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Wednesday, April 03, 2013

The [tk] State of North Carolina

Here is a nice story about a House bill in North Carolina that declares that "the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion," and that the "North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion." It has eleven sponsors so far, all Republicans. 

Note that the bill does not appear to be making the "jurisdictional" argument that the Establishment Clause does not prohibit state establishments and has been wrongly interpreted to do so through incorporation. Rather, it appears to be based on some kind of bouillabaise of nullification, popular constitutionalism, something like federalism, and denial of the power of federal judicial review. It says:

The Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people. . . Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion.

The bill does not say anything about whether its theory of interpretation and authority applies to any other federal constitutional provisions, such as the Speech Clause. It also does not actually require establishment, nor does it say which religion the state would establish if it went ahead and did so. Here's hoping it goes with Islam, in the spirit of using states as laboratories of experimentation.  

Posted by Paul Horwitz on April 3, 2013 at 10:05 AM in Paul Horwitz | Permalink

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Comments

I think Virginia already tried this (http://en.wikipedia.org/wiki/Martin_v._Hunter%27s_Lessee).

Posted by: Adam | Apr 3, 2013 10:59:51 AM

A quick read of NC's constitution suggest that it contains no analogue to the Establishment clause, though it does contain an analogue to the Free Exercise clause.

Posted by: Abe Delnore | Apr 3, 2013 12:55:07 PM

We in NC are very proud of our state government at the moment. Not.

Posted by: Brian Clarke | Apr 3, 2013 5:38:43 PM

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