Using their religion

>> Wednesday, April 03, 2013

Whereas, the Establishment Clause of the First Amendment of the Constitution of the United States reads:"…Congress shall make no law respecting an Establishment of Religion, or prohibiting the free exercise thereof;…"; and
Whereas, this prohibition does not apply to states, municipalities, or schools; and
Whereas, in recent times, the federal judiciary has incorporated states, municipalities, and schools into the Establishment Clause prohibitions on Congress; and
Whereas, the Tenth Amendment to the Constitution of the United States reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."; and
Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and
Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and
Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion; and
Whereas, Rowan County, North Carolina, asserts that the protections afforded to citizens of the United States under the First Amendment are not in any way to be abridged when such citizens become government actors by virtue of their appointment, election, contract, employment, or otherwise engagement; and
Whereas, Rowan County, North Carolina, requests and encourages the North Carolina General Assembly to pass a resolution declaring that the State of North Carolina does not recognize the authority of federal judicial opinions arising from the exertion of powers not granted to the federal government by the Constitution of the United States; Now, therefore,
Be it resolved by the House of Representatives, the Senate concurring:
SECTION 1.  The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.
SECTION 2.  The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.
SECTION 3.  This resolution is effective upon ratification.
- NC House Joint Resolution 494, April 2, 2013

Sec. 5.  Allegiance to the United States.
Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.
- NC State Constitution, Article I, section 5

A friend posted this to Facebook today: "Proposal Would Allow State Religion In North Carolina".  In Raleigh, the legislature is considering the bill, text at the top of the post, claiming for the General Assembly the power to override the Federal Courts.  The biggest and least-obvious objection follows.

I wish I could say I was surprised by the irony that the current crop of state legislators apparently doesn't know what's in the state constitution, even if they want to wear the mantle of Constitutional scholars.  The North Carolina State Constitution is a very Southern document, in the specific sense that it has a bunch of clauses that were obviously inserted after the American Civil War as a part of surrender and reinstatement into the country.  Article I, section 4, for instance: "Secession prohibited"; I'm not sure I need to reproduce the full text, do I?  Actually, yeah, I probably should, because its emphatic qualities probably are better appreciated that way:

This State shall ever remain a member of the American Union; the people thereof are part of the American nation; there is no right on the part of this State to secede; and all attempts, from whatever source or upon whatever pretext, to dissolve this Union or to sever this Nation, shall be resisted with the whole power of the State.

Never again!  In fact, if I'm reading that correctly, we'll slap another bitch down if they want to secede.  Hear that, Texas?  Try severing the nation, we will come at you with "the whole power of this State".  Not sure what we have to muster, but whatever it is, bam!, it is on.

The Federal Courts, of course, have been granted the power to interpret the Constitution since 1803, when John Marshall said they had the power to interpret the Constitution.  This is obviously not what you would call a recent development, unless perhaps you're an archaeologist taking the long view of human affairs.  Or in the Carl Sagan sense.  You could even say this is the law of the land (which, it happens, is mentioned in North Carolina's version of a due process clause, Article I, section 19).  Chief Justice Marshall's ruling arises from his reading of Article I, Section 2 of the United States Constitution, which grants the Supreme Court and "such inferior courts as the congress may from time to time ordain and establish" (Article I, section 1) "judicial power... to all cases, in law and equity, arising under this Constitution, the laws of the United States", which is admittedly a little vague, but Marshall's interpretation has prevailed for more than two centuries.

Meanwhile, it seems a little tautological to point out that the Supreme Court, utilizing the powers they've been invested by two hundred years of law and custom, has consistently held the Tenth Amendment doesn't mean what the members of the North Carolina General Assembly who are proposing this nullification bill seem to think it means.  But there it is.

I find myself not-so-much angry about all this as I find myself vaguely baffled and faintly dismayed.  This is where we are: the State Of North Carolina is dealing with massive unemployment and facing various looming fiscal crises, and the State House has enough idle time to get miffed by a judicial ruling that Rowan County Board Of Commissioners, like other governmental bodies, can pray when they convene so long as the prayer is nondenominational.  Quelle horreur.  And now they want to pass a resolution that's clearly in violation of the state constitution and clearly in violation of the Federal constitution, and that's basically an invitation for the state to be sued at some point by some nonprofit like the ACLU or the ADL that basically exists to file lawsuits about this kind of thing.  One isn't sure if these guys are stupid or if they're just trying to score points on some kind of political scoreboard (being the sort who would consider being sued for Jesus a badge of honor, I guess), or if those options aren't really mutually exclusive, said guys being stupid for trying to score some kind of stupid points in some kind of stupid game for stupids.

It's frankly not clear to me whether this country is in decline or whether things have pretty much always been this bad and I was just too focused on other things when I was younger to notice how bad things were then, or perhaps I did notice, but the vagaries of age are that some things get eclipsed when boxes are reorganized in the mental warehouse, stashed behind unlabeled crates full of potential responses to future Jeopardy categories.  The History major in me says one epoch is very like another; same old shit, different actors flinging it.  Yesterday's Father Coughlin, today's Pat Robertson, f'r'instance.  This ends up being a completely uncheering thought because the implication is that there are some things in which there's simply no human progress at all; I mean, clearly there's some kind of human progress insofar as we no longer burn witches or buy-and-sell human beings, but still, nevertheless, the net population of morons remains the same in some kind of perverse Conservation Of Idiocy principle ("Stupidity may neither be created nor destroyed, only changed in one form to another") which is disheartening.

At some point one feels like one is kicking against the pricks in all the figurative and literal, traditional and contemporary senses of that strange old biblical phrase, and one gets tired of all the somewhat-self-inflicted hoiting (read that in a Jerry Lewis voice like Professor Frink's, natch).  One recalls the old joke about the fellow hitting himself in the face with a paddle "because it feels so good when I stop".  Has it always been this bad or has it gotten worse, and am I happier just shaking my head and walking away?  Is it really so wrong of me to think that if some people are so dead-set on burning civilization down, I might as well be toasting marshmallows amidst the ruins instead of vainly blowing on their cigarette lighters?


Anonymous,  Wednesday, April 3, 2013 at 12:43:00 PM EDT  

To be fair, from a historical perspective there's a strong argument that the Establishment Clause actually wasn't meant to reach the States, and that the Court may be doing some violence to the text and its intent by incorporating it to the States (in a way that it does not do violence when applying other Bill of Rights provisions). Akhil Reid Amar writes about this in either The Bill of Rights or The Constitution: A Biography (can't remember which).

That said, the Court stretches both text and original intent all the time (paging Dick Heller!), and we all have to live with it because the law has to have a final expositor or the Union would become an unmanageable riot. So, yeah, Section 2 of the bill is bullshit. In fact, it's such bullshit that I think it can't possibly be intended as anything but political theater -- red meat for the base. But I don't know NC politics.

Anonymous,  Wednesday, April 3, 2013 at 1:04:00 PM EDT  

(To be completely clear, I agree with the Court: I do not want to live in a country where the States can establish an official religion.)

Eric Wednesday, April 3, 2013 at 3:50:00 PM EDT  

Yeah, but from a historical perspective none of the first eight Amendments to the Constitution were ever meant to reach the states, and it's not really until the 20th Century that the Supreme Court starts using the Fourteenth Amendment to consistently rule that any of them apply to the states at all. And there are a lot of sound arguments that using the Fourteenth Amendment to incorporate the Bill Of Rights was a kind of screwy way to read the privileges and immunities clause, notwithstanding at least some of the framers of the Fourteenth going on record that that's exactly how they intended it to be read.

O'course, those arguments don't change the fact that this is clearly the law of the land at this point. And, y'know, one suspects that the legislators pushing this thing would be more than happy to take advantage of incorporation if, say, they were replaced by Democrats who passed a resolution that (1) Federal judicial rulings regarding the First Amendment aren't applicable to states, (2) Article I, section 14 of the NC State Constitution protects freedom of speech and the press but stipulates that "every person shall be held responsible for their abuse" and (3) that anything a Republican has to say in public about anything other than a drive-thru order at McDonald's is a de facto abuse of the right of freedom of speech due to their history of saying dumb things therefore (4) Republicans are henceforth publicly silenced except when placing drive-thru orders at McDonald's. I think at that point they would be among the first to be pulling out the Supreme Court and Fourth Circuit COA decisions re: the applicability of the First Amendment to the states through the Fourteenth, etc., but of course I could be wrong about that....

One suspects it's political theatre, as you say, though it's pretty gratuitous theatre (none of these guys, so far as I know, face any real threat of being voted out of office in a couple of years when they're up for reelection). The other possibility that suggests itself, though, is pique: the resolution is a response to a recent legal defeat in their home counties. Which would be juvenile, but that isn't surprising, I'm afraid.

Anonymous,  Wednesday, April 3, 2013 at 5:25:00 PM EDT  

To clarify my original point slightly: IIRC, Amar argues that the Establishment Clause was actually intended to prevent the federal government from interfering with state establishment of religion. Which puts it in a somewhat different original position from the other 1st Am. provisions. (I think it would look, instead, something like the states-rights interpretation of the 2nd Am. Which maybe just goes to show that the Court has moved strongly away from states' rights and toward individual rights across the board.)

Anyway, as we've both said now, the modern establishment doctrine is the law of the land, and indeed should be. (Otherwise California might establish The Church of Non-Smoking Vegetarianism of St. Prius, and then where would we be?)

Nathan Wednesday, April 3, 2013 at 8:11:00 PM EDT  

Meanwhile, in Tennessee...

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