Saturday, December 6, 2008

Religion, Early America & the 14th Amendment

The following is an outstanding symposium put on by by Federalist Society on the First Amendment's religion clauses and the Fourteenth Amendment featuring Philip Hamburger (of Columbia University School of Law), John Eastman (Dean of Chapman University School of Law) and Marci Hamilton (of Cardozo School of Law and currently visiting at Princeton). Hamilton also happens to live a few miles up the road from me in Washington's Crossing, PA (which she mentions in the lecture).


Tom Van Dyke said...

I caught this video in and out today, and heard Ms. Hamilton repeat what I find to be a canard and one that seems to be growing in popularity---that the differences in doctrine between Christians makes the word "Christian" meaningless in connection with the Founding or the "nation."

Divide and conquer! Objection, rejection, abjection and dejection! I'm shocked at such easy sophism. Details are not essence!

I got me a new jihad...

Jon, Amendment XVI has always loomed on our horizon, well after the Founding discussion, that the religion question can be steamrolled by a loose [dare I say "liberal?"] application of "equal protection of the laws."

The argument that the legislators in the late 1800s acknowledged that Amendment XVI did not "incorporate" the First Amendment's religion clauses, and that it's only been incorporated through 20th century "judicial activism" is a strong one.

Stare decisis is a revered principle in American law, but if Plessy could be [righteously] overturned after more than half a century, so can other precedents dating from this past century.

It never ends...

Jonathan Rowe said...

I'm actually dealing with incorporation thru Amendment XIV (not XVI) in a new post. Needless to say I think the argument is stronger that the Establishment Clause doesn't incorporate; there is evidence that the other parts of the BOR were meant to incorporate. Hamburger disputes that evidence as dispositive, but the evidence that Akhil Amar mustered was strong enough to convince Justice Thomas.

Tom Van Dyke said...

Oooops. XIV. I don't speak Roman.

As for Thomas, Interesting.

Jonathan Rowe said...

Yes if you read Thomas' position carefully it's not unlike that of liberal law professor Akhil Amar's. The BOR properly incorporates thru the privileges or immunities clause of the 14th but while the establishment clause doesn't incorporate, the free exercise clause does.

Though Amar notes the equal protection clause demands state government not discriminate on the basis of religion, not unlike what the court currently has the establishment clause doing.