Legal Commentary

Rick Garnett just posted a message about how the spirit of the Blaine Amendments lives on in South Dakota, where kids attending Lutheran school were apparently denied access to the use of the public busing system because of the religious nature of their education.

If you are a true originalist, however, then you have to believe that such discrimination on the basis of religion is consistent with the Fourteenth Amendment. After all, Representative Blaine (from Maine) represented the mainstream of the Republican Party in the 39th Congress. A fervent supporter of the 14th Amendment, he and his colleagues would have been astounded to learn that his proposal to cut off public monies to the Catholic Church was inconsistent with the concept of "privileges and immunities" or "due process" in section 1 of the Fourteenth Amendment.

I do not mean to say that Rosenberger etc were wrongly decided. But I do not see how one can be an originalist and yet think that the Blaine Amendments -- laws that were at the heart of Republican ideology -- are somehow consistent with the Fourteenth Amendment's original understanding.