At Law & Liberty, David Upham (Univ. of Dallas, Politics): The Court Should Tear Down Everson, Not the Maryland Cross (commenting on the Maryland cross case, Maryland-National Capital Park and Planning Commission v. American Humanist Association). From the introduction:
The challenge to the 94-year-old cross (erected in 1925) rests entirely on a 72-year-old precedent, established in Everson v. Board of Education (1947). In Everson, the Court held that the Constitution’s Fourteenth Amendment makes both Religion Clauses fully applicable against the states, and therefore, that the federal courts have authority to forbid any state action they deem an establishment of religion.
In the Maryland cross case, the litigants and judges have seemingly all accepted this precedent as settled and fully applicable law. Despite the conservative leanings of several Justices, the participants in the litigation have thus far shown little interest in the text or original understanding of the Amendment. Indeed, neither the text nor the very name of the “Fourteenth Amendment” appears anywhere in the Respondents’ 100-page main brief or in the lengthy opinions authored by the Fourth Circuit. Further, with the exception of two amici, no one has addressed whether Everson might be a bad precedent, inconsistent with the original understanding of the Fourteenth Amendment.
Moreover, no one, it seems, has raised the objection that it would be unjust to retroactively apply Everson so as to destroy the work of those who, two decades earlier, could not have foreseen the incorporation of the Establishment Clause.
In this essay, I’d like to establish two facts that seem to me highly relevant to a just resolution of this case. First, when the Maryland cross was erected, the virtually unanimous legal consensus was that the federal Constitution did not incorporate the Establishment Clause against the states, and that, consequently, the respective states retained the exclusive authority to regulate themselves in matters of religious nonestablishment. Second, this non-incorporation consensus was plainly harmonious with the original understanding of the Fourteenth Amendment.
Consequently, the citizens who established the cross could not have reasonably foreseen Everson and thus had good reason to rely on Maryland’s permission as final. A reasonable person would not have predicted that the federal judiciary would later order the destruction of the cross as violative of the Constitution.
Some of the evidence supporting these claims is well known by scholars. But some of it has not been published before. …
Posted at 6:10 AM