Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.
(Correction appended.)
(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.
— Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday
That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.
In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument. The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental. But, whatever.
I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence. The statements these people make go well beyond the issue in that case, and are truly breathtaking.
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*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.” Thomas is the only justice, to my knowledge, to express or support such a view–ever.
As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.
Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government. Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment. And it explains the bizarre juggernaut that I wrote about here.
We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are. The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue. My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws. Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.
**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention. Hurray. – 4/7 at 12:57 p.m.
Then does this mean states can tax churches?
Yes! I just posted a correction to my post, saying that Scalia did not join in that part of Thomas’s concurrence. But, yes, according to Thomas, state and local governments can do exactly that.
I also appended the post to include background about Thomas’s position. He claims, as I understand it, that the Framer’s intend in drafting the First Amendment’s religion clauses was to prohibit the federal government from barring states from establishing a state-sponsored religion.
Oh, and according to Thomas, state and local governments also can criminalize religious practices, I guess–except, of course, those of Christian Protestants.
And Catholics! Thomas is a Catholic! How could I forget that?!
I’m confused. When did federalism come to be the equivalent of states rights? Granted that I’m not an historian deeply knowledgeable of the details of the Constitution (or Bill of Rights, for that matter), but what I have read, especially about the ideas and efforts of Alexander Hamilton, always seemed to suggest that federalism is the concept of a strong central (federal) government that can make laws which dictate to the states what they can and cannot legislate. Given that the federal government is made up of representatives from each of the states. That is, the states acting as one, i.e. the federal legislature, set the outlines and limits of what each state can then enact in their won legislatures.
Yeah, Jack, you’re in a slew of company in being confused by the PR co-opting of the term “federalism” by the Conservative Legal Movement to mean the opposite of what the word would seem to mean. The “federalism” crowd takes the word from the Federalist Papers–not, as you would think, from the Federalist Party, which I think wanted a stronger federal (national) government. They invoke James Madison, who opposed the Federalist Party, as the ultimate federalist, and quote Madison’s writings in the Federalist Papers for things that actually don’t mean what they claim they mean. The idea is that the Constitution created a federation of states that were themselves sovereigns and that were united only loosely, for a few limited purposes. They’re mighty selective in choosing what they take from Madison’s and the others’ writings, and from the Constitution, as support for this.
It strikes me as sort of cultish. Creepy. And perverse. A key component of it is the failing to recognize the outcome of the Civil War and ignoring the Reconstruction amendments, in the name of “structuralism” and originalism”–as if the Framers foresaw the Civil War.
This interpretation of the constitution seems to totally smack up against the definition of the word “united” and it’s application to the word “states”.
But, it is what selfish people do.
Oh for the longing of the concept of a renaissance man (person).