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April 04, 2011


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Atlanta Roofing

I think you are applauding the wrong side for relying on the "obnoxious principle that the fruits of all gainful activity belong to the government." Under the majority's ruling, there is a strong incentive for legislatures to in fact treat the fruits of all gainful activity as belong to the government, and then dishing the money out through unreviewable tax credits. So the majority, in denying the principle, makes it more likely to become reality, while failing to "recognize and expose" said reality. That is praiseworthy?

Lawrence J. Kramer

I think that the Court that has painted ITSELF into a corner by creating a class of injury for which there is no necessary remedy and then relying on fictions to circumvent its own error.

If Congress shall make no law respecting establishment of religion, and, somehow, a state action, of any kind, can be alleged to be such a law, the naturally "aggrieved" party is anyone whose metaphysics is implicitly being denigrated. That the grievance is shared with a lot of people may be grounds, generally, for a jurisdictional objection, but not where the claimed affront has no other natural grievant. Flast tried to find an credible "interest" in complaining instead of carving out a true exception for grievances that only a wide number of people can possibly hold. That seems to me to have been a wrong turn that has inevitably led to this blind alley.

I understand why we don't let just anyone complain about a restriction on, say, press freedom. There are enough people who actually want to publish to assure that, if the law really restricts the freedom to publish, a publisher will challenge it. And this is so, I think, prudentially, even if one regards the essence of that portion of the Amendment as protecting my freedom to hear more than it protects your freedom to vent. But Arizona has figured out, allegedly, how to violate the Establishment clause without creating a natural plaintiff. When that happens, surely the requirement that there be no wrongs without remedies must trump the requirement that someone actually be demonstrably injured.

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