S.520; Does this Say What I Think it Does?

Great Debates
1

Thanks to the good people at Fark, I came across this beauty :

I get all confused when people talk fancy, but to me it sounds like an attempt to immunize the courts and federal agencies from any legal challenges were they to, say demand that you accept Jesus Christ as your savior if you wanted to apply for a federal college loan.

I understand that the Constitution says that all of life’s goodies come from God. Well and fine, says I, but why the need to pre-emptively prevent Federal courts from hearing any challenges? Sounds like the opening salvo of an assault against separation of Church and State.

Or am I just being paranoid? Bricker, you’re a legal-minded young fella; what’s your take on this? Anyone?

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gratuitous bump since this is sinking like a stone in GQ. Could a kind moderator please move this to GD? (for some reason, there’s no link to the mod.)

Thanks

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Moderator’s Note: Moving to Great Debates.

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I think you mean the Declaration of Independence, not the Constitution.

5

I wonder what would happen if the Court strikes it down as unconstitutional. It looks like an attempt to neuter the Supreme Court, or at least it’s the opening salvo.

6

There is NOTHING in the constitution regarding the “separation of Church and State.” That is a red herring to permit assaults on any or all religions, of choice at the moment, by those who would have NO religion at all.

The Constitution simply states, "Congress shall make no law regarding the establishment of (a) religion.
Here again, those who would have no religion for themselves or others distort the meaning to serve their own perverted purposes.

As I did NOT find any references pointed out to sustain your suspiscions, I’ll leave the rabbit chasing to others.

7

Ok, Ok… in light of the fact that I don’t know the difference between the Constitution and the Declaration of independence, and I’m not too clear on the concept of Separation of Church and State, I more than likely have totally misunderstood the whole point of this bill. Could someone 'splain what the point of it is?

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Interesting that the drafters of the Bill of Rights left out that “a”:

I guess they just needed you to come along and correct that little typo for them.

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From my reading of the bill (admittedly not in depth), it appears to attempt three things: (1) divest the federal courts of jurisdiction over claims that a public entity or public agency claims that God is the source of law (think Roy Moore and the Ten Commandments); (2) overturn all previous federal law relating to point number 1 above so that the states are no longer bound to follow it in interpreting the Constitution; and (3) make it an impeachable offense for a federal court judge to “rely upon” any tenet of international law.

spingears is correct that the First Amendment to the Constitution is the provision commonly considered to be the “separation of Church and State” provision. It does not mean that the government shall have no interaction with religion; instead, it means that the government cannot prefer one religion over another. This is a pretty thick area of the law, with lots of interesting tidbits in it. Here is an article about Ten Commandments displays that lays out a bit of the legal test.

But if the federal courts no longer are permitted to hear these cases, then the state courts will hear them. And if the state courts are no longer bound by federal court precedent, they can create their own tests to determine when such displays are acceptable. Theoretically, at least, certain states would be quite comfortable with displays that the federal courts have thus far found unconstitutional.

The issue is one of federalism; that is, reserving to the states those powers not explicitly granted to the federal government. Here’s a blog entry that analyzes the proposed statute in the context of the “war on drugs.”

As for the international law brouhaha, that’s a slap in the face of SCOTUS, and in particular Stevens and O’Connor. Here is another slate article about SCOTUS citing international law, an issue that apparently really rankled in the wake of Lawrence v. Texas. Me personally, I think it’s a tempest in a teapot. There’s nothing wrong with looking to see how other jurisdictions have handled the same issue, as long as you understand the differences in their laws and ours, and remain aware that their law isn’t binding on us.

At the end of the day, I trust the judiciary far more than I trust the legislative and executive (an irony, considering that I have a direct hand in electing the latter, but really no say in selecting the former). So I think this is a bad idea; but it’s a bad idea that has at least been around for a while.

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I completely agree that this is true, but I must point out that, if a foreign law would be well applied here, it is properly the place of the legislative branch to make it happen, by passing a domestic law or ratifying a treaty.

A judge imposing a foreign law on the American population is an impermissable overreach, IMHO.

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What about, say, a Texas court looking at how a New York court handled a similar issue?

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More specifically, say the Texas Supreme Court, in interpreting a provision of the Texas Constitution, looked at how the highest court of the State of New York interpreted a similar provision of the New York State Constitution. Would that be unacceptable?

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American case law is acceptable, as is English common law up to the adoption of the Constitution, after which we have our own legal tradition.

A special case can be made for Louisiana, which still relies on certain aspects of French law.

Apart from that, it is only acceptable to consider the legal traditions of other countries when legislation is being written, at which time it is then properly also American law.

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Would this include consideration of treaties to which the United States is a party?

15

Oops. Asking Mr. Moto about his latest post. I hit Show your signature instead of Quote message in reply.

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Why does it matter that they’re both American jurisdictions? For the purposes of interpreting their own constitutions when no federal issue is implicated, the fact that they are both in the United States is of no more relevance than the fact that the U.S. and Canada are both in the United Nations. They’re completely separate and sovereign jursidictions. If the federal govenment shouldn’t be doing it, why do states get a pass in looking at the constitution of another sovereign?

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On the contrary, as an historically aware Catholic*, I am firmly in favor of the principle of the Separation of Church and State and I oppose any of those people who wish to destory or weaken it so that they are more free to impose their particular religious values on their fellow citizens.

*(As opposed to those Catholics who, having finally gotten out from under the first 150 years or so of varying levels of persecution, have decided that they are part of the majority and can dispense with rules protecting minority rights.)

18

Absolutely true. Also, 100% irrelevant and not germane to this discussion.

The issue is not “judges imposing foreign laws on Americans” but “whether a jurisdiction, encountering a similar problem, has reached a solution that is compatible with our law.”

Forgive me: I do not know whether you have a legal background or any familiarity with how a court will decide an issue of first impression. Because that’s what we’re talking about here – issues of first impression. Obviously, if there is binding precedent on point, there is no need to consider other jurisdictions, foreign or domestic. But, frankly, there is no qualitative difference, as pravnik suggests, between considering the law of another state and considering the law of another sovereign. (If, as I pointed out, the systems are similar, etc.) It is hubristic to assume that all smart people are American and that we can learn nothing from foreigners.

19

Sorry, I thought that was the subject of the OP. Wasn’t it?

Obviously, I agree with this section.

Now, treaties which the United States has duly ratified don’t count toward this, as they have the force of law here. This is right and proper, since the ratification was done throught the legislative branch.

I would consider it hubris to think that we could learn nothing from foreigners. However, once we learn these lessons, properly applying them to our law is done by the legislature.

If a judge were to consider foreign law in interpreting American cases - that, to me, would be hubris. It would be a judge justifying his decisions on whatwever he saw fit, instead of being bound by American law and its traditions.

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BTW, I am not a lawyer. I wasn’t aware that I had to be one to have an opinion on the law and judicial issues. :rolleyes: