"Gus" wrote in message
oups.com...

Ed Huntress wrote:


How about the other questions, Gus? Do you have any opinions on them?

I have a little opinion on this one:

2) Do you believe that the First and the Second Amendments apply to the
states?

I think that where the First Amendment says "Congress shall make no law
respecting an establishment of religion" what it actually means is
Congress shall make no law.

How about the states? Can they make such a law?

It doesn't mean that some county worker
somewhere can't wear a little necklace with a cross on it. It doesn't
mean that some third grader someplace can't pass out Christmas cards to
other kids with the dreaded J-word on them. It doesn't even mean that
some judge somewhere can't have a little plaque on the wall with the 10
commandments on it.

The phrase "shall make no law respecting" means no law either for or
against. It means to stay out of it.

Without getting into a big debate about it, what happened is that the Court
ran into cases in which it was clear that Christian religion was going to
chisel its way into a state of quasi-establishment if the doctrine wasn't
made more absolute and clear. There was Jefferson's "wall of separation"
letter in 1802, for example. Is was a nose-under-the-tent issue.

But you can argue that there was no original justification for such a
position; the Court and others in government just made the wall higher as
time went on. Some would argue they did so out of practical necessity, in
order to keep true to the original idea, but others would argue that they
went too far in their zeal.

I won't argue your point because it is a legitimate point of view. Likewise,
the other historical view. I would stop short of anything that looked to me
like suppression of religious expression, and the examples you gave are over
that line, IMO. In other words, I agree with what you're saying, to the
degree that you've expressed it above.


I think that you are bringing up some good points but the "living
constution" idea has been misused to the point where many people are
tired of the fact that lawyers and judges can turn "yes" into "no".
They can make up anything they want and that isn't how it's supposed to
be. Some have even gone so far as to mention foreign law in their
decisions.

All of this is true in certain cases, but the people who object to the
"living Constitution" idea usually don't think about, or maybe don't know
about, the many cases that would have produced a result they didn't like if
they had been decided on originalist grounds. The big area of problems is
with states' rights and the Fourteenth Amendment. If it wasn't for "living
Constitutionalists" expanding two particular clauses, you would definitely
NOT have a right to free speech in most states, for example. And there would
be more establishment of religion than you might care for -- at the state
level.

This is why I say to be careful of what you wish for. Originalism leans
heavily toward states' rights, based on a narrow interpretation of the
Fourteenth. I'm not arguing that their interpretation is wrong, only that
we'd have a revolution in this country if the originalists got their way.
Very few people would really like a strictly originalist Court. Even Scalia
tempers it by deferring to precedent. Thomas does not temper it.

Maybe we need some term limits on judges. Why do they have
to serve until they're ready to die?

It might not be a bad idea to set term limits.

--
Ed Huntress