Roy Moore, Boy Scouts, the Constitution, and doughnuts

Former Chief Justice Roy Moore and his Foundation for Moral Law have filed a friend-of-the-court brief (available online here) arguing that a federal statute allowing the military to help the Boy Scouts of America hold a National Jamboree every four years does not violate the First Amendment's establishment clause. The case is Winkler v. Rumsfeld.

From the Foundation for Moral Law's web site:

On November 7, 2005, former Chief Justice Roy Moore and the Foundation for Moral Law filed an amicus curiae (“friend-of-the-court”) brief in Winkler v. Rumsfeld before the U.S. 7th Circuit Court of Appeals arguing that a congressional statute that authorizes the U.S. Military to help the Boy Scouts of America conduct a National Jamboree every four years does not violate the Establishment Clause of the U.S. Constitution. (read/print brief here) The ACLU sued the military, and a federal district court incredibly ruled in the ACLU’s favor. The ACLU objects to the Boy Scout oath which acknowledges a duty to God.

Judge Moore recently observed, “the Winkler case demonstrates just how far the ACLU and other liberal organizations will go to remove any public recognition of God who has so blessed our Nation.” ...

In the legal brief, Judge Moore and the Foundation urged the court to halt the use of various judicial tests that have yielded ridiculous results in many cases regarding our recognition of God. Judge Moore encouraged the court to return rulings based on the words of the First Amendment. When the statute is compared to those words, it becomes obvious that acknowledging God is not a law “respecting an establishment of religion.” In authorizing support for the Boy Scouts, the statute does not favor any particular religion because the Boy Scouts is not a religious organization. Moreover, the statute does not “establish” a national religion of any kind because it does not force anyone to believe in a particular religion.

Roy Moore is exactly right. The First Amendment's establishment clause states that "Congress shall make no law respecting an establishment of religion." Moore argues 1) that establishment-clause cases should be decided based on the text of the First Amendment rather than on "judically-fabricated tests" like the so-called Lemon test; 2) that the Boy Scouts is not a religion; and 3) that even if it were, the law providing for support of the Boy Scout Jamboree does not "create, involve, or concern" an establishment of religion.

That's all pretty straight-forward and right out of the originalist playbook. A more interesting question, though, is not whether federal support for the Boy Scout Jamboree and similar activities is prohibited by the Constitution, but whether it is authorized.

The powers of Congress are listed in Article I Section 8 of the U.S. Constitution. If you ever want to know whether the Congress has the power to do something, then you should read that section for yourself. (No law degree is required, by the way.)

A quick reading of Article I Section 8 raises the following questions: Does Congress have the power to provide support for Boy Scout Jamborees? Is Congressional funding for that activity "necessary and proper" to the execution of its delegated powers? Is it appropriate for private charities to view Congress as their donor of last resort?

More specifically: Is providing support to the Boy Scouts necessary and proper for regulating of interstate commerce? For raising and supporting armies? For providing for and maintaining a navy? For calling forth, organizing, arming, disciplining, or governing the militia?

I think that the answer to each of those questions is "no." The Boy Scouts is a wonderful organization with an admirable mission, but they should seek funding and support from someone other than the federal taxpayer. If they want money for their Jamboree, then let them sell doughnuts. The country could use a few more young capitalists.