Strengthening Constitutional Self-Government

No Left Turns

More thoughts on Hein

Prawfsblawgger (I guess that’s how you’d spell it) Andrew M. Siegel offers additional thoughts on the Hein case, about which I blogged (without the J.D., I can’t blawg) here. Defending the position taken in Flast, and by Dahlia Litwick, Siegel argues that the Establishment Clause is just plain different:

the Establishment Clause is the only Clause in the Constitution that seems to bestow an individual right on individuals in their capacity as taxpayers. After all, the ur-injury against which all modern Establishment Clause claims are reflected is the Establishment of a national church, i.e., the use of federal tax dollars drawn from all segments of the population to support a particular religion. Given the central role the Establishment Clause plays in protecting freedom of conscience and its placement in the first Amendment’s list of liberties, the right not to be conscripted into paying such taxes to support an alien religion is as personal a right as the freedom of speech or the free exercise of religion. The fact that a government action impermissibly funding a particular religion violates the individual rights of many, many individuals should not defeat standing, as it would not in a case where the government outlawed all speech critical of the current administration or prohibited the exercise of Christianity.

I’m willing to take seriously much of that quasi-originalist point, were it not for the fact that it’s the basis for permitting objections to activities that are lightyears away from amounting to an establishment of religion. Litigation as a resort against genuine establishment (however unlikely that would be) makes sense. But we ought to rely primarily on political barriers--elections and legislative oversight--to deal with milder forms of interaction between religion and government, forms, by the way, that were tolerated and even embraced for most of our history.

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