Supreme Court appears inclined to let 40-foot ‘Peace Cross’ stand on public land

"Opponents call it an impermissible overlap of church and state, ..."

FR: Never Accept the Premise of Your Opponent’s Argument

First, since the Founding States had decided that the states did not have to respect the rights that they expressly protected in the Bill of Rights, the founders obligating only the feds to respect such protections, the states therefore having no constitutional prohibition on making laws to "cultivate" (my word) religious expression, the real question is where did the politically correct idea of “impermissible” overlap of church and state come from?

It came from FDR’s state sovereignty-ignoring activist Supreme Court justices.

More specifically, regardless what FDR’s activist justices wanted everybody to think about the “wall of separation” statement made by their “Hollywood” version of Thomas Jefferson, the real Jefferson had clarified the following about church and state separation.

”3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that -the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people-: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed [emphasis added]; . . . “ - Thomas Jefferson, Kentucky Resolutions, 1798.

FDR's justices had argued in Cantwell v. Connecticut (Cantwell) that Section 1 of the 14th Amendment took unique state government power to cultivate religious expression away from the states.

"The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws [emphasis added]. The constitutional inhibition of legislation on the subject of religion has a double aspect." --Mr. Justice Roberts, Cantwell v. State of Connecticut, 1940.

But the Court's decision was wrong imo, for the following reason.

Justices who were probably outcome-driven seemingly ignored that the congressional record shows that Rep. John Bingham, the main author of Section 1 of that amendment, had clarified that 14A took away no state powers, 14A reasonably limiting state power to cultivate religious expression indicated by Jefferson.

"The adoption of the proposed amendment will take from the States no rights [emphasis added] that belong to the States." - John Bingham, Appendix to the Congressional Globe. (See bottom half of first column)
"No right [emphasis added] reserved by the Constitution to the States should be impaired . . ." —John Bingham, Appendix to the Congressional Globe. (See top half of 1st column)
"Do gentlemen say that by so legislating we would strike down the rights of the State? God forbid. [emphasis added] I believe our dual system of government essential to our national existence." - John Bingham, Appendix to the Congressional Globe. (See bottom half of third column)

Regarding Bingham's clarification of the limits of 14A, note that Jefferson had put it this way about interpreting the law.

"The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." --Thomas Jefferson to Albert Gallatin, 1808.

And as Justice Reed had indicated about 10&14As in Jones v. City of Opelika, it is the job of judges to balance 10A-protected state powers with 14A-protected personal rights.

"Conflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living without which constitutional guarantees of civil liberties would be a mockery." --Justice Reed, Jones v. City of Opelika, 1942.

Again, regardless what post-FDR era constitutional "experts" are institutionally indoctrinated to believe about the Establishment Clause, it remains that Bingham had officially indicated that the that states still have their unique, 10th Amendment-protected power to cultivate religious expression, powers acknowledged by "atheist" Jefferson, regardless of the Court's misguided, politically correct interpretation that clause in Cantwell.

In other words, the states still have the power to erect Christian memorial crosses on public land for example, power that the colonies had before the Constitution was ratified, regardless that the states no longer understand that.

My one reservation about the fully constitutionally justifiable Maryland cross is this. Just as Christians are forced to pay taxes for things like murder of unborn children, groups that complain about public Christian crosses are likewise wrong to be forced to pay taxes for maintenance of such things imo.

In fact, let's respect Jefferson's Virginia Statute for Religious Freedom, and keep all Maryland taxpayers reasonably happy by letting Christians who support the referenced cross contribute their time and / or their money for its upkeep, while not forcing Christians to pay for the murder of unborn children.

Finally, the Supreme Court's politically correct interpretation of 14A in the Cantwell case seems to be a consequence of the ongoing "civil war" between Catholics and Protestants in USA. (Jesus' teaching of Matthew 12:25 comes to mind.)

More specifically, 19th century federal Protestant lawmaker Rep. James G. Blaine had tried, but failed, to have his proposed amendment ratified to the Constitution, an amendment which would have prohibited taxpayer support of "sectarian" (aka Roman Catholic) public schools in the states.

"No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations." —Failed Blaine Amendment

H O W E V E R …

It can be argued that FDR's activist justices picked up the baton dropped by Blaine and effectively legislated his failed amendment to the Constitution from the bench by arguing their politically correct interpretation of Establishment Clause.

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