Breaking Free of the Filibusters
I need a filibuster break. That's all anyone's talking about, with good reason obviously, when it comes to judges and the judiciary. It reaches into this blog's niche, but only marginally: The Vote for Judges agenda kicks in after the nominees are on the bench.
So, a little history. How Appealing, amid link after link to filibuster news, has this item:
The post-Civil War 14th Amendment changed the character of America. It converted citizens of states into U.S. citizens by including this language: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."
I think it's safe to say that this amendment, the 13th passed a couple of years before and the 15th that followed it were intended to abolish slavery and any post-slavery complications for black Americans.
They also included this line: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." This was intended, at least according to this paper, to rein in the Supreme Court, which contributed to the start of the Civil War with the Dred Scott decision. (You think criticism of judges is harsh today? Here's the New York Times on Chief Justice Taney of the Scott court: Taney would "go through history as the judge who dragged his official robes in the pollutions of treason.")
Stay with me, I'll get back to the Wiccans in a minute.
So the Supreme Court's first opportunity to deal with the 14th Amendment came in the Slaughterhouse cases, wherein a bunch of butchers sued the state of Louisiana for establishing a slaughterhouse monopoly. If the court had been more literarily inclined, the defendants would've been known as the Slaughterhouse Five. Sorry. Anyway, the court, in 1873, took a very narrow view of the 14th Amendment, and held for the State.
Over the years, the court's view widened as it "incorporated" the Bill of Rights into the 14th Amendment, meaning that it prohibited the states from doing most of the stuff the Bill of Rights prohibits for the federal government: "Congress shall make no law ..." etc. This chart dates incorporation of the First Amendment's establishment-of-religion clause to the 1940s.
Which brings us to the fact that the U.S. Court of Appeals for the Fourth Circuit must now busy itself with deciding whether the Richmond City Council can limit its benedictors to those performing in the Judeo-Christian tradition. This, I suppose, leaves Wiccans off the rotation.
Slavery was a human tragedy, but a tragedy also for the concept of the United States. It wedged hypocrisy into an otherwise brilliant Constitution. Distorted our laws: from Scott before the Civil War to Plessy long after it. Left 600,000 dead in the Civil War. And in the process of correcting it, altered the character of what the founders intended from one of fairly autonomous states to one of 50 glorified administrative agencies. And it should be said that the Supreme Court played a role in prolonging the pain.
I guess there's no going back to a reconstituted founding without slavery and its discriminatory after-effects, or to the days before the Court decided to misread the 14th Amendment. It's been used now to justify federal control of everything from state prisons to the appearance of a small cross in the seal of the City of Los Angeles. As in other fields of judicial activism, we've grown accustomed to the judicial-imposed reality: In 14th Amedendment jurisprudence, states as homogenized as shopping malls, every one of which includes a Gap and a JC Penney.
It just strikes me as a very poor use of the Court's time to micromanage prayer in Richmond. I think the founders would agree.
***** Not sure why I wrote this. Might be seen by a total of three people, given the limited trackback possibilities. But here are links to the open posts at the Mudville Gazette and OTB ... Ah, but of course! Link to others who may need a filibuster break: Here's Ace, who has no complaints on the latest Frist offer; Jayson isn't impressed ... Confirmthem provides a link to Democratic grievances ... Michelle Malkin remembers ... With Steven Taylor, it's all process ... Looks like Professor Bainbridge is taking a break himself, just start with Scalia and scroll ... SCOTUSblog explains a case that's much more important than the Word from Wicca ... I'm not the only one tracking down cases from the 1800s ...
And finally, if this post didn't do it for you, maybe Article III Groupie can oblige (although I see I've been de-blogrolled. Must've been that trackback crack about Blackmun's clerks...).
So, a little history. How Appealing, amid link after link to filibuster news, has this item:
"ACLU files petition on behalf of Wiccan witch": The Richmond Times-Dispatch today contains an article that begins, "The American Civil Liberties Union of Virginia has filed a petition on behalf of Cynthia Simpson, a witch of the Wiccan faith, seeking to reverse a ruling that upheld Chesterfield County's decision to bar her from giving the invocation at Board of Supervisors meetings."This sent me off to the 14th Amendment research room. If I accomplish nothing else here, I'll have learned a lot in not accomplishing it.
The post-Civil War 14th Amendment changed the character of America. It converted citizens of states into U.S. citizens by including this language: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."
I think it's safe to say that this amendment, the 13th passed a couple of years before and the 15th that followed it were intended to abolish slavery and any post-slavery complications for black Americans.
They also included this line: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." This was intended, at least according to this paper, to rein in the Supreme Court, which contributed to the start of the Civil War with the Dred Scott decision. (You think criticism of judges is harsh today? Here's the New York Times on Chief Justice Taney of the Scott court: Taney would "go through history as the judge who dragged his official robes in the pollutions of treason.")
Stay with me, I'll get back to the Wiccans in a minute.
So the Supreme Court's first opportunity to deal with the 14th Amendment came in the Slaughterhouse cases, wherein a bunch of butchers sued the state of Louisiana for establishing a slaughterhouse monopoly. If the court had been more literarily inclined, the defendants would've been known as the Slaughterhouse Five. Sorry. Anyway, the court, in 1873, took a very narrow view of the 14th Amendment, and held for the State.
Over the years, the court's view widened as it "incorporated" the Bill of Rights into the 14th Amendment, meaning that it prohibited the states from doing most of the stuff the Bill of Rights prohibits for the federal government: "Congress shall make no law ..." etc. This chart dates incorporation of the First Amendment's establishment-of-religion clause to the 1940s.
Which brings us to the fact that the U.S. Court of Appeals for the Fourth Circuit must now busy itself with deciding whether the Richmond City Council can limit its benedictors to those performing in the Judeo-Christian tradition. This, I suppose, leaves Wiccans off the rotation.
Slavery was a human tragedy, but a tragedy also for the concept of the United States. It wedged hypocrisy into an otherwise brilliant Constitution. Distorted our laws: from Scott before the Civil War to Plessy long after it. Left 600,000 dead in the Civil War. And in the process of correcting it, altered the character of what the founders intended from one of fairly autonomous states to one of 50 glorified administrative agencies. And it should be said that the Supreme Court played a role in prolonging the pain.
I guess there's no going back to a reconstituted founding without slavery and its discriminatory after-effects, or to the days before the Court decided to misread the 14th Amendment. It's been used now to justify federal control of everything from state prisons to the appearance of a small cross in the seal of the City of Los Angeles. As in other fields of judicial activism, we've grown accustomed to the judicial-imposed reality: In 14th Amedendment jurisprudence, states as homogenized as shopping malls, every one of which includes a Gap and a JC Penney.
It just strikes me as a very poor use of the Court's time to micromanage prayer in Richmond. I think the founders would agree.
And finally, if this post didn't do it for you, maybe Article III Groupie can oblige (although I see I've been de-blogrolled. Must've been that trackback crack about Blackmun's clerks...).
posted by Karl Maher at 8:47 AM
<< Home