# the Establishment clause, constructionism, and 'making' a 'law' **URL:** \ **Category:** Great Debates\ **Created:** [August 23, 2003, 1:28am UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066 "2003-08-23T01:28:57Z")\ **Posts on this page:** 10\ **Page:** 1
**Author:** ![black\_rabbit](https://avatars.discourse-cdn.com/v4/letter/b/f19dbf/32.png) [@black\_rabbit](https://boards.straightdope.com/u/black_rabbit)\ **Post date:** [August 23, 2003, 1:28am UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/1 "2003-08-23T01:28:57Z")
In the current debate about Judge Roy, I’ve run across some in the Strict Constructionist crowd who trot out the argument that posting the 10Cs in a public building isn’t necessarily ‘making’ a ‘law’ to establish some kind of religious preference as prohibited by the First Amendment. What’s the Living Document crowd’s counter to this? I’m not a Constitutional scholar by any means, but I’m interested in relevant SCOTUS precedents, obviously, and any other pertinent info. Naturally, I’m also interested in the counter-counter-arguments, which is why I posted this in GD, not GQ. ---
**Author:** ![black\_rabbit](https://avatars.discourse-cdn.com/v4/letter/b/f19dbf/32.png) [@black\_rabbit](https://boards.straightdope.com/u/black_rabbit)\ **Post date:** [August 23, 2003, 1:36am UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/2 "2003-08-23T01:36:11Z")
[Here’s](http://boardsqa.ragingbull.lycos.com/mboard/boards.cgi?board=FIRST%26read=4585) some of what I mean: > [@](#): > > Hab - there is no problem with understanding the crystal clear words: > > “Congress shall make no law…” > > You just can’t get around those words in talking about what the first amendment means. If we are to take the constitution seriously, it means exactly what it says - no more, no less. > > Congress is restricted from making a law. The mayor is not restricted from putting up a statue of Buddha, if he so pleases, in the lobby of his office. (might hurt his re-election chances, though) Obviously, the bit about Congress, specifically, being the agent is covered by the 14th Amendment, but what’s to keep W from, say, issuing an executive order respecting the establishment of religion or prohibiting the free exercise thereof? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [August 23, 2003, 5:50am UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/3 "2003-08-23T05:50:44Z")
> [@](#): > > Obviously, the bit about Congress, specifically, being the agent is covered by the 14th Amendment, but what’s to keep W from, say, issuing an executive order respecting the establishment of religion or prohibiting the free exercise thereof? The President doesn’t have the power to “make laws”. The executive power exists to enforce laws. It’s ridiculous to suggest that the President can enforce laws that Congress doesn’t have the power to make. His enforcement powers are based upon the authority that the Constitution and laws of Congress grant him. ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [August 23, 2003, 6:30am UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/4 "2003-08-23T06:30:41Z")
Like say, invading a foreign country, without a declaration of war? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [August 23, 2003, 6:34am UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/5 "2003-08-23T06:34:58Z")
> [@](#): > > \*Originally posted by Triskadecamus \* > \*\*Like say, invading a foreign country, without a declaration of war? \*\* …which has absolutely nothing to do with the applicability of the Establishment Clause, which we are talking about here. ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [August 23, 2003, 6:44am UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/6 "2003-08-23T06:44:42Z")
“His enforcement powers are based upon the authority that the Constitution and laws of Congress grant him.” Which Congress did not do in the case of the invasion of Iraq, yet the invasion took place, and no one seems to even object. Perpahps that is why the strict construction view is a little bit unrealistic. The world hasn’t worked the way the founders expected it to. The president invades foreign nations at his own whim, and State Supreme Court Justices enshrine religious symbols in courthouses. It has a lot of applicibility. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [August 23, 2003, 6:57am UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/7 "2003-08-23T06:57:15Z")
I’ll start taking strict constructionists seriously when they renounce the federal reserve banks and our claims to the Louisiana Territory. The Federalists were the loose construction party and when Jefferson and the Republicans took over they were no different. The only strict constructionists are those out of power. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [August 23, 2003, 12:22pm UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/8 "2003-08-23T12:22:01Z")
As one of this board’s resident strict constructionists, I’d be interested in hearing of a legitimate legal scholar from the strict constructionist school of thought actually making that argument. The argument the OP inquires about sounds like it comes from an underemployed garage mechanic posting on Free Republic rather than from someone who’s actually studied constitutional law and history. Sometimes old grognards will bitch about the concept of 14th amendment incorporation – and indeed, there is a legitimate argument that incorporation is nothing more than judicially-invented bullshit – but most everyone recognizes that incorporation is simply too deeply entwined in constitutional decisionmaking these days to actually do anything about it. That horse has already left the barn, so we might as well not argue about closing the barn door. It’s like arguing over the logical flaws in _Marbury vs. Madison_. But I have never, ever heard a serious constitutional scholar from the strict constructionist school claim that only acts of the legislature counted as “laws” for the purpose of first amendment analysis. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [August 23, 2003, 12:30pm UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/9 "2003-08-23T12:30:41Z")
> [@](#): > > \*Originally posted by Triskadecamus \* > **Which Congress did not do in the case of the invasion of Iraq, yet the invasion took place, and no one seems to even object.** Congress did indeed authorize the use of force against Iraq. Just because they didn’t use the specific words “declare war” does not change the fact that the president acted with Congressional authorization, and thus in accord with the constituion. To say otherwise is to sacrifice substance to form. More to the point, the president is constitutionally vested with authority over military matters as commander-in-chief, which gives him considerable discretion in deploying US armed forces around the world. There is a tension between that grant of authority in Art. II, s. 2, cl. 1 and Congress’s power to declare war in Art. I, s. 8, cl. 11. Its resolution is a fundamentally political question which the constitution informs but does not resolve. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [August 23, 2003, 3:10pm UTC](https://boards.straightdope.com/t/the-establishment-clause-constructionism-and-making-a-law/197066/10 "2003-08-23T15:10:30Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*But I have never, ever heard a serious constitutional scholar from the strict constructionist school claim that only acts of the legislature counted as “laws” for the purpose of first amendment analysis. \*\* Just to add another voice to this analysis, I’ll pipe in to say that one the issue of what is “making law” for the purposes of Constitutional analysis is not one that is divided by strict constructionalists and "living document"ists. It’s divided into intelligent people, and dumbasses. Roy Moore and his attorneys would fall into the latter group; they tried to make this argument. The appellate court responded: “… his position is still plenty bold. He argues that because of the “no law” language, the First Amendment proscribes only laws…” The Court went on to illustrate the ludicriousness of that position, in that it would allow all kinds of unfathomable violations, including piping in religious sermons into public buildings and having crosses on top of buildings. They went on to say: "However appealling those prospects may be to some, the position Chief Justice Moore takes is foreclosed by Supreme Court precedent. It went on to cite the numerous cases on point. This attempt by Moore is much like most of his attempts in that these issues have been dealt with before, and all of the precedent is against him.