An end run around the Constutition


August 1, 2005

Reading about the fatal tragedy at the Boy Scout Jamboree, two things struck me. First of all, the death of four people in front of their entire troop really is a horrible tragedy, and given the way that it appears the four died, I can't imagine it'll be all that easy for some of the kids to recover from that. In an entirely different vein, though, I also realized that the Jamboree is taking place on federal land the Army's Fort A.P. Hill which means that our government still feels it appropriate to give access, funding, and support to an organization that specifically excludes gay, athiest, and agnostic people. I honestly don't understand how this can still be occurring.

Doing a little reading this evening about the state of our government's Boy Scout support, I discovered a few interesting things. First, I learned that a judge in the Northern Illinois U.S. District Court issued a ruling earlier this month which bars government support of future Boy Scouts Jamborees. The decision is available (in PDF form) from the ACLU's website; it contains a thorough description of how the Boy Scouts meet the standard of a religious organization, and as such, how explicit government support thus violates the Constitution's prohibition of a link between government and religion. Seems logical to me, and would seem to put this whole issue to bed. Oh, if it were only that easy.

The other thing I learned tonight demonstrates why it's not that easy; it revolves around an argument made by the government in the Illinois court case that has set the stage for at least one future attempt to maintain government support of the Boy Scouts. Essentially, the U.S. claimed that the plaintiffs in the lawsuit people who, as federal taxpayers, brought suit under their right to exercise oversight over the way their tax money was being spent lack standing to claim harm because the money wasn't spent pursuant to the clause of the Constitution dealing with taxation and government spending (Article I, section 8, clause 1). Instead, the Department of Defense claimed that their support of the Boy Scout Jamboree derived from the specific powers vested in Congress over military affairs (Article I, section 8, clauses 12-14), and as such, taxpayers wouldn't have the same right to question the way the money is spent. The District Court judge found ample evidence that the money was spent at least in part under Congress' taxation and spending authority, and dismissed the argument. The reason this is interesting to me is that it appears our Senate took note of this, and passed an amendment to the Defense Department spending bill yesterday, an amendment which explicitly allows the Secretary of Defense to support the Boy Scout Jamboree on the basis of it being required for defending our national security and preparing for combat.

Now you see why I find this so fascinating? It's clear that the Constitution forbids our government from supporting organizations that mandate religious faith (like the Boy Scouts), and it's also pretty clear that there's no way the Senate would get the country to amend that ban out of the Constitution. So in order to get around it, the Senate is trying to pass laws that aim to prevent ordinary taxpayers from having sufficient standing to bring suit “what we do might be unconstitutional, but you don't have the right to file a court case to demonstrate that, so we can do it anyway. And as the final straw, they did all of it by declaring that the Boy Scout Jamboree is vital for national security.

Ignoring fundamental prohibitions built into our Constitution is pretty bad, but getting caught doing so, and then responding by passing laws which aim to restrict oversight of the unconstitutional actions, is worse.