Thursday, November 03, 2005

A discussion of some isms

You know how sometimes a person comes along in your life just at a time of great need? And the person is just right? And you want to say Praise Be it’s a miracle? Lee McGrath is kind of like that for Spot; just as he was really starting to miss Dave, Lee came along. Lee has been on Spotty’s case over Rob Levine’s recent winning of a Spotty for his takedown of John Brandl on the sectarian school/voucher issue.

Lee is no ordinary bloke; no sir. He is the Executive Director of the Institute for Justice Minnesota Chapter. Lee is therefore charged with litigating constitutional issues on behalf of indigent right wingers. A discrete and insular minority if ever there was one. Spot on the other paw is just a modest blogger, and as you know, gentle readers, a dog. Spotty is humbled that Lee would visit Spotty’s modest demesne.

Well, Lee has the tenacity of some of Spot’s terrier friends, and he posted a comment to Spot’s post Affirmative action. Spotty will spare you the entire history of the thread because it sounds like a recitation of lineage from the Old Testament. Here’s the short version:

SPOT: School vouchers are unconstitutional under Article XIII, Section 2 of the Minnesota Constitution.

LEE: Nuh uh!

In an act of shameless self-promotion, Spotty will tell those of you with an interest in separation of church and state issues to read several posts and comments on The Cucking Stool, starting with Brandl’s Big Splash. For this post, however, Spot will focus on the comment referred to above.

We will start with Lee’s implicit admission that the bare language of Article XIII, Section 2 does in fact, prohibit the payment of a voucher by the state of Minnesota to a sectarian or parochial school. You would think this is a problem, but Lee says no, no, just ignore it.

Ignore it? Spot replies. That would be titanic judicial activism, nay lawlessness!

Piffle, counters Lee, for he reads George Will, you’re not an originalist, are you Spotty? After all, you believe that the federal constitution contains a right of privacy that inheres in several of the amendments to the constitution and is protected against action by the states by the Fourteenth Amendment. What’s the difference? When Article XIII, Section 2 was included in the Minnesota Constitution, people were being really mean to Catholics, and therefore it should be ignored. (That’s why Spot’s earlier post was called Affirmative action [for Catholics].)

So either a constitution text is the only thing, or it means nothing? Lee actually makes a pretty good parade of horribles argument here for the originalists. (Spot will interject here and say that Spotty’s lawyer friends tell him that the parade of horribles is all the bad things a lawyer threatens a court, legislature, or client with happening if he, she or it does not take the course recommended by the lawyer.)

It is one thing to interpret language in the light of current or unforeseen circumstances. Courts have to do that all the time in statutory construction because courts are presented with cases that are not covered by exact enumeration in language of the statute, yet the cases must be decided. This is where the originalists are disingenuous about their “judicial activism” gas baggery.

It is quite another thing to simply and explicitly ignore unambiguous language in a constitution, such as Article XIII, Section 2 and pretend it isn’t there. Lee’s approach would really put the judges in the saddle.

There is of course a middle way we should take, just as the Buddha advocated the middle way between asceticism and profligacy. There is for example an approached outlined by Justice Stephen Breyer in a recent series of lectures at the Harvard Law School and now contained in a little book he has written. Breyer calls it active liberty. Spot hasn’t actually read it yet, but based on reviews, it is not a beach book, gentle readers, so be careful.

There are other middle way approaches, too; Judge Posner, a Circuit Court judge, calls his “pragmatism.” All stand in rebuttal to Justice Scalia’s textualism, a sort of religious fundamentalism for judges. The text of the Constitution doesn’t always answer the question, but it’s pretty important.

There is one other thing that Lee wrote, not exactly explicitly, that Spot believes is where this argument is going. Spotty’s posts were really limited to a discussion of the Minnesota Constitution, but Lee tries a couple of times to sneak the federal Constitution into the discussion, suggesting somehow that First Amendment Establishment Clause jurisprudence should be “borrowed” in discussing the Minnesota Constitution. As Spot has pointed out before, the language of the First Amendment and Article XIII, Section 2 are different, and that the latter is stricter.

Of course, the big federal Constitution trumps the little state Constitution. But only when they conflict; they don’t here. That’s because we are concerned not with the Establishment Clause, but rather the Free Exercise Clause of the First Amendment.

The only way Lee can get the First Amendment to knock out Article XIII, Section 2 is to make the argument that the state’s refusal to fund sectarian schools is a denial of Free Exercise rights.

And that, gentle readers, is a silly argument.


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