Saturday, March 13, 2004

Everson was consonant with our original principles:

(Originally published on Freespace)

Following up on my last post regarding social conservatives and the separation of Church and State, many religious conservatives claim that the case of Everson v. Board of Ed., 330 U.S. 1 (1947), incorrectly applied the Establishment Clause to the states—that the words “Congress shall make no law…” means Congress only, and that nothing has ever been written that should lead us to think that the First Amendment was ever intended to constrain state and local governments. I have posted that Randy Barnett makes a convincing case that the Framers of the 14th Amendment did indeed intend to incorporate the first eight Amendments of the Bill of Rights and apply them against the states. Therefore, there is textual authority (positive law) to support Everson’s application of the Establishment Clause against the states.

Still, many social conservatives disagree with my account of the 14th Amendment. Leaving aside the debate of whether incorporation was truly intended, let’s step back for a minute and examine the policy behind incorporation and ask how it squares with the abstract philosophical principles of natural and political right that this nation was founded on. Barnett posits that the “privileges and immunities” referred to in the 14th Amendment are these very same foundational natural and political rights. Barnett’s view simply calls for a broader, more universal application of these principles; Bork et al. call for a narrower, more restrictive application.

The Everson decision dealt with a vital natural right, liberty of conscience, which arguably was the one natural right that our founders thought to be the most important, the most unalienable. Everson (finally) helped to secure this right against state governments. Even if “technically” the Borkians are correct, that the First Amendment only constrains Congress, etc., the end result of allowing states to intermingle Church and State essentially allows states to subvert the most important of all of the natural rights.

As I wrote about earlier on this site, there is a group of social conservatives including Bork and many of the followers of Leo Strauss who advance a particular method of constitutionalism that seeks to divorce the Constitution from Natural Rights, and to use this constitutional methodology to turn away from and even subvert the original principles of natural rights that founded this nation. Their disagreement with incorporation in general and the Everson decision in particular illustrates this.

Just look at what Walter Berns (a Straussian—one of thinkers that I refer to above) has written regarding Everson: “Previously, everyone having anything to do with the subject understood that the prohibitions of the First Amendment did not apply to the states, and that to change this would require a constitutional amendment. This was Madison’s view. During the debates in the First Congress on the amendments that became the Bill of Rights, he proposed an additional amendment—he thought it the ‘most valuable amendment’ in the list—forbidding the states to ‘violate the equal rights of conscience.’ After being adopted in the House of Representations (where Madison served), the proposal went down to defeat in the Senate…But what Madison could not do in 1789…a divided Supreme Court…effectively did in the 1940s. Making Patriots, pp. 73—74.

This passage is so telling. The Supreme Court’s decision was—from a standpoint of Berns’s narrow positivistic constitutionalism—technically wrong. But what was the end result of that decision? It fulfilled Madison’s wishes and finally fully secured the most vital natural right, the most important of our original principles, against state violations!

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