Hamilton’s Folly

by John J. Pitney, Jr.

Prof. Marci Hamilton of the Cardozo School of Law writes that the Stupak amendment “violates the Constitution’s separation of church and state. The anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groups, as is illustrated by the fact that the most visible lobbyists in the Stupak Amendment’s favor have been the Catholic Bishops.”

By this standard, Professor Hamilton would have to conclude that the 1964 Civil Rights Act is also unconstitutional. The Rev. Martin Luther King Jr. and his Southern Christian Leadership Conference, along with other religious leaders and groups, led the fight for its enactment. “We needed the help of the clergy, and this was assiduously encouraged,” said Senator Hubert Humphrey. “I have said a number of times, and I repeat it now, that without the clergy, we couldn’t have possibly passed this bill.”

Sen. Richard B. Russell of Georgia, a segregationist, agreed with Humphrey that the clergy were the bill’s most visible lobbyists, but he was not happy about it. He complained that the clergy were using “powers of the Federal Government to coerce the people into accepting their views under threat of dire punishment” — a “philosophy of coercion” that he compared to the doctrines of Torquemada “in the infamous days of the Spanish Inquisition.”

A more sensible view of the relationship between religion and politics comes from a distinguished attorney who has taught constitutional law at the University of Chicago:

[S]ecularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, Williams Jennings Bryant, Dorothy Day, Martin Luther King — indeed, the majority of great reformers in American history — were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their “personal morality” into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.
The legal scholar is Barack Obama. And so those who argue along Professor Hamilton’s lines are echoing segregationists and opposing the president.

– John J. Pitney Jr. is the Roy P. Crocker professor of government at Claremont McKenna College. With James Ceaser and Andrew Busch, he is co-author of Epic Journey: The 2008 Elections and American Politics.