Posted on 01/29/2004 4:07:39 AM PST by Byron_the_Aussie
Alan Keyes makes a living spreading a certain message. If a large number of people reject his message because of the way he delivers it, if he's serious about delivering the message he needs to find a better way to get it across.
Of course, if all he wants is enough donors and true believers to pay speaking fees & provide himself with a decent living, I think he's there....
Now that's ridiculous.
It seems that tpaine was unable to refute the strongest argument against him, which was that Judge Moore's action was not prohibited by the 1st amendment, because by his action he made no law, not being either a member of Congress or a state legislator. Neither did he break his oath to uphold the Constitution, because as a judge, he has no authority to make law . Therefore he cannot be restricted by that clause which pertains to not making law, even if in fact the courts do "make laws," which I think we all regard as without authority from the Constitution and without force but by WILL alone, as Hamilton said in Federalist 78. Moore merely put up the ten commandments. The nice thing about most state supreme court justices is that they are electable and if the people didn't like his action, they could vote him out -- unlike the Supreme Court. Not much harm done. It's not like he put up a sign saying "Vote Democratic" which he might have done unless it was expressly forbidden him by some state statute. But he wasn't ousted because of a state law but on constitutional grounds. To me clearly he was not forbidden by the first amendment. To recap: he's not a lawmaker, either state or federal, and didn't make a law. He just posted some old laws that we don't seem to much like any more, just as a reminder of where our laws once came from. It wasn't unlawful of him, maybe just a bit rash.
Now those who did punish Moore seemed to think that the law applied to Moore, probably because judges now are so used to acting (and perhaps even thinking of themselves) as lawmakers. Thus if they read the "privileges and immunities" clause of the 14th amendment as saying the states may make no law respecting the establishments of religion of US citizens, they may think that the usurptitiously legislating justices of the lower puppet states also are prohibited from such. And even prohibited from copying down the laws not of man but allegedly of God, upon which we in the West base many of our laws. If this is your argument you may be correct.
Of course we would then concede that the judiciary may read and write into the law what they WILL, thus remaking the law which they are sworn to safeguard, making it now their whim merely and at the same time making all of us willing sheep trembling before the might and power of a gavel and a black robe. The men with the bigger gavels from the higher courts overrule the smaller-gaveled men. Moore had a smaller gavel. That would make the nine men in black the head gavelpersons: power-hungry willful men in black -- reminds me the dark riders in my favorite trilogy. What could we call that? rule by gavel -- I suppose it might be a kind of rule by force among men who are sheep. The mighty gavel makes right. Don't you wonder what a Hamilton would say to the actions of the judges today or what any of the others who signed the Declaration of Independence might do?
In any case, you've definitely got me interested in the greater issue, that of the Establishment clause. I think the whole meaning of that clause hinges on the word "establishment". The words 'Congress' and 'shall' and 'make' and 'no' and 'law' and 'respecting' and 'an' and 'of' and 'religion' are pretty clear. The other question of course is what is meant in the fourteenth amendment by "privileges and immunities." That will take some more serious thought and debate, but I'm interested in your thoughts.
. . . to begin which debate . . . It seems to me that "an establishment of religion" is a legal term referring to any particular sect especially of Christianity but also of any other religion, and that Congress may not make a law prohibiting its practice or giving monies to sponsor such a sect or to create a new one or tax and abolish an obnoxious one. Now "privileges and immunities of citizens of the US" seems to only refer to individual liberties protected in the amendments, but I'm not really sure. AND I certainly don't expect that our illustrious gavel beaters really understand it too well themselves --- not that many of them even care, since they just use them gavels to beat up the Constitution and smash the rights and privileges we inherited from real men who founded this country.
Finally, if there is any ambiguity in the Constitution, I am of the opinion that is primarily for the legislators to decide which interpretation ought to be taken, not the priesthood of the judiciary whose arcane arts of the last fifty years I completely fail to understand, except perhaps as outright usurpation of government from an idle, careless, no longer worthy of free republic people.
tpaine, I think if you look carefully into the matter you will find that your best interest lies with Dr. Keyes, and that his warning is that we are in the last throes of a consumption that if not soon remedied will find our dear republic soon buried. Whatever Frankenstein might patch together will hardly resemble the noble experiment she was. Not that the experiment was a failure, just that it might be over without action now.
bump to read later.
Judges are "lawmakers."
For centuries in both England and in the United States, judges have been lawmakers. Over a period of several centuries, judges created what we call our "common law." I would bet that most of the everyday legal principles that you take for granted came from the judiciary. For example, the notion that you have special rights enforcible against all others with regard to the use of a patch of geography that you "own" (from the law of property) came from judges. The notion that some promises are enforceable, while others are not (from the law of contracts), was developed by judges. The notion that you might be entitled to compensation for personal injuries caused by the negligence of another (from the law of torts) was the inspiration of courts.
The judges created the common law on a case by case basis, relying upon what judges believed to be historical practices, customs, and their best judgments as to what they conceived would be the best approach to keeping peace and resolving differences. Thereafter, others could rely upon a prior court case as precedent and argue that their cases should be governed by the same principles. Or, if a party felt that a principle developed in a prior case would be unfair as applied to his particular case (because of somewhat different circumstances), that party could argue for an exception to that principle or argue that the principle should be modified so as to accommodate the slightly different circumstances. If the court agreed, that exception or modification would then itself become a principle which could be relied upon as precedent for future decisions.
Historically, this is the process by which most of our laws were in fact created. To get a good idea as to the breadth of our common law, check out The Common Law by Justice Holmes.
Legislatures have played an increasingly large role in the development of our laws, particularly in the last one hundred years. Remember, though, that when a legislature passes a law, it does so against the backdrop of the existing common law and that courts continue to apply (and to develop) the common law unless there exists a statute that is contrary to the common law.
All of that tradition, history and practice should be kept in mind when we evaluate your comment that "as a judge, [Chief Justice Moore] has no authority to make law." The reality is that, in this country and in England, judges have now and have always had a huge, huge lawmaking function. In fact, I think it would be very difficult to argue that legislatures have had a greater influence than courts on the development of our present laws and legal system.
Chief Justice Moore was undoubtedly operating under the auspices of some statute.
Setting aside the reality that judges are lawmakers, let's just assume, for purposes of argument, that this world is as simple as your argument suggests and that courts make no laws and that legislatures make all laws. Let's see where your argument leads. Let's suppose that the Alabama Legislature passes a law creating a state militia and makes the Governor the commmander in chief of that militia. And, let's suppose further that the statute provides that the Governor is given discretion to mobilize and station that militia "as he deems to be in the best interests of the citizens of Alabama." If a particular Governor were to station that militia on the public streets completely surrounding all Catholic churches so as to prevent people from attending services, many folks might claim that the State of Alabama was thereby interfering with the First Amendment rights of those citizens to exercise their freedom of religion. Would you dismiss their claims on the ground that the Governor is not a lawmaker and thus his acts may not be considered in determining whether the State of Alabama is interfering with the First Amendment rights of citizens? I doubt you would. I suspect that, even if only to preserve the integrity of your general argument, you would point out that it was an act of the Legislature that granted to the Governor the discretion to mobilize that state militia and that he must therefore do so in a manner that does not violate the First Amendment because, if surrounding the Catholic churches is a legitimate exercise of the discretion that was granted to him by the statute, his actions are directly traceable to the lawmakers of the Legislature. Similarly, I suspect that, if you look into the background of Chief Justice Moore's Ten Commandments case, you will find somewhere a statute that grants to the Chief Justice some discretion in the maintenance and decoration of the courthouse. Can he, any more than a Governor, exercise that discretion in a manner that might violate the First Amendment?
More generally, though, note that the Fourteenth Amendment creates obligations to be borne by "states" and not just by state legislatures. In the last analysis, the question concerns whether the State (acting through any of its branches and agents) is violating or failing to comply with its obligations under the Fourteenth and First Amendments.
How would your argument help Chief Justice Moore?
Finally, even if you were to disregard all of the above and continue to insist that as the result of some universal, ironclad law of nature, judges just cannot, because they are not lawmakers, engage in conduct which offends the First Amendment, doesn't that argument prove too much to help Chief Justice Moore? Wouldn't that same defense also be available to the Federal judges who ordered that the monument be removed? If judges just cannot be lawmakers and are incapable of violating the First Amendment rights of others, then it would seem to follow that their courts’ orders could not have violated any of Chief Justice Moore's First Amendment rights, could they?
Good post! These are not simple issues. ;-)
Moore had no authority to make a political statement by installing a religious symbol in the courthouse.
Neither did he break his oath to uphold the Constitution.
Read my opinions on that issue on the thread. Feel free to present specific arguments countering mine..
Very well thought out and written.
I agree with you on every point.
Historically, this is the process by which most of our laws were in fact created. To get a good idea as to the breadth of our common law, check out The Common Law by Justice Holmes.
Interesting you should bring up Holmes, the father of the modern legislative Courts. The view of the courts as having power to judge on the basis of common or natural law had been rejected back during the days of Marshal and Story. Holmes himself was a lone wolf who first set the stage for understanding the constitution as a living document. In fact he was the first to use the term (if my memory serves me). I was actually thinking of bringing him up myself. Holmes began the usurpation of the last hundred years although he himself was powerless to put into practice, being the only man on the court holding such an opinion. For the previous hundred odd years the court pretty much stuck to the limited task of striking down laws contrary to the Constitution and others that were in conflict with one another. They maintained the discipline recommended by Hamilton in Federalist 78 (with some notable exceptions of course -- but few only, which likely rather demonstrated the axiom that the exception proves the rule). You continue:
Legislatures have played an increasingly large role in the development of our laws, particularly in the last one hundred years. Remember, though, that when a legislature passes a law, it does so against the backdrop of the existing common law and that courts continue to apply (and to develop) the common law unless there exists a statute that is contrary to the common law.
I would argue it is hardly common law, but rather judgements of WILL out of whole cloth. Indeed there are very few among the liberal progressives who think there is a common law, unless it be one that evolves over time, changing with times, the conscience of which is seated in the minds of the men in black. The reason the Constitution ought never be considered a living document is that once it is so considered it quickly becomes a dead document, one without meaning, since it can mean whatever any judge so WILLs.
To your next point, regarding the situation of the Alabama governor surrounding Catholic churches etc., you must remember that at the founding there were some state sponsered Churches and some sects were persecuted in some states. We have clearly moved away from that, but that is why I raised the question regarding the scope of the 14th amendment and whether it ought to apply to the states at all. It is a very interesting question and one that poses very grave problems for either interpretation we take.
Finally regarding the "orders" of the federal judges. I for one think that the judges MAY NOT give any orders. For one the power to order rests in the executive and legislative (to a much lesser extent) branches. Hamilton again in 78 points out that even if judges could order or make law, they have no means to enforce such mandates. In fact every order that the judicial branch has ever made has required the force of the Executive who until this point has sheepishly cowed to the almighty gavel.
Thanks for the considered reply. I still think the most interesting question is regarding the meaning of establishment and the scope of the 14th amendment. I haven't studied con-law in many years. I may have to go back and investigate these two questions. They certainly are worthwhile, though I don't really have the time.
Cinci wrote: Neither did he break his oath to uphold the Constitution..tpaine's reply: Read my opinions on that issue on the thread. Feel free to present specific arguments countering mine..
I did read them. I knew I could have made a more cogent, careful argument, but my posts are already too long. So here goes:
The argument is as follows:
As I recall you cited two violations that Moore made: 1) that he violated the 1st amendment per se and 2) that he violated his oath to uphold the Constitution of the US (I too assume he made such an oath -- although considering it's Alabama, such an oath may not be required :)). I will attempt to address other arguments you may also have made. If I leave any out, please show me what I may have missed, but I read all of your posts)
The first question: whether Moore made an unconstitutional law (regardless of whether or not he has authority to do such).
This he did not do. Instead he set up in his Court House a display of the ten commandments. If he had said that he was going to make his decisions based on the ten commandments and not on the laws of the state of Alabama or of the US, then clearly that would violate his oath as well as violate the prohibition of making law respecting the establishment of religion (if it is correctly applied to the states -- remember that's my question). Of course, in the present climate of judicial interpretation and legislation there is nothing preventing him from making decisions based on extra-constitutional laws except the more powerful gavelbeaters . But if he were to do so, I would be among the first to condemn him for such judgement of WILL -- I really think we're not far apart on this one.
What did Moore do? He merely displayed a code of Hebrew Law regarded by some as a Holy Covenant between God and the ancient tribe of Israel and which some regard as the basis for some of our own laws and part of our heritage as a Western free republic. He was displaying then merely his pride in our heritage and also expressing his belief in the divine authority of those laws. If it makes folks feel unwelcome, that's not a legal justification in itself to throw him out (except at the next election). I would feel intimidated if the judge were a seven foot 300 pound black man. Does that mean he should be barred from presiding in court. Com'n we are men. So long as he respects the Constitution, what hangs in his court is not a matter of legal importance, only a matter of imprudence and bad taste. Moreover, it is a political and religious expression, a right of his protected by the Constitution according to you. Now doing so in a public courthouse -- again perhaps not very smart on his part, but as I recall the people of Alabama elected Moore precisely because he promised to do this very thing. Why? because many feel that the judicial branch is attempting to irradicate from all public life the Christian religion, attempting to establish a binding anti-Christian sect, a strange kind of religion, only devoid of God, whose priests and conscience are the judges themselves.
Let's take another case. If a Muslim judge were to display in his courthouse excerpts of the Koran, some of which are extremely intimidating, I would be somewhat intimidated if I were in his court. Nevertheless, if I was confident that the judge in question, ruled on the basis of the laws of the state and of our government, I would not fear at all that this judge would deal with me inequitably. That is why I am so adamantly against judicial activism, because it substitutes WILL for LAW. What makes a Republic differ from a democracy (one step from tyranny) is that in the former men are ruled by LAW, in the latter the LAW is completely subject to the WILL, whether that WILL be of many men or one alone (the only difference between democracy and tyranny).
One final case: would I be intimidated if hanging over the courthouse of a judge were a declaration of his conviction that there was no God whatsoever, not even some divine principle of reason, some deity which is the final cause of our reason? Yes, certainly. I would find it perhaps a bit more difficult that he could properly and fairly administer the law and interpret its statutes. But it is very possible. I would be much more comfortable if he were at least agnostic and not so self-sure that there was no God. My confidence in his ability would be less than say an agnostic or a Muslim or just about anyone else for that matter. Yet I happen to know a few atheists and even one an ethicist who would be quite competent in adjudicating the law, so long as they weren't making it up on whim.
To the second question
Did Judge Moore uphold his oath to honor and defend the Constitution? This hinges on the previous argument. Nothing in the Constitution prohibits a judge from putting a display in his Courthouse. Again there is a measure of prudence we expect from judges when putting displays of any kind in the Courthouse. To elaborate a little, however:
I have stated that my opinion is that judges have no authority to legislate. They do so unconstitutionally. Thus if Judge Moore had indeed violated the Constitution by making a law regarding an establishment of religion, say: he made a law saying that every defendent must profess his belief in the code hanging on his wall or serve 30 days in solitary confinement, beating himself on the head with a Bible. That would be a law. It may violate the 1st amendment, depending on how you understand the 14th amendment. CERTAINLY, however, it is in violation of the judges specific role in interpretating the law. The judge is not to make law, but interpret. Therefore, it is impossible, in my opinion, for any judge to break the 1st amendment unless he oversteps his bounds by making law. Judge Moore to my knowledge did not make any law. Again he merely displayed a set of old laws, some regard as having divine authority --- which Code of Law Judge Moore AUGHT NEVER TO USE as the central argument in deciding cases(though merely citing of it is not wrong only imprudent perhaps -- so long as the central argument is based on actual ratified US or state law). It is merely a payment of respect, to some offensive and to others intimidating, but neither THE law of the land nor unconsitutional. Do you see the difference?
THE REAL PROBLEM
The real fear, I think, stems from the abuses by the liberal courts, not by conservatives, even by most religious conservatives (although many are a little confused -- all the more reason for more debate, to separate the good opinion from the bad). When the judge becomes tyrant, whoops I mean judicial activist, he opens this pandora's box. We then fear that a judge will do whatever he wants and not simply decide on the constitutionality and coherence of law, but rather make law. That is why the courts must be corrected. That is why I like what Alan Keyes is trying to do. He wants to limit the scope of the appellate courts based upon unused provisions of the Constitution, written precisely in part to address this problem. If we are merely to wait and hope and pray that we get a prudent president and a big enough Congress and the stars all alined just so in order to elect someone to the bench who we hope will not turn on us once in the supreme seat of power, our hopes of a revival of a truly free republic are dim indeed.
Sorry it's so long, but you asked for it. :)
Again if I have missed some argument of yours or not properly addressed it, please direct me.
Cordially,
Neither did he break his oath to uphold the Constitution.
Read my opinions on that issue on the thread. Feel free to present specific arguments countering mine..
I did read them. I knew I could have made a more cogent, careful argument, but my posts are already too long. So here goes: The argument is as follows: As I recall you cited two violations that Moore made: 1) that he violated the 1st amendment per se and 2) that he violated his oath to uphold the Constitution of the US (I too assume he made such an oath -- although considering it's Alabama, such an oath may not be required. I will attempt to address other arguments you may also have made. If I leave any out, please show me what I may have missed, but I read all of your posts)
You have not reposted ~any~ of my specific points or arguments [please use post #'s], and countered them.
Feel free to do so, -- and I will answer point by point. I will continue to ignore your overlong essays. - Sorry. -- Re-arguing the entire issue is simply timewasting, imo.
Moore was openly favoring one religion over another in the courthouse. He has no power to do that.
To favor is not to make law. Making law that favors one sect would be unconstitutional. Simply to favor, so long as the favoritism did not go so far as to judge based on the 10 commandments contrary to ratified law, is not prohibited.
Moore was violating the first by openly favoring one religion in the courthouse. He was 'respecting an establishment' of the Judeo-christian religion, [the ten commandments], favoring them over the principles of other religions.
“Respecting” is a preposition in the Constitution. You’ve made it into a verb. Bad grammar. Bad interpretation. (I really didn't want to bring that one up.)
Moore took an oath to honor the Constitution & BOR's..
His offical action violated the 1st by favoring one religion over others
This was what I considered one of your main contentions and is addressed above.
Denial. The facts are clear. He put up the 'monument'. He was ordered to take it down on 1st amendment grounds. He refused, he lost.
Point addressed above. Gavelbeaters have no ability to enforce their orders.
if some lawmaking body is writing law that favors the principles of one religion over another, they are violating the rights of non-favored citizens by ignoring the 1st.. The courts can redress such violations.See my argument above. Moore neither made nor wrote any law. Nor was he using the 10 commandments as an alternate law on which to base his judgements. Do read the argument above. I address this thoroughly.
Wrong, Alan.. It deals with legislators making no law about "respecting AN establishment of religion". 'AN' establishment, not 'THE' establishment of religion. Big difference in meaning.
'An establishment of religion' is any teaching, precept, dogma, or object relating to any specific religion.
Now this was the statement that most interested me. The meaning of “establishment” and the 14th amendment. However, it is not germane to the present argument, because Moore did not violate the establishment clause since he made no law. I am interested in further discussion of this issue and will probably course through the thread below. Thanks for the link.
Your link to the thread on the 14th amendment discussion: I'll be checking this out
Thanks for the time. I am interested in your thoughts on 429 above.
They [our FF] wanted our various levels of government to be neutral to specific religions, as is clear by the 'no religious test for office' part of Art VI..
-tpaine-
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But it's perfectly alright to apply a religious test to Judge Moore in order to retain his office by asking him repeatedly "do you intend to continue to acknowledge God?"
Since Judge Moore has never applied any religious test to anyone in regards to their holding office your misrepresentation of that clause is laughable.
124 TigersEye
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Moore was openly favoring one religion over another in the courthouse. He has no power to do that.
He lost.. Live with it.
135 tpaine
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To favor is not to make law.
Making law that favors one sect would be unconstitutional.
Simply to favor, so long as the favoritism did not go so far as to judge based on the 10 commandments contrary to ratified law, is not prohibited.
-cinci-
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He was fired for defying a court order to remove his 'rock', which was a display which openly favoring one religion over another in the courthouse.
Your 'making a law' comments are simply immaterial to my point on why Moore was fired.
Sorry, you decided not to respond to the arguments.
He was fired for defying a court order to remove his 'rock', which was a display which openly favoring one religion over another in the courthouse.I didn't realize that unelected federal judges could fire a state supreme court justice whom the folks in Alabama hired. My bad.Your 'making a law' comments are simply immaterial to my point on why Moore was fired.
It's important to understand that natural law and common law are two totally different concepts. Natural law involves a distinct philosophical approach to how laws should be designed. One can be for or against a natural law approach.
However, the common law is just a description of the body of nonstatutory law that did in fact evolve over a period of several centuries in England and in the United States. It forms the basic framework for our current laws in the areas of property, criminal law, contracts, torts, agency, etc. Even when statutes are written or read, they are written and read within the context of words and concepts that were developed as part of our common law.
One can be for or against the common law, I suppose, but only in the same sense that one can be for or against the historical fact that there were kings and queens in England. The English common law and the tradition that judges made law on a case by case basis is just part of our English heritage and it was brought to the New World with the English colonists.
The common law has never been "rejected." In fact, many states have codified it. For example, Section 22.2 of the California Civil Code provides:
"The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State."
It's a bit late to either favor or oppose the common law. At this point, it just is.
I would argue it is hardly common law, but rather judgements of WILL out of whole cloth.
First, let me clarify something about that link to Holmes on the common law that I gave you in my last post. That piece by Holmes is not a work of advocacy; it is an historical description of how judges had been making the common law on a case by case basis for centuries. And, as he points out, judges are human beings living in and affected by a real world environment:
"The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become."
I also detect in your posts a suggestion that judges making law is some sort of recent development. In fact, just the opposite is true. For the last several hundred years, it has been judges who have been creating the vast majority of our laws one case at a time, creating rules and precedents for us to live by. The recent development (over the last 150 years) has been the increase in lawmaking activities by legislatures. At the present time, most states now have full-time legislatures composed of career legislators who are producing statutes like McDonald's produces hamburgers. It is the increasing influence of legislatures (as opposed to courts) in the development of our laws that has been the recent trend.
To your next point, regarding the situation of the Alabama governor surrounding Catholic churches etc., you must remember that at the founding there were some state sponsered Churches and some sects were persecuted in some states. We have clearly moved away from that, but that is why I raised the question regarding the scope of the 14th amendment and whether it ought to apply to the states at all.
Well, the Fourteenth Amendment is expressly applicable to the states. The more interesting issues have concerned what that amendment really means, i.e., what does it require of states? The Fourteenth Amendment doesn't say anything about the establishment of state religion or the free exercise of relgion or freedom of speech or the freedom of press, does it? In post 166, I linked a case (Everson) which held that, because of the Fourteenth Amendment, states are required to comply with the establishment clause of the First Amendment. In post 173, I linked a case (Boy Scouts of America v. Dales) which makes it clear that all of our justices (including Scalia and Thomas) believe that, because of the Fourteenth Amendment, states are required to comply with concepts found in the First Amendment. If it ever was, it is not now a conservative v. liberal issue. All of them agree on that point!
I still think the most interesting question is regarding the meaning of establishment and the scope of the 14th amendment.
You're absolutely right. It is the most interesting of the issues presented by this Ten Commandments case.
And, you can call me cynical, but I suspect that Chief Justice Moore got the decision by the federal courts that he really wanted all along. ;-)
So, he didn't follow orders and his peers fired him. That makes more sense.
I understand the difference between common and natural law. However, I am less sure of the application of common law concerning the federal courts. Nevertheless, based on what I have read of Holmes, especially in his dissents, he did show the way for the modern court. To cite cases, I cannot and do not have time. Sorry.
Regarding the fourteenth amendment, it is unclear precisely what is referred to by "priviliges and immunities of the citizens". It is unclear especially that this refers to making law regarding the establishment of religion. An establishment of religion is not an individual, so I am not sure that its application is appropriate.
What exactly is meant by establishment is another question I have. I'll have to dig back in my constitutional law book.
In any case my main quarrel is with the intrusion of both the federal and the state governments into public education. There was a time, as Tocqueville notes, when the States merely mandated by law that townships provide public education (and little else). The citizens admistered that law: they raised the funds, built the school and hired the teachers. The teachers were guided by the citizens and their expectations. Should they teach that there was a God or no God was left to the self-government of the teacher and the citizen.
We are now past the era of self-government it seems to me. All of the hoopla about prayer in school and public monuments would be less important had the States and feds not overreached their authority.
Thanks again for the consideration. I will have to look into above-said matters. If you can direct me, I'ld be appreciate it. However, I've got my fat con-law book at least off the shelf. Now I just need to read it.
Well, the Fourteenth Amendment is expressly applicable to the states.
Of course. Whoops, it appears I miswrote. I meant to say that the 1st amendment may not apply to the states, or at least not the whole of it, depending on what is meant by "privileges and immunities" in the 14th. sorry.
Perhaps the Fourteenth is applicable to the rest of the first amendment. The boy Scouts are a free association not an establishment of religion. My question regards the meaning and scope of "establishment" and also the legal meaning and scope of "privileges and immunities."
Therefore, I will defer my judgement regarding your arguments until such meanings are clear to me.
I have considered your argument and it seems I need to do a little more study before I can properly agree or disagree.
Thanks again.
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