Supreme Court Should Overturn State Establishment Clause Cases

The establishment clause again has come up for discussion. Delaware Republican Christine O’Donnell brought it up in a debate with her Democratic opponent Chris Coons.

O’Donnell asked Coons (who is a lawyer) exactly where the Constitution requires “separation of church and state.” The law school audience laughed, evidently finding it a stupid question. But in fact “separation of church and state” is not mentioned in the Constitution. Coons’ reply was that “The First Amendment establishes a separation.” And so it does, if we believe the Supreme Court.

But this is a case where we should not believe the Court, which actually found “wall of separation between church and state” in a letter written by President Jefferson. Jefferson’s colorful words are a grossly inadequate generalization about the establishment clause.

The clause reads: “Congress shall make no law respecting an establishment of religion . . . .”; The key word is “respecting,” which means “having to do with” an establishment of religion. This awkward expression was used because the amendment’s drafters intended it to do two things, not just one: 1) prevent Congress from establishing a religion, and 2) prevent Congress from interfering if state governments establish a religion. (Several states had established churches when the First Amendment was written; others had religious tests for public officials.)

Most establishment clause cases challenge actions by state governments (including school districts) rather than by the federal government. If the clause were interpreted as written all these cases would be thrown out of court. Most of them involve actions (monuments in parks, prayer in public schools, Bible reading in schools, etc) which it is a stretch to consider “establishments” of religion. But, assuming that they are indeed establishments, the right of the states and school districts to engage in them would be protected by the establishment clause, not prohibited!

But the Supreme Court has been striking down state government actions under the establishment clause for more than half a century. It has held that although the original Bill of Rights (amendments 1-10) placed limits only on the federal government, the Fourteenth Amendment, added after the Civil War, was intended to place many of these same limits on the state governments.

There is convincing evidence that this was indeed intended when Congress wrote the Fourteenth Amendment. And for the most part this “incorporation” of the Bill of Rights made sense. It did not undermine our protection against federal censorship, for example, to hold that the First Amendment also protects us from state government censorship.

But when the Court “incorporated” the first purpose of the establishment clause to prevent state establishments as well as federal establishments, this totally contradicted the clause’s second purpose, protecting the right of states to establish a religion. The Fourteenth Amendment’s drafters intended no such result. Their report to Congress conspicuously omitted the establishment clause as one of the long list of provisions that would be “incorporated” against the states.

No doubt it would be a bad idea for a state to establish a religion today. But letting nine unelected justices twist a key clause of the Constitution so that it means the opposite of what it originally meant is an even worse idea.

There can be no doubt that the Supreme Court has pulled a fast one here, quite possibly without realizing what they were doing. The proper thing for them to do now would be to recognize their error, overturn all of the cases based on that error, and leave issues of church-state relations to the political and legal process at the state level as our Founders intended.

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How To Exercise and Still Get Your Work Done

During my recent visit to Adrian College, where I taught for 36 years, my friend Beth Myers asked if I was still riding my indoors bicycle, a Schwinn Airdyne. When I mentioned the things I have done over the last 25 years while wearing out two of these contraptions and starting on a third, she suggested I should write it up as a possible inspiration to others.

So here I sit on Amtrak heading for my next stop in Boston, taking Beth up on this proposal on my netbook.

I bought my first Airdyne because I had made a serious mistake. Feeling cooped up, I rode my bicycle during a cold Michigan January, wearing two pairs of socks for added warmth. Instead of protecting me, the extra pressure inside my shoes reduced blood circulation to my feet and I froze my toes. This put an abrupt end to cold weather bicycling.

Still restless, I bought an indoors bicycle. I got the optional reading rack because without something interesting to do I would be horribly bored within two miles. (The boredom factor may be why, when we moved to Oregon, the movers were astonished by my Airdyne’s odometer. The average mileage they were seeing was about 75---total.) Boredom is not a problem for outdoor bicyclists who have scenery to admire and the danger of being hit by cars to keep their interest up.

I found I could do all my class reading while riding. Many of the assigned books were things I had already read, but I still re-read them all so they would be fresh in mind when we discussed them in class.

I taught a course on the Soviet Union until it disappeared in 1991. I then renamed it: “Autopsy, USSR.” ( We dissected the Soviet corpse--its birth, life, and death.) For background I had subscribed to Pravda, the Communist Party newspaper, in 1962 and continued reading it until 1991. Despite Pravda’s small type I was able to read it on the bicycle, and since I read Russian more slowly than English that added more weekly miles to the odometer.

Later I found I could also do some writing. I printed out a triple spaced draft of a book I was writing. Then I rewrote it by propping the pages up on the reading rack, making changes by hand. Later I quickly typed the changes into my computer (not while riding!).

Recently, having had to clean out my late parents’ house, I have taken pity on our own kids and begun cleaning out my extensive files while riding. In the process I am sorting out and keeping quotations and other material that might be useful for another book I might write.

There are thus many things one can do while getting some exercise. (Some people even watch TV. I have only done this once, in order to observe President Clinton’s impeachment trial while also getting my usual miles. In general, for me TV does not work.)

The bottom line is that I have worn out two Airdynes, the first after riding 55,000 miles, the second considerably more than that, and am working on the third. I rode about 200 miles per week and 10,000 miles per year for many years before I retired and continue to do so since retiring ten years ago. About four fifths of this was indoors, the rest on my real bicycle.

In a nation that has become sedentary, where obesity is increasing, and where time is scarce, I hope my experience can inspire other people to give this approach a try. I will enjoy hearing from those who do.

A GREAT OP-ED BY AHSAN HABIB

This piece, by my colleague and friend Ahsan Habib, recently ran in the (Adrian, Michigan) Daily Telegram. I am posting it here with his permission.
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ADRIAN, Mich. — Recently it was announced that the current U.S. recession ended 14 months ago and our Gross Domestic Product (GDP) has started to increase since then. Surprisingly there has been very little improvement in the employment situation. In fact during some of those months of recovery the country actually lost jobs. More surprisingly, despite the end or recession, the Federal Reserve Bank has indicated that the economy needs more support in coming months. This raises the question: Does GDP measure the health of the economy anymore?

In dealing with many situations, economists have stopped looking at GDP as an indicator of economic performance. Concepts like the Human Development Index or Fulfillment of Basic Needs have been created as alternatives. It is high time that we create a new measure of economic performance which reflects the employment and economic conditions more pragmatically.

Changing or switching economic definitions is not new in this country. In 1991 we changed from Gross National Product (GNP) to GDP reporting for political expediency. GNP does not include the income earned by foreigners but GDP does. Therefore, as long as foreigners earned more in the USA than Americans earned abroad, GDP will be to our advantage. There were other political reasons as well. At that time the dollar gained strength in the world market. So American overseas income deflated when converted to dollars for GNP calculation. GDP did not have that problem. Also as America’s overseas debt burden was growing, GDP appeared to be a better choice since income earned by foreign investors in the U.S. is not subtracted from the U.S. GDP.

The essential point is that the federal government has a vested interest in trying to change the definition of sensitive economic terms. The definitions used for budget deficit, unemployment and many more have been modified for political gains. But these “convenient” economic numbers fail to reflect the real picture. So GDP increases but misery continues to grow, budgets show a surplus but national debt rises, and jobs are lost but unemployment stays the same!

We are entitled to vital economic data that are not deemed to be tailored with November in mind. Look at employment numbers. It is being claimed a success that the private sector has added jobs for several months in a row and that it surprised experts by adding 67,000 jobs in August. But that number is not very meaningful. All these 67,000 people could have worked for just one hour per week and no more! Also they all could be hired at minimum wage and with no additional benefits. Surely government economists can devise an employment number that would be simple but convey the real picture of employment. The Bureau of Labor Statistics does report an unemployment number called U6 which counts the discouraged workers — who stopped looking for jobs, and hence are not called “unemployed” in the primary statistics — as unemployed. The question that comes to mind is why that number is not publicized more widely?

The desperate desire of governments to show bright economic numbers has come from a false premise. For a long time governments of all countries including the U.S. have been asking for more power from citizens with a false promise to deliver economic prosperity. But the truth is governments can make noticeable economic impact (good or bad) only in centrally planned economies. In capitalist economies, governments’ power to change the economic landscape is very limited. It is about time that they recognize this and abandon their futile efforts to create economic prosperity.

To show that they can create economic miracles, governments have tried to produce artificial economic results by resorting to bad economic practices; indiscriminate borrowing being one of them. Also a host of benefit seekers who could use their resources elsewhere more productively are misusing it to gain government favor. Most importantly, many government policies have created fundamental distortions in the operation of free market economy.

This is not to suggest that the government should abstain from promising and undertaking every economic activity. They should produce highways, defense services, income safety programs and so on. But they should make it clear that they do not have power to make the economy grow or to fix the private sector employment problems. Of course, if recession strikes, government should step forward to help the people who are suffering, the same way as it steps in to help flood victims. But just as government does not promise good weather, they should not promise a prosperous economy.

An economy is too big for government to handle. Many former socialist countries learned that lesson the hard way. Instead, governments should focus only on specific targets. Then the public will expect less from them and there will be less pressure on them to create and publish politically motivated economic data.

Ahsan Habib is a professor and chair of the economics department at Adrian College.