Posted on 03/16/2003 5:31:25 AM PST by vannrox
| One Nation Under Whom? By Terence P. Jeffrey
Here is a question for the San Francisco appeals court judges who last week let stand a ruling, signed last summer by two of their colleagues, that it is unconstitutional for students to say “under God” in public schools. Dear judges: If we are not under God, whom are we under? Who is final authority for our law? Alfred T. Goodwin is the judge who authored the court’s opinion striking down the practice in California’s Elk Grove Unified School District of saying the Pledge of Allegiance at the start of each day. Goodwin argued that the ultimate authority over these schools is not God, but the Constitution itself—or, that is, the Constitution as interpreted by him and Judge Stephen Reinhardt who joined his decision, and the majority on the U.S. Court of Appeals for the Ninth Circuit who let it stand. Goodwin argues that in the 1st Amendment—which says, “Congress shall make no law respecting an establishment of religion”—the Framers adopted for the U.S. government a doctrine of neutrality on the question of whether there is a God. It follows from this, even if we only discovered it last year, that the United States has been an officially agnostic nation ever since ratification of the Bill of Rights in 1791. Because it invokes the words “under God,” argues Goodwin, the Pledge “is a profession of a religious belief, namely, a belief in monotheism.” Thus, it “impermissibly takes a position with respect to the purely religious question of the existence and identity of God.” The most obvious problem with Goodwin’s theory is that the Americans who wrote the Constitution held the opposite view. They believed not only in God but also in His authority over acts of government. In Seedtime of the Republic, historian Clinton Rossiter chronicled the arguments of the Founding Fathers. “[I]n America,” wrote Rossiter, “all political theorists . . . assumed the applicability of ‘the Laws of Nature and Nature’s God.’” The “best known and most widely cited” definition of this, he said, came from Sir William Blackstone’s Commentaries on the Laws of England, published in 1765. Wrote Blackstone: “This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.” This conviction, of course, was echoed most famously in the Declaration of Independence, but not only there. Alexander Hamilton, a principal author of the Constitution, was the greatest political rival of Thomas Jefferson, the principal author of the Declaration of Independence. But Hamilton mirrored Jefferson when he wrote: “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the Divinity itself, and can never be erased or obscured by mortal power.” Robert L. Cord notes in Separation of Church and State—Historical Fact and Current Fiction—that the same Congress that drafted the 1st Amendment also hired the first congressional chaplain. On the day after the House approved the 1st Amendment, it asked President Washington to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of Government for their safety and happiness.” The Framers of the 1st Amendment thanked God for the Constitution—in an act of Congress. The founding idea of our Republic is that our elected representatives will seek through constitutionally limited government to honor God’s law in our own. The Framers understood that if we refused to recognize God’s ultimate sovereignty over the state we would be forced to recognize someone else’s. It might be a king or an army. Or, as we are learning today, it might be a band of federal judges.
________________ © Human Events, 2003
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Obviously, these arrogant (insert descriptive profanity here) think they are!
These ACLU judges want to interpret this part of the 1st amendment in a way that contradicts their favorite part which is "Congress shall make no law...abridging the freedom of speech". The writers/signers of the BOR, I'm pretty sure, meant for these to be interpreted in a mutually consistent way. It seems to me to mean that there are to be no federal laws that say ANYTHING about religion, either for or against, under ANY circumstance. That means, for example, it is unconstitutional for Congress to prohibit religious expression in public schools.
Congress doesn't prohibit religious expresion in public schools.
The Constitution doesn't. Congress doesn't. As far as I am aware, school boards usually don't. Then what is the ACLU's basis for their lawsuit when some kid wants to lead a prayer in a public school? Some nonratified writing of Thomas Jefferson?
My understanding is that the Student is considered to be an agent of the State when speaking at any officially sanctioned school function. Being an agent of the State he is acting on behalf of the State and not allowed to participate in any religious expression. Tis would constitute an official State religious expression. Nor would the school be allowed to engage in, organize, or permit any official function that was oriented around or included a religious ceremony, or worship of any kind. This prohibits, for instance, the use of the school during school hours for a religious observance or prayer since activities during sschool hours are officialy sanctioned activities of the school. This would include observance of Ramadan by Islamic students , an Easter ceremony by Christian students, or an exhibition of dancing and praying to African gods during Kwanza celebrations or Macumba rituals. Although it would be the students participating in these activities, it would tbe the school conducting them and would, therefore, be an official religious activity of the State and the students would be agents of the State.
Labelling the student an agent of the state is dubious, but that is a red herring. How can even a true agent of the state be construed to be "Congress...[making a law]...respecting an establishment of religion"?
Because the "Congress" establishes the various agencies, etc. School systems are established by the various State overnments and become Federal agents by accepting Federal monies, programs and standards. Any action done by any agency, agent, bureau, etc. under the authority of an action or authorization of Congress is being done, albeit indirectly, by Congress.
Think of the students in the manner of a draftee into the military. Anything the draftee does on official time and assignment, using official equiptment, while performing his orders, in an official act of the military. A draftee disobeying the role and mission of his assignment, or operating outside of those parameters, (i.e. stealing from or shooting civilians) is considered to be engaging in criminal conduct. A student operating outside of the guidlines of the state is in a similar, though somewhat less serious, position. When one becomes an agent of the State he is bound by the rules governing the conduct of the State.
What is needed, on the Federal level, to get around this crap is legislation establishing that a student is not an agent of the State and in no manner acts as one without both specific authorization and intent. This will not happen. There is a also the means, through the carefully crafted litigation of interested parties, to establish this through the courts. This won't happen either.
I can't find in the USC where anyone excepting funds from Congress automatically becomes an agent of Congress. When I get an earned income tax credit, does that make me an agent of Congress? When I give money to the Salvation Army, do they become an agent of me? The pervasiveness of federal spending in the economy could then one day virtually wipe out religion in this country.
Think of the students in the manner of a draftee into the military.
I had always thought of students more along the lines of customers (by the choice of their emancipated agents of course) of their schools. Only education, not public education, is mandated.
But all this still misses the point. The first amendment is not violated by even a Congressman expressing a religious belief. The first amendment specifically forbids any federal legal repurcussions for ANYONE saying ANYTHING about religion.
I can't say that there isn't some local law prohibiting a student from leading a school in prayer, but there can be no federal law doing so.
So, if a public school or student is successfully sued under a federal court for leading a school in prayer, then that court has just violated the "prohibiting the free expression thereof" part of the first amendment. That is because that court has prohibited religious expression under the authority of the constitution (which does not prohibit religious expression) or Congress (which cannot prohibit religious expression).
So what can it mean for Congress to pass a law respecting an establishment of religion? That is easy. Any federal law that makes any mention or reference to any established religion is unconstitutional. Specifically granting tax-exempt status to churches (versus e.g. not-for-profit entities) would be unconstitutional. Even a federal law prohibiting religious discrimination is unconstitutional. The first amendment takes all religious considerations out of the domain of the federal government.
You're not suggesting that the Public school system isn't a government institution? Ever hear of the Dept. of Education or any of the various State legislation involving the creation of public schools? If it's created by the State it is a part of the State. Federal jusridiction involves the acceptance of Federal money and the 14th ammendment, among other sources. What is published in the USC is only a part of what is law. Law also consists of Corut rulings and the various regulations and rules issued by different agencies for the prupose of clarifying and enforcing laws passed by congress (which is what you read in the USC).
I can't say that there isn't some local law prohibiting a student from leading a school in prayer, but there can be no federal law doing so.
There are a number of legal rulings that prohibit such (if it is a school sanctioned function, not a voluntary private one). A Federal (or State) Court ruling is law.
The first amendment takes all religious considerations out of the domain of the federal government.
That is the point. The government can neither express or not express a religious view. It must be totally neutral on religion in all of it's official capacities. No State funciton can sanction a religious expression if that expression is being expressed by the State or any of it's agents as a function of the State. If there is a State school function it is an official act of the State (school is not voluntary, no matter what some may think. You have the option of opting out of State education through private school in most circumstances. Put your child in public school and he is under the care, custody and control of the State during shcool hours or at official school functions). Therefore any religious expression is an official act of expressing that religion as a State funciton if it occurs as a part of an official State activity. This is why students cannot conduct an Islamic prayer service or engage the student body in a Macumba ritual at a football game or a school assembly.
You confuse "state" government with federal government. There is a Dept. of Health and Human Services too. Lord knows more money from the Feds goes into hospitals and doctor's pockets than goes into schools. Does that mean doctors are all agents of Congress?
I ask you again, does my receiving an earned income tax credit make me an agent of Congress?
Law also consists of Corut rulings and the various regulations and rules issued by different agencies for the prupose of clarifying and enforcing laws passed by congress
Of course, but that doesn't mean I cannot read the USC and form my own opinion about whether some law is or is not consistent with it.
There are a number of legal rulings that prohibit such (if it is a school sanctioned function, not a voluntary private one). A Federal (or State) Court ruling is law.
Perhaps if I read the courts' arguments, I would be persuaded, but the mere fact of a court decision does not mean the decision is consistent with the USC.
The government can neither express or not express a religious view.
This doesn't make sense (it's false). Being an either-or, the government MUST either express or not express a religious view. To be constitutional, it can not make a law that does the latter.
No State funciton can sanction a religious expression if that expression is being expressed by the State or any of it's agents as a function of the State.
Can you quote me from the USC where this comes from? How does the constitutional restriction upon Congress making a law have anything to do with what a state legislature does? Of course I realize that most (all?) state constitutions have similar restrictions.
You have the option of opting out of State education through private school in most circumstances.
As I said previously, it is education, not public school that is mandatory. This is quite different than your conscription analogy. In addition to private schools, there is home schooling.
Put your child in public school and he is under the care, custody and control of the State during shcool hours or at official school functions). Therefore any religious expression [by your child] is an official act of expressing that religion as a State funciton if it occurs as a part of an official State activity. (brackets mine)
When my child goes to preschool, are all of his comments as spokechild for the preschool?
I find these arguments fail on three levels:
1) The first Amendment applies to the US Congress ONLY, not to states.
2) The first Amendment prohibits the US Congress not only from passing laws endorsing religious expression, but also prohibits it from PROHIBITING religious expression under ANY and ALL circumstances.
3) A child, even if in the care of the Federal government, does not automatically become a spokesman for the Federal government.
Finally, I am not a legal scholar. My knowledge is pretty much limitted to the USC and pertinent explanations by the Founders. I'm not denying that there may be persuasive arguments that courts have put out, but if so, you will need to enlighten me to those arguments in order to persuade me. I don't blindly accept that a court ruling or act of Congress is consistent with the USC.
Finally, I say all this as one who thinks that it is good not to have any religion in public schools or other public institutions. I'm merely saying that for Congress to prohibit it is unconstitutional.
Of course it doesn't. So form your own opinion and then go and enforce it.
In reality, your opinion, or mine, is worthless other than if we can get congress to acton it through legislation. This, as I mentioned earlier, won't happen. Not by Congress not takinig action on public opinion, but by our side not taking any logical and effective action to get them to do so. Or by our side structuring and financing carefully valid legal actions in the courts that overturns the previous decisions and rulings. That's why the liberals always win, we're too busy engaging in disagreement and flouting our own legal rightousness that we ignore the only realistic courses of action.
Yes, it is constitutional to do so if it relates to official school activities, as a part of those activities. It is not constitutional when it relates to an individual expressing his religion if it is not in conjunction with, or a part of, an official school activity (i.e. a student can read the bible, pray, evangelize, or wear religiously oriented apparel as long as he doesn't do so while leading an official school activity and/or as a part of that activity; Including attending class while it is in session, but not unregulated non classroom time).
Public schools are also constitutional since they aren't specifically prohibited to the people or states. (ammendments 9 & 10).
I don't like either situation, but they are constitutional whether I do or don't.
I agree that public schools are constitutional and that nearly everyone would be better off without them.
[feds prohibiting religious expression] is constitutional...if it relates to official school activities, as a part of those activities.
So we have two simultaneous truths that somehow are both constitutional:
1. Congress shall make no law prohibiting the free exercise of an establishment of religion.
2. Congress must prohibit the free exercise of an establishment of religion in public schools.
How are they made consistent? Is it the word "prohibiting" as opposed to say "restricting"? That means that Congress can constitutionally restrict religion as long as they leave some avenue, even an extremely narrow and difficult one, open for the "free" exercise of an establishment of religion. Seeing as this would be extremely oppressive, I doubt that was the founders' intention.
The above 2 statements must also be consistent with the rest of the first amendment, in particular:
3. Congress shall make no law abridging the freedom of speech.
How can #2 and #3 be made consistent? Isn't prayer speech? Isn't asking others to pray also speech?
The USC must be interpreted in a way that is self consistent. Certainly we should not expect that the founders' overlooked a contradiction within a single sentence!
Can you explain how to make the above 3 statements consistent?
You're confusing the excercise of religion by an individual with the exercise of religion by the State.
In an official function the person oficiating at that funciton, or during some part of it, is acting on behalf of the State. The person, acting on behalf of the State (as a speaker at a high school function) may not exercise religious expression since that is same as the State excercising religion. The State (public schools in this instance) does not have religious freedom. In fact, the State is prohibited from having religious expression. An individual student may exercise religious freedom and express his religion as long as he is not using the school as his medium of that expression. This is why he can gather with friends before, after, or in between classes and pray together (already been declared by the courts as legitimate exercise of religion), can have a bible club (as long as clubs of other natures are permitted), can openly carry a Bible, Koran, or other religious objects with him at school. What he cannot do is conduct an official school assembly or other official activity and hold prayers, evangelize the student body during the assembly, etc. This is because when he is leading the assembly he is acting as the State and therefore does not have religious rights. The difference is whether the State (the school) or the student is exercising religious expression. The determination is whether the student is performing a school (State) function or a purely private one that is not under school sponsorship.
School assemblies, classroom instruction, school sponsored extra curricular activities are decidedly school (State) functions, not private ones. A group meeting around the flagpole before or after school or durning lunch break to pray is not a school sponsored event and is a private function; the individuals involved have the constitutional right of religious expression. An assembly in the auditorium where students are under the direct supervision is a school (State) sponsored event and the speakers are, in effect, State agents like the Principle or teachers. (Or a Judge in a courtroom during a tiral for that matter) and therefore have no right of religious expression.
The discrimination is between State exercise of religion (prohibited) and individual exercise of religion (protected). This could be cleared up with appropriate legislation (or litigation) defining exactly when a private citizen ceases to act as a private citizen and begins acting on behalf of the State. But that won't happen. Therefore we will live with whatever the legal bullies can convince a school system, or a local Court, is a state action of religious expression.
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