Salazar v. Buono - A Hypothetical

John Bickers bickersj1 at
Fri Apr 30 14:37:31 PDT 2010

Many post-civil war constitutions seem to have such an acknowledgement.
Kentucky's (from 1891) does ("We, the people of the Commonwealth of
Kentucky, grateful to Almighty God for the civil, political and
religious liberties we enjoy, and invoking the continuance of these
blessings, do ordain and establish this Constitution. "), and I believe
that is why the Preamble was included in the set of documents meant to
place in context the Ten Commandments in McCreary County.  Indeed, as
Justice Souter noted, the list of documents in the "Foundations of
American Law and Government" display seem to have a religious connection
of some kind, and the Fourteenth Amendment--surely a foundational
document--is conspicuous by its absence.

[As an aside, does anyone beside me suspect that "American" was added
late--and in the wrong place--to the name constructed for the display?] 

John Bickers
Salmon P. Chase College of Law
Northern Kentucky University

-----Original Message-----
From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Sanford Levinson
Sent: Friday, April 30, 2010 2:46 PM
To: Bhagwat, Ashutosh A.; Rick Duncan; conlawprof at; Ira
(Chip) Lupu
Subject: RE: Salazar v. Buono - A Hypothetical

Standing, of course, is utterly irrelevant to the substantive question
of the constitutionality or unconstitutionality of any given measure.
It relates only to the institutional question of what role we want
courts to play in enforcing the Constitution.  But, as I assume everyone
on this list agrees, every single federal official and state official
takes an Article VI oath of constitutional fidelity completely
independent of whether or not the Court will get around to stating its
view.  (And, of course, many of the people on this list--or at least
I--believe that it is perfectly reasonable for "conscientious
legislators" to believe that the Supreme Court has been grievously
mistaken on the law and to support the passage of laws that would
predictably be struck down by the
committed-to-maintaining-constitutional-error (but, of course, sincere
in their belief that they are not in fact erroneous) justices.  I take
it that's the subject for another thread.

On another, but related matter:

I discovered yesterday, as part of a seminar on comparative
constitutional design that I'm teaching this semester with Zack Elkins,
that the Preamble to the 1947 New Jersey Constitution is as follows:

A Constitution agreed upon by the delegates of the people of New
Jersey, in Convention, begun at Rutgers University, the State University
of New Jersey, in New Brunswick, on the twelfth day of June, and
continued to the tenth day of September, in the year of our Lord one
thousand nine hundred and forty-seven.
     We, the people of the State of New Jersey, grateful to Almighty God
for the civil and religious liberty which He hath so long permitted us
to enjoy, and looking to Him for a blessing upon our endeavors to secure
and transmit the same unimpaired to succeeding generations, do ordain
and establish this Constitution.

Could New Jersey constitutionally require that its Preamble be read
aloud at the beginning of every school day or (even) at the beginning of
every class in New Jersey history or New Jersey government)?  I take
(genuine and unfeigned) umbrage at both "the year of our Lord" and the
expression of gratitude to "Almighty God," which is a double statement
of state-sponsored theology:  i.e., God exists and has the attribute of
"almightiness,: which at least suggests that our prosperity or
misfortunes are directly attributable to that God.  Still, I'm
(sincerely) interested in whether the school prayer cases would forbid a
state from imposing the Preamble to its own constitution on the young.
(As some of you know, I'm a big fan of the preamble to the US
Constitution, not least because it is relentlessly non-religious in its
language.  So I would have no problem with having students being forced
to listen to that preamble every school day.)  

I assume that none of us (including myself) would favor seeking a
judicial order that New Jersey rewrite its preamble, though I do assume
that at least some of us would cheer a voluntary decision of the
relevant constitutonal amenders in the Garden State to do so.

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