Suppose President
Bush bribes a few legislators in order to get the last votes necessary to pass a
constitutional amendment limiting marriage to one man and one woman. Could
he defend his actions by pointing out that Seward may have used briberty to
procure the last crucial votes necessary
Dear all,
I apologize in advance, if I missed the list's discussion of Justice
Thomas's views regarding the incorporation of the Establishment
Clause. For what it's worth, I've been surprised by the vigor with which
several prominent scholars have disapproved these views. Jack Balkin
bedrock. Still, is there a reason why we should not concede that he
is -- or, at least, MAY be -- correct?
Best,
Rick Garnett
The Civil War Amendments rewrote the Constitution. People are entitled
to protection against establishment period. Limiting the states is what
happened with our
The LA Times story is available on Westlaw for those who would
like to read it without giving their phone number and income to the LA
Times. Expletives deleted.
Obviously the way you would explain what is wrong with Thomas's
opinion on this list is different from how you would
I hope it is permissible to post this on the list-serve. I do so in my
capacity as faculty advisor to the Tulsa Law Review.
--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189
918-631-3706 (office)
918-631-2194
Isn't it the case that whether Thomas is correct or not depends in part on
whether only the text of the constitution (or the text and original intent)
is a relevant datum or whether accumulated cases law also counts as
constitutional law. On the text only vision of constitutional law, Thomas
has
I don't think Thomas disbelieves that incorporation has occurred (or
happened), and that has included the establishment clause. I think he is
questioning whether it is justified. After all, in the same 1940s in which
Everson came down the pike so did the Japanese internment case. I don't
think
It seems to me that Justice Thomas's position -- or for that
matter, the Chief's similar position in Wallace v. Jaffree in the
mid-1980s -- is eminently credible.
The case for the Establishment Clause not being incorporated is
at least as strong, it seems to me, as the case for
So its ok for the New Deal-Warren Court to re-write the Constitution to its
pleasure, but somehow lunatic fringe for Justice Thomas even to ask the question
what the Constitution as written and ratified actually meant? Seems to me that the
oath of office for him (and indeed every other officer
I was surprised by Justice Thomas's statements suggesting that it is not
entirely clear that the Establishment Clause prohibits Congress from
establishing a national religion. See his opinion at p. 6 (saying only that
the Est. Clause probably does so as a textual matter) and p. 7 (But even
Doug Laycock is right to suggest that the federalism case for the
establishment clause is at least as strong in regard to other rights
listed in the Bill. For example, when Congress passed the alien and
sedition acts, Madison argued that the acts, among other things,
violated the rights of
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