I think that Souter and his cohorts terribly misrepresented the 1st Amendment. I have a question for you and Souter: Why were prayers at graduations permitted for 200 years? If it was improper, why wasn't it stopped in 1800? Why did Congress publish the first bible in America? History is NOT on the side of Souter. That is for sure. What is the true precedent here? Why did some of the founding fathers give benedictions and even sermons at graduations?
"I think that Souter and his cohorts terribly misrepresented the 1st Amendment."
Who appointed Souter to the SCOTUS? I believe it was Bush the Elder. Indeed, how many of the current justices were appointed by Republicans? I believe it is seven.
This indicates to me, quite clearly, that the Republican party agrees with who is now sitting on the courts. In Alabama, how many of the judges who sat in review of Moore are Republicans?
I understand that you, personally, disagree with this decision. But, that aside, it appears that judges, appointed by Republicans, do not disagree with this decision.
Your disagreement is perfectly valid, and you have every right to believe as you wish regarding Judge Roy Moore and the state of the judiciary.
But...we really do have to remember who appointed the judges who are making the decisions you disagree with, and it wasn't liberal Democrats.
Well, exmarine, the answers to your questions are easy, and, as you’ll see, your conclusions regarding the “misapplication” of the 1st Amendment are wrong. I’m often amazed at how many Americans argue vociferously (and with good intentions) for one position or another regarding the 1st Amendment, and yet so few of them have actually studied the history behind its development. I’m sadly reminded of the Madras schools in the Muslim world, where, instead of facing modern realities, historical facts are warped by the local Mullah to fit the current circumstances.
First, most Americans don’t realize that the Bill of Rights (the 1st ten Amendments to the U.S. Constitution, which were ratified in 1791) did not apply to the states until after enactment of the 14th Amendment in 1868 (in some cases, years after that date). (Go to this link to see an 1833 Supreme Court decision, Barron v. Baltimore, which supports this factual statement:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=32&page=243) The Bill of Rights was demanded by the states before they would pass the U.S. Constitution (which, in turn, was demanded by the economic confusion resulting from the Articles of Confederation) because they were suspicious of the power of a centralized government, and especially feared that it would supplant their state’s favored Christian sect. Here is why historians and Supreme Court justices have relatively little trouble in agreeing to what the “Establishment” and “Expression” clauses were intended to mean: because the states did not have a stake in the 1st Amendment, so they expressed exactly what they did not want their new federal government to do. (As you’ll see later, this clear intent eventually… well, it “came back to bite them in the ass,”)
The construct of the words, “an establishment of religion,” and the alternatives that were offered in the tortuous debate over those words make the 1st Amendment’s intent clear. Contributing to this well-recorded history of what was intended by the 1st Amendment is the wealth of information regarding its principle architects, James Madison and Thomas Jefferson. See Madison’s 1785 Memorial and Remonstrance or Virginia’s 1785 Bill for Establishing Religious Freedom in Virginia for an in-depth understanding of just how clear our Founding Fathers were in the intent of the 1st Amendment. And, of course, you can also reread Jefferson’s famous “Danbury letter” in which he used the phrase, “a wall of separation between church and state.” (Roger Williams had beat him by nearly 100 years in developing that phrase, but both men came to their mutual conclusion after experiencing the sadness of American religious persecution).
But a thoroughly debated, carefully expressed and obviously intended 1st Amendment was OK with the states… because they did not intend that Amendment to apply to their own state laws!
Most of America’s Founding Fathers were devout Christians, which is why you see Congress printing the Continent’s first bible, Washington requiring his soldiers to attend church, Christian prayers opening Congress, and the Northwest Ordinance requiring new territories to establish a religion (an admittedly Christian one). History is quite clear on that matter. Many Atheists and Humanists are disquieted by this fact (but just as many Christians then misinterpret this comforting historical fact when thinking of applying the 1st Amendment), but the fact remains that most of America’s first citizens came to these shores to escape Europe’s religious oppression, where King’s and other monarchs enacted laws to favor one Christian sect at the expense of others. They wanted a land where “religious freedom” had “real meaning.” (Keep in mind here that these acts showing how Christian the nation was in its founding relate to either state-only issues or internal federal government issues. They don’t deal with how states treat their citizens. The Treaty of Tripoli, on the other hand, declared to the Barbary Pirates that America was “not a Christian nation,” but this statement merely reflected the intent of the 1st Amendment… which applied only to the federal government. Of course our federal government was not Christian; it was our states that were!).
But history is also quite clear on this: these pious colonists soon adopted their own form of religious discrimination, and all too often it led to persecution of others. Each colony had its favored Christian sect and the colonial governments enacted all sorts of laws to support it (“respect an establishment of religion”) and to “prohibit the free exercise” of other religious faiths. As the colonies grew and intermingled, religious strife between Christian sects grew more violent and more frequent. This gave rise to the founding of Rhode Island by Roger Williams, America’s first advocate of the separation of church and state. This devout Puritan fled Massachusetts rather than alter his position. In Virginia, religious strife among Christian sects was quite bad, which gave rise to the political careers of James Madison and Thomas Jefferson, the principle architects of the Bill of Rights and the important 1st Amendment.
(For more information on religious strife, including things like flogging the heretical and hanging Baptists and “Papists,” and what it all meant to how the country developed, see this Library of Congress web site on Religion and The Founding of the American Republic:
http://lcweb.loc.gov/exhibits/religion/) Madison and Jefferson, unlike many of our Founding Fathers, were Deists (they believed in a “creationist supreme being” but also believed that man was left to his own devices in worldly affairs; he was on is own with no more spiritual intervention). Their design for a social compact, which became our Constitutional form of Republic, sprang from philosophers like Locke and America’s influential Thomas Paine (who was an avid Atheist). All of these men frequently accepted “ceremonial deism,” benign expressions or acts that admitted to a nebulous “supreme maker.” At the same time, they abhorred the worldly practices of Christians, seeing so much violence and mayhem spring from narrow-minded religious fervor. These were men straddling their Christian heritage and the newly-emerging—and quite secular—social compact, or form of government. That’s why you can read so many seemingly contradictory remarks from them, at times indicating that they might be Christians and at other times indicating that they might be Atheists. (The “battle over quotations” from our Founding Fathers often gets quite silly, with quote rebutted by quote… but it’s all immaterial to the point of applying the 1st Amendment.)
Over the years following enactment of the Bill of Rights, most states adopted one form or another of their own Bill of Rights, especially regarding religious freedom (and speech and press, of course)… but not all. For instance, it wasn’t until the 1830’s that Connecticut finally abolished its tax support for the Congregationalist church (at last, Baptists and Pentecostals did not have to support another Christian sect!). In New York, officials were required to swear an oath to the state religion… and if you didn’t want to do it, then you could not serve in office. Laws such as these came and went within the states, persisted for years after enactment of the “federal-only” Bill of Rights.
But the clear intent of the 1st Amendment, hovering in the background, never wavered… it just never applied to state actions. They could exercise its intent on their own (as most did) but the Constitution did not require it.
Sadly, the abuse of individual freedoms reached a crescendo in slavery, and the Civil War was fought (economic reasons dominated the war-time causes, reflecting the rapidly changing face of America and the increasing complexity of managing such diversity). The very character of the nation’s population was being transformed by the industrial revolution and by the waves of immigrants with their new religious faiths (Catholics, Buddhists, Jews, etc.). In this cauldron, the 14th Amendment was born, enacted by Congress in 1866 and ratified by the states in 1868.
(See Justice Black’s dissenting opinion in 1947’s Adamson v. California for a comprehensive and well-documented history of the 14th Amendment and what Congress intended, including remarks made before Congress as it was debated. This link will take you there:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=332&page=46) Despite the clear intent of Congress (and the individual state legislatures that ratified it), it took years before enough “good cases” came before the Supreme Court and that clear intent of the 14th Amendment was forever codified in our nation’s laws. (This is the “reverse” of judicial activism; they were slow in enforcing a straight-forward but ultimately very powerful Amendment. Constitutional historians have yet to reach a consensus on exactly why it took so long despite a well-documented record of intent).
As for the 1st Amendment, the states were still free to abridge the “Establishment” and “Expression” clauses until 1940, when Cantwell v. Connecticut was decided (
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=310&page=296). Connecticut had a law restricting the religious expression of Jehovah’s Witnesses and the court said in part that, “We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.”
So in 1940, the states’ insistence (way back in 1792, remember) that a thoroughly debated, carefully expressed and obviously intended 1st Amendment be written circled back to them. Now both they and the federal government had to abide by it.
So, it’s no wonder, exmarine, why you saw so many states guiding sectarian prayer at graduation ceremonies “into the 1800’s.” My gosh, that practice was perfectly legal… for the states… well into the late 1900’s. But don’t forget that many communities across the nation, perhaps those who had more painful experiences with religious strife, had prohibited such practices well before Lee v. Weisman in 1992 (here’s that link again:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=577). The Court’s sympathy with the destructive influence of peer pressure on our young children wasn’t developed in a vacuum. All across this nation, communities and states—perhaps more diverse than yours—had already concluded that a clear separation of church and state best served their children’s interest. And, of course, many overreacted to Lee v. Weisman and other court decision, doing things like restricting after school Bible study, prohibiting the funding of school books for religious schools, forbidding secular teaching aid to religious schools or preventing the use of vouchers in Cleveland because some of the money went to religious schools.
But the Supreme Court soon corrected these errors in application, once again applying the thoroughly debated, carefully expressed and obviously intended 1st Amendment.
No, exmarine, you can’t blame a misinterpretation of the 1st Amendment for your perceived judicial abuses. You’ll have to blame the 14th Amendment.
And this brings me to my concluding remarks. Why don’t Christians—who claim such awful abuse because of recent Supreme Court decisions—change things! The majority of Americans claim to be Christian, so wouldn’t it be easy to pass a Constitutional Amendment (maybe a repeal of the 14th Amendment would do it) that corrects these “bad” decisions? Well…. no, it wouldn’t be that easy, because the vast majority of Americans understand this nation’s history, which began with religious peace, progressed to “home grown” religious strife and persecution, traveled through the horror of Civil War and then moved quite peacefully into a clear separation of church and state, a time when more Americans profess a religious faith than at any other time in the nation’s history (there is a correlation!). Americans want to keep the current interpretation of the 1st Amendment, so a Constitutional Amendment would never get off the ground (much to the chagrin of people like Judge Moore). Americans want their spiritual matters to blossom in the home, in church and among their close neighbors. They don’t want to return to the days when government—at the federal or state level—was permitted a say in spiritual affairs.