Editor’s note: This piece was originally published December 23, 2016.
How much do we trust the mind? How much should we—when thoughts lead on to thoughts, conjectures build atop conjectures, hypotheses extend upon hypotheses until it all seems just . . . too . . . much, a daydream from which we shake ourselves awake?
It does not take a sophisticated legal realist to recognize the hopelessness of any claim that the status of Christmas as a state or federal holiday violates the Establishment Clause. Justices don’t want to be the greatest grinches of all time.
And, in any event, under current law it is clear the current Christmas holiday is constitutional. It has a secular purpose and context as well as a religious one—most importantly being the anchor of the holiday season that more than any other boosts consumer spending. Evaluating Christmas as a holiday is a bit like evaluating Christmas displays themselves for constitutionality. A secular context, like enough dancing reindeers or increased GNP, can redeem the religious content. It may seem odd to a layman but the more crassly commercial Christmas becomes, the more it becomes legally safe as a holiday.
But instead of thinking what the current Establishment Clause doctrine means for the Christmas holiday, we can turn the question around and ask what the Christmas holiday means for the meaning of the Establishment Clause.
The Weekly Standard’s Andy Ferguson is consistently one of the funniest and most insightful guys around. His latest piece (“Jingle Hell”), on the annual deluge of atrocious Christmas music, is among his best ever. Mariah Carey in a snowsuit and “All I Want for Christmas is You,” for weeks without end? It’s enough, Andy writes, to “make him shout for the death of the entire Mormon Tabernacle Choir by Columbus Day.” Well said. I’ll add this to Andy’s trenchant observations: the bombardment with lousy music is sufficiently intense to ruin—for a captive audience—not just Advent but also much of the actual…