You may use this image in your ezine or website if you choose to publish my article. Click here to see the picture full-sized.--- Tim Gordinier, Ph.D

The drums are beating along the banks of the Potomac. Interest 
groups on the left and right are positioning themselves for the 
ugly Senate confirmation fight that will surely follow once 
President George W. Bush gets done choosing a nominee to fill the 
vacancy left by retiring Supreme Court Justice Sandra Day 
O'Connor. Who knows? Perhaps the Chief Justice will retire and 
give us a doubleheader. 

It should be quite a spectacle, even a raucous circus, despite 
Bush having made conciliatory noises that he only wants to choose 
someone that will interpret the Constitution and not legislate 
from the bench. 

The president even says he won't make the nominee's position on 
abortion a litmus test. But don't get all giddy just yet. This 
enticing language is simply coded message to his true-believers: 
since "abortion" is not in the Constitution, no right-minded 
judge would interpret the document to identify that right in the 
first place. Ergo: he will choose an anti-abortion nominee and 
rightwing ideologue. 

But Bush, becoming more concerned now with legacy than during his 
administration's first-term macho strut, will at least try to 
select someone who will "seem" to be of the mainstream. 

Appeals Court Judge Michael W. McConnell would be a perfect 
choice if one wanted a Trojan horse. McConnell is a bright, soft-
spoken former academic. Well-liked by his liberal colleagues, he 
even has some unconventional views that might irk the far right. 

But he is also someone who would take us a huge step backwards as 
far as church/state separation is concerned. He would bring back 
graduation prayers and creationism in the schools and push 
vouchers and more government involvement in religion. 

McConnell claims the whole doctrine of separation is, 
historically-speaking, flawed. I will risk the wrath of fellow 
freethinkers and take the unpopular view that he is about half 
right. 

Let's give the other side its due. Despite the intent of men like 
Thomas Jefferson and James Madison, separation of church and 
state was not a slam-dunk at the founding of our republic. Even 
after the passage of the First Amendment a few of the 13 
independent states continued to tax citizens to support the 
dominant Protestant denomination. Many states had blasphemy laws; 
a few had blue laws prohibiting working and dancing on the 
Sabbath; some even prohibited Catholics and Jews (not to mention 
non-believers!) from holding office well into the nineteenth 
century. 

And all these laws were perfectly constitutional! Like the rest 
of the Bill of Rights, the First Amendment had no legal bearing 
on the 13 newly-independent states, at least not initially. The 
states could do as they liked. Nonetheless, some, like Virginia 
and Pennsylvania, chose right from the very beginning to hew very 
closely to our present-day understanding of church/state 
separation. 

Now, even most of those who oppose the doctrine of separation 
acknowledge that the generation that ratified the Constitution 
wanted the federal government out of the business of religion. 
From there the natural development of separation doctrine shifted 
to the states, whose politicians and populaces began to realize, 
over time, that religion and government do not mix. Most began to 
eliminate religiously-infused statutes from their law books. The 
High Court accelerated this trend by holding that the Fourteenth 
Amendment made the protections of the Bill of Rights -- including 
the Establishment Clause -- applicable to all levels of 
government. Not only is this "incorporation doctrine" accepted by 
most jurists, but it made sense to go this route because the 
nation was steadily becoming more religiously diverse in the 
nineteenth and twentieth centuries. 

But McConnell and justices like Clarence Thomas have a point if 
you believe the Constitution doesn't grow. 

The larger question is this: Is the above snapshot of our 
nation's distant past something we want to go back to? Perhaps 
the far right might want to, but I have a sneaking suspicion that 
even most conservatives would recoil at Justice Thomas's radical 
view that the Establishment Clause resists "incorporation" and 
that states are free to create state-sponsored churches should 
they choose to do so. I can see it now: Instead of red and blue 
states, we would have all sorts of colored states to recognize 
fundamentalist, Catholic and Mormon ascendancy in different 
regions of the country. 

That is why all this talk about nominating someone who will 
interpret the Constitution and not legislate from the bench is 
particularly grating. 

At first glance, original intent and strict constructivism 
arguments seem to be common sense approaches to deciphering the 
Constitution. The original intent approach says we should, when 
trying to understanding some provision, seek to discover the 
initial purpose(s) of the person(s) who drafted that provision. 
Sounds straightforward enough. Strict constructivism means that 
judges should construe the language of the Constitution to mean 
what the words say. Again, what's wrong with that? 

The only problem with "originalism" is that it is often difficult 
to divine what the drafters intended. Or, even more problematic: 
since there were many drafters, there may be many intents. This 
allows an unscrupulous judge to choose the purpose that best 
aligns with his or her political agenda, all along claiming that 
he/she is neutral and simply applying the law. 

So why not interpret this venerable document in the context 
of modern understanding, instead of the past, which favors 
conservative politics? In fact, it happens all the time. As far 
as I know all nine justices have no problem with the government 
providing lawyers to indigent defendants, even though that was 
not the original intent of the Sixth Amendment guarantee. Chief 
Justice Rehnquist's interpretation of the Equal Protection Clause 
to prohibit sex discrimination departs from the original purpose 
which was to provide legal equality for African-Americans. And 
Justice Scalia has defended flag burning as free speech, even 
though one wonders whether such a notion even entered the 
thoughts of the founders. 

Which brings us to strict constructivism. 

Strictly construing words is fine when we have such self-defining 
phrases as the requirement that the president must be at least 35 
years old. 

But what do we do with vague generalities like government shall 
make no law prohibiting the free exercise of religion? Does that 
mean that you should be able to mainline heroin or sacrifice your 
firstborn if that is part of your religion? Obviously, some 
reading between the lines has to take place here. 

As a secularist I happen to take the unorthodox approach that the 
doctrine of separation of church and state was not fully-formed 
at the beginning, but naturally evolved with time from the seeds 
planted by our most prominent and thoughtful founders. In a 
largely Protestant nation, solicitude for Muslims and Wiccans was 
probably not an important consideration. But in a nation as 
religiously diverse as ours is today -- with several million 
unbelievers to boot -- strict separation is the best course of 
action, or else we're in for some rocky times ahead. 

So don't be fooled when you hear these pious utterances from the 
far right about how a judge is supposed to do her job. The U.S 
Supreme Court is a legal institution. But it is also a political 
one -- always has been, always will be. 

And while we're at it, we better stop listening to these cynical 
eighth-grade civic lessons that nominees should be judged on 
their qualifications alone -- not their political convictions. 
You can be sure that the right would not play by the same Marquis 
of Queensbury rules if they were in the same weakened condition 
as progressives are now. 

Tim Gordinier, Ph.D., is the director of public policy of the 
Institute for Humanist Studies. The Institute for Humanist 
Studies is a nonprofit advocacy organization, based in 
Albany, N.Y., that promotes the rights of the nonreligious 
(http://www.HumanistStudies.org). A registered lobbyist for 
humanism, Gordinier earned his doctorate in public law with a 
concentration on the religion clauses of the First Amendment. 
He is a board member of the New York Civil Liberties Union - 
Capital Region Chapter.  He is the author of the online course 
"Religion and the Constitution", offered through the 
Institute's Continuum of Humanist Education 
(http://www.HumanistEducation.com). Gordinier's commentary 
appears regularly in the Institute's weekly e-zine, Humanist 
Network News (http://www.HumanistNetworkNews.org). To contact 
Gordinier, visit: http://humaniststudies.org/feedback.html