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Justice Thomas on the Constitution:

Today's WSJ published excerpts from a speech Justice Clarence Thomas delivered last week in New York. Here's a taste:

The framers structured the Constitution to assure that our national government be by the consent of the people. To do this, they limited its powers. The national government was to be strong enough to protect us from each other and from foreign enemies, but not so strong as to tyrannize us. So, the framers structured the Constitution to limit the powers of the national government. Its powers were specifically enumerated; it was divided into three co-equal branches; and the powers not given to the national government remained with the states and the people. The relationship between the two political branches (the executive and the legislative) was to be somewhat contentious providing checks and balances, while frequent elections would assure some measure of accountability. And, the often divergent interests of the states and the national government provided further protection of liberty behind the shield of federalism. The third branch, and least dangerous branch, was not similarly constrained or hobbled.

Since Marbury v. Madison the federal judiciary has assumed the role of the interpreter and, now, final arbiter of our Constitution. But, what rules must judges follow in doing so? What informs, guides and limits our interpretation of the admittedly broad provisions of the Constitution? And, more directly, what restrains us from imposing our personal views and policy preferences on our fellow citizens under the guise of Constitutional interpretation? . . .

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. But, it certainly is at the center of the process of selecting judges. It goes something like this. If a judge does not think that abortion is best as a matter of policy or personal opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is good policy will find it constitutional. Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Angus:
Two thoughts:
1. I find it interesting that one of the main framers was Alexander Hamilton, the leading proponent of expansive national government powers in the era. Yet he is nearly worshipped in conservative circles.

2. The founders knew that they and their understandings of government and the Constitution were imperfect, and even contradictory. Strange that modern originalists don't seem to recognize the same point, and continue to argue that the founders' views are always superior to today's views.
10.20.2008 12:07pm
Christopher M (mail):
there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up

This is an absurd statement. There really are lots of ways to interpret the Constitution. One can dispute how well these various ways will work, to what degree they are morally legitimate, and to what degree they are sustainable. But I do not understand this willfully obtuse, almost anti-intellectual attitude that non-originalist interpretation of the Constitution simply cannot be any different from following one's own prelegal inclinations on each case.
10.20.2008 12:21pm
FantasiaWHT:
I heard him give nearly the same speech last year in Chicago at a Heritage Foundation event. Good points.
10.20.2008 12:21pm
Eli Rabett (www):
The major point here is that the government was formed by the people, and represents the people. Contrast this with the nonsense that the government is the problem and you understand why the current Republican party is incapable of governing but quite capable of stealing our taxes for their private purposes.
10.20.2008 12:24pm
Donny:
Since Scalia doesn't believe in intent as the touchstone (preferring historical understanding of the meaning of the text), does that mean Thomas thinks Scalia is a judicial activist?
10.20.2008 12:24pm
trad and anon:
The Declaration of Independence sets out the basic underlying principle of our Constitution. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . ."
The right to the "pursuit of happiness" is a basic underlying principle of our Constitution? Where does he think it's found?

Sadly, the idea that all men are created equal cannot be said to be a basic underlying principle of the original Constitution either. It was a nice-sounding hollow slogan until the Reconstruction Amendments were passed decades later. Justice Thomas can't handwave this away by calling slavery a "flaw": it eviscerates the entire idea that the original Constitution had anything to do with legal equality.
If a judge does not think that abortion is best as a matter of policy or personal opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is good policy will find it constitutional.
Huh? Who is claiming that judges who oppose abortion would declare it unconstitutional? Talk about straw men!

But what evidence is there that judges' views on Constitutional abortion rights don't neatly line up with their their views on whether abortion is moral? Does he personally support abortion rights? Does Justice Scalia? Did CJ Rehnquist? Do/did any of the Justices who voted for abortion rights believe it to be immoral? Looks like a 'no' in each case. When Justices' personal views appear to map perfectly onto their views of the Constitution it's hard to take seriously the idea that some kind of commitment to principle is the real driving force.
Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism.
Well, in my case it really is legal cynicism. But what's Justice Thomas's evidence that we cynics are just projecting our own manner of thinking onto judges, rather than observing the evidence? Psychology research tells us that people's "reasoning" (including mine, sadly) often takes the form of conclusion first, argument later, and even laypeople are capable of taking note of the oh-so-convenient lineup between Justice Thomas's evident distaste for big government and his view that big government is unconstitutional.
10.20.2008 12:28pm
trad and anon:
Since Scalia doesn't believe in intent as the touchstone (preferring historical understanding of the meaning of the text), does that mean Thomas thinks Scalia is a judicial activist?
Apparently.
10.20.2008 12:30pm
Sasha Volokh (mail) (www):
(1) Yes, surely he's being sloppy in favoring intent rather than original meaning or something similar? I'm not aware that he's an intentionalist on this.

(2) And yes, he's wrong to say that "original intent" (or whatever he may actually mean) is the only way of having a basis in the Constitution; or, rather, it begs the question, because what does it mean to have a basis in the Constitution? Read any modern book on constitutional interpretation by an exponent of one of the leading theories (Ely, Ackerman, etc.), and you'll find a whole theory about how their view has a basis in the Constitution.
10.20.2008 12:31pm
Mark in Colorado:
The right to the "pursuit of happiness" is a basic underlying principle of our Constitution? Where does he think it's found?

I think he's picking up the emanations coming from some penumbra.
10.20.2008 12:39pm
cubanbob (mail):
Why not simply treat the Constitution as a contract?
10.20.2008 1:09pm
PubliusFL:
Angus, re: your two thoughts --

"1. I find it interesting that one of the main framers was Alexander Hamilton, the leading proponent of expansive national government powers in the era. Yet he is nearly worshipped in conservative circles."

Hamilton WAS a proponent of more power for the feds, but the baseline back then was far different than it is today. The question is whether the expansive powers even Hamilton advocated would have compared to the scope and size of the modern federal government. Those conservatives who like Hamilton tend to think not.

"2. The founders knew that they and their understandings of government and the Constitution were imperfect, and even contradictory. Strange that modern originalists don't seem to recognize the same point, and continue to argue that the founders' views are always superior to today's views."

Non sequitur. The question for originalists is not which views are "superior," but which views are embodied in LAW. Originalists don't necessarily think that the Founders' Constitution was perfect, they think the means for perfecting the Constitution is the amendment process rather than judges trying to come up with "superior" views.
10.20.2008 1:10pm
Oren:

The framers structured the Constitution to assure that our national government be by the consent of the people. To do this, they limited its powers.

What does consent have to do with limited government? As it happens, The People (the ultimate sovereign) consented to a limited government but they could have just as well (and legitimately) consented to a Federal government with much broader powers. In general, it seems that consent has nothing to do with the scope of powers consented-to.
10.20.2008 1:12pm
bad imitation (mail):
Memo to Eugene:

Still think the FA is in good shape? "Inappropriate" is the left's magic word.
10.20.2008 1:14pm
Cornellian (mail):
And, more directly, what restrains us from imposing our personal views and policy preferences on our fellow citizens under the guise of Constitutional interpretation?

1) precedent
2) President (ratified by Senate) appoints Supreme Court justices
3) appellate process (i.e. you're limited to deciding the case that comes to you, not whatever you feel like dealing with that day)
4) lifetime tenure (you may have just arrived on the Supreme Court with big plans, but there are already 8 others there and they're not going anywhere)
5) impeachment (in extreme circumstances)

Finally, it's not at all obvious that whether a policy is good or bad should be totally irrelevant to constitutional interpretation, particularly in close cases when there is simply no way to divine original understanding.
10.20.2008 1:22pm
Cornellian (mail):
I'd be curious to hear what he thinks the impact of having an elected senate has been on the structure outlined in his article. I think that was the death knell for federalism in the U.S. though no one realized it at the time.
10.20.2008 1:24pm
Adam J:
Oren- "In general, it seems that consent has nothing to do with the scope of powers consented-to." I don't think that's quite correct- limited government was a check against "consent"- limited government was intended to limit the powers of the majority (i.e. the consent of the people).
10.20.2008 1:28pm
r.friedman (mail):
What was the intent of the founders about exceptions to the warrant requirement of the Fourth Amendment? What was the intent of the founders about Terry stops? What was the intent of the founders about strip searches? Seems like "good policy" rules when it comes to criminal procedure.

What was the intent of the founders about wiretapping, blood and breath tests, thermographs, DNA libraries? What was their intent on the establishment of a national bank, or a semi-private Federal Reserve, or a $700 billion socialized banking system? What was their intent on building canals, or railroads, or airports, or auctioning takeoff and landing rights? What was their intent on relations with the Indians, on state jurisdiction over tribal lands, on the issuance and sale of allotments, on cas-ino gambling? Seems like they expected future generations to work things out for themselves.

Would the founders have written the same document had they predicted the rise of political parties? the growth of the slave system? standing armies and world wars? giant corporations and the trade union movement? air and water pollution and global warming? the bi-coastal distribution of population? Probably not.

Does history speak with a single voice? Can all the voices of history yet be heard? Did the adoption of the Constitution mean that every statement in opposition was rejected and in support accepted? Seems like the first eleven amendments (plus the 27th) say no.

Originalism (be it of intent or of public meaning) is only one interpretive tool. As Heller showed, it can be wielded on both sides of an argument and it says nothing about how a fundamental concept fares when it bumps into another.
10.20.2008 1:30pm
Sarcastro (www):
Boy, liberals are always talking about banning inappropriate expression!

[Cornellian don't forget Justices are restrained by personal integrity, which Justices on both sides have believe it or not.

And I would also like to hear more about the 17th Amendment.]
10.20.2008 1:32pm
Dilan Esper (mail) (www):
What Christopher M said. Justice Thomas would fail an exam in a law school jurisprudence class if tried to claim that the only two methods of interpretation are his version of originalism and making it up.

Seriously, I defend Thomas' work product (even though I often disagree with it) against charges by other liberals that the guy is somehow an intellectual lighweight. His opinions reflect the work of a serious thinker. But when he says something like this, he gives his critics all the ammunition they need.
10.20.2008 1:46pm
PubliusFL:
Cornellian: "Finally, it's not at all obvious that whether a policy is good or bad should be totally irrelevant to constitutional interpretation, particularly in close cases when there is simply no way to divine original understanding."

If it's not clear from the text of the Constitution that a law is unconstitutional, and there is no way to divine original understanding on the issue, why should the policy preferences of judges prevail over the policy preferences of elected legislators? An originalist can recognize the limits to our understanding of original understanding without conceding that the gaps give judges room to impose their subjective views of good versus bad policy choices.
10.20.2008 1:52pm
Randy R. (mail):
Considering the fact that the original framers didn't think that the constutition would last more than a few decades, perhaps Thomas is suggesting that we need a new constutitional convention?
10.20.2008 1:54pm
byomtov (mail):
Naive questions about "the intent of the framers:"

Weren't there lots of framers? How can one assume that they all had the same "intent?" Doesn't arguing from "the intent of the framers" require that assumption?
10.20.2008 2:03pm
Ben P:

Considering the fact that the original framers didn't think that the constutition would last more than a few decades,


Along those lines, although not necessarily relevant to specifically how we interpret the constitution, even the most philosophically inclined of the founding fathers were still politicians, pragmatically inclined to negotiate and make deals just as they did in the writing of the constitution itself.

I have a strong suspicion that if they lived today most of the founding fathers would find their place somewhere within the mainstream of American Politics. Our situation is sufficently different from theirs that attempting to place them is a largely speculative exercise, but doing so can be entertaining.

But like I said, that's not necessarily relevant to how to interpret what they actually wrote down.
10.20.2008 2:11pm
G-d (mail):

Does history speak with a single voice? Can all the voices of history yet be heard?


Congress speaks with a "cacophony of voices from one mouth." So did the Framers.

The Constitution is a single document. The Framers were a wide variety of people. The ratification process showed that no two Individual Framers could agree on every aspect of the instrument that was finally ratified.

The Framers knew throughout the ratification process and afterwards that, as a legal document, the Constitution would be subject to interpretation, by citizens in their homes and by government officials. The Framers could have included a provision to the effect of "This Constitutional shall be interpreted according to the intent of the Framers - and this shall be the only impartial and legitimate method." But they did not. Why? The Framers themselves were not firm on the idea of subsequent Originalist interpretation.
10.20.2008 2:14pm
MarkField (mail):

Why not simply treat the Constitution as a contract?


One reason not to is that the Constitution itself says that it's a law ("the supreme law of the land").


Oren- "In general, it seems that consent has nothing to do with the scope of powers consented-to." I don't think that's quite correct- limited government was a check against "consent"- limited government was intended to limit the powers of the majority (i.e. the consent of the people).


My first reaction was the same as Oren's. My second reaction was the same as yours. After thinking about it some more, I'm not sure what Thomas had in mind.


Weren't there lots of framers? How can one assume that they all had the same "intent?" Doesn't arguing from "the intent of the framers" require that assumption?



Yes. You can't really. Yes.

That's why most originalists today no longer use the phrase "original intent". Instead, they refer to something like "original public meaning", by which they mean "how a reasonable reader in 1790 would have understood the words". As Sasha noted, Thomas's use of the phrase "original intent" is odd these days.
10.20.2008 2:16pm
Ben P:

That's why most originalists today no longer use the phrase "original intent". Instead, they refer to something like "original public meaning", by which they mean "how a reasonable reader in 1790 would have understood the words". As Sasha noted, Thomas's use of the phrase "original intent" is odd these days.


Perhaps the error is in assuming that Thomas is in step with academic legal thinking.

I can't ever recall an opinion where he cited academics for any reason, but that's pretty much a non-point because it would not be in line with his style and reasoning to do so.

My gut reaction is that he might not particular care what even similar thinking academics are saying about interpretation issues, but I have absolutely nothing to back that up except in my general sense from reading his opinions.
10.20.2008 2:25pm
Adam J:
MarkField - Well, it seems to me he's focusing directly on the Constitutional structural elements that seem to undermine the legitimacy of the federal judiciary to make decisions like roe v. wade. However, I don't think its very effective- roe v. wade is hardly an expansion of federal government, it doesn't grant any federal power, it just limits state power.
10.20.2008 2:51pm
loki13 (mail):
Ben P.,

The problem I see with your analysis is that it doesn't give J. Thomas much credit. As much as I dislike his methodology and his results (other than that, how was the play Mrs. Lincoln), I think he is quite bright.

It is not just 'academics' or 'the Elite' who have dismissed original intent originalism. It's really anyone who has given the matter much thought. Original public meaning / original expected application just makes more sense, and, in fact, seem to be what J. Thomas is doing in his opinions (queue up loving references to his ol' dictionary).

I think it is more accurate to say that J. Thomas was using a shortcut- original intent/originalism are mixed terms, and while an academic versed in ConLaw might be quick to draw a difference between intent/expected application, "intent", esp. "intent of the founders" has become a catchword to mean "originalism".
10.20.2008 3:13pm
Opher Banarie (mail) (www):
Angus wrote: I find it interesting that one of the main framers was Alexander Hamilton, the leading proponent of expansive national government powers in the era. Yet he is nearly worshipped in conservative circles.
************************
True, he set an example that conservatives wish for all those who want expansive national government: Never be President.
10.20.2008 3:19pm
Ben P:

The problem I see with your analysis is that it doesn't give J. Thomas much credit. As much as I dislike his methodology and his results (other than that, how was the play Mrs. Lincoln), I think he is quite bright.


I can certainly see how you can infer that from my argument, but I wasn't necessarily implying that. One can be both bright and very certain of a particular point.

The sense I get from a great many of Justice Thomas's opinions (dissenting as is usually the case), is that Justice Thomas has a very high degree of certainty. It seems the answer to a great many questions is a simple one. I think it's that exact quality that causes a great many more liberal leaning academics to decide that Thomas isn't intelligent. He's very certain of something that they consider wrong. For example, Thomas's concurrence in Morse. His argument that schools act in Loco Parentis and therefore students have no first amendment rights with respect to discipline by school administrators is drastically out of step with current First Amendment Law, but Thomas's opinion doesn't really hedge at all, it carries the impression he's very certain of his views.

So my argument wasn't necessarily that he doesn't follow the scholarship on the nuances of constitutional interpretation, or that he doesn't know it, it's that he just doesn't consider it meaningful or consider various approaches when reaching his result.
10.20.2008 3:39pm
MarkField (mail):

MarkField - Well, it seems to me he's focusing directly on the Constitutional structural elements that seem to undermine the legitimacy of the federal judiciary to make decisions like roe v. wade.


That's a plausible way to read his first two sentences in context with the rest. The problem with that (in addition to the one you noted) is that it seems inconsistent with the role of the Court in policing those structural elements. The principal criticism of the Jeffersonians, for example, was that the Court failed to strike down what they considered to be excesses of governmental power. Their expectation, at least, seemed to involve an aggressive judiciary which would hold the government to a strict reading of its powers. But any such judiciary would necessarily make decisions very like Roe v. Wade, which is precisely a restriction on governmental power.
10.20.2008 4:25pm
Alexia:

However, I don't think its very effective- roe v. wade is hardly an expansion of federal government, it doesn't grant any federal power, it just limits state power.




Does the constitution give the federal government the right to limit the power of the states like that?
10.20.2008 4:55pm
MarkField (mail):

Does the constitution give the federal government the right to limit the power of the states like that?


Depends on what you mean by the words "like that". The Constitution places some express limits on state power in Art. I, Sec. 10, and implicitly limits state power by granting power to the federal government in Art. I, Sec. 8 (and elsewhere). In general, then, the answer is that the Constitution does limit state power. That doesn't mean it necessarily limits it in any given case, though.
10.20.2008 5:10pm
Brett Bellmore:
In defense of "original intent", if one assumes that the founders wrote the text to effectuate their intent, and in doing so wrote it so that it would be understood by people of their era to communicate that intent, (Reasonable assumptions, I think.) then original 'intent', original 'understanding', and 'textualism' will all converge on the same meaning in most cases.

And radically diverge from "This would be good policy, so the Constitution must mean it.", which is the essence of all other 'interpretive' approaches.
10.20.2008 5:24pm
Wings:
The reason "original intent" is absurd is because there was no original intent 90% of the time. The framers rarely agreed with each other, and oftentimes they did not have a full grasp of what one provision would mean. They compromised to draft the document, and as a result of the compromises, both sides disagreed with each other on what the exact same passage means.

Furthermore, read the state ratifying conventions for each state. Each state ratified the Constitution with WIDELY different ideas about what it is they were ratifying.
10.20.2008 6:32pm
PubliusFL:
MarkField: "The principal criticism of the Jeffersonians, for example, was that the Court failed to strike down what they considered to be excesses of governmental power. Their expectation, at least, seemed to involve an aggressive judiciary which would hold the government to a strict reading of its powers. But any such judiciary would necessarily make decisions very like Roe v. Wade, which is precisely a restriction on governmental power."

Jefferson himself opposed the concept of judicial review. I'm not aware that the others in his faction principally relied on the courts in their opposition to what they saw as excesses on the part of Congress. In any event, they condemned these excesses on the basis of their understanding of the enumerated powers granted to Congress, and Roe v. Wade struck down state laws.
10.20.2008 6:46pm
Adam J:
Alexia- The 14th amendment states that no "State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" Nobody disputes that the Court can enforce these rights by striking down state laws that interfere with these rights. Of course, all these terms have alot of room for interpretation, which is the problem.
10.20.2008 7:17pm
G-d (mail):

Jefferson himself opposed the concept of judicial review.


Unfortunately, we don't see disinterested commentary from Jefferson on this, considering that it was his actions that were put under judicial scrutiny.

He attacked it on textualist grounds: Where does the Constitution authorize the judiary to review?

He also attacked it on spurious separation of powers grounds: if the judiciary can tell the other branches what they can and cannot do under the Constitution, then that violates separation of powers. In reality, the branches are neither co-equal nor fully separate.

Yes, let us allow each branch to self-determine whether its own conduct its constitutional! Great idea Jeff.

Jefferson was probably the first person to whine about "judicial activism."
10.20.2008 7:54pm
MarkField (mail):

Jefferson himself opposed the concept of judicial review. I'm not aware that the others in his faction principally relied on the courts in their opposition to what they saw as excesses on the part of Congress. In any event, they condemned these excesses on the basis of their understanding of the enumerated powers granted to Congress, and Roe v. Wade struck down state laws.


He did later on, albeit inconsistently.

In the early days, he was a proponent of it. For example, in a letter to Madison dated March 15, 1789, he said, "In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department, merits great confidence for their learning and integrity." Taking a similar tone, John Taylor of Caroline (an even more extreme states rightist than Jefferson) argued in the Circuit court in the case which became Ware v. Hylton (power of Congress to tax) that "legislative majorities are not to be … relied upon…. Hence the Constitution of America was designed to preserve certain rights against the aggression of such majorities, and hence too it provided a mode of enforcing that Constitution…. It interposes the judiciary between the government and the individual."

Even much later, when Jefferson criticized the Court in McCulloch v. Maryland (and when Spencer Roane did also), the criticism was directed at the Court's failure to limit the federal government within the powers of Art. I, Sec. 8 as Jefferson interpreted them. In that case, at least, Jefferson wanted more judicial review, not less.
10.20.2008 8:06pm
db:

Perhaps the error is in assuming that Thomas is in step with academic legal thinking.

I can't ever recall an opinion where he cited academics for any reason, but that's pretty much a non-point because it would not be in line with his style and reasoning to do so.

This intuition may be correct as a general matter (I have no idea) but one counterexample that leaps to mind is Justice Thomas's concurring opinion in United States v. Hubbell, 530 U.S. 27, 49 (2000). That opinion largely tracks Professor Nagareda's Michigan Law Review article on the original understanding of the Self-Incrimination Clause.
10.21.2008 12:21am
Larry Fafarman (mail) (www):
I am surprised that "Silent Clarence" Thomas gave a speech -- he didn't utter a single word in oral hearings of the Supreme Court for at least two years.

If the Founders were so wise, all-knowing, and all-foreseeing, then how come they didn't write the Constitution in a way that would have prevented the Civil War?

Originalism sucks. Many originalists believe that the Founders' beliefs should be controlling even when those beliefs are not expressed, implied, or even suggested in the Constitution. Even if we could agree about the beliefs of the individual Founders, there would still be the problem of which Founders' views to emphasize. For example, the religion-related views (I use the term "religion-related" because some Founders who supported the establishment clause might have been very religious) of Washington have been conveniently ignored while the religion-related views of Jefferson and Madison have been emphasized. The originalists have never even explained why court decisions should give the Founders' beliefs extra weight, let alone explained why the Founders' beliefs should be controlling. In the area of the establishment clause, originalism has completely destroyed objectivity in the study of the Founders' beliefs about religion and church-state separation -- as a result of originalism, the Founders have been portrayed as everything from a bunch of bible-pounding holy-rolling fundies to a bunch of godless blasphemous atheists.
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As I have said many times, one of the worst examples of originalism is Judge John E. Jones III's statement in his Dickinson College commencement speech that his Kitzmiller v. Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions.
10.21.2008 5:36am