I thoroughly enjoyed that, particularly the snarky bit about judicial restraint.

Only semi-relatedly: do those of you who have been to law school think there is a valid argument to be made that the Establishment clause has been interpreted too broadly? E.g., do the people who say "we have freedom OF religion, not freedom FROM religion" have a leg to stand on?

The way it's currently interpreted, they sort of do. I'll give you a fuller answer in person if you'd like. I'm sure Flea will do a better job here in a moment though.

The funny thing is that originally the Constitution was set up to merely prevent the federal government from establishing a state religion, but not the state governments. Some states (Massachusetts and Connecticut, for example), in fact, DID have a state religion at the time, though this faded away in the early to mid 1800s.

We did some trickery with the 14th Amendment to change that interpretation, so states couldn't re-establish the religion today, but some people (like Justice Thomas) still go by the original meaning... and while I don't like where it leads us, I don't think they're wrong.

Incorporation is slapdash. I don't like it.

i got nothing; ingen covered it. still, i'm perhaps more grateful for incorporation in general nows that i live in the sticks.

I like the OUTCOME of incorporation, I just don't really think it's actually in the 14th amendment. I wish we could add an amendment that says: all limitations applied to the federal government that impact individual rights also apply to the state governments.

I feel the same way about the right to privacy. It strikes me as highly desirable but somewhat contortionist. I'm sure religious conservatives are muttering on a blog somewhere about the rights (or lack of rights) THEY wish were explicit in the Constitution.

What exactly does freedom FROM religion mean? In the narrow sense, Ingen nails it with the historical account of governmenally enforced religion (CT actually fined people for not going to church on Sundays---although, that raises the question of who was policing the ordinance).

But do we have freedom from private citizens' religious views? On one hand, clearly not: the speech clause allows for religious and political speech, so the Jehovah's Witnesses can come to my door this morning and quip, "Oh, it's so nice to see you home on a Sunday!" I was tempted to invite them in for tea and arsenic.

The real problem as I see it is when legislation motivated by clearly religious reasons infringes on other individual liberties. These are the times when we get crap jurisprudence--see Kennedy's incontinent rationale for upholding the partial birth abortion ban. Or take the anti-gay legislation that might as well be plagiarized from Leviticus.

How can we define liberty so as to protect the individual from such hollowly secular laws? Strict scrutiny and fundamental rights doctrine ain't cutting it.