Pledge of Allegiance
Last night I turned in my paper on the constitutionality of the Pledge of Allegiance, which I had been working on for the last several days. Read it here, if you've got nothing else to do.
UPDATE: Okay, I think I fixed the link. If it still doesn't work, I'll try something else.
UPDATE 2: Um, the link seemed to work earlier, and now it doesn't. Damn Yahoo Briefcase. So now I've changed it so that the link goes to the Shared Documents folder in my Briefcase, rather than directly to the file itself. I hope that will work.
8 comments:
Linky no workie...
Yeah, that's what I was afraid of. I'll have to try again.
It worked that time.
I found it interesting, a couple things I didn't know that I now do. Not much else to comment on other than your Thomas footnote toward the end. At least as I understand Thomas, he's of the Scalia school where much of the case law and, in turn, many of the past decisions, were based on very poor premises, so it's not surprising (to me, anyways) that his opinion on the matter would eschew so much precedent.
Man, I should have gone to law school.
Jeff in law school? Now I'm going to have nightmares. Jeff is bad enough as it is. If he went to law school and actually thought he KNEW something about arguing, damn, I'm not sure I'd be able to stand it anymore. So, stay away, Jeff! Stay away!
Yeah, Thomas cited Scalia and a couple of 100-year-old legal treatises in making his argument on the Establishment Clause. That's part of why I found it to be weak - he seemed to be arguing, essentially, that everyone for the past century, except he and Scalia, had misinterpreted that clause. But he really didn't give much evidence for his view, and I felt that addressing it in detail would have exceeded the intended scope of the paper (and consequently caused me more work). If you're interested, you can read the whole decision on the Supreme Court website (there's a link in my bibliography).
Personally, the most interesting part for me was actually just reading the opinions. So often controversial cases get debated in the political arena, where its more about what the correct policy is. But for the justices, it's a matter of what the correct interpretation of the law should be. And so, even where I disagreed, I found it fascinating to read the different interpretations.
I also found that Justice Thomas' reputation as an intellectual lightweight is really undeserved. His opinion was, in my opinion, better reasoned than the Chief Justice's.
Thomas really gets a bad rap, and I think it's, unfortunately, because he and Scalia too often end up on the same side. Combine that with Scalia's often entertaining but not always logical opinions, and I can see why Thomas gets the rap, but he really doesn't deserve it, I agree.
I'm sure a lot of people would likely be offended by the presumption that hundreds of years of interpretations are wrong, but - and I don't know how you feel about it, but I'd be curious - there's something to be said about that argument, especially when it comes to state issues like abortion or, like in your paper, the establishment clause itself, which wasn't originally intended to affect the states.
Well, even if we accepted that Thomas is correct and the Establishment Clause protects states from federal interference in their right to establish a church, I think the addition of "under God" would still be unconstitutional, because that was a federal act, and, under Thomas' interpretation, it interferred with the states' rights to establish or not establish a church as they so choose.
But then, as I explained, I don't agreed with his interpretation. As I read the Establishment Clause, it protects against federal establishment of religion, and thanks to the 14th Amendment, it also applies against state establishment.
Now, abortion is different, I think, because there's no amendment that specifically applies to abortion. And many legal theorists (including liberals) have argued that the privacy justification used to legalize abortion is weak and essentially created from whole cloth. So while I think abortion should be legalized, I'm not entirely sure how I feel about the Roe decision itself.
But, of course, I think you and I are bound to have differing opinions on issues of federalism, considering my liberalism versus your libertarian conservatism. I'm really not a big fan of broadly interpreted states' rights, but I do think that states' rights has its place in our system based on historical precedent and the broad range of diverse opinions in our country. There are just too many Americans and too many political opinions to try to have a strong centralized government like France or Japan.
Finally, as for ignoring precedent, I'm a believer that precedent is the key to the legal system, and that it should be respected. That's not to say that courts shouldn't overrule precedent, just that it should only be done when and where it is clearly appropriate. Now, I'll also admit that interpreting precedent is a very tough job sometimes, and that people of good faith are bound to disagree.
Okay ... I think I answered all of your questions as well as some others you didn't ask. I hope that I was clear enough and that I didn't misunderstand anything that you were asking.
No, I think you nailed it. Very interesting stuff, thanks!
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