Thanks

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

A lot of it is just the same old formula of reading the plain language of the law, and then if it is not clear what the plain language means the Court usually looks to the intent of the legislature. This is the step where it gets tough and also where the various Justices usually disagree. Usually though they are asked to split hairs, for example, like where they ask whether a specific instance of police activity violates the right to be free from unreasonable searches and seizures, or for example, whether a specific abortion procedure violates the right to privacy.

Being a hard core atheist since I was 14, I wish I knew more about these cases. I just picked up "God on Trial" and I intend to read it ASAP. My real interest is in Criminal Procedure, and First Amendment jurisprudence (specifically freedom of speech, assembly and press). Generally the Court looks to legislative history to discern what the founders meant by the words they used in the Constitution itself, but after you go back far enough, historical context of when the Constitution was written can be very helpful in determining what the rights guaranteed by the Constitution actually were.

Arizona v. Hicks, 480 U.S. 321 (1987); Florida v. J.L., 529 U.S. 266 (2000); Kyllo v. U.S., 533 U.S. 27 (2001); Just to name a few...


The case is called Rapanos v. U.S.. It's a case to try to determine what "waters of the United States" found in the text of the Constitution means. In this case there were Administrative bodies, namely the EPA, and the Army Corps of Engineers included within that definition wetlands that may only become "wet" once every 10 years or so. Because of this definition, developers lost money on investments because they were prevented from building on wetlands that hadn't been flooded in many years.

I don't know what the style is, but this case has a lot to do with agencies, and what weight to give their determinations, and their definitions. In this case Scalia used a 1940's dictionary (just as the founders intended) to define "wetlands." Generally the Courts yield to agency definitions of terms, because they are commonly regarded as being experts at what they do, not the courts (they're law experts). Anyway, this decision created a huge uproar, but I'm not sure I can answer your question.

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"The only crime in America is not having any money."
-Berthold Brecht

"This interview...is not about me..."
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I think you will find that not all judges believe that the starting point in interpretation is the plain meanign fo the text itself (although they should). Furthermore, even once there is agreement on the existence of ambiguity, there is far from consensus that the "intent" of the legislature is what is controlling.

It is important to understand that until rather recently, original "intent" was not understood as referring to whatever the underlying reasons for passing a particular law legislatures may have had, but it was a way of expressing the plain meaning rule. It was simply assumed that the "intent" of the legislature was that which was expressed in the text of the statute.

Where ambiguity existed, there were (and are) a series of cannons of construction that guide (and constrain to some extent) judges in their effort to determine what the text was generally understood to mean (most of these upon examination I think you would find are utterly common sensical--hence their value in determing the general understanding of the text).

But even once you get past the distinction between modern notions of original "intent" vs. "understanding", there are judges who reject both of those (although some of them disguise their rejection by articulating the search for the original "intent" as being a means to supercede even clear and unambiguous text in the law) and instead believe that the meaning of the law is fluid and changes.

First of all, it is not the case that courts generally yield to administrative agencies defintions, rather it is their custom to yield to any REASONABLE definition of terms by an administrative authority. It has never been absolute, and the standard has always been one of reasonableness.

In the case at hand, the Amry Corp of Engineers had given such an expansive meaning to various terms in the statute, as to become unreasonable under the statute itself.

The relevant portion of the statute covered "navigable waters", but specifically defined that term as "the waters of the United States". While the majority in the case dismissed the traditional definition as limited to merely navigable interstate waters (based on other parts of the statute which made it clear that such a limited reading was not reasonable), it was nonetheless unreasonable to give it the expansive definition the Corps had given it.

The dictionary reference was shown to demonstrate that there is a difference in meaning between water and "waters" (or "the waters"), and that the plain meaning of "waters" only included relatively permanent bodies of water.

Furthermore, the agency definition, relevant for this case, included in its definition of "the waters" things such as channels and conduits, which the statute itself categorizes seperately and distinctly from "navigable waters" by including them explicitly in the definition of "point source(s)". Based in part on both the plain meaning of the term "waters" and the fact that the Corps had included in its definition of "navigable waters" items specifically excluded from that defintion and instead included under the definition of a distinct term, the majority held that the Corps interpretation was not within the reasonable scope of traditional deferrence.

Furthermore, the definition was further stretched beyond the plain language of the statute because it relied upon a misapplication of a prior court precedent (rather than the text of the statute). In previous cases, the court, recognizing that it is a judgement call where "navigable waters" (as defined by the statute) ended and "wetlands" (which were not included as navigable waters under the statute) began. So the court appropriately deferred to the agency in making such a judgement. The court did not rule that wetlands themselves were navigable waters, merely that in assessing where the boundary between an "abutting" (meaning in actual physical contact) wetlands and navigable waters was to be left to their discretion.

What the Corps did in Rapanos was to interpret that broad discretion in determine where navigable waters ended and the wetlands began to mean that wetlands themselves were included under the statutory definition of navigable waters. Based on this stretch of the courts deference within a gray area, they basically redefined the gray as white, and what was previosly black as gray.

This again was struck down by the court, pointing out that the defference given previously represented the full extent of reasonable discretion in the agencies definition, not a fresh starting point.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

I couldn't find the phrase, "waters of the United States", in the Constitution.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

Yeah, sorry, it was the term "navigable waters," the Court was trying to find out the meaning of... I was recapping that case from memory 2+ years old.

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"The only crime in America is not having any money."
-Berthold Brecht

"This interview...is not about me..."
-

I don't see "navigable waters" in the Constitution either. Was it in a statute?

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

That's what I meant. It's not in the Constitution itself but is an interpretation of it, just like the separation of Church and State being a wall.

Actually, the text referred to originally by mtramm in reference to the Rapanos case is in the CWA statute, not the Constitution.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Excellent post, that's one of the best explanations on this subject I've read in a long time.

It's a flawed explanation in that the author fails to point out that the original Constitution granted the government no power whatsoever over religion.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

What Mick is so ham-handedly referring to (casting ever greater doubt as if any remained on the absurdity of his self-pronounced knowledge of constitutional history and law) is that under the Doctrine of Enumerated Powers (one would have thought someone sooooooo knowledgable as Mick pretends to be would know the term for what he is trying to talk about) the Federal Government has no powers not explicity enumerated to it under the constitution.

This doctrine is absolutely correct, but when applied to the Bill of Rights, and most of the relevant case-law, it ignores several key facts:
1. The Federal Government DOES have plenary police powers traditionally associated with sovereign states over Federal Property and Territories (such as the District of Columbia and other territories)
2. The Doctrine of Enumerated Powers with regard to understanding the Bill of Rights applies ONLY to FEDERAL actions, and 99.99999% of the cases before the court, particularly with regard to the Establishment Clause are based on STATE action, not Federal.

Neither the Establishment Clause, or the Doctrine of Enumerated Powers proscribes the display of the Ten Commandments in front of a state or local courthouse. It doesn't even proscribe it in Federal buildings, as it is not "establishment", and is really nothing more than decorative, it is not a legal exercise of "power" anymore than a decision to put carpeting on the floor and paintings on the wall. But, as said, even if the constitution DID preclude or proscribe the Federal Government from doing so, it says nothing about the states.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

You're not qualified to ascertain the meaning of the establishment clause, until you can demonstrate knowledge of the law of legal instrument interpretation, at the time the Constitution was made.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

Then the states are perfectly free to forbid one or another religion within their borders, or establish state churches? cmon, you're not going to say Utah wouldn't have done it by now?

Also, the words of the Declaration are 'endowed by their CREATOR,' They were specifically careful NOT to use the word god. Creator could mean anything, including simply the Universe itself which does indisputably create everything that exists

PUT UP OR SHUT UP you unoriginal, substanceless fluff.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

If that were true, then you would be right. It is not true, however. Displaying blue rather than green carpeting implies only an aesthetic preference; displaying the Ten Commandments in a courthouse implies a legal dependence on, or at least reference to, Judeo-Christian doctrine. Although this by itself is not the establishment of religion, it is an action respecting an establishment of religion, by communicating a preference for one religion over others.

As originally adopted, it did not. However, since 1868, it has:

(14th Amendment.) This language extends the Bill of Rights and other federal limitations on government (except those explicitly limiting the federal government against the states rather than against the people) to the state governments as well.