Independence Hall -Reply

[Rob Weinberg]

At 08:19 PM 12/12/97 EST, Jim Henderson wrote:
>In a message dated 97-12-12 19:49:55 EST, Rob Weinberg wrote:
>
><< I think Jim is confusing free speech analysis with the establishment
>clause. I am unaware of any cases requiring proof of historical accuracy as
>necessary to disprove an establishment clause claim.  >>
>
>No, with respect, I am not confusing the two.
>
>Obviously Marsh v. Chambers does not demand that governments offer proof of
>historicity to avoid an Establishment Clause violation.  Ask Judge Bork
>whether there is any historic basis for concluding that the right to freedom
>of speech was intended to protect nonpolitical discourse.  Ask Justice Burger
>whether the Establishment Clause was meant to prohibit a practice of opening
>sessions of Congress with prayer.  At some point in their careers, both men
>would make reference to historical practices as evidence of the intended
>meaning of two separate constitutional provisions.
>
>If my points were not clearly articulated, I regret that.  First point:
>historicity of a practice is irrelevant to whether a private citizen or group
>may express themselves in a traditional public forum.  Second point:  the
>utility of historicity as it relates to practices challenged under the
>Establishment Clause is in dispute.

I certainly agree with Jim as to his second point. The value of
"historicity" in establishment clause cases (I like that) is certainly in
dispute these days. Of course, to go down that road, (as another poster
queried), will invite the courts to become arbiters of what is and is not
historical fact, or historical accuracy. That ain't gonna' happen except in
very clear cases. It certainly would not be the basis for any articulated
justification for putting the creche in the formerly non-public forum of
Independence Hall.

And it appears we're in agreement on the first point. Historicity's value,
if any, is limited to government action under the establishment clause, not
private speech or expression.

But I disagree with (or misapprehend) Jim's conclusion about the relevence
of _Marsh v. Chambers_, or what C.J. Burger concluded about "original
intent" and its value today. There are plenty of cases discussing religion
as a historical backdrop. _Lynch v. Donnelly_ is a prime example. The
creche in _Lynch_ was *not,* however, deemed to pass constitutional muster
on the basis of historical precedent. And yes, there are cases with the "we
are a christian nation" dicta, like _Reynolds v. U.S._, often cited out of
context. But with the exception of the singular, fact-specific,
never-to-be-cited-again-as-precedent, limited holding in _Marsh_, no cases
I'm aware of ever held that historical precedent or historicity authorizes
government "establishment," endorsement or promotion of religion under
_Lemon_ or its progeny.


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    Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/