A Wall of Babble

[Ringtone]

Wall of Babble

By Michael Rawlings (a.k.a. Ringtone), Oct. 2027​

There are two major parts of decisions handed down by the federal courts and the courts of the several states: the decision on the question of the case before the court (the decidendi) and the reason (or rationale) for the decision (the ratio decidendi). The latter part also constitutes the final judgment on the case per the principle of judicial precedent (stare decisis).

Another important legal precept in case law is dictum (the singular of dicta).

Statements in an opinion that don’t directly pertain to what was necessary to decide the issue at hand are deemed dicta. They’re statements in an opinion that are “incidental to the disposition of the case” or “directed at issues upon which no formal arguments have been heard”; such “are not considered to be precedent and should be distinguished from the ratio decidendi which provides the basis of the court’s ruling” (The Constitutional Law Deskbook, 8:82, 2020; Chandler, Enslen, and Renstrom). In other words, they’re not part of the binding precedent of the decision for future cases.

There are two kinds of dicta: obiter dicta and judicial dicta.

Obiter dicta (i.e., “said in passing”) are precisely what I describe in the above and nothing more. Judicial dicta are not binding in terms of precedent either; however, they are of a higher order because they’re directly related to the issue argued by the parties of the case and, most importantly, are directly tied by the court to the future conduct of argumentation in cases of its nature. Hence, while they’re not binding in terms of precedent for future cases decided by higher courts or decided by courts of equal rank (the latter may freely ignore them altogether and often do), they carry dispositive weight for courts lower than the courts that express them:

‘Judicial dictum’ is a statement the court expressly uses to guide parties in their future conduct. As a general rule, such an expression of opinion on a point involved in a case, argued by counsel and deliberately mentioned by the court, although not essential to the disposition of the case, is distinguished from mere obiter dictum, and it becomes authoritative when it is expressly declared by the court as a guide for future conduct. Thus, a judicial dictum should receive dispositive weight in a lower court (“Judicial Dicta,” 21 C.J.S. Courts 226, 2020; Buccieri, Buchwalter, Gore, and Griffith).

In Everson v. The Board of Education (1947), the plaintive argued that a New Jersey statute which reimbursed parents for the cost of busing their children to private schools, secular and parochial, violated the Establishment Clause of the First Amendment.

In its decidendi the Court held that (1) the statute did not violate the Establishment Clause and that (2) the Establishment Clause applied, not just to the federal government, but also to state and local governments via the Due Process Clause of the Fourteenth Amendment. This is the first time the Court applied the Establishment Clause to the governments of the several states.

That part of the ruling was absolutely correct!

The political left, for example, has assailed the right to keep and bear arms at the state level for decades. It’s a good thing when the federal courts require the several states to uphold the Bill of Rights as well, and there was absolutely nothing unconstitutional about New Jersey allocating funds for transporting students to parochial schools, just like it allocated funds to transport students to other private schools and public schools. The plaintive was trying to persuade the Court to exclude persons of religious faith from public services provided for all students.

The Court’s expressly stated ratio decidendi on the question of the case was given in two parts.

The Court held that because the Establishment Clause does not override the Free Exercise Clause “New Jersey cannot . . . exclude individual . . . because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” In this instance, Justice Black, writing for the majority, meant the general government services associated with things like public sewage, parks, highways, education, transportation; fire and police protection, and so on. The First Amendment “requires the state to be neutral in its relations with groups of religious believers and non-believers.” In other words, the New Jersey statute didn’t provide any special benefits to religious students to which they weren’t entitled as citizens.

In dictum, Justice Black cites Madison’s “Memorial and Remonstrance Against Religious Assessments” and Jefferson’s “Virginia’s Statute for Religious Freedom”, which opposed and abolished, respectively, a state tax that supported the established Episcopalian Church of the state of Virginia of the colonial era. The latter ended its established status to the effect that the government could neither directly tax nor support religious bodies. Justice Black continues along this line of dictum by citing Jefferson’s famous letter to the Danbury Baptist Association in which he writes:

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.

So the Establishment Clause means precisely what the historical principle of separation had meant for more than three hundred years in the Anglo-American tradition of natural law: the federal government and now those of the several states are prohibited to erect official institutions of religion, like the official state Church of England. Right?

No, apparently not.

In the pronouncement of the Court’s final ruling on the case, Justice Black ambiguously concludes that “[t]he First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”

Now this part of the decision is utterly gratuitous relative to the question before the Court and, sans any definition in the body of the decision itself as to precisely what this “wall between church and state” is, let alone what the “slightest breach” of it could possibly be . . . and, oh, look, it’s “high and impregnable” too!

What, precisely, is this “wall of separation”, Justice Black? What, precisely, does that mean, Justice Black? He doesn’t actually tell us anything of definitive value in this wise and opened the door to judicial chaos.

I can see why this case wasn’t on my radar until a brother in Christ brought it to my attention. It rightly upheld the Free Exercise Clause on the question of the case, and the mischief of its language in this part of the ratio decidendi would come from the Warren Court. It’s the decisions of the 50s and 60s (and those thereafter with which I’m also familiar) that essentially eviscerated the Free Exercise Clause in the public schools. Incidentally, in an essay I wrote some years ago titled “Revisions and Divisions”, I allude to a decision handed down later by the Court which partially reversed Everson. In that case, students were being directly bussed, not from homes to schools, but from public schools to parochial schools for religious instruction. It should have occurred to me then to trace the line of decidendi back to the case in which the Court first imposed the corrupt version of the Jeffersonian metaphor.

Jefferson was a staunch Lockean of individual liberty. He’d be appalled by the Court’s decision. I find it very hard to believe that Justice Black didn’t know Jefferson’s actual intent. In any event, sans any definitive exposition of Jefferson’s intent in the decision, Justice Black had no business applying extraconstitutional language to the Establishment Clause.

In his famous dissent in Wallace v. Jaffree (1985), Rehnquist observed that “unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.” By this he did not mean that Jefferson himself misunderstood the historic principle of separation or the original intent of the Establishment Clause, but that the casual language of Jefferson’s missive to the Danbury Baptist Association is not the proper basis for deciphering original intent. Sans the context of the congressional deliberations over the language of original intent, Jefferson’s metaphor could be constructed to mean virtually anything. Rehnquist, the greatest American jurist of the 20th Century, brilliantly excoriates the Court’s mangled line of decidendi regarding the principle of separation as he reviews the principle’s history and the congressional deliberations on it. He observes that the proper foundation goes to Madison’s exposition of it as proposed by him on the floor of Congress:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

Though, for complex reasons, the language that Madison initially proposed was not adopted, it gets at the precise intent of the religious clauses, and, of course, as any competent historian knows, Madison and Jefferson, who was abroad at the time as America’s minister to France, were of one mind on religious liberty.

By the way, leftists apparently hold that Justice Black’s line of dictum in the above is either judicial dictum (authoritative) or part of the ratio decidendi proper, while conservatives tend to regard it as mere orbiter dictum because the concluding pronouncement of the ruling doesn’t definitively follow from the dictum. My personal view after reading the decision is that Justice Black thought of it as part of the ratio decidendi.

Conservatives think logically; leftists think emotionally and routinely conceal their motives in case law. Some view Justice Black as a leftward-leaning moderate, but during the Warren years, he wrote many of the most leftist decisions of the Court. I don’t refer to most so-called liberals as such. They’re not liberal in the classical sense. They’re collectivists, statists, who emphasize governmentally imposed equal outcome, rather than constitutional equal opportunity.

 

[1stNickD]

I agree equal outcome is wrong headed on every level. Under the equal outcome mindset, if you breathe you should have exactly as much as what ever anyone else who breathes has. If you go to school and disrupt class, sell drugs in the hall and never turn in an assignment you should get the same "A" as the student who worked to ignore you, avoided your violent hallway activates and did their homework diligently and learned the subject matter. Or if you want a job but do not have the skill or even the desire to do it, you should be rewarded with the same salary as the skilled individual who applies their time and efforts in order to have a satisfactory or exemplary outcome. That is the full gist of equal outcome. And that's morally despicable.

As to the schools, each family should have a right to send their children to the school of their choice. The taxpayer funds the secular public schools through taxes imposed on everyone, whether they have children or not or whether they go to private school or not. The buses that pass by these schools are not educating anyone, they are simply providing mutually paid for transportation so parents of all beliefs can have their children educated. To deny access to transportation because you are Christian, Jewish or Hindu is as wrong as denying transportation to someone because of the color of their skin.

In the USA everyone (citizen or legal immigrant) should have an equal opportunity to apply themselves to do as good as they can with the skills they have. If someone is applying themselves and truly making an effort to contribute to society through their work, but they need a "little bit" of help to keep a roof over their head or food on the table, I am fine with that. But if people have chosen to addle their minds with substances, or commit serious criminal acts, or fail to take advantage of educational opportunities in their youth, or want to laze around all day, and then cry because they do not have a middle class income, then I don't care.

And if someone borrows 150,000 dollars to get a doctoral degree in, Appreciation of the Three Nosed Dragon Fly, and now they are crying because they are underemployed dropping fried potatoes into little cardboard boxes, that's their self-created problem and it's not anyone else's responsibility to pay their bills for them. No one has a right for equal outcome unless they are doing truly equal work. And even then, you have to prove yourself over time.