I would draw an analogy

I would draw an analogy to the 8th Amendment’s prohibition against cruel and unusual punishments. This was obviously intended to bar the use of torture–which it has done successfully, since torture has been more or less unheard of in American prisons for two hundred years, and has been roundly condemned wherever it has appeared. However, rather than simply accepting that the 8th Amendment has been successfully implemented, our federal courts have looked for ways to use it as a tool for improving social policy beyond the area for which it was intended. Thus, a few years ago it was held to be unconstitutional for a prison guard to hit an inmate. Now, it’s probably a bad idea most of the time for guards to slug inmates–although I can think of lots of exceptions–but it isn’t cruel and unusual punishment. It is presumably a tort for which the prisoner could recover damages, but it lacks any Constitutional dimension. But the Supreme Court couldn’t resist the temptation to expand the 8th Amendment to give it more relevance to modern conditions–the modern condition being the complete absence of cruel and unusual punishments. (By the way, it was Justice Thomas’s sensible dissent from this 8th Amendment decision that was the first occasion for his ritual denunciation by the Left.) And, of course, the Supreme Court has most notably tried to expand the reach of the 8th Amendment by holding that under various circumstances it prohibits capital punishment, something that obviously was not contemplated by those who wrote the Amendment. What I’m trying to highlight here is the liberal concept of Constitutional provisions as ever-changing benchmarks that move always farther to the left as the world gets more liberal. As with the 8th Amendment, the federal courts can’t leave the establishment clause alone on the ground that, 200 years later, we still don’t have an established religion. They have to make the language relevant by moving the chains farther and farther down the field in search of ever-more-ephemeral ties between church and state to extinguish.


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