The notion that something can simultaneously be wrong and constitutional really seems to bother a lot of people. Consider the Supreme Court’s recent decision on public prayer.
In Greece v. Galloway the court ruled, 5–4, that the little town of Greece, N.Y., could have predominantly Christian clergy deliver prayers at the beginning of city-council meetings.
As a constitutional matter, the majority’s decision seems like a no-brainer to me... the Constitution is not a “living” document (i.e. changing with the whims of whatever elite currently controls the judiciary) but an enduring one (its meaning is largely fixed until it is duly amended), (and) that pretty much settles the debate for me. If you want to ban public displays of religiosity, even by public servants, you should amend the Constitution, not appoint more liberal justices who will simply impose their preferences on it.
But don’t tell that to members of the Cult of the Living Constitution, who believe that if something is wrong it has to be unconstitutional. For instance, the Washington Post’s E. J. Dionne penned an op-ed called “The Supreme Court Fails the Empathy Test” in which he argues that the Greece city council should have been more inclusive. It’s not nice to make atheists, Jews, Muslims, and other minority faiths and non-faiths feel unwelcome.
The problem is that the Supreme Court wasn’t set up to pass an “empathy test.” Now here’s the hitch. Dionne and others have a point. Local governments and civic organizations generally shouldn’t exclude people of different faiths. But whining to Washington and asking the Supreme Court to fill the empathy deficit at the local level is not the answer.
