protection and enforcement clauses of the 14th Amendment. However, federal laws prohibiting private discrimination cannot be, as the 14th Amendment itself does not apply to private individuals or institutions.
TGirsch: you are correct that a wholesale repeal of the incorporation doctrine would make the entire Bill of Rights, and not just the Establishment Clause, inapplicable to the states. However, no one wants to repeal the doctrine in toto, and AFAIK only Justice Thomas wants to peel back any part of it at all. His rationale, as I understand it, is that there is no real evidence that the Due Process clause was ever intended to incorporate anything, but there is evidence the long-neglected Privileges or Immunities clause was. To the extent this theory is correct, the P&I clause should incorporate the individual rights protected by the B of R, but not the structural/federalist limitations. It may be a little arbitrary, but it’s less arbitrary than the rule we have now, which is to incorporate everything the court has chosen to incorporate (Amendments I, III, IV, VI, VIII, IX and most of V), and to not incorporate whatever the court has chosen not to incorporate (Amendments II, VII, X and the grand jury clause of V).