Posted on 12/02/2002 11:24:22 AM PST by Remedy
"Religion and Morality are the essential pillars of Civil society."
-- George Washington2
INTRODUCTION
[1] The characterization of the separation of church and state, and the balance between law and religion, is one of enduring confusion in current American constitutional theory and conception. An example of this confusion can be discerned from the recent presidential election, where the question of whether a candidate should or should not be allowed to profess his faith before the American public was presented.3 Furthermore, the claim for separation continues to remain a source of significant controversy in areas such as legislative acts,4 judicial decisions related to religion and prayers in schools,5 the media,6 and public opinion polls.7 The Establishment Clause of the First Amendment of the United States Constitution is usually believed to be the derivation of this wall of separation, however, the Framers never purposed such a wall.
[2] Part of the confusion in understanding religious liberty within the context of the political, legal, and social dimensions of America resides in the United States Supreme Court’s establishment and free exercise cases, which are frequently logically incomprehensible. While attempting to place the Religion Clauses of the First Amendment into a thoroughly synthesized jurisprudence, not only has the Court withdrawn from the original intent of the framers of the First Amendment, but it has also abdicated the original meaning of the Religion Clauses.8 First, the Court has transgressed imprudently and directly into the states’ domain and indirectly into the people’s province of authority by judicially amending the Constitution to employ the First Amendment to the states.9 Second, by parting from the historical significance of the Constitution, the Court has discounted the notion that the Religious Clauses of the First Amendment are dual proscriptions, which function concurrently to secure the protection of religious liberty. As a consequence, notwithstanding the Court’s disembarkation from the text and history surrounding the Constitution and the federalism restrictions placed upon the First Amendment leading to inconsistencies in the American jurisprudence, its latter two deviations have led to a legal and virtual misadventure, generating legal confusion and government-implemented religious discrimination.
[3] This Note addresses the confusion surrounding the question as to where exactly the authority and concerns regarding religion lie between the states and the federal government. That question is analyzed in Part I by examining the historical evolution of the states as a protectorate and authority figure in the development and understanding of religious liberty in America and by examining the sentiment of the framers toward the role of the federal government and the states over religious concerns in a system of federalism. Part II scrutinizes the adoption of the Fourteenth Amendment and its impact on the Religious Clauses of the First Amendment and the states in matters of religious liberty. The recent establishment and free exercise cases and their discordant application to government treatment of religion will also be discussed.
[4] After considering the disparate results of the steady erosion of authority historically held by the states and the aggrandizement of the federal government into the province of religion, Part III, begins by discussing some arguments, which may be made concerning the reversion of religion from the dominion of federal oversight to the states, and how they may be countered with respect to historical patterns of the states toward protecting, as well as, guaranteeing religious liberty. Thereupon, a series of examples will outline the modern prodigy of states as protectorates of religious liberty for a multitude of religious denominations, against illegal governmental activity. Finally, an argument will be presented recommending a restoration of the preceding division of authority between the federal government and the states that more closely recognizes the Religion Clauses’ relationship to the rest of the Constitution.
PART I: ORIGINS OF RELIGIOUS LIBERTY IN THE UNITED STATES
[5] It may be argued that religious beliefs and values have enlightened American law up to and including the period of the nation’s birth.10 As one author has stated, "religion and jurisprudence are so related," in fact, "that to understand American legal history, one must understand American religion."11 It has not been until recent generations that "the public philosophy of America [began to shift] radically from a religious to a secular theory of law."12
[6] An acknowledgment that religious ideologies have historically appraised American law, however, does not solely vindicate modern legal reliance upon them.13 Closely affiliated with the historical perspective is the perspective originating from the principles and language of the Federal Constitution, which includes an aggregate of clauses relevant to the interplay between law and religion.14 As a textual and historical concern interpreting the Establishment Clause to forbid legal reliance on religious values appears contradictory, when in fact the words and background of the Constitution would seem to suggest against such an advance.15
1. Religious Tolerance During the Colonial Period
[7] The religion clauses of state constitutions and that of the First Amendment of the Federal Constitution, created between 1776 and 1791, encompassed both a political and theological ideology.16 Together they reflected both the dictates of religious believers in the early years of the American republic and the viewpoints of their political leaders.17 They demonstrated a conception, as espoused by John Adams, that the law is rooted in a common religious tradition.18
[8] As an example of this combined ideology, in developing their political and religious systems, in what was then the New England portion of the English colony, the Puritan’s ministers and magistrates united in casting out dissenters, implementing church attendance, confining electoral rights solely to members of the community church, and sustaining churches through taxation.19 Contrary to a general misconception, however, the Puritans also made lasting contributions to America’s tradition of religious liberty by disapproving of an ecclesiastical judiciary, and by cautiously differentiating between civil and religious control.20
[9] For approximately four generations, the Puritans experienced an unmitigated independence to carry out their political and religious experiments.21 The English royal charters that first established the New England colonies bestowed upon the Puritans, broad discretion to envision and develop their ideal polity and theology.22 The charters decreed neither a religious nor a royalist establishment.23 The charters granted the New England colonists the freedom to propose and practice their own theological beliefs, given that they "wynn and incite the Natives of Country, to the Knowledg and Obedience of. . .the Christian Fayth."24 The colonists were generally free to form their own political and legal frameworks, provided that they "be not contrarie or repugnant to the Lawes [and] Statutes of...England."25 They were given control over the migration of believers, such as themselves, to the colony, provided that "none of the saide Persons be...restrayned" by the Crown and "[t]hat every [one] of them shalbe free and quitt from all taxes."26
[10] At the same time that the religious and political turbulence of seventeenth-century England induced the Puritan migration to the New World, it also influenced dissidents to view America as a place for effectuating experiments founded on religious freedom. Similar to the Puritans, the evangelicals who settled in the colonies, including Rhode Island, Pennsylvania, and New Jersey, fostered a theological theory of religious liberties and rights.27 They correspondingly encouraged the separation of church and state – the creation of a "wall of Separation between the Garden of the Church and the Wilderness of the world."28 However, they went farther than the Puritans in their understanding of institutional and individual religious rights and in their arguments for a greater separation between the institutions of church and state.29 The evangelicals attempted to defend the liberty of conscience of every individual and the license of association of each religious group.30 Unlike the Puritans, the evangelicals inhibited the legal establishments of religion, as well as all blends of politics and theology.31
[11] Furthermore, in the half-century prior to and including the American Revolution, other English colonies, such as Pennsylvania, New Jersey, New York, and Delaware, afforded broad-minded religious freedom.32 In New Jersey and New York, each had formal religious establishments, but because of the variety of religious assemblies in each colony, de facto religious liberty flourished.33 Similarly, the southern colonies also began to effectuate greater religious freedom.34 The religious establishments in the Carolinas and Georgia, however, continued to preserve Anglicanism.35
2. Religious Liberty, Revolution, and a New Nation
[12] The ideologies that forged the attitudes of the colonies on the eve of the American Revolution encompassed the perception of inalienable rights, the significance of a written constitution, the preeminence of natural law, Puritan covenant theology, and the existence of a government by popular consent.36 For instance, although it did not dilate upon the substance of religious freedom,37 the Declaration of Independence predicated theistic assumptions.38 These assumptions included four testimonials to a Deity: "nature’s God" and "Creator" in the first two paragraphs, and "Supreme Judge of the world" and "Divine Providence" in the closing paragraph.39 Moreover, the document’s most recognizable words reveals its theistic supposition. "We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness."40
[13] In addition, in the decade after achieving independence, the Continental Congress authorized legislative and military chaplains, provided for the importation of Bibles, and declared days of thanksgiving, prayer, and fasting.41 The Articles of Confederation, which functioned as the country’s foundational law before the adoption of the Constitution, alluded to the "Great Governor of the world" in article XIII and furnished the example for federal noninterference in state religious concerns.42 Furthermore, according to the preamble of the Northwest Ordinance of 1787, which created a republican form of government and a bill of rights for the Northwest Territory, the bill of rights were proclaimed to spread fundamental principles of civil and religious liberty.43 These principles form the basis upon which the laws and constitutions of these republics were erected.44 The Founders identified the impact of religion to the republic when they proclaimed in article III: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."45
[14] In formulating a Constitution, which created a republic premised on civil and religious liberty,46 the framers produced a tripartite federal government that expressed only enumerated powers. Article VI of the Constitution expressly provides: "No religious Test [oath] shall ever be required as a Qualification" for public office.47 Under the Tenth Amendment, any powers not delegated to the federal government by the Constitution, "nor prohibited by it to the States, [were] reserved to the States respectively, or to the people."48 The Bill of Rights, adopted during Congress’ first session, also expressly restrained the authority of Congress in religious affairs.49
[15] The legislative history of the First Congress implies that an assortment of beliefs influenced the religious clauses of the First Amendment, including a sentiment that religious exercise was a delicate and inalienable right requiring particular safeguards.50 Additionally, that power over religion, to the degree it could be applied, was a state concern.51 The legislative history further implies that, unless deterred, Congress would present a serious threat to religious liberty, or would intercede among the establishments of the individual states.52 Fundamental to these beliefs was an axiom of federalism based on the political philosophy of the Framers and their trepidation towards centralized power.53 The conservancy of religious liberty relied upon this principle, which signaled the separation between state and federal authority.54 As two noted historians suggested, there are at least three justifications as to why the religious clauses were addressed only to Congress. They include the belief by the Framers that: a national church offered the greatest threat to religious liberty; civil control over religious affairs was a state function; and the establishment clause was meant to avert congressional intervention with preexisting state establishments.55
[16] The Constitution nowhere accorded Congress explicit power in religious concerns. While Federalists and Antifederalists discussed the necessity of a bill of rights, they seemed to acknowledge that indemnification for religious injustices should be left chiefly, if not entirely, at the state level.54 To grant Congress the authority over such affairs would impose on the states and produce a centralized threat to religious freedom.56 Alexander Hamilton, the chief supporter of a strong national government, imparted the latter apprehension in The Federalist Papers: "It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority."57
PART II: STATES RIGHTS AND THE FOURTEENTH AMENDMENT
A. The Young Republic and Federal Restrictions on Religion
[17] Clearly, nothing in the Constitution demanded that the states disestablish religion.58 As Justice Joseph Story, the foremost authority on the Constitution during this period, stated, "this whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice and the State Constitutions."59 The Supreme Court was first presented with the question of whether any terms of the Religion Clauses of the First Amendment limited the states, in Permoli v. Municipality No. 1.60 In Permoli, the Court was introduced, for the first time, to the issue of whether the Religion Clauses of the First Amendment applied to the states.61 Building upon its earlier decision in Barron v. Baltimore,62 which held the Bill of Rights did not apply to the states,63 the Court, in an unanimous opinion, deemed the Free Exercise Clause of the First Amendment did not apply to the states. "The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws: nor is there any inhibition imposed by the Constitution of the United States in this respect on the states."64 The idea espoused in Barron influenced the Court until the passage of the Fourteenth Amendment.65
[18] Within the timeframe between the passage of the First Amendment and the Fourteenth Amendment, the Court decided only six cases that directly or indirectly involved the question of religion.66 In none of these decisions did the Court even insinuate that, the Religious Clauses of the First Amendment should be applied to the states. Therefore, prior to the War Between the States and the adoption of the Fourteenth Amendment, it was the prevalent understanding that the Religion Clauses of the First Amendment did not function as a restriction on state action pertaining to religion.
B. The Evolution of the Fourteenth Amendment and the Modern Interpretation of the Religion Clauses.
[19] The ratification of the Fourteenth Amendment elevated new questions as to whether the states’ involvement with religion was limited by the Constitution in any way.67 Two doctrines have emerged from the debate as to the Framers intent. The first doctrine, of "total incorporation," has never been accepted by the Supreme Court.68 Consequently, the Court has never held that the Framers of the Fourteenth Amendment sought to apply the entire Bill of Rights towards the states.69 The other doctrine, which was adopted by the Court, applied specific rights established in the Bill of Rights towards the states through the Due Process Clause of the Fourteenth Amendment. This doctrine is called "selective incorporation."70
[20] The Court first addressed a case concerning religious liberty with the application of the "selective incorporation" doctrine in Hamilton v. Regents of the University of California.71 The belief that the Due Process Clause protected multiple facets of religious liberty was recognized not only by a unanimous Court, but by the concurring opinion of Justice Cardozo, who declared, "I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the states."72
[21] After the Hamilton Court’s identification that the Due Process Clause of the Fourteenth Amendment protects certain facets of religious liberty from state action, it was only a small step for the Court to incorporate the two Religious Clauses of the First Amendment. Interestingly, however, the Court’s incorporation of the Free Exercise Clause in Cantwell v. Connecticut73 and the Establishment Clause in Everson v. Board of Education74 were arrived at with minor deliberation as to why the Religious Clauses of the First Amendment should be incorporated against the states through the Fourteenth Amendment.75 Even more intriguing, as one author points out, is why the Court withdrew from the traditional "selective incorporation" doctrine, and instead, resolved to apply the Religious Clauses of the First Amendment to the states through "total incorporation," By doing so, the court dictated the same limitations on the states via the Fourteenth Amendment as the First Amendment dictates on the federal government.76
[22] Subsequent to the incorporation of the First Amendment Religion Clauses in both Cantwell and Everson, the Supreme Court has delivered an overabundance of decisions regarding the Religious Clauses. In doing so, the court has prescribed the same circumscriptions on state governments as it has foisted upon the federal government.77 With respect to the free exercise of religion, the Court has distinguished an unmitigated right to believe what one may covet, but this right does not extend into an unquestionable prerequisite to engage in any religious behavior.78 Accordingly, laws that endeavor to regulate religious ideologies will be considered per se unconstitutional.79 Prior to 1990, under the tenet espoused in Sherbert v. Verner80 and Wisconsin v. Yoder,81 if a law encumbered the free exercise of religion,82 the government entity had to meet a strict scrutiny analysis83 or else, an immunity for that religious activity had to be carved out of the statute in question.84 The Court, however, did not employ the Sherbert test on every occasion upon which a free exercise issue arose,85 such as those situations pertaining to criminal institutions86 or the armed forces.87 Moreover, in several instances, the Court professed to utilize the strict scrutiny test, yet in supplication, used something much less rigid.88 As a result of this inconsistency by the Court, most free exercise petitioners lost their suits.89 [23] Since 1990, and subsequent to the contentious Employment Division v. Smith90 decision, it seems that religious-based exemptions would not have to be formulated out of detached and ordinarily applicable laws that encumber religious behavior, so long as a rational foundation exists.91 If, on the other hand, the law in question is neither neutral nor ordinarily applicable, or if the function of the law is designed to encroach upon or hinder religious exercises, then the Court will turn to the strict scrutiny test.92 A number of commentators criticized the Smith decision,93 and various justices called for the decision to be overruled.94 Furthermore, in reply to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA)95 in an attempt to re-establish the strict scrutiny test for the free exercise of religion.96 In 1996, however, the RFRA was declared unconstitutional as it related to state and local governments.97 Recognizing Congress’ reasoning in enacting the RFRA, the Court in Boerne held that Congress had exceeded its legislative capability by surpassing its enforcement powers.98 In declaring the RFRA to be substantive rather than remedial,99 the Court enunciated that "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."100 Thus, for remedial legislation to be valid under the congruence and proportionality test, the Court must be convinced that sufficient constitutional violations of the Free Exercise Clause exist to justify congressional action on the subject.101 [24] Regarding the Establishment Clause of the First Amendment, the development of jurisprudence by the Supreme Court is even less comprehensible.102 The least variable classification of cases under this clause encompasses government assistance or sponsorship of religious activities in public education. In case after case, the Court has continuously struck down such action on the part of a government entity as violating the Establishment Clause.103 In other domains of the Establishment Clause, however, the Court’s decisions have been less conspicuous.104 As a result of these inconsistencies,105 the Court has sent mixed signals pertaining to government sponsorship of religious displays106 and unique tax treatment for religious-based organizations.107 [25] The recognized test by the Court for cases related to the Establishment Clause has been the Lemon test.108 Since its inception, however, Lemon has been denounced from both within109 and without110 the Court, and in several instances the Court has either reconfigured the test111 or opted to abandon it altogether.112 In several cases, the Court has adopted a historical approach to Establishment Clause challenges, placing importance on the history of government concerns with religious matters.113 Most confusing, however, is that the Court has applied, over a period of twenty-five years, such subtle distinctions in both upholding and striking down aid to religious schools, that it is difficult, if not impossible, to determine in advance how a specific issue will be adjudicated.114 Many observers, even various Justices of the Court itself, have criticized the Court’s Free Exercise jurisprudence.115 Collectively, the Court’s decisions have left the American people with a body of legal doctrine that is essentially unprincipled, incoherent, and unworkable. PART III: STATES AS CATALYSTS FOR RELIGIOUS LIBERTY The Future Role Of The Incorporation Theory And The Establishment Clause. [26] Among the demurrals with the Supreme Court’s current jurisprudence, there is the problem of the original intent of the Religion Clauses. The only lucid original intent of the Framers is one in which the Religion Clauses were not to pertain to the states.116 By incorporating both Clauses against the states, the Court nullified the importance of original intent in defining the constitutional limitations placed on the states in comparison to the federal government. The lofty searches for original intent that were laid out in Everson, Cantwell, and other opinions are essentially fruitless. Although the authors of the First Amendment might have intended to apply the Religion Clauses to the national government, they had no such desire concerning the exercise of the Clauses upon the states except that the Clauses were not intended to apply to the states.117 As Professor Harold J. Berman stated: [27] To speak, then, of the history of the First Amendment, and of the intent of the Framers – as courts and writers continually insist that we must do if we are to understand what the Constitution requires in the sphere of ‘Church and State’ – is to run up against the plain facts that the first amendment left the protection of religious liberty at the state level to the states themselves and that the Framers expressed no intent concerning how the states should exercise their responsibilities in the matter.118 [28] Additionally, having nationalized the legal jurisprudence controlling church-state relationships, the Court has effectively left little leeway for state action in this area. As a consequence, the Court has dramatically suspended the federalism concerns implicit in the Religion Clauses.119 [29] Occasionally, however, the Court has seemed indisposed to expand the Religion Clauses to the dimensions required by its theories due to its acknowledgement that any interpretation of the issue at the federal level will, in some manner, affect the states.120 In these instances, the Court has curtailed the constitutional right at issue in order to explain giving it a broader application.121 As a result of the Court’s attempt to foster a broader application of the Clauses, several justices, including the second Justice Harlan, have warned the Court against lowering federal standards in order to accommodate state differences.122 Justice Harlan believed that by doing so, the Court would be exacting a rigid structure of constitutional law.123 [30] Given the Federalist essence of the Establishment Clause, such paraphrasing by the Court is unworkable. As originally apprehended, the Establishment Clause was meant to deter the federal government from interfering with state authority over religious matters. Incorporation of the Religion Clauses, on the other hand, has the opposite effect – the elimination of the aforementioned authority. At the same time, the incorporated Establishment Clause has left only a portion of its original purpose to neither prohibit nor require the states to have established churches. Whereas the states were not previously required to establish a religion, the modern interpretation of the Clause by the Court now prohibits the states from establishing one. In other words, not only is it not feasible for the Establishment Clause to be incorporated while accurately reflecting its primary federalist purpose, but it also cannot be incorporated without destroying its overall reason for existing.124 [31] Attempting to incorporate the Establishment Clause is therefore comparable to attempting to incorporate the Tenth Amendment, which reserves to the states those powers neither "delegated to the United States by the Constitution, nor prohibited by it to the States."125 The intent of the Tenth Amendment is to reaffirm that the states enjoy all powers not specifically delegated to the federal government by the Constitution.126 Incorporation of the Tenth Amendment would demand that the states be divested of all powers not specifically granted to them, thereby entirely inverting the Amendment’s original intent. To the extent that the Establishment Clause is similar to the Tenth Amendment, its incorporation is likewise disjointed.127 In fact, one scholar has even gone so far as to suggest that the Establishment Clause be examined as a specific employment of the Tenth Amendment.128 [32] An endeavor to reconcile the incorporation of the Establishment Clause with its history was made by Justice Brennan in his concurrence in Schempp.129 He wrote that "[I]t has been suggested, with some support in history, that absorption of the First Amendment’s ban against congressional legislation ... is conceptually impossible because the Framers meant the Establishment Clause also to foreclose any attempt by Congress to disestablish the existing official state churches."130 He replied to his own comment by stating that, regardless of the meaning of the Establishment Clause at the start of the nineteenth century [33] It is clear on the record of history that the last of the formal state establishments was dissolved more than three decades before the Fourteenth Amendment was ratified, and thus the problem of protecting official state churches from federal encroachments could hardly have been any concern of those who framed the post-Civil War Amendments.131 [34] Although it may be true, however, that the authors of the Fourteenth Amendment were not interested with conserving the religious establishments of the states, it is equally true that they did not intend to end state involvement with religion. This is due partially to the fact that when the individual states voluntarily disestablished themselves from particular religious sects, a majority of them continued to follow a doctrine of government accommodation of religion.132 Thus, disestablishment by the states should not be taken to intend that the Establishment Clause now dictates strict separation of church and state. [35] The controversy of incorporating the Establishment Clause also manifests itself upon a review of the Fourteenth Amendment’s Due Process Clause, which presumes to safeguard individuals from deprivations of "liberty."133 Although the Religious Clauses were intended to protect religious liberty, such liberty did not encompass – and the Establishment Clause does not mandate – the separation of church and state. The Framers believed that religious liberty would be protected, in part, by preventing the federal government from interfering with state authority over religion.134 As such, history discredits Justice Brennan’s implicit suggestion from his concurring opinion in Schempp that separation of church and state is a necessary prerequisite for religious liberty.135 In fact, all of the states that possessed established churches in the nineteenth century, apart from Connecticut, also had state constitutional guarantees of religious liberty.136 Furthermore, even if the Establishment Clause does not safeguard a liberty per se, it is not at all certain that it flows with Palko’s137 understanding of individual liberties as "implicit in the concept of ordered liberty."138 This author suggests that the intent of the Supreme Court to attempt to incorporate the Establishment Clause under Palko, while at the same time preserving the Clause’s original meaning is difficult, if not impossible. Therefore, this inner incompatibility with the Court’s doctrine has to be addressed and corrected if it is not to be viewed by the American public as a product of "WILL instead of JUDGMENT."139 [36] Additionally, the employment of the Establishment Clause against the states cannot be maintained under Justice Black’s conception that the Authors of the Fourteenth Amendment meant to incorporate the entire Bill of Rights.140 Although his belief was never shared by a majority of the Court, it is important to decide if it conceivably sustains the incorporation of the Establishment Clause. First, in deciding Everson,141 and in incorporating the Establishment Clause in that opinion, Justice Black neglected to explain selective incorporation as his reasoning behind incorporation. Consequently, an alternative explanation for the holding in Everson would be to suggest that Justice Black intended to completely incorporate the Clause rather than to selectively incorporate it. Second, the argument that the Palko theory fails to justify the incorporation of the Establishment Clause is unnecessary if it was the purpose of the Fourteenth Amendment to incorporate the Clause. However, credible historical evidence exists to suggest that whatever else the Framers of the Fourteenth Amendment may have expressed,142 they did not intend to incorporate the Establishment Clause.143 [37] The most remarkably persuasive indication of this fact is furnished by the defeat of the Blaine Amendment, which was proposed in the House of Representatives in 1875 by James G. Blaine.144 The Blaine Amendment, which was proposed and debated only seven years following the ratification of the Fourteenth Amendment, presents a significant challenge to the suggestion that the Fourteenth Amendment was intended to incorporate the Establishment Clause. It may be argued, that if the Fourteenth Amendment had, in fact, incorporated the Establishment Clause, the Blaine Amendment would have been superfluous. At the time of its introduction in Congress, the Amendment’s supporters were well aware that the Amendment would establish a constraint upon state authority over religion145 and that the Amendment may have been defeated for this very reason.146 Moreover, subsequent to the Blaine Amendment’s defeat, proposals comparable to the Amendment were unsuccessfully renewed in Congress on nineteen separate occasions between 1875 and 1930.147 [38] Yet, one argument that has been advanced in favor of the incorporation of the Establishment Clause against the states through the Fourteenth Amendment, contends that the Fourteenth Amendment’s protection of the free exercise of religion is already an accepted factor in Constitutional jurisprudence.148 The argument goes on to imply that the Blaine Amendment, had it been ratified, would merely have "added an explicit protection against state laws abridging that liberty."149 Such an argument, however, proves very little. First, the authors of the Blaine Amendment surely could have questioned whether the Fourteenth Amendment actually incorporated the Free Exercise Clause because the Supreme Court did not construe the Fourteenth Amendment in this manner for another sixty-five years.150 Second, the argument neglects to take into account the discrepancy between the structural meaning of the Establishment Clause and the substantive Free Exercise Clause.151 [39] One approach the court could follow to provide a solution to the incorporation of the Establishment Clause against the states is to accommodate the incorporation of the Establishment Clause by justifying the need for a constitutional separation of church and state. This approach could be focused, not on the history surrounding the Clause, but rather, on a developing understanding of the conception of "liberty" in the Fourteenth Amendment.152 A problem may exist, however, with this position if the separation of church and state is not prescribed by the history of the Establishment Clause, but is nevertheless a fundamental "liberty" protected by the Fourteenth Amendment. The Court could also postulate, without inconsistency, that "liberty" also embraces a Lochner-style153 absolute right to freedom of contract or an unmitigated right to worship any religious precept regardless of maintaining public order that would require the reversal of Reynolds.154 [40] A second approach is to recognize that the history of the Establishment Clause is uniformly capricious with the Clause’s incorporation and deincorporate it. This approach may not only be more appealing in attempting to restore the original meaning and history behind the creation of the Establishment Clause,155 but also more realistic and likely to be implemented given the Court’s present composition. B. Examples Of The Competency Of The States To Legislate And Adjudicate Church-State Disputes. [41] Simply because the First Amendment of the United States Constitution includes provisions regarding the establishment and free exercise of religion at the federal level, it does not mean that state bill of rights offer no independent direction for determining issues encompassing religious liberty or the free exercise of religion.156 On the contrary, an examination of state constitutional assurances implies just the opposite. For instance, many state constitutions provide safeguards for religious liberty that are more thorough and specific than those originating in the federal constitution. Many of the original thirteen states, for example, acknowledged in their earliest constitutions a "natural and indefeasible right to worship Almighty God according to the dictates of [one’s] own conscience."157 Analogous language has been embraced by subsequent constitutions in other states.158 Furthermore, nineteen states presently prohibit religious tests for witnesses or jurors.159 [42] Additionally, while the First Amendment’s Free Exercise Clause presents no explicit method in reconciling the claims of free exercise of religion with the lawful exercise of police power by the states,160 nearly twenty state constitutions have endeavored to resolve possible clashes by subsuming a police power qualification in the free exercise of religion.161 At the same time, several state bills of rights have also explicitly taken notice of religious qualms regarding military service by excusing conscientious objectors from service in the state militia.162 Further, at least two state constitutions – those of Louisiana and Montana – bar various forms of discrimination centered on religion not only by government but also by private actors.163 [43] Even more representative of the states’ ability to safeguard religious liberty is the failure of the Religious Freedom Restoration Act (RFRA),164 to pass constitutional muster before the Supreme Court in Flores.165 In a post-Flores world, the states have been left in a predicament regarding the protection of religious liberties. The previous semblance of a federal standard is defunct, since states are no longer obliged either statutorily or constitutionally, to excuse the religiously pious from neutral laws of applicability.166 A number of states have begun to consider whether their constitutions’ free exercise clauses could be construed more expansively than the Court’s holding in Smith.167 In fact, even before the RFRA was enacted and subsequently deemed unconstitutional, states began enunciating autonomous standards extending greater protection than the Court was willing to grant.168 Some states invigorated their freedom of religion safeguards by espousing the federal language of "compelling state interest" and "least restrictive means" when delineating their own constitutions.169 [44] Following the Flores decision, states, instead of Congress, have begun to prescribe the legal, political, and social course for religious liberties. Many states have come to rely on the Supremacy Clause,170 arguing that, apart from the constant tug-of-war between state and federal law, ultimately it is not mandatory for them to construe their constitutions in precisely the same way as the Supreme Court interprets the United States Constitution.171 After RFRA’s application to the states was negated, state legislatures began to implement the axiom that "the federal constitution provides a floor of protection for rights and that the state constitutions provide a ceiling."172 Although states always retained the power to establish higher standards for preserving individual religious freedom, a majority of states were content to employ only the compelling interest test espoused in Sherbert prior to Smith.173 Until recently, therefore, a staple of state religious liberty jurisprudence did not exist.174 Yet, an absence of state law precedent does not automatically preclude states from protecting the religious liberties of its citizenry, should a state choose to do so.175 [45] Due to the absence of case and statutory law in this territory, many states have been thrust into pronouncing a standard for establishing religious liberty protection without the advantage of a settled precedental record.176 In fact, the absence of case and statutory law in matters of religious liberty assists in demonstrating that state legislatures are the appropriate institutions to execute more extensive safeguards. States are more favorably accoutered to protect religious freedom than the federal government, both textually and functionally. Many state constitutions demand religious liberty exemptions,177 and the textual foundation that the states utilize to sustain those exemptions is embedded in their own "peace and safety" restriction provisions.178 In general, these clauses permit religious liberty only to the extent that public order is not unsettled. Intuitively, this would suggest that local and state governments could prescribe their own compelling interest precisely enough to encompass peace and safety assertions alone and allow exceptions to all other religious liberty claims. [46] Functionally, the states likewise enjoy institutional advantages over the federal government that enable them to effectively safeguard and preserve religious liberty.179 Within the confines of state legislatures and courts, states possess an advantage of not having to produce decisions for the entire country and. instead, can concentrate their attention on a much more precise policy goal.180 By allowing for a more definite focus, state courts and legislatures would be able to perform a more accurate balancing of the sensitive elements necessary for consideration in a compelling interest test.181 Furthermore, this limited range is beneficial in that it permits a specific receptiveness in choosing and legislating matters that a federal system cannot efficiently manage.182 [47] Ultimately, a more decentralized RFRA bestows upon individual citizens the ability to have greater admission to political redress. Protection of this nature ought to put to rest concerns that states will go in as many different directions absent a national standard. At the same time, states are frequently permitted to conduct themselves autonomously. Reinvesting The Preservation Of Religious Liberty Among The States. [48] The most substantial overtone of deincorporating the Religion Clauses of the First Amendment and relinquishing Everson is the fact that the Constitution would no longer impede the states from establishing religion.183 At first glance the abandonment of Everson may appear quite disturbing. Yet, there exists no reason to assume that each and every one of the fifty states would scurry to embrace religious establishments. [50] First and foremost, there were no established churches when Everson was decided in 1947. By the early nineteenth century, every state that had permitted some form or another of established religion had voluntarily disestablished those churches.184 Second, such attempts to establish state-supported religions would be prohibited by a majority of state constitutions.185 However, this is not to say that abandoning Everson would not allow the states much more leeway to acknowledge, accommodate, and advance religion than current legal doctrine permits. [51] By reinstating state authority over religious concerns, possibly the most meaningful virtue served is the federalist quality of decentralizing the decision-making process. This decentralization of decision-making accords two benefits. First, state and local governments are better suited to respond to the demands and concerns of the majority of their citizenry than the federal government. This is because state and local governments can adapt their laws more easily to conform to local conditions and preferences.186 Rather, Everson’s burden of a uniform national rule of strict separation of church and state has made it impracticable to forge compromises regarding the applicable amount of government involvement with religion.187 A second advantage of a federalist design is the possibility of experimentation by and competition among the states.188 For instance, during the nineteenth century, the states without religious establishments pressed their sister states, which possessed such establishments, into changing their existing policies toward religion.189 [52] As noted above, the present Court has curtailed the scope of what constitutes a forbidden establishment of religion and is likely to continue to do so in the future.190 Although the states are free to prescribe greater restrictions on their own governments than the United States Constitution provides, as is the case relating to the free exercise of religion, approximately eleven states have explicitly enunciated that their state constitutional restrictions upon the establishment of religion are no more expansive than those of the United States Constitution.191 As the Court limits the Establishment Clause, the cohering state restrictions on the establishment of religion are also narrowed.192 Moreover, subsequent to the incorporation of the Establishment Clause, state courts adjudicating church-state issues have been inclined to rely on the First Amendment instead of their own state constitutions.193 [53] It may be proposed that if the Establishment Clause no longer pertained to the states, state constitutional restrictions toward the establishment of religion would inevitably be derived from an independent source, and might therefore be even more rigid than the federal restriction. It may be implied, however, that in most states, greater church-state involvement would presumably succeed following the abandonment of Everson. This is partially due to the fact that a majority of the citizenry in the United States remains profoundly religious.194 There exists an inherent value in permitting majorities to ventilate their beliefs through the modern democratic process. Yet, at the same time, government accommodation of religion is also advantageous to American society as a whole.195 In a republic such as the United States, the duties and obligations of the government are not represented by the dictation of values upon its citizens. It is contingent, however, upon the citizenry to foster and nourish its own notions of virtue.196 The Founders recognized that a virtuous citizenry is fundamental in a political system where the people themselves are self-governing197 and religion would be a provenance of such virtue.198 Relinquishing Everson would allow the states to tend to their citizens’ religious needs, and as a corollary, their civic virtue. Therefore, by returning to the Framers of the Constitution and the author’s of the Fourteenth Amendment original understanding of the Religion Clauses, restoring state authority over religion may actually foster the separation of church and state, while preserving and even enhancing individual religious liberties. PART IV: CONCLUSION [54] Historically and textually, the Establishment Clause of the First Amendment was intended to prevent Congress from interfering with the states and their efforts to accommodate religion. The Framers of both the First Amendment and of the Fourteenth Amendment of the United States Constitution were agnostic in regards to the desirability of religious establishments among the states and only sought to maintain state sovereignty with respect to religion. Indeed, it was not until the Supreme Court incorporated the Religion Clauses of the First Amendment via Everson and Cantwell that the Clauses were applicable to the states. Amidst the present doctrine regarding the separation of church and state, the Court has subjugated and cast aside many of the principles of federalism, which has been and remains the essential backbone of the American system of government. [55] Instead of continuing to rely upon the enduring confusion of the Court’s application of the Religion Clauses, the restoration of an independent state jurisprudence over matters bearing upon the relationship between church and state is not only warranted but also appropriate. As part of our system of federalism, state constitutional sureties vary prominently in structure and text from their federal counterpart. In some instances, these discrepancies reflect the continuing outgrowth of constitutional evolution within a particular state, while in other cases, they reflect an implementation of provisions from sister states. Whatever the origins of the differences, the end product has been the federalization of a distinct perspective on the relationship between the separation of church and state. In the end, this distinct relationship at the state level presents an even greater opportunity for the protection and preservation of religious liberties beyond those guarantees that are currently offered by federal jurisprudence.
1. THE DOCTRINE OF ORIGINAL INTENT. T O
2. ORIGINAL INTENT: THE FRAMERS DID NOT INTEND THE SUPREME COURT TO BE THE ULTIMATE ARBITER OF ALL CONSTITUTIONAL ISSUES. T
3. ORIGINAL INTENT: THE FIRST AMENDMENT AND THE METAPHORICAL "WALL OF SEPARATION BETWEEN CHURCH AND STATE" W I I T F T A M I H T W "T U A F
JEFFERSON'S WALL OF SEPARATION: A JURISDICTIONAL INTERPRETATION OF THE 'WALL' METAPHOR footnotes @ link.
The federal Bill of Rights, which includes the First Amendment, served a dual purpose. It was to assure the citizenry that the federal government would not encroach upon the civil and religious liberties of individuals, and to guarantee the states that the federal government would not usurp the states' jurisdiction over civil and religious liberties. The Bill of Rights embodied a principle of federalism; it was essentially a states' rights document.
Thomas Jefferson and the Wall of Separation, Daniel L. Dreisbach ... Daniel L. Dreisbach, D.Phil. (Oxford University) and J.D. (University of Virginia), is a Professor in the Department of Justice, Law, and Society at American University. He is the editor of Religion and Political Culture in Jefferson's Virginia (2000) and Religion and Politics in the Early Republic (1996).
No phrase in American letters has had a more profound influence on church-state law, policy, and discourse than Thomas Jefferson's "wall of separation between church and state," and few metaphors have provoked more passionate debate. Introduced in an 1802 letter to the Danbury, Connecticut Baptist Association, Jefferson's "wall" is accepted by many Americans as a concise description of the U.S. Constitution's church-state arrangement and conceived as a virtual rule of constitutional law.
Despite the enormous influence of the "wall" metaphor, almost no scholarship has investigated the text of the Danbury letter, the context in which it was written, or Jefferson's understanding of his famous phrase. Thomas Jefferson and the Wall of Separation Between Church and State offers an in-depth examination of the origins, controversial uses, and competing interpretations of this powerful metaphor in law and public policy. From Library Journal
President Jefferson's "wall of separation" metaphor is central to U.S. Supreme Court analysis of First Amendment religious practices and relations between religious institutions and governmental activities. Dreisbach (justice, law, and society, American Univ.) demonstrates the underpinnings and both 19th- and 20th-century interpretations of this pervasive metaphor, which began as a phrase in a letter Jefferson wrote to the Danbury, CT, Baptist Association in 1802. He shows how the "wall" metaphor represents a struggle for religious liberty and in a similar fashion has been used as a component of a strict separation policy between church and state. This historical analysis offers new insight into the foundations of church-state discourse in the United States while also providing documentary underpinnings to Phillip Hamburger's analysis of 17th- to 19th-century religious writings in Separation of Church and State. Almost half of Dreisbach's volume contains extensive appendixes, notes, and a bibliography. This well-constructed book will be useful for academic libraries as an addition to their history and law collections.
Harvard University Press/Separation of Church and State
In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.
Hamburger provides an alternate historical and political understanding concerning the development of the separation concept, relying on 17th-through 19th-century religious arguments and social patterns to challenge our accepted understanding of relationships between church and state...This clear historical analysis will be accessible to anyone interested in U.S. church-state relations and civil liberties. Highly recommended. --Steven Puro, Library Journal
Philip Hamburger has, simply, produced the best and most important book ever written on the subject of the separation of church and state in the United States. He has laid to rest the historical credentials of the Jeffersonian myth of the "wall of separation," and shown how the notion of separation gained wide acceptance in the nineteenth century primarily due to the pervasiveness of American anti-Catholicism. He has also destroyed the notion that separation is the only alternative to the union of church and state, and demonstrated that acceptance of separation has in fact undermined the vitality of our original anti-establishment notions of religious freedom. Hamburger underplays the current constitutional implications of his historical arguments, but it is clear that this book will have a profound impact on the current law and politics of church and state.--Stanley N. Katz, Princeton University, President, Emeritus, American Council of Learned Societies
This richly documented and cogently argued book challenges conventional interpretations of separation of church and state as a constitutional standard in American history and promises to reshape the debate on the constitutional and prudential relations between religion and American public life.--Daniel L. Dreisbach, American University
Phyllis Schlafly Column 3/05/97 -- Republicans Have Duty To Hold Judges Accountable Mrs. Schlafly is a Phi Beta Kappa graduate of Washington University, received her J.D. from Washington University Law School, and received her Master's in Political Science from Harvard University. Mrs. Schlafly is a lawyer and served as a member of the Commission on the Bicentennial of the U.S. Constitution, 1985-1991, appointed by President Reagan. She has testified before more than 50 Congressional and State Legislative committees on constitutional, national defense, and family issues.
Even that great advocate of judicial power, Chief Justice John Marshall, wrote during impeachment proceedings against Justice Samuel Chase, for his arbitrary use of judicial power, that "a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment." Carter and Clinton judges are constantly making rulings contrary to what the legislature intended.
When President Gerald Ford was a Congressman, he proposed the impeachment of Supreme Court Justices William O. Douglas. Ford explained Congress's tremendous and far-reaching power of impeachment: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office."
Evolution and the Law:"A Death Struggle Between Two Civilizations"
Under this current theory, judges are solely responsible for the evolution of the Constitution, and it is living and organic according to their decree. As Justice Cardozo acknowledged, "I take judge-made law as one of the existing realities of life." [223] And Chief-Justice Charles Evans Hughes (1862-1948) similarly declared, "We are under a Constitution, but the Constitution is what the judges say it is." [224]
Religion and Political Culture in in Jefferson's Virginia , Daniel L. Dreisbach (Editor) Garrett Ward Sheldon (Editor)
Ten essays examine the religious concepts and communities that influenced Thomas Jefferson and James Madison and may have informed their political thought, the political culture of their time, and the development of the American approach to church-state relations. Among the topics discussed are an analysis of the religious and philosophical influences on Jefferson and Madison, a profile of Christian communities in Virginia, and the impact of deism on organized religion in Virginia. Annotation c. Book News, Inc., Portland, OR
Religion and Political Culture in Jefferson's Virginia examines the influential statesmen and the political struggles in revolutionary Virginia that played a decisive role in developing a distinctive American approach to religious liberty and church-state relations. This collection of innovative essays by leading scholars profiles the Christian communities in Virginia, analyses the religious philosophical influences of Thomas Jefferson and James Madison, and discusses the Virginian contributions to the American experiment in religious liberty. Religion and Political Culture in Jefferson's Virginia presents a fresh perspective on religion's role in Virginian and American political culture and provides a critical reassessment of the existing scholarship in the field.
This is an exceptionally important and readable book. Students of religion and politics owe a deep debt of gratitude to Dreisbach and Sheldon for putting together a systematic correction of myths and misunderstandings about religion and politics in America. -(Charles W. Dunn, author of The Scarlet Thread of Scandal: Morality and the American Presidency) -Charles W. Dunn
Kentucky and Virginia Resolutions Ghost-written by James Madison and Thomas Jefferson, the Virginia and Kentucky Resolutions (both 1798) were state laws that asserted the states' power and authority to declare federal laws unconstitutional.
Christianity, Our Early State Constitutions, and American Federalism
America's Christian federalism is nearly dead. Those who are in positions of power in education, cultural influence, law, and politics are either ignorant of it or hostile to it. Virtually all of those who run our national government and state governments have world-and-life-views which are alien to the spiritual, ethical, legal, and political foundations upon which our Christian federalism was established. Despite lip service to the Constitution, they are ignorant of, or hostile to the intentions behind our Constitution and the federal system which it established. Hence, they misinterpret, neglect, and violate the Constitution the Bill of Rights, and the intended role of the states in our federal system with impunity.
Sadly, American Christians are ignorant of their heritage in religion, ethics, civil government and law. Most denominations have long since departed from the full-orbed Christian faith which established the moral, legal, and governmental foundations of this once great nation of states. Though recent decades have seen a great revival of Christian schools and home education, few Christian schools or curricula teach a Biblical view of the world and of life, an understanding of the Biblical foundations and principles upon which our civil governments and laws were based, and the duty of Christians to attempt to revive, restore, and improve the Christian federalism which is evident in our early constitutions, declarations, and bills of rights.
The Lord blessed Americans through our early constitutions, declarations, and bills of rights because of the Christian faith and obedience of the people and their elected representatives which was represented in those documents. Despite the shortcomings of these early documents, their nature, principles, and practical consequences are far superior to those of American civil governments today.
We will not see a revival of America's Christian federalism until there is a revival of the Christian foundations upon which our traditional Christian federalism was based. For this to occur, there must at least be a mighty movement of God's Spirit, which will produce a revival of true belief in the sovereignty of God over all areas of life, an application of Biblical principles to all areas of human thought and practice, a restoration of understanding of the true nature and principles of our early constitutions, declarations, bills of rights and laws, and comprehensive action by Christians to restore and improve the precious heritage which is visible in our early state constitutions, declarations of rights, and bills of rights. CM
The Implosion of American Federalism
A truly robust federalism, in Nagel's view, requires not only a legal structure conducive to its maintenance, but a settled disposition on the part of the people in favor of local diversity and prerogative, and a disciplined love of liberty that transcends the desire for immediate gratification. None of these, he says, are to be found in great abundance these days. Instead, he finds a desire to avoid risk, an impatience with conflict, and a servile yearning for simple solutions decreed by centralized authority. These are not the hallüarks of a people that wishes to remain free. Indeed, says Nagel, "we may be witnessing the rapid realization of Tocqueville's foreboding vision of a mass of striving but discontented individuals 'endeavoring to procure . . . the pleasures with which they glut their lives' under the shadow of one 'immense and tutelary power.'"
A glum prognosis, to be sure, but one that is hard to take issue with. Virtually every important change in American social policy in the past two generations has been driven, if not initiated, by the judiciary. The Supreme Court has rewritten many of our cultural rules on the most sensitive matters, touching everything from sexual mores and the family to the place of religion in the social order. The striking feature in the Court's agenda is not only its radical departure from constitutional text and custom, nor even its almost contemptuous disregard for the expressed will of representative bodies. The remarkable thing is that, despite occasional wailing about wretched judicial excess, the American people tolerate it.
Not only do we willingly yield our responsibilities and liberties, Nagel contends, but we lie to ourselves when we do so. In his concluding chapter, "Lies and Nationhood," Nagel argues that the Clinton impeachment controversy demonstrates how deeply the cynicism of the legal elite has cut into common culture. The President's artful conjugation of "is," in Nagel's view, did not differ qualitatively from the routine pangloss of the professorial class when, for example, it argues without blushing that the right to abortion is deeply rooted in our constitutional tradition. Clinton's defense was but a particular application of the wink-and-nod sophistry that today passes for sophisticated legal advocacy. Everyone knew he had lied and dishonored the office of the President, but a majority of the public comforted itself either by pretending he hadn't, or if he had, by pretending it didn't matter. The entire sorry episode, Nagel concludes, confirms that "our system rests precariously on the edge of systematized dishonesty."
The Battle over the Tenth Amendment: Opening a Second Front
The question before us is not, unfortunately, that of the title of this workshop: What ever happened to the Tenth Amendment? We know the answer to that question -- in the past half century the Supreme Court has so emasculated the Tenth Amendment that it now resembles a wise and beloved ancestor -- revered and fondly remembered, but of very little consequence in day-to-day living.
The question before us is what we intend to do about it, and the answer to that question is far from clear. Of course the Supreme Court should overrule Garcia and its kin, including the majority's decision in Term Limits. We should continue to seek out and argue cases before the Court to persuade it to do so.
But it is unlikely that the High Court will act until it is given direction by Congress or the people. And so we must fight the battle for federalism by persuading both that a revival of the federalist principles embraced by the drafters of the Constitution is important to the future of the Republic and its citizens. A federalism statute would begin the debate; a proposal to utilize the "Exceptions Clause" of Article III of the Constitution to limit judicial consideration of the exercise of state power would sharpen it; and a proposed constitutional amendment would propel the debate to the forefront of social commentary.
Historic Supreme Court Cases on Federalism Starting with Marbury v. Madison, U.S. Supreme Court opinions that have defined and shaped the limits of American federailism.
Real Federalism: Why It Matters, How It Could Happen
The most plausible constituency for federalism (and the only currently available one) is what political analyst and activist Grover Norquist has called the "Leave-Us-Alone" coalition. The members of that coalition-including, for example, religious groups, property-rights groups, the term-limits movement, home-school and school-choice organizations, gun owners, and tax-limitation advocates-have a strategic interest in more open, decentralized political arrangements. Were the Supreme Court to endorse, embolden, and legitimize those constituencies, they would in turn defend the Supreme Court and its federalist jurisprudence against political assaults. Over time, a virtuous cycle of progressive accommodation and (often implicit) cooperation between the Court and federalist forces might succeed in advancing federalism. The Leave-Us-Aloners and the Supreme Court
Federalism as an abstract proposition has never had a constituency. Political constituencies favor (or oppose) federalism to advance their substantive interests and agenda-and most of them agitate for centralization most of the time. Interest groups and parties thrive on redistribution, which is best accomplished at a highly centralized level of government-because it spreads the costs over a larger number of losers and eliminates exit options for them. Moreover, contrary to popular lore and the presumptions of New Deal jurisprudence, the states do not favor real federalism; they oppose it. While the states will defend their narrow prerogatives (such as immunity from suit under federal statutes), experience shows that they cannot be expected to support federalist competition.
In contrast, the Leave-Us-Alone constituencies identified earlier are a genuinely federalist force. Deeply suspicious of Washington politics, all Leave-Us-Alone constituencies fight against national impositions, from gun control to federal land-use regulations in environmental disguise. Most have maintained highly decentralized organizations. None pursue the redistributionist objectives that draw ordinary economic interests into the Beltway.
The difficulty in envisioning a virtuous cycle of (implicit) cooperation between the Leave-Us-Aloners and the Supreme Court is the pronounced mutual distrust between the Justices and federal-ism's constituencies. By design the most nationalist and most elitist of all our institutions, the Supreme Court is naturally suspicious of an open, indeterminate politics that would leave too much beyond the reach of the Constitution. On issues that are central to the Leave-Us-Aloners-term limits, abortion, homosexual rights, the role of religion in public life-the Court has often displayed an exasperating tendency to cater to elite opinion and, correspondingly, to treat populist constituencies as gauche and irresponsible. Conversely (and consequently), Leave-Us-Aloners tend to view the Supreme Court as the institutional bulwark of a despised elite culture.
That mutual distrust need not be permanent, however. The Supreme Court's decisions on civil rights-a central, hotly contested issue-provide a clear-cut example of a rapprochement. For a full decade, the Court has methodically curtailed racial preferences. It has also effectively sanctioned a state-by-state campaign for the abolition of such preferences. As a result, advocates of official colorblindness have come to view the Supreme Court as a reliable ally-in fact, as the only public institution that will support and lend legitimacy to their endeavor. Civil rights law illustrates that the relation between the Supreme Court and Leave-Us-Alone constituencies can change, in the span of a decade, from intense hostility to mutual (if guarded) trust and reliance.
A similar dynamic may be unfolding in the area of religion, where the Supreme Court has moved from the selective disenfranchisement of religion to official neutrality as the constitutional baseline. In a departure from past precedent, the Court has held repeatedly that religious groups and institutions may participate in public subsidy and financial aid programs. That posture may suffice to win the Leave-Us-Alone battles that matter-foremost among them, the battle over the participation of religious schools in school choice and voucher schemes. Here, too, the signs point toward progressive mutual accommodation.
This body of law is the principal target of the Rehnquist Court's federalism. Through narrow statutory constructions, the expansion of state immunity against federal lawsuits and commandeering, and a re-limitation of the federal government's constitutionally enumerated powers, the Court has made it much more difficult for Congress to impose its interest-group schemes on state and local governments. The Rehnquist Court is only two or three decisions away from a wholesale reversal of the Brennan legacy.
The obstacles to a more robust federalism after September 11 are the ones that Nagel identified before the event. The Supreme Court seems to have an obsessive fear of national disunity, especially concerning sexual mores, and it has shown an inability to build institutional, organized support for federalism. National unity seems, after September 11, not to require judicial edict. The signs of unity are the millions of American flags, which citizens would yet wave even if the Supreme Court were to allow them to govern themselves, in the various states, on abortion and gay rights.
MORE SERIOUS is federalism's lack of political resonance. Our national institutions are split between a ruthlessly nationalist Democratic party and a Republican party that sacrifices its strategic interest in a more open, federalist politics to poll-tested federal "reforms," from crime to education; between interest groups whose appetites can be satiated only in Washington and state governments whose idea of "federalism" is more federal funding with fewer strings. Without a rupture in these alignments, the Supreme Court's federalism, and ours, will remain feeble and domesticated.
Laws and Standards - Do They Evolve?
The way in which a society addresses such controversies is directly related to how it answers the following three foundational questions: (1) Can man legislate morality? (2) If so, by what standard should man legislate? and, (3) Does this standard evolve? The answer to each of these questions is determined by one's approach to origins. By convincing large numbers of Christians that law is morally neutral, that human reason is the arbiter of truth, and that standards change as cultures mature, Darwinism has neutralized the restraining influence of Biblical Christianity on culture. While many Christians resist formal acceptance of the evolutionary hypothesis, they have implicitly accepted the assumptions on which the theory rests.
Is Religion Dangerous for America? The Supreme Court's Liberals Think So.
The Supreme Court's decision upholding the constitutionality of taxpayer-financed vouchers for private and religious schools was doubtless a significant victory for the cause of religious and educational freedom in America. But supporters of vouchers - and the prerogatives of religion in our national life generally - should note soberly that the victory was the result of a sharply divided 5-4 decision. And more important than the closeness of the vote was the clear and frightening hostility of the Court's liberal bloc toward those who take their faith seriously.
As all four of the dissenters imply, in varying degrees, those who take their religious faith seriously enough to pursue religious education for their children may pose a danger to society. You see, taking one's religious faith seriously may mean taking it too seriously for the public good, or so these wise men argue. All three dissenting opinions contend that such religious devotion is a grave threat to America, and advocate the use of the Constitution's Establishment Clause as a weapon against it. (see "The Nazi Master Plan: The Persecution of the Christian Churches")
Reply To Judge Richard A. Posner on The Inseparability of Law and Morality
The age-old debate among philosophers, legal theorists, constitutional law scholars, politicians, judges, and academics, between what law is (Positive law) and what law ought to be (Natural law) can be summarized in the following two statements. The first is by Supreme Court Justice Benjamin Cardozo, who wrote that, "if there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or moralist." 7 Justice Cardozo’s statement is a classic Positive law position–raw, statist power over the people. However, as I shall detail later in this article, there are many theoretical problems and internal contradictions with Positive law legal theory. The other statement is by Lawrence P. McDonald, who elucidates a contrasting legal philosophy called Natural law stating that, "if a judge can interpret the Constitution or laws to mean something obviously not intended by the original makers . . . then the nation’s Constitution and laws are meaningless."8 Which one was right about the nature of law? -- Cardozo or McDonald? – Positive law or Natural law? Is law a devise, tool or creation of man qua man or is law a set of tablets written by the "finger of God" to serve as a foundation of all laws of men? What presuppositions are at the foundations of our laws? Our statutes? Our Constitution?
In this article I would like to discuss one of the primary philosophical and intellectual suppositions that is the foundation of our contemporary conceptions of what law is – Positive law or legal positivism, as opposed to what law ought to be – Natural law or "the law of nature" as philosophers, Montesquieu, Hobbes, Blackstone, Locke, and Thomas Jefferson understood it.
Although Congress is ultimately responsible for the discipline of judges, far too many of our Congressmen (like far too many of our citizens) have no understanding of the proper use of impeachment. However, a wise political axiom declares that "Congress sees the light when it feels the heat," and this is especially true on this issue. As citizens, we need to educate ourselves on the proper use of judicial impeachment, and then we need to educate our Representatives, reminding them of the need for judicial reform and alerting them to those judges showing a pattern of abuse. The time for encouraging judicial accountability is once again ripe. This is a golden opportunity for citizens to weigh in and make a difference.
Impeaching Federal Judges: A Covenantal And Constitutional Response To Judicial Tyranny cited twenty-four times at the House Impeachment Hearings in 1999. Steven Fitschen, ENDNOTES:
There is evidence that the mere threat of impeachment will have a salutary effect on the federal judiciary. As noted in the Introduction, the law school deans found this aspect of the impeachment movement especially troubling. Yet, the historical data clearly reflect that the Framers intended the threat of impeachment to have exactly this effect. Impeachment is a multi-step process. Resolutions can be introduced, authorizing impeachment directly or authorizing an investigation into possible impeachment proceedings. Assuming that an investigation occurs first, the steps leading to conviction would include investigation, debate on whether or not to draft articles of impeachment, a vote on passage of the articles, a trial in the Senate, and conviction. The farther the process goes, the greater the salutary impact will likely be. Those who are persuaded that impeaching judicial tyrants is correct should not give up before they start simply because they don't think they can obtain the final goal of conviction.
Joseph Story understood that the threat of impeachment must be real in order to serve as an effective check. He wrote that on the one hand, impeachment should not "be a power so operative and instant that it may intimidate a modest and conscientious statesman or other functionary from accepting office," but that on the other hand, it must not be "so weak and torpid as to be capable of lulling offenders into a general security and indifference."
The Separation of Church and State
One further note should be made about the now infamous "separation" dogma. The Congressional Records from June 7 to September 25, 1789, record the months of discussions and debates of the ninety Founding Fathers who framed the First Amendment. Significantly, not only was Thomas Jefferson not one of those ninety who framed the First Amendment, but also, during those debates not one of those ninety Framers ever mentioned the phrase "separation of church and state." It seems logical that if this had been the intent for the First Amendment-as is so frequently asserted-then at least one of those ninety who framed the Amendment would have mentioned that phrase; none did.
Please tell me you're kidding...
America is a Christian Nation, and will be until the End of the Age, denoted as "A.D." After that, you won't have to worry about Muslims, because they'll all have eternity to contemplate their bad judgement, and won't be bothering anybody.
Could you explain in more detail your last two sentences? Not to start too big a fight, but the most overrated? What about x42?
Sounds like an ad hominem dodge by someone who wants goobermint and religion to NOT be separate.
Have you forgotten the "No religious oath or affirmation" clause?
The founders knew damn good and well that allowing ANY religion to use the goobermint for it's purposes would quickly result in tyranny.
I have no problem with religious morality as the starting point for laws, but the decision to outlaw official religion was the smartest thing done in our constitution.
I
n sum, the object of the First Amendment was to prevent the national government from choosing one Christian sect [denomination] over another and establishing a single national denomination."Those of us who venerate freedom, be we Jewish or Christian, be we religious or secularized, have no option but to pray for the health of Christianity in America. No other group possesses both the faith and the numbers sufficient to hold back the ever-encroaching, sometimes sinister, power of the state. Rabbi Daniel Lapin's Toward Tradition " Sept. 2, 2000 ,Volume 15, Number 34, WORLD ON THE WEB, Marvin Olasky
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