Thursday, April 28, 2005

A modest proposal

Orcinus (HT Atrios) writes:

Now, as I've argued previously, the "strict construction" of which fundamentalists are so enamored is nothing but a new name for old-style "formalism," the approach to jurisprudence that wrought such exemplars of the law as Dred Scott and Plessy v Ferguson. As such, its ramifications for American law could be profound, since widespread adoption would mean overturning an entire slate of progressive innovations of the 20th century and return us to the bad old days of the late 19th century, when robber barons ruled the land.

At the Family Research Council's own site, one can get a sense that just such a radically reactionary course is what they have in mind:
Q -- How have activist judges abused their power?

A -- Judges are abusing their power if they read into the Constitution principles that are not declared by the plain language of the Constitution. For example, the First Amendment says, "Congress shall make no law respecting an establishment of religion." But nowhere does it say that there should be a strict "separation of church and state" at all levels of government, barring any acknowledgment of God. The decision legalizing abortion was based on the "right to privacy" -- but no such right is declared in the Constitution.

That response should make clear the two issues, above all, that are directly in the sights of the religious right:
1. The separation of church and state.

2. The right to privacy.

Of course, most Americans tend to take a right to privacy for granted, but little realize that it exists almost solely, according to Supreme Court rulings, as a Ninth-Amendment "natural right" not enumerated by the Constitution, or as a "penumbra" of other rights that have been written out.

Likewise, they understand that "separation of church and state" -- like "religious freedom" -- exists as a principle of the Constitution, even though the phrase doesn't appear written there. (The educated among us are even aware of the use of the phrase by founders Thomas Jefferson and James Madison in later explanatory letters.)

But what they little understand, for now, is that those rights are in the gunsights of the religious right -- and they are zeroing in even now.
So here's my proposal: we create in the constitution a new amemdment that specifically spells out a strict separation of church and state and a right to privacy. Let's make it plain as day that the theocrats are wrong, and that freedom from as well as of religion is guaranteed. Some might say it's not needed - and it wouldn't if there were not enemies of freedom in America today, many in the Republican party- but one other objective would be to craft this as a wedge issue. Our way of life in America is under attack from religious extremists inside and outside our country. It's time that we responded in a way that enhances the freedom of Americans.

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