Ruminations, Haunts, and Errors

Illinois Republicans, apparently unable to find someone suitable among the 12.4 million persons living in our fine State, went to Maryland to put Alan Keyes in the Senate slot on the November ballot. Barack Obama must have scared off the moderate candidates, so the conservative wing was able to push their view. Having excoriated Hillary Clinton as a carpetbagger Senate candidate in New York in 2000, Mr. Keyes has some splainin’ to do for his little adventure now.

Surfing around for some information on him, I came across an interesting essay he wrote regarding the authority of states to align themselves with the trappings or tenets of religion. Essentially, he argues—using the 10th amendment and a very fine parsing of the 1st amendment—that the federal Constitution only restrains Congress from mandating anything in this area and indeed forbids the federal government (especially the courts) from interfering with the several States’ ability to do what they want; from this he concludes that states are free to put religious symbols and doctrine (e.g. anti-homosexual mores) into law.

He almost makes a good solid argument, but his parsing of the 1st amendment seems inconsistent. Moreover, like most "strict constructionists" (and religious fundamentalists, for that matter) his larger flaw is letting small details of the text obscure the larger meaning of the document. The idea that the whole context of a law, from what led to its passage to how it fits with current society, is usually more important than any particular clause has arguably been the greatest strength of Anglo-American common law for the past millenium or so. From everything the Framers wrote and discussed in the period from 1776 to 1787, it is inconceivable that their intent in writing the Bill of Rights was merely to constrain the actions of the federal government yet to allow the states to all but run roughshod over the rights of individuals in the minority on social or religious matters.

The states may have been granted wide latitude to enact laws and procedures that match local tastes, more latitude than perhaps is exercised in practice today, but the Constituion was designed to prevent any American government from interfering in the moral, religious, and other private affairs of citizens—regardless of any quirks or ambiguities in the text. Moreover, is is absurd to deny that putting the Ten Commandments in a courthouse or statutes that reflect a distinctive religious/moral view has a coercive effect on those citizens who hold different views. The fact that those symbols or laws are the Will of the Majority is irrelvant. Hopefully the good voters of Illinois will reject this sort of radical conservatism and send Mr. Keyes back to Maryland with yet another electoral defeat.