"A federal judge in Wisconsin declared Thursday that the US law authorizing a National Day of Prayer is unconstitutional," the Christian Science Monitor reports. Eugene Volokh discussed it here. And Joe Carter/First Things discussed it here.
Francis Beckwith commented there:
... What is interesting about Crabb’s opinion is that it treats anti-establishment as a highly abstract principle about which history has no bearing. It would be like interpreting the public park prohibition–”No vehicles allowed”–as including Big Wheels and baby carriages without any reference to common practice or the meaning understood by the city council that passed the ordinance.
Ahistorical jurisprudence is an oxymoron.
Well, I don't quite see it that way. And I don't see the Michael Newdow types as flying in from Mars and arguing principles that have nothing to do with the Founding. To the contrary, Newdow quotes the Founders (accurately and in the proper spirit) quite a bit.
Bear with me one bit for why.
I noted in the comments sometimes the broadly abstracted ideals of the Founding era must trump dominant historical practice.
If we interpret what the Founders SAID in their broad rhetoric through what they DID, in practice, one could rightly argue what America was all about is granting equal liberty rights to white propertied Protestant males.
That's what Barry Shain (paleoconservative) argues along with the anti-American Left.
It's impossible for the American Founding to take the moral high ground if America was all about privileging white propertied Protestant males. And the only way out of that dilemma is to abstract ideals from the Founding that sometimes trump dominant historical practice.
Professor Dale Coulter interestingly noted there was much anti-slavery rhetoric during the American Founding and that anti-slavery sentiment and practice was a viable competing tradition, along with pro-slavery sentiment and practice.
Therefore we use our reason and other supplementary principles to decide among competing historical traditions.
Likewise with religion, there were competing traditions during the American Founding. One tradition held only certain kinds of belief are entitled to full liberty and equality rights (I'm hesitant to say "Protestant only" because each state had its own varied way of deciding who got what rights). The other held religious rights applied universally to all citizens.
That brings us to what Michael Newdow argues: “Hey we atheists are citizens too, entitled to equal respect.”
And I agree with them in that regard. However, I just don’t agree that government words really harm them in such a tangible way that it necessarily rises to the level of an individual constitutional right to be free from hearing or seeing government messages that make them feel like unequal citizens.
But without question, much of Newdow's rhetoric resonates with much of what was said during the Founding era, especially James Madison whom Newdow often quotes.
And I'm glad to see Professor Coulter agreed, in principle, with the latter, broader more generous tradition of the American Founding that holds everyone's conscience, including that of the atheist deserves equal respect.
The harder questions are how to get there in a 1) constitutional and 2) policy sense (the two aren't always supposed to be the same).
Do we need a naked public square where the state is always silent on religious beliefs? Or perhaps a more open pluralistic public square where the state, in its public supplications, sometimes says things that you or I agree with, sometimes not?
I'm willing to endorse the latter position as long as its understood that if the pious Christians get the state chaplain microphone, sometimes the Hindus and the atheists get it too.
And I think that pluralism perfectly "fits" with the ideals of the American Founding.