Sunday, August 16, 2015

Is it unconstitutional to set up a monument quoting the Oklahoma constitution?

Writing in the Tulsa World, Gonzaga law professor Mark DeForrest says the Oklahoma Supreme Court’s denial of a motion to rehear its recent Ten Commandments case failed to address the linkage between Article II, Section 5 of Oklahoma's state constitution and the failed Blaine Amendment in the 19th century.
The concurring opinions in support of the Court’s decision vigorously deny that Article II, Section 5 was based on the infamous Blaine Amendment. While mustering historical evidence to support that position, the concurring opinions and dissent do not address the specific linkage between the prohibition in Article II, Section 5 against use of public aid or property for “sectarian institutions or systems” and language in the Blaine Amendment. Yet, as the dissent notes (and the plurality decision in the U.S. Supreme Court case of Mitchell v. Helms explains), when the Blaine Amendment was debated, “it was an open secret that ‘sectarian’ was code for ‘Catholic.’” It is the use of the term “sectarian” that links Article II, Section 5 with the Blaine Amendment and its background. In the 19th century, the word “sectarian” was like a dog whistle, without emitting an audible sound, it communicated very effectively. None of the justices supporting the Court’s decision acknowledge that aspect of the Blaine Amendment’s connection with Article II, Section 5. A more nuanced and informed overview of the language would be helpful in deciding how to apply Article II, Section 5 to remove the taint of prejudice that follows from the word’s history and usage. ... 
A final reason to doubt the court’s conclusion is its failure to harmonize Article II, Section 5 with the express language found in the Preamble of the Oklahoma Constitution. The Preamble explicitly calls upon “the guidance of Almighty God” to help the people of Oklahoma establish a free, just and beneficial government. This is a direct, active statement of theological principle, one that even perhaps could be characterized as a prayer, enshrined at the very start of the fundamental charter of Oklahoma. It was drafted and adopted by the same convention responsible for Article II, Section 5. Yet this same charter is now read to prohibit the state from passive acknowledgment of the Ten Commandments. Constitutions are to be read as a whole. While preambles are declaratory in nature and not usually prescriptive, the Preamble of the Oklahoma Constitution expresses the intent of those who drafted and ratified the constitution Would it now similarly be unconstitutional to set up a public monument that simply quoted the Preamble to the Oklahoma Constitution?

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