Another Excellent Brief — By Amici — In The Ninth Circuit, Tonight…

This time, the amicus brief is authored by a coalition of the most esteemed Constitutional law professors our nation has to offer. So, I’d trust their views.

And this time, a great bit of scholarly attention is paid (in a 43 page PDF) to the Free Exercise and Establishment Clauses of the First Amendment — and long standing precedents there under. As you might imagine, Mr. Trump’s twin (but serial) Muslim banning orders flunk every imaginable test — and so, the Framers’ whose views are recounted here, and the language the amici use to convey the same is. . . towering, in its command of our system of ordered liberties (as this case is almost — but only almost — without precedent):

. . . .The bill against which James Madison famously remonstrated has been consigned to the dustbin of history. But the underlying evils against which Madison warned are still with us. This case does not present them in disguise. No, “this wolf comes. . . as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). President Trump repeatedly and ostentatiously expressed the animus that brought it forth in his calls, and subsequent acts, to ban persons of a single faith from entering the United States. For liberty to endure, the Order must be rejected. . . .

The Framers thus understood that their task was to design a “government for a pluralistic nation — a country in which people of different faiths had to live together.” Jon Meacham, American Gospel: God, the Founding Fathers, and the Making of a Nation 101 (2006). As George Washington wrote, “the government of the United States. . . gives to [religious] bigotry no sanction, to persecution no assistance.” Letter from George Washington to the Jews (Aug. 18, 1790). . . .

Thomas Jefferson, in turn, saw the Establishment Clause as “proof that [the people] meant to comprehend, within the mantle of [the law’s] protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo. . . [and] every denomination.” Thomas Jefferson, Writings 40 (Merrill D. Peterson ed., Library of Am. 1984). . . .

Even acknowledging the deference due to the President in matters of immigration and national security, it is hard to imagine a clearer case of governmental action motivated by animus toward a single religion. . . .

[A]s a matter of law, the Supreme Court has never suggested that statements in some fora — such as campaigns — are uniquely irrelevant to motive analysis. To the contrary, courts must consider “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.” Lukumi, 508 U.S. at 540 (opinion of Kennedy, J.) (citing Arlington Heights, 429 U.S. at 266). That reflects simple common sense: “[T]he world is not made brand new every morning.” McCreary, 545 U.S. at 866. . . .

[Now, as to that last bolded bit — in other contexts, I do so wish. . . that it were.] But so it goes — we try anew, tomorrow. And. . . a reckoning soon arrives — on swift and dark wings, indeed. That much is now a certainty — so I will smile — and smile widely, tonight. . . . Word.



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