Yes, Madison later changed his mind. But are we to read the Constitution through the revised views of some people who were involved in it 40 or 50 years after the fact, or are we supposed to read it according to what they meant when they wrote it and when it was ratified?

Madison didn’t change his mind, he violated the principles for which he proposed the first amendment and regretted having done so. He didn’t just decide later it meant something different. I’d ask the same question Harry Jaffa asks: are we to be guided by the principles these men expounded, or by their sometimes contradictory application of them? I’m not arguing that strict separation is the only way to interpret the first amendment, I’m merely arguing that it is one of the two primary ways one can interpret it, and that comes directly from the founders themselves. Both strict separation and accomodationism can be traced directly to the founders, which means it’s not quite as simple as finding “the” original intent or original understanding of those provisions. And finding an instance in which Madison violated his own standards does not make those standards any less compelling.

And I think you wildly underestimate the influence of groups like PFAW, NARAL, the Alliance for Justice and the ACLU in Democratic politics. They’re not “fringe groups.” They call the shots. (Just read the leaked memos for confirmation.)

I’m always a bit amused by this feigned outrage over “leaked memos” showing that a party coordinates their efforts with powerful advocacy groups among their constituents. Partisans react with horror, as though the other party didn’t do the exact same thing. The Republican party coordinates their efforts with groups like Focus on the Family just like the Democratic party coordinates their efforts with People for the American Way and similar groups. Indeed, on this very same issue of judicial appointments, prominent organizations like the American Center for Law and Justice have been appointed specifically to defend and provide cover for Bush’s nominees. Just like there is opposition research, there is anti-opposition research and both parties work with advocacy groups on such matters. Karl Rove even holds weekly strategy sessions with James Dobson and other prominent religious right leaders. Those groups try to exert maximum influence on the party, but parties are not ideological first and foremost, they are utilitarian. The interests of the party’s ideologues are counter-balanced by lots of other things that form political reality.

Roe (and his many statemenst against it) was continuously brought up during McConnell’s first confirmation battle, and it’s the absolute Democrat litmus test for the SCOTUS. I’ll be happy to be proven wrong. But I’d bet my house they’ll throw everything they’ve got at him.

Well okay, but perhaps you should reread what I said. I didn’t say those groups wouldn’t oppose him. In fact, I said they would. But I also said they won’t be successful and they won’t be able to garner nearly enough support among Democrats in the Senate to be a threat to his nomination. You have to look at all of the factors and how they interact and not just look at each individual factor and say “hey, that didn’t help Bork” or someone else. When you add up all of those factors, I think you have as close as you can possibly get to an easily confirmable nominee.

There will be a fight, and they will certainly mine all of McConnell’s voluminous writings for arguments to use against him. In fact, they’ve already done so and they probably already have talking points, memos, op-ed pieces, and maybe even TV commercials in the can and ready to go. I’ll probably even be critical of him myself on some of those things. And that’s okay, isn’t it? Politics is about the clash of ideas and interests. But in the end, there isn’t enough there to stop him from being confirmed. He’s not Robert Bork (he doesn’t have his track record of saying completely loony things), who was rightly and justifiably kept off the court. McConnell is a serious and independent minded scholar with broad support across the political spectrum. If nominated, he’ll get through.

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers….What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.
(–letter to Henry Lee, June 25, 1824)

Regarding McConnell, I’d love for you to be right. But I still don’t think you are.
The highly politicized ABA’s rating these days counts for bupkis (look what it did for Miguel Estrada and Charles Pickering and Carolyn Kuhl and Robert Bork etc. etc. etc.), as does the support of a notable liberal here or there.
And I think you wildly underestimate the influence of groups like PFAW, NARAL, the Alliance for Justice and the ACLU in Democratic politics. They’re not “fringe groups.” They call the shots. (Just read the leaked memos for confirmation.)
He wasn’t opposed for ideological reasons? Please. It was not by accident that McConnell was included with Pickering and Owen in the group that was stonewalled. They let McConnell through only days after being smeared in the 2002 elections, and most of the Dems didn’t show up to vote on him. Orrin Hatch, his biggest, home state supporter, was going to take over the judiciary committee. It was a butt-covering move for the Dems, plain and simple. This year is not an election year, and the Supreme Court is the whole enchilada.
Roe (and his many statemenst against it) was continuously brought up during McConnell’s first confirmation battle, and it’s the absolute Democrat litmus test for the SCOTUS. I’ll be happy to be proven wrong. But I’d bet my house they’ll throw everything they’ve got at him.

But Locke v. Davey doesn’t forbid states (or federally funded colleges) from providing scholarships that will be used for theological studies, it merely permits states to determine that they don’t want scholarship money to be used to study theology. I believe the Court made clear this important “play in the joints” aspect of their decision. States have latitude to decide whether to restrict scholarships to non-theological studies or to not restrict scholarships on that ground.

Yes, I understand the distinction, but I still think the decision was incorrect. I think it showed a hostility to religion that is not permitted under controlling precedent by singling out only theological studies for a prohibition. Obviously, the court disagreed.