What the "Living Constitutionalists" don't get about public prayer

Now, as I am someone who thinks 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), 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.” Indeed, despite much chattering and nattering about such things in liberal and Democratic circles, there is no such thing as a Supreme Court empathy test. There is however a more relevant — not to mention, real — test to be considered: Whether the justices of the Supreme Court are faithful to their oaths. And that oath suggests pretty strongly that empathy should be put aside as much as possible. Justices “solemnly swear (or affirm)” that “I will administer justice without respect to persons, and do equal right to the poor and to the rich . . . ” That doesn’t exactly scream out “go with your feelings” now does it?