America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar Read Free Book Online

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    The proper touchstones are religious liberty and equality, not separation as such. If everyone else is receiving a government benefit, then so must religious folk—not because they are religious but regardless of whether they are religious. A private secular academy should never lose its government benefits merely because it later decides to add a daily prayer to its classroom regimen. Such a tax on prayer—for that is what a funding cutoff would be—would constitute an obvious violation of the ideals of liberty and equality at the heart of the Fourteenth Amendment.
    To see the same point in the context of public-school education—the context that generated Brown, Bolling, Engel , and Abington —note that while governments may not properly organize prayer, private citizens may . If a student-organized and student-run stamp club is allowed to meet in a classroom after school, as is a student chess club, a student baseball-card club, and any other student club, then a student-organized and student-run Bible study must be allowed equal access. The key concept is not that religion must in every way be walled out of and separated from school space, but rather that religious students must be treated equally with all others. In short, the watchword is not “separate”—but “equal.”
    THE PROBLEM WITH THE POST-WARREN COURT ’ S doctrine governing church and state was not that various sub-rules were prophylactic and overprotective. As we have seen, the same could be said of Browns’ s sub-rulethat de jure segregation would be presumed unequal and improper; of Sullivan’s ensemble of sub-rules designed to give breathing space to free speech; and perhaps even of the virtually irrebuttable presumption in the incorporation cases that any right in the Bill of Rights was ipso facto fundamental. 11
    But in these other areas, arguable overprotection of core rights did not threaten any counterbalancing citizen rights. Even had Sullivan doomed all libel law, the Constitution does not require that libel law exist; a state would be free to eliminate all libel law. Also, in the areas of segregation, expression, and incorporation, the Court’s opinions signaled that the justices understood the Constitution’s central meaning and were thus building implementational rules on a sound interpretational foundation.
    The post-Warren Court’s deployment of separationist doctrine regarding church and state was different. At times, the Court seemed to misread the Constitution’s main meaning and to elaborate a vision of separation for its own sake rather than a vision of religious freedom and equality. Because of the justices’ misunderstanding of constitutional meaning and/or confusion about the proper relationship between interpretation and implementation, the post-Warren Court actually threatened Americans’ right to freely exercise their religion—a right expressly guaranteed by the Constitution. When Court rulings began to suggest that the Constitution would permit or even require that private religious schools be treated worse than otherwise identical private nonreligious schools, it became clear that the justices had veered off course. Implementation must subserve—not subvert—the core meaning of the written Constitution.
    MODERN CRIMINAL-PROCEDURE CASES —in particular, exclusionary-rule cases—have also veered off course, and here, the decisive wrong turns occurred on Earl Warren’s watch.
    The problem with the exclusionary rule is not that it overprotects the core right to some degree. To repeat, some prophylactic overprotection in implementation of a constitutional right is necessary and proper. But the exclusionary rule is wildly out of sync with the relevant constitutional principles. On reflection, we should not be surprised by this fact, because the rule was not born as a traditional and proportionate judicial remedy—itwas always and remains today an outlandish judicial remedy bearing no