Judge "Jackass" Jones' "true religion" interpretation of the Constitution's establishment clause fails a new test that I am proposing, which I call the "compelling reason" test. I am defining this test as follows: when a constitutional interpretation cannot be derived explicitly or implicitly from the language of the Constitution, such an interpretation is valid only if it serves a truly compelling purpose. An example of such an interpretation is the prohibition on shouting "fire" in a crowded theatre -- such a prohibition is not explicit or implicit in the freedom of speech clause. I am using the word "interpretation" here very loosely, since the word usually means an explanation or clarification of the meanings of some words but here there are no words to interpret -- I am using the word "interpret" in the second sense given in the AOL's online dictionary: " 2. to conceive in the light of individual belief, judgment, or circumstance : construe." I also propose the following rules: (1) the "compelling reason" test should not be strictly applied to constitutional interpretations that are not used as the basis for a court decision, and (2) the test should apply only to general principles and not to how those principles apply to a specific situation (IMO there should be some allowance for differences of opinion as to how a "compelling reason" principle applies in a specific situation). I propose this "compelling reason" test for the purpose of helping to reduce arbitrariness, capriciousness, subjectivity, and general "activism" and "legislating from the bench" in judicial opinions. Judges are merely told that they should not be "activists" or should not "legislate from the bench," without being given a set of principles or guidelines that they should follow to avoid those things.
As I noted above, an example of a judicial principle that satisfies the "compelling reason" test is the famous prohibition on shouting "fire" in a crowded theatre. This prohibition cannot be expressly derived from the freedom of speech clause of the 1st amendment but is obviously necessary for compelling reasons. Another example of a judicial principle that satisfies the "compelling reason" test is the so-called "dormant commerce clause." The Constitution grants Congress the power to impose burdens on interstate commerce but does not expressly prohibit the states from imposing such burdens without the permission of Congress, so the courts, realizing that allowing states an unrestricted right to burden interstate commerce would result in chaos, invented a "dormant commerce clause" which denies such an unrestricted right. Another judicial principle of the courts allows -- for truly compelling reasons -- exceptions to the dormant commerce clause. Judge Jones' "true religion" interpretation of the establishment clause fails this proposed test -- the interpretation cannot be derived from the language of the establishment clause, and there was no compelling reason for the interpretation, even if it is supposed that maintaining the separation of church and state is truly compelling. Judge Jones showed extreme prejudice against intelligent design and the Dover defendants by saying in a Dickinson College commencement speech that his Kitzmiller v. Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions [link]:
Ironically, but perhaps fittingly for my purposes today, we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.
Unfortunately, the original speech is no longer posted on the Dickinson College website.
Ironically, Judge Jones gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto, in Latin, which translates, "religion and learning, the bulwark of liberty." Also, Judge Jones has claimed that the work of judges is "workmanlike," but there is nothing workmanlike about his "true religion" interpretation of the establishment clause.
Believe it or not, some trolls -- Kevin Vicklund and others -- claimed that I misinterpreted Judge Jones' above statement. But no statement could be clearer --"church" and "Bible" represent organized religions, and Judge Jones said that "true religion was not something handed down by a church or contained in a Bible." Under the principles of Social Darwinism, these trolls would be euthanized to protect themselves and others from the possible consequences of their own stupidity, or at least would be sterilized to prevent them from transmitting their mental defectiveness to future generations.
Law professor Robert Tsai, in a post on the Volokh Conspiracy blog, comments about his book Eloquence and Reason:
Because the text of the First Amendment has never changed, those interested in constitutional transformation have always used text instrumentally to secure a hegemony of preferred values, outlooks, and modes of talking about the provision. Whether insiders admit it or not, the task of judging involves sorting through competing claims to determine which cultural and political perspectives ought to be validated and which ones should be resisted. Judges have always played a role in this social process, even if theirs is rarely the last word on a subject. There is no such thing as neutral interpretation; there is only how transparent an interpreter chooses to be about her methodologies and substantive commitments.
"Eloquence and Reason" examines historical episodes in which activists, lawyers, and presidents such as FDR and Ronald Reagan worked to dislodge reigning constitutional ideas and reshape our understandings of free speech and religious freedom . . . .
A second episode has to do with the Anti-Establishment Clause. The “wall of separation” metaphor appeared as part of an official post-war strategy to keep the peace. As originally conceived, Justice Black’s version of the boundary idea conveyed liberalism’s commitment to equal respect, to the protection and empowerment of religious minorities, and to guaranteeing a strong state uncorrupted or divided by religious strife.
Over time, these connotations were consciously reconfigured through litigation, activism, and the electoral process. Through a process of composition, reaction, adaptation, and dissolution, the wall of separation began to acquire negative connotations. Those outside of the courts began to say that the wall signified hostility or discrimination, oppression of religious minorities, and a state weakened by the alienation of its citizens. Eventually judges endorsed this way of describing the wall of separation, shunning it as a trope and divorcing it from their analyses of the controversies that arose.
The title of the book, "Eloquence and Reason," is a misnomer -- what the book criticizes is not reasonable or eloquent (of course, it would be hard to be both unreasonable and eloquent).
Labels: Establishment clause (new #2), Judge Jones (new #3)