Monday, January 30, 2012

"Lawyer (n): one skilled in circumventing the law". -- Ambrose Bierce

Anonymous, who claims to be an attorney who practices Constitutional law (and I believe him), defends the judge's ruling on the Rhode Island prayer mural case:

... the case law, which is an interpretation of the Constitution... holds that endorsement of religion is a violation of the Constitution.
No it doesn't.

The test applied from case law is the Lemon Test, from Lemon v. Kurtzman. The relevant part of the Lemon test is the second prong, which reads:

2) The government's action must not have the primary effect of either advancing or inhibiting religion;
The test of a government action is "the primary effect of advancing" religion, not endorsing it. An endorsement that does not advance religion is not, according to the Lemon Test, unconstitutional. Even if a government does advance religion, it is only unconstitutional if it's primary effect is the advancement of religion.

So by the second prong of the Lemon Test the prayer mural would only be unconstitutional if it advanced religion as its primary effect. Obviously, the mural does not in any meaningful sense advance religion (it does not compel or advertise religious observance or assent), and religion is its secondary effect anyway. Only six of its eighty words say anything about religion. The other seventy-six words encourage students to be good citizens. It is primarily an exhortation to good citizenship. 

By the plain language of the Lemon Test, the prayer mural is constitutional.

On the other hand, Judge Lagueux's opinion can also be analyzed using the Lemon Test. Judge Laugueux 's opinion meets three criteria:

1) It is a government action (a federal court ruling).
2) It inhibits religion (it explicitly censors a prayer mural because it contains religious language).
3) The inhibition of religion is the primary effect of the ruling. It's the whole point of the ruling. 

Thus, by the Lemon Test, Judge Laugueux's ruling is unconstitutional.


Justice Scalia has noted that for the Lemon Test to be applied at all it must be applied inconsistently and incoherently. He cites the example of the application of the Lemon Test to the First Amendment:

The Free Exercise clause singles out religion for place of privilege in our First Amendment rights, prior to the right to freedom of speech, freedom of the press, and freedom of assembly.

By doing so, the Free Exercise clause explicitly advances religion. So the Lemon Test's criterion for the compliance of a government act with the First Amendment is violated by... the Free Exercise clause of the First Amendment.

Justice Scalia points out that by the Lemon Test, the First Amendment violates the First Amendment.


Constitutional lawyer Anonymous:
And since the incorporation doctrine holds that the rights enumerated in the Constitution apply not just to the states, but to their instrumentalities, like a school, the actions of the school to endorse a religion are prohibited.
No.

The Establishment clause cannot, by logic, be subject to incorporation by the Fourteenth Amendment.

From Nebraska Law Professor Robert Duncan:
Justice Thomas [has] observed that the best scholarship on the original  understanding of the Establishment Clause supports the conclusion that it is “best understood as a federalism provision—[which] protects state establishments from federal interference..."
Thus, incorporation of the Establishment Clause against the states is incoherent, because it “prohibit[s] precisely what the Establishment Clause was intended to protect—state establishments of religion.” In other words, incorporation of the Establishment Clause has perverted the purpose of the Clause, because as Justice Stewart once said: “a constitutional provision . . . designed to leave the States free to go their own way . . . [has] become a restriction upon their autonomy.”

The purpose of the Establishment clause was to preclude incorporation of federal religious constraints-- such as would eminate from an established national church-- on the states. Therefore, the Establishment clause is not subject to incorporation by the Fourteenth Amendment, because its overt purpose is to prohibit incorporation.



Lawyers like Anonymous who hawk state censorship of religious expression aren't invoking genuine legal scholarship. They are merely applying their skills, as Ambrose Bierce quipped, to the circumvention of the law. They misrepresent the law to make a cudgel to extinguish civic religious expression. Sophistry, not scholarship, is their method.

We ordinary citizens-- We the People-- and honest legal scholars and jurists who respect the Constitution, need to call these dissembling bigots out. 

45 comments:

  1. Very good points, Dr. Egnor.

    But the lawyer will probably argue that you can't form an opinion because you don't read cases in your spare time, like he does. In between reading two versions of the Bible and tirelessly monitoring this website. If he's a lawyer at all, he's probably and out of work lawyer.

    But after having read his ridiculous, condescending, insulting, hateful posts, I have concluded that he is a skillful bullshit artist. So it's not much of a stretch to say that he's probably a lawyer. Sure. From the lawyers I've met in my life, I would say that it's basically a prerequisite for the profession.

    Q: What happens to a lawyer who takes viagra?
    A: He gets taller.

    TRISH

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    1. "But the lawyer will probably argue that you can't form an opinion because you don't read cases in your spare time, like he does."

      if you are uninformed on a subject, your opinions are also uninformed.

      "In between reading two versions of the Bible and tirelessly monitoring this website. If he's a lawyer at all, he's probably and out of work lawyer."

      I'm quite gainfully employed thank you. Of course, some people find the time to do more stuff in their day than others. Despite supposedly being a neurosurgeon and a faculty member at Stony Brook, Egnor manages to find the time to write this blog. I figure he probably wedges in some Bible-time in his schedule as well.

      Not everyone is as overwhelmed by basic tasks like reading as you are.

      Delete
    2. "Not everyone is as overwhelmed by basic tasks like reading as you are."

      Each and every time we discuss anything, you start off with some kind of accusation that I am illiterate. That's why people think you're an ass. I can read just fine, thank you. I also have a college education, graduating with honors. Maybe some day I'll go back for my masters. I also read in my spare time, although I prefer literature to legal opinions.

      "if you are uninformed on a subject, your opinions are also uninformed.

      What's your threshold for "informed"?

      "I'm quite gainfully employed thank you."

      When do you work? It seems that you spend most of your work day surfing the net. Judging from the times that you posted your comments, you're probably bilking the government. Get back to work. I pay your salary. Seriously, I think your superiors would be interested to know how much time you spend on the internet during normal business hours and the kind of bigoted comments you make about the Christian citizens of this country. Are you on a government computer?

      It's also nice to know that one of our civil servants is a dyed-in-the wool anti-Christian bigot. He thinks it's not bigotry because his "life experience" tells him that Christian lack humility. See previous post on prayer t-shirts. Is it any wonder that our justice system treats us like crap?

      TRISH

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    3. "Each and every time we discuss anything, you start off with some kind of accusation that I am illiterate. That's why people think you're an ass. I can read just fine, thank you."

      Then maybe you should.

      "What's your threshold for "informed"?"

      When discussing specific Constitutional issues, you have to have read the opinions in question. Especially if you are going to try to maintain that they are "bad law" that need to be overturned. Not bothering to actually read what you are griping about makes your opinion uninformed and not worth considering.

      Delete
  2. I know the anonymous lawyers will be back. I've thought of another question for the answer man.

    Do you read scientific studies as well? Let me know.

    TRISH

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    1. Do you read scientific studies as well?

      Some. As far as journal reading goes I tend to focus on law journals (for obvious reasons), and economics journals (from when I was in my doctoral program). But I've read several technical papers in the hard sciences.

      And the point of your question is?

      Delete
    2. Oh, great. So, have you formed any opinion at all on controversial scientific topics, such as the undiscovered gay gene, homosexuality as a mental disorder, or global warming?

      Let me give you an example. Prior to 1973, the American Psychiatric Association considered homosexual tendencies to be a mental disorder. They called it SSAD--Same sex attraction disorder. After 1973--and after a lot of hysterical shouting and intimidation tactics--they decided that it wasn't.

      I don't really believe that mental health professionals approach the subject with anything resembling objectivity. But then again, I haven't read the pre-1973 studies or the post-1973 studies. Have you?

      If you haven't read the pre-1973 studies and the post-1973 studies, you cannot form a judgement on this subject. You would just have to tell all of your gay friends that the jury is still out on their sexuality being a mental disorder.

      Is that your position?

      How about smoking? I'm pretty sure it causes cancer. My grandmother died from cancer, and yes, she was a smoker. Anecdotal evidence, right? But for years the tobacco companies told us that smoking was not a cause of cancer. There have been studies that contradict this claim, but I haven't read them. If you haven't either, then I guess you'd have to say that you aren't sure if smoking causes cancer. By the way, some studies indicate that smoking doesn't cause cancer. Those studies were largely funded by tobacco companies, but I can't really say that they're wrong. I haven't read them.

      I can't be sure if smoking causes cancer. Can you? I want to know.

      TRISH

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    3. I, like most thinking people, would defer to the experts in the APA. I certainly won't go charging in and tell them they are all wrong without having actually read the literature.

      You, on the other hand, think that Everson should be repealed and presume to tell the members of the Federal bench that they are all wrong without even having studied the case, or any of the other jurisprudence on the subject.

      And you wonder why you are called arrogant.

      Delete
  3. @Trish:

    "an out of work lawyer"... What a lovely concept!

    Thanks for your great comments.

    Mike

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  4. So we're quoting Ambrose Bierce huh?

    "Religion. A daughter of Hope and Fear, explaining to Ignorance the nature of the Unknowable."

    Sounds about right.

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  5. "Faith: Belief without evidence in what is told by one who speaks without knowledge, of things without parallel."

    Quoting Ambrose Bierce is fun!

    ReplyDelete
  6. "The purpose of the Establishment clause was to preclude incorporation of federal religious constraints-- such as would eminate from an established national church-- on the states."

    There's a reason why no other Justices have signed on to Thomas' interpretation. That's because it ignores the existence of the 14th Amendment. To say "The purpose of the Establishment clause was to..." ignores the fact that the Constitution was changed. The original intent of the free speech clause was to prevent Congress from restricting free speech. States could restrict speech all they wanted. But the 14th Amendment changed the meaning of the Constitution. Referencing back to the "original" intent with respect to the scope of the provisions contained in the document is meaningless, because the "original" intent was changed by Amendment.

    Amendments are as much a part of the text of the Constitution as any other, and can (and do) change the meaning of the document. Suppose, for example, an Amendment was passed that said "The Catholic Church must turn over all its property to the Federal government without compensation". Appealing to either the free exercise clause or the takings clause your not avail the Church, because they would have been modified by the later passed Amendment ordering the taking of their property without compensation.

    Similarly, saying "the original intent of the Establishment clause was not to limit the actions of the States" is meaningless, because the 14th Amendment changed the relationship of the Constitution vis a vis the States. Hence, your argument (and Duncan's argument) is meaningless.

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  7. "Lawyers like Anonymous who hawk state censorship of religious expression aren't invoking genuine legal scholarship."

    "We ordinary citizens-- We the People-- and honest legal scholars and jurists who respect the Constitution, need to call these dissembling bigots out."

    I'mm sure many will find it surprising to learn that Fred Vinson, Stanley Reed, William Douglas, Frank Murphy, Robert Jackson, Felix Frankfurter, Wiley Rutledge, and Harold Burton weren't engaged in "genuine legal scholarship" and were "dissembling bigots". I'm sure Murphy would have been especially interested in learning that he was bigoted against Catholics.

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  8. @anon:

    You miss the point. I'll type slowly to help you understand.

    The Establishment clause prohibits incorporation. If the Fourteenth Amendment mandates incorporation (that language is nowhere in the amendment, by the way), then the Fourteenth Amendment repeals the Establishment clause of the First Amendment.

    Several problems:

    1) The Fourteenth Amendment makes no reference to repeal of any part of the Constitution.
    2) If the Establishment clause is effectively repealed (which it is if a clause that prohibits incorporation is incorporated), then the Establishment clause is no longer in effect and an Establishment of religion is no longer unconstitutional. You don't get to incorporate a prohibition on Establishment when the prohibition of Establishment is invalidated by a subsequent amendment.

    You bigots just make it up as you go along, and call it law.

    ReplyDelete
  9. "The Establishment clause prohibits incorporation. If the Fourteenth Amendment mandates incorporation (that language is nowhere in the amendment, by the way), then the Fourteenth Amendment repeals the Establishment clause of the First Amendment."

    Do you even understand what the Incoroporation Doctrine is? It has nothing to do with incorporating churches (or any other organization for that matter). It is the effect of the 14th Amendment to incorporate the provisions of the Bill of Rights to apply to the States. This is the effect of the equal protection and privileges and immunities clauses.

    Your "two points" are almost not even worth bothering to respond to, since they are based on such a fundamental misunderstanding of what the incorporation doctrine is. The 14th Amendment does not repeal any part of the Constitution, it expands the applicability of the provisions of the bill of rights to the States.

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    1. "The 14th Amendment does not repeal any part of the Constitution, it expands the applicability of the provisions of the bill of rights to the States."

      Well, if your interpretation is any guide, it repeals the words "Congress", "law" and "establish".

      TRISH

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    2. "Well, if your interpretation is any guide, it repeals the words "Congress", "law" and "establish"."

      It changes the meaning of the First Amendment. That's what an Amendment does - it alters the text of the Constitution to mean something different than it did before. Citing back to "originalist" antebellum interpretations is silly in light of the reality that the language of the Constitution was changed postbellum.

      Delete
  10. Oh, the incorporation doctrine is also based on the due process clause of the 14th Amendment as well. Just for clarity.

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  11. We’ve heard Dr. Egnor make Establishment Clause arguments over and over again without any regard to the Free Exercise Clause. Even if we are accept Dr. Egnor's argument that the Establishment Clause shouldn’t have been subject to incorporation by the 14th Amendment, there is no reason that the Free Exercise Clause should automatically follow suit.

    The Establishment Clause and the Free exercise Clause are intimately related in that even a seemingly trivial case of establishment, such as this prayer banner, can indeed interfere with the free exercise of religion. As Judge Laruex points out in his decision, the Supreme Court said in Edward v. Aguillard:

    “The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance involuntary.”

    -KW

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  12. @anon:

    [Do you even understand what the Incoroporation Doctrine is? It has nothing to do with incorporating churches (or any other organization for that matter). It is the effect of the 14th Amendment to incorporate the provisions of the Bill of Rights to apply to the States.]

    The intent and effect of the Establishment clause is to prohibit incorporation of federal religious doctrine. If that clause is "incorporated" by the Fourteenth amendment, it nullifies the prohibition on incorporation inherent to the clause, and thus permits incorporation of federal religious doctrine to the states. This nullifies the Establishment clause. This is a simple obvious point made by many legal scholars and several Supreme Court justices (e.g. Justice Thomas and Justice Stewart). You need to do more reading.


    [Your "two points" are almost not even worth bothering to respond to, since they are based on such a fundamental misunderstanding of what the incorporation doctrine is.]

    Incorporation doctrine is the incorporation of the Bill of Rights to the states. Incorporation of the First Amendment clause that explicitly prohibits incorporation (the Establishment clause) nullifies the Establishment clause.

    [The 14th Amendment does not repeal any part of the Constitution, it expands the applicability of the provisions of the bill of rights to the States.]

    It can't incorporate the Establishment clause without nullifying it.

    You really must catch up on your reading. Add some books on logic to your list.

    ReplyDelete
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    1. "The intent and effect of the Establishment clause is to prohibit incorporation of federal religious doctrine. If that clause is "incorporated" by the Fourteenth amendment, it nullifies the prohibition on incorporation inherent to the clause, and thus permits incorporation of federal religious doctrine to the states."

      No, the intent was to prevent Congress from taking steps to establish state religion via the federal government. Incorporating that restriction via the 14th Amendment applies that same restriction to the states. As a result, states are prevented to the same extent the Federal government is. Despite Stewart and Thomas' efforts, not even Scalia has joined with Thomas in his view of the Establishment clause. Thomas has been, and remains, the lone voice on the Court suggesting that the 14th Amendment does not incorporate the Establishment Clause, and no one on the Court (not even Thomas) holds your idiosyncratic view that incorporating the clause would nullify it.

      Your line of "reasoning" applied to, say, the free assembly clause would mean that the incorporation doctrine means that because before the 14th Amendment the Federal government was prohibited from preventing free assembly, incorporating that prohibition to apply against the states means that it no longer applies to anyone, and it is fine to restrict the right to assemble.

      "Add some books on logic to your list."

      That's rich, coming from someone who clearly doesn't understand the first thing about logic.

      Delete
  13. The test applied from case law is the Lemon Test, from Lemon v. Kurtzman.

    I see that you appear to be unaware of Lynch v. Donnelly, 465 U.S. 668 (1984).

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    1. So you admit that the Lemon test is an unreliable guide to interpretation, and needs to be superseded by the Endorsement test?

      When your "tests" have been shown to be illogical b.s., you just keep making up new ones.

      You still haven't replied to Scalia's observation that the Lemon test, if applied to the Free Exercise clause, would render the Free Exercise clause unconstitutional.

      Delete
    2. "So you admit that the Lemon test is an unreliable guide to interpretation, and needs to be superseded by the Endorsement test?"

      No. I mean that the Lemon test isn't the only metric used. You seem to think that Constitutional law consists of exactly one case, and issues are never mixed together.

      "When your "tests" have been shown to be illogical b.s., you just keep making up new ones."

      The next text you show to be "illogical b.s." will be the first one. Thus far, you're batting zero.

      "You still haven't replied to Scalia's observation that the Lemon test, if applied to the Free Exercise clause, would render the Free Exercise clause unconstitutional."

      I have. Scalia's observation is moronic in the extreme on this issue. The Constitution can include provisions within it that would be unConstitutional exercises of power if they were attempted by statute absent their authority.

      Delete
  14. @anonymouw:

    [No, the intent was to prevent Congress from taking steps to establish state religion via the federal government.]

    Are you asserting that the Rhode Island prayer mural was a step to establishing a state religion in Cranston, RI?

    Do you keep canned food and ammo in your bunker under your house?

    [Incorporating that restriction via the 14th Amendment applies that same restriction to the states.]

    A federal establishment of religion by definition is the incorporation of federal religious doctrine to the states. The Establishment clause prohibits incorporation of religious doctrine, and was intended to protect state establishments.

    Incorporation of the Establishment clause to the states is incoherent. An incorporated Establishment clause would read: "no state shall establish a federal establishment of religion."

    The prohibition to which you refer is different. it would state: "no level of government may incorporate a religious doctrine on a lower level of polity."

    But that prohibition cannot be imposed by incorporation of the Establishment clause to the states, because a clause that bans incorporation cannot be applied to lower levels of polity by... incorporation.

    Your "incorporation doctrine" applied to the Establishment clause is literally nonsense. You can't incorporate a prohibition on incorporation.

    No other clause of the First Amendment bans incorporation, so other clauses of the First Amendment can be incorporated to the states.

    [... Despite Stewart and Thomas' efforts, not even Scalia has joined with Thomas in his view of the Establishment clause. Thomas has been, and remains, the lone voice on the Court suggesting that the 14th Amendment does not incorporate the Establishment Clause, and no one on the Court (not even Thomas) holds your idiosyncratic view that incorporating the clause would nullify it.]

    The existence of this argument gives the lie to your argument that your view on the Establishment clause is settled in your favor. There is raging debate, but you misrepresent the state of the controversy. You're a dissembling bigot, using legal sophistry to misrepresent the law and to misrepresent the actual debate in the highest legal circles.

    [Your line of "reasoning" applied to, say, the free assembly clause would mean that the incorporation doctrine means that because before the 14th Amendment the Federal government was prohibited from preventing free assembly, incorporating that prohibition to apply against the states means that it no longer applies to anyone, and it is fine to restrict the right to assemble.]

    The Free Assembly clause does not prohibit incorporation, so it may be incorporated.

    ReplyDelete
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    1. "A federal establishment of religion by definition is the incorporation of federal religious doctrine to the states. The Establishment clause prohibits incorporation of religious doctrine, and was intended to protect state establishments."

      You are incoherently ranting at this point. No matter what the terms of the First Amendment were intended to do antebellum, they were changed by the postbellum adoption of the 14th Amendment.

      "Incorporation of the Establishment clause to the states is incoherent. An incorporated Establishment clause would read: "no state shall establish a federal establishment of religion.""

      Only if you read into the clause "federal establishment of religion". Too bad for you that's not what it says. It says "Congress shall make no law respecting an establishment of religion". After incorporation, it reads "Congress and the States shall make no law respecting an establishment of religion".

      Your convoluted reading requires adding additional text to the establishment clause that isn't there.

      "The prohibition to which you refer is different. it would state: "no level of government may incorporate a religious doctrine on a lower level of polity.""

      No. "Congress and the States shall make no law respecting an establishment of religion".

      "But that prohibition cannot be imposed by incorporation of the Establishment clause to the states, because a clause that bans incorporation cannot be applied to lower levels of polity by... incorporation."

      You're just incoherently rambling now.

      "Your "incorporation doctrine" applied to the Establishment clause is literally nonsense. You can't incorporate a prohibition on incorporation."

      And frothing at the mouth too.

      "No other clause of the First Amendment bans incorporation, so other clauses of the First Amendment can be incorporated to the states."

      Thank you so much. But sadly, for you, hundreds of thoughtful legal scholars have disagreed with you.

      "The existence of this argument gives the lie to your argument that your view on the Establishment clause is settled in your favor. There is raging debate, but you misrepresent the state of the controversy."

      The "debate" is between Thomas and basically every other sitting Federal judge. The odds don't look good for your side.

      Delete
    2. @anon:

      [The odds don't look good for your side.]

      I never said we'd win. I just say that we're right.

      Delete
    3. "The 'debate' is between Thomas and basically every other sitting Federal judge. The odds don't look good for your side."

      He keeps coming back to this point over and over again--the judges have decided this, the judges have decided that. The judges have ruled, the judges have spoken.

      Okay, Mr. Smarty-pants. I'm going to explain it to you this way. All we're doing on this site is deciding whether the judges have decided CORRECTLY. Every time we examine the question, comparing some judge's ruling to the actual text of the Constitution, you come back with, "The judges have decided..."

      The yardstick of a decision is the Constitution. But you want to supersede the Constitution by using case law (other decisions) as a the measuring stick of a decision, and even of the Constitution.

      "The 'debate' is between Thomas and basically every other sitting Federal judge. The odds don't look good for your side."

      I love how he puts debates in quotes. As if a debate between one person and eight people is not a real debate. He reminds me of the global warming faithful who respond to every question with "The science is settled! The debate is over!" No thinking required.

      Here's the point, Mr Anonymous: being in the minority does not make one wrong, and being in the majority does not make one right. Your counterargument to Dr. Egnor seems to be that he's wrong because his opinion is outnumbered eight to one on the bench. It's hard to even call that an argument. The majority in this instance COULD BE right, but they aren't right just because there are more of them.

      TRISH

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    4. "Okay, Mr. Smarty-pants. I'm going to explain it to you this way. All we're doing on this site is deciding whether the judges have decided CORRECTLY. Every time we examine the question, comparing some judge's ruling to the actual text of the Constitution, you come back with, "The judges have decided...""

      Because that is a judge's job - to examine the Constitution and determine what the meaning of the words are. Thus far all you've said is "that's not the text", which is a banal observation - the words "right to a fair trial" aren't in the Constitution either, and yet the language that is there has been read to mean just that.

      "The yardstick of a decision is the Constitution. But you want to supersede the Constitution by using case law (other decisions) as a the measuring stick of a decision, and even of the Constitution.'

      No. You need to read the case law to understand the meaning of the Constitution as interpreted by the duly constituted authority charged with doing so.

      "I love how he puts debates in quotes. As if a debate between one person and eight people is not a real debate."

      Because it isn't really a debate. Thomas is way out on a limb and even those ideologically aligned with him think he's wrong. And he's not garnering any support with his arguments. When you cite an authority to support your position, but the authority is contradicted by most other legal scholars, it isn't much in the way of authority.

      The problem is that you are looking at the text "Congress shall make no law respecting an establishment of religion", and not looking to see what that might mean. Can Congress give money to a Church? Can Congress pay for students to attend parochial schools of one faith only? And so on. The Supreme Court says what the clause means. That's its job. That's why you look at case law, and why you cannot understand the Constitution without case law.

      Delete
    5. "I never said we'd win. I just say that we're right."

      Well, except for the being entirely wrong.

      Delete
  15. "Obviously, the mural does not in any meaningful sense advance religion (it does not compel or advertise religious observance or assent), and religion is its secondary effect anyway."

    You realize that this is a question of fact, right? And the finder of fact disagreed with you on this, and that finding is essentially not subject to appeal, right?

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    1. @anon:

      [You realize that this is a question of fact, right? And the finder of fact disagreed with you on this, and that finding is essentially not subject to appeal, right?]

      Do you actually assert that if the judge had found the opposite "fact", that the ruling would not be subject to appeal? The ACLU would appeal with fury.

      How succinctly you encapsulate secular arrogance: "We decide, you obey"

      Delete
    2. "Do you actually assert that if the judge had found the opposite "fact", that the ruling would not be subject to appeal? The ACLU would appeal with fury."

      They would have no basis for appeal. Findings of fact are granted deference by appellate courts and in practice are not subject to appellate review. ACLU lawyers know this.

      Delete
  16. Egnor probably always was an arrogant asshole, also when he was an athiest. Then he had a midlife crisis, found religion and he became an even bigger asshole. Suddenly he knows law better than lawyers, he knows biology better than biologists, he pretends to know everything better than people who have actually studied whatever it is that Egnor feels threatens his crazy religion. His religion has turned him into a despicable dishonest hack.

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  17. @troy:

    [Egnor probably always was an arrogant asshole, also when he was an athiest. Then he had a midlife crisis, found religion and he became an even bigger asshole.]

    That one's going straight to the hall of fame!(sidebar)

    [Suddenly he knows law better than lawyers, he knows biology better than biologists, he pretends to know everything better than people who have actually studied whatever it is that Egnor feels threatens his crazy religion. His religion has turned him into a despicable dishonest hack.]

    I state my opinions publicly, and I don't defer to authority that I have reasons to suspect. All I ask is that you show me where I'm wrong. If you convince me, I'll admit it.

    So far, in theology, biology, law, etc. you've not impressed me.

    Your arguments are pretty pitiful, actually.

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    1. Michael,

      Smart people believe stupid things, because they're smart enough to rationalize reasons for believing them.

      You're a prime example of one.

      Admitting that you're wrong isn't one of your strong suits. Remember your nonsensical definition of 'imaginary', which you never conceded?

      Delete
  18. Anonymous Pettifogger, J.D., LL.D., S.J.D.January 30, 2012 at 6:53 PM

    Trish:

    The prohibition against prayer murals is tucked away in the emanation of the penumbra, which you would realize, were you not such an insufferable noob re: Con Law.

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  19. Forgive Troy; he's Dutch.

    ReplyDelete
  20. "It is the effect of the 14th Amendment to incorporate the provisions of the Bill of Rights to apply to the States."

    Feel free to make that argument yourself but do not assume that the rest of us will be satisfied with "Hugo Black done tol' me so."

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    1. To get the full affect of your comment I need to know in what vernacular the “done tol’ me so” is best imagined, negro share cropper or South Carolina high school grad? Thanks for keeping it classy.

      -KW

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    2. @R OBrien:

      [do not assume that the rest of us will be satisfied with "Hugo Black done tol' me so."]

      Excellent point. The Grand Kleagle himself was largely responsible for the incorporation doctrine, as well as for the separation doctrine.

      Delete
    3. "Excellent point. The Grand Kleagle himself was largely responsible for the incorporation doctrine, as well as for the separation doctrine."

      Jump up and down and show your ignorance more why don't you?

      Freedom of assembly incorporated in De Jonge v. Oregon, 299 U.S. 353 (1937). Hughes wrote the opinion. Black wasn't on the court.

      Freedom of the press incorporated in Near v. Minnesota, 283 U.S. 697 (1931). Hughes wrote the opinion. Black wasn't on the court.

      Freedom of speech incorporated in Gitlow v. New York, 268 U.S. 652 (1925). Sanford wrote the opinion. Black wasn't on the court.

      Free exercise incorporated in Cantwell v. Connecticut, 310 U.S. 296 (1940). Roberts wrote the opinion. Black joined the unanimous opinion.

      free assembly incorporated by implication in Edwards v. South Carolina, 372 U.S. 229 (1963). Stewart wrote the opinion. Black joined the 8-1 majority.

      That's just the first amendment. Also incorporated: right against unreasonable search and seizure, the requirement of a warrant, prohibition against double-jeopardy, right against self-incrimination, protection against takings, and a host of other protections.

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    4. So, far from being "largely responsible for the incorporation doctrine", he wasn't involved in most of it. The only incorporation opinion he wrote was Everson, and he wasn't even on the court for most of the incorporation-related decisions.

      So, on this point, like on pretty much every other, you are uninformed and incorrect.

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    5. @anon:

      Black was a strong proponent of incorporation, differing with other justices in that he insisted that all of the Bill of Rights was incorporated by the 14th Amendment. His dissent in Adamson v California was a landmark in incorporation doctrine jurisprudence.

      Black's radical theory of total incorporation was in the minority until the 1960's, when the Warren court finally embraced Black's radical view.

      Get your facts right.

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    6. And yet, most of the incorporation doctrine cases took place when Black wasn't even on the court. I know you're used to dealing with a world of fantasy, but the facts are against you. Black wasn't "largely responsible for incorporation doctrine". He wasn't on the court for the first cases, participated in a few in which he voted with large majorities, and was off the court again for much of the rest.

      Pretending that he alone was somehow responsible for a series of decisions, most of which he wasn't even on the court for, is an incredibly delusional position.

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