Monday, October 31, 2005

Affirmative action . . .

Lee McGrath asked for a response to his comment to Spot’s post about the unconstitutionality of school vouchers in Minnesota. Spotty says that a voucher could not be paid to a sectarian school in Minnesota under Article XIII, Section 2 of the Minnesota Constitution which reads as follows:
PROHIBITION AS TO AIDING SECTARIAN SCHOOL. In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught.
Wow, that’s pretty unambiguous. But Lee says no; vouchers would be okay. Read the comment, but Spot will summarize his arguments.

Spot has to say right off that Lee and Spot have heretofore conducted a pretty civil discussion. But Spot is, after all, Spot, so he will probably bring this unnatural condition to a conclusion.

Lee’s first argument is the above-quoted text from the Minnesota Constitution was born during a virulent anti-Catholic era, and that “regular” public schools were Protestant. So, we should just ignore it; pretend it isn’t there. Focus the unhelpful to my cause death ray on it.

Well, of course, Article XIII, Section 2 is neutrally drafted. To do what Lee suggests would introduce a “pure motivations” test to constitutional and perhaps statutory interpretation. But whose pure motivations?

Lee also tries to suggest that because Spotty had written in support of the right of privacy in the federal Constitution that he should agree with the propriety of the surgical excision of an entire unambiguous provision in the state Constitution. (That’s what his remark about textualists is about.) Whoa, big fella.

Writing an entire – again unambiguous – section out of the Constitution would be an act of titanic judicial activism. No, not even activism: lawlessness. The right of privacy arises out of interpreting several amendments to the federal Constitution in light of changing technology and social conditions. If you don’t want to do that, it would mean that gun nuts might have to content themselves with muzzle-loading flintlock smoothbore long guns and pistols. (This is perhaps a poor example, gentle readers, because the Second Amendment does not, in any event, confer upon individuals the right to pack heat, the NRA notwithstanding.)

Lee makes some curious comments about the history of parochial school education. He says, in effect, other than Blake school, all private schools used to be Catholic. Nonsense. Lee picked the wrong dog to make that comment to.

Spot’s Pop went to a Dutch Reformed “Christian” grade school in the twenties. Spot maternal grandmother ran a boarding house for students at a Calvinist high school after she was widowed. You can read a fictionalized account of this whole milieu in Fredrick Manfred’s book Green Earth. Or Ferde Feikema, as he was known then. The Reformed Calvinists and other denominations have long histories of operating sectarian schools.

Spotty also disagrees with the proposition that public schools were or are uniformly Protestant. Don’t you imagine at least some Catholic influence in public schools in places like St. Cloud, New Ulm, etc. & etc? And generations of public school Protestant kids consumed a helluva lot of fish sticks and fetid tomato soup and grilled cheese sandwiches on Fridays for nothing if the Catholics had no influence.

There was a time, Lee, when even the Catholics thought the separation of church and state was a good idea. Nick Coleman wrote about it on occasion, and Spotty dug up a quote from a column on the subject:
When I was growing up in St. Paul, one of the things the nuns drilled into us was that this nation was lucky and wise to have separation of church and state, which meant that the Protestants who dominated Minnesota politics couldn't force us to pray like heathens. We were keenly aware that we belonged to a religious minority (outside of St. Paul, anyway), so separation of church and state was an article of our patriotic pride: America was a place where we prayed to our God at home, in church and in parochial school. But when we went to City Hall or the Capitol or public school, awe would be left alone, which was better than what happened to our ancestors in the 1800s, when Catholic immigrants were lynched for their religion. Separation of church and state was smart: It cut down on the number of street brawls.
Lee is making a weird affirmative action argument for Catholic schools. But he doesn’t have his facts right, and his argument is sophistry.

By the way, Lee, happy Reformation Day.


No comments: