One of the problems with the current model of American jurisprudence, under which the word “unconstitutional” effectively means “at odds with the conscience of Anthony Kennedy, depending on what he had for breakfast that day,” is that nobody, including the justice himself, seems to know what Kennedy is going to think — or, more accurately, feel; it isn’t clear that he thinks at all — from day to day. Given that the only operative constraint on judicial supremacy at the moment is shame, we should be grateful that the Framers had the foresight to put some things into very plain language.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” We have had a great many stupid and dishonest fights over what “an establishment of religion” means — as though the ratifiers of the Constitution, many of whom lived in states with established churches, did not know what an established church was. But religion makes people crazy with dread and loathing (cf. Thomas Jefferson, Thomas Paine) and so we’ll probably have that fight over and over again until we have a summary execution every time the elected dogcatcher of Oatmeal, Ohio, wishes the deputy dogcatcher a “merry Christmas.”