Religious freedom and nonpublic fora

Rob Weinberg robertmw at MINDSPRING.COM
Fri Dec 19 14:27:00 PST 1997

At 10:01 AM 12/19/97 -0600, Marie A. Failinger wrote:

>I don't disagree with a distinction between regulatory and managerial
>roles of government (and we could add a few more, like mediating,
>supporting, etc.)  What I do have a problem with is anthropomorphizing
>government once we have acknowledged that it plays different roles,
>assuming all of the attributes of a private manager (like property rights)
>to the government.  Or to put it another way, once we have made the
>analogy between government and an individual with respect to what they are
>doing, we assume that they are analogically similar in all respects, when
>it is more appropriate to understand their relationship
>metaphorically--that they are
>both similar and different, and the differences are equally as important
>as the similarities.

But the government does wear different hats, and it's not
anthropomorphizing to view the government in the different roles it plays.
There's a lot of 10th and 11th amendment jurisprudence that comes into play
here when talking about state government, but even with the federales, the
concept of sovereignty needs to be appreciated.

The presumption, in the absence of constitutional limitation, is that the
sovereign, no less personified than "the king," can do no wrong. The bill
of rights contain limitations on that sovereignty. I've always looked at it
using a metaphor borrowed from corporate law. States are incorporated by
their constitutions, that's their "charter." States are corporations
defined by geographic boundaries. They have certain "business" they are
incorporated to do, i.e., those things necessary for benefit and welfare of
its citizens (shareholders). Ignoring the questions of the power of eminent
domain and the power to define and punish criminal behavior (attributes of
sovereignty), everything the state or federal government does is in pursuit
of its "business" interests, defined as what is necessary to protect and
promote the general welfare.  In short, subject to constitutional or
statutory limitations, those elected to run the government have free reign
to conduct the business of "the state." It is, in all respects (with
constitutional or statutory limitations), a "private manager."

>On the other hand, less absolute regimes, like incompatibility and TPM to
>take two examples (if taken seriously by bureaucrats) would at least force
>government to ask
>COLLECTIVELY what they are trying to achieve with this statute, whether it
>is a public good, and what other compatible uses of government "property"
>might also be made, in advance of a speech or free exercise tussle.

This suggests an invitation to the courts to weigh the political wisdom of
the decision makers, as opposed to the constitutionality of the actions
taken. Courts are not in a position to do that and do not have jurisdiciton
to do so. Whether the bureacrats should or not, is merely a political

     * * * * * * * * * * * * *
    Rob Weinberg, Montgomery, AL

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