Hmm -- since the civil rights movement was at the very least
politically controversial in the 1960s, it seems to me hard to
distinguish that from the current situation for constitutional purposes.
It might not have been a Democrat/Republican issue as such, but surely
it was an LBJ and his allies/some of LBJ's opponents issue. And by 1968
it was certainly a Presidential election issue, with a third-party
candidate running on, shall we say, a platform that didn't embrace a
very broad civil rights agenda. So whatever the Establishment Clause
means here, it seems to me that it would either equally condemn such
appeals, or equally reject them.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Newsom Michael
> Sent: Wednesday, June 16, 2004 2:51 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: The President and the Pope
>
>
> I put the proposition badly. The point was that there is
> probably a difference between asking for help for a
> non-partisan program and help for a partisan program. Bush's
> appeal is largely, although not entirely, partisan. There
> may or may not be a "constitutional" difference, although, as
> I mentioned in another of this flurry of posts from me, I am
> intrigued by Bruce Ackerman's thesis about the New Deal (and
> indeed the Constitution itself). He sees them as ultra vires
> constitution-writing. The president can ask the Pope for
> anything he wants to, and the Pope can grant the request or
> not. The question becomes, at the level of
> constitutionalism, whether or not the American polity will
> come to accept an alliance of Republicans and the Catholic
> hierarchy as "constitutive." If it does, then there has
> been, if I understand Ackerman, an amendment to the Constitution.
>
> If LBJ had asked church leaders to back a civil rights
> agenda, could one describe the probable result as an alliance
> between Democrats and these Church groups? I don't think so.
> It is true, however, as LBJ predicted, that many American
> whites abandoned the Democratic Party
> because of its commitment to civil rights. But LBJ's "intention" in
> the hypothetical could not possibly be the creation of a
> partisan church-state alliance. He regretted the fact that
> civil rights became yoked to the Democratic Party. The
> present situation by contrast bids fair to produce a
> Republican-Catholic hierarchy alliance if the Pope were to
> agree with Bush's request (and that certainly appears to be
> precisely what Bush wants). I think that that difference
> matters, at least as a matter of constitutional principle.
>
>
>
>
> -----Original Message-----
> From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
> Sent: Wednesday, June 16, 2004 5:08 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: The President and the Pope
>
> Hmm -- I haven't gotten the same sense; might I ask
> which particular presidential initiative (as opposed to broad
> policy goals related to abortion, gay marriage, etc.) the
> President was asking the Pope to support?
>
> More broadly, would there be a *constitutionally
> significant* difference there? Is it that LBJ would have
> been entitled to say "tell your congregations to take
> seriously Christ's teachings of dignity, and renounce racism
> and support civil rights," but would have violated the
> Constitution by saying "tell your congregations to take
> seriously Christ's teachings of dignity, and renounce racism
> and support civil rights by supporting laws that ban
> discrimination and an end to segregated schools"?
>
> Eugene
>
>
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