Posted on 01/10/2005 12:01:12 PM PST by stoney
This was an excellent read. Monty does what all the activist judges and all the others don't. He does not read into the words or try to expand their meaning. He looks at the language in the context of the time it was written and then arrives at a conclusion.
In LiberalSpeak, it doesn't matter what words really mean. All that matters is what you think they mean, what you want them to mean, or how the words make you feel. You don't even have to spell them correctly.
As a result, you have at least one generation the bulk of whom have a very poor grasp of the English language. Of course, that makes it much easier to tell them what to think.
For example, he uses the third definition of "establishment" ("to make a state institution of (a church)"), instead of the first or second, ("(1) to order, appoint (officials, laws, etc.) or ordain permanently, (2) to confirm or ratify.") but gives no reason for this choice. Further, the third definition of "establishment" - the onle that he prefers - refers to a "church", while the Establishment Clause is more expansive, refering to "religion."
Once could persuasively argue that the first or second definition, being more expansive, would be more in keeping with the more expansive choice of "religion" over "church". Had the framers wished to merely eliminate the possibility of the Congress establishing a national church, they could have done so. Instead, they chose to outlaw the establishment of "religion". But what does that mean, even if we adopt the first two definitions of establishment? Which leads us back to where we are today.
Which is one of the reasons why legal analysis actually entails more than just looking up words in an old copy of Webster's or citing to the Federalist Papers. It takes actual analysis and intellectual reasoning.
I have read more than one analysis of 'the clause' from this perspective. They all reach the same conclusion. In fact, I venture to say that any learned objective analysis would reach the same conclusion. Freedom of religion means exactly that; that religion has a place in the public square however the people wish to express it.
No.
"People" have the right to express it.
"The people", as in the government, means one group forcing religion on a smaller group. That's not the same thing.
I appreciate what you have to say regarding the deeper interpretation of what is written other than in context but I think you're missing something.
The thrust of his article is that laws are not made by school superintendents, District Court judges or any other public servants save Congress. The way I understood his point was to look at each situation indivudually and ask "Did congress pass a law respecting the establishment of a religion? If yes it is unconstitutional. If no ask "Did congress pass a law prohibiting free exercise of religion?" If yes it is unconstitutional. If no then it is legal.
The 10 Commandments being outside a courthouse case:
Q1: Did Congress pass a law respecting establishment of a religion?
A1: No. No such law was passed by Congress
Q2: Did Congress pass a law prohibiting the free exercise of religion?
A2: No. At no time was Congress involved.
This case should be open and shut. It should be legal.
As should most other cases involving this clause, imo.
The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man. George Bernard Shaw
"On every question of construction of the Constitution, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invent against it, conform to the probable one in which it was passed."
Thomas Jefferson
The framers of the Constitution obviously acknowledged the people's belief in God the Creator. They then exercised their considerable wisdom by not granting the government the power to establish a single method for the nation to worship that God.
The 1st amendment is merely an additional assurance that the government would not do what they were not empowered to do in the first place. If the 1st amendment had never existed the government would still not have the constitutional power to establish a single religion for the entire nation.
Surely the analysis should include the historical context in which the constitution was written. The placement of a definition in a dictionary should not be dispositive or even influential in the correct interpretation. At the time the constitution was written " The Established Church" was the Church of England in such states as Virginia. Other states such as Rhode Island had other denominations as their "Established Churches".
In England they have debates to this day about the wisdom or otherwise of diss-establishing The Church of England. One can just as easily look at this as a states rights issue in that each state had the right to have it's own 'Established Church", as some did well into the 19th century, so that one church, through it's influence over the US Congress, could not get itself "established" as the national church.
As to your thought about the founders using "religion" instead of "Church", throughout the 16,17 and 18 centuries Protestantism was regarded as a seperate religion and was referred to as such to distinguish it from other Christian denominations, principally catholicism. Elisabeth I of England regarded the defence of the "Protestant Religion" as one of her priciple duties. One can just as easily assume that the founders, consious that there would be many Catholic and even Jewish americans, did not want any sort of discrimination against catholics or jews.
In determining intent surely one must interpret using the most common usage at the time the constitution was written.
The basis thesis is that the limitations on the abridgment of the fundamental liberties which the people possess (one of which is enshrined as the Establishment Clause) is applicable to the states, as evidenced by the Privileges & Immunity and Due Process Clauses of the Fourteenth Amendment. That section reads:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law..."
In my mind, this makes perfect sense. (Although the "imperfect incorporation", which doesn't recognize the right to keep & bear arms, is a problem.) One's fundamental rights can be abridges just as easily by a state government or state government workers (including dog catchers and school boards) as by the Congress. Mares, actually, if Federalism as a theory has any validity. Further, by phrasing it "making or enforcing", the Amendment gets around the issue of whether it applies merely to the legislative branch or whether it applies to all branches...
So, with regards to Roy Moore's 10 Commandments statue: the real question, in my mind, is "does respect for one or more religious traditions equal 'establishment'?" In the Alabama case, I think he crossed the line. The size, placement, and content of the statue all point to the fact that he was attempting to have the state assert that belief in God is a necessary foundation for the legal system.
(If you've not seen the text of the statue, look here )
Regardless of whether I agree with the sentiment being addressed by the quotes on the statue, I think it goes beyond merely asking the atheist to respect the expression of someone's religious beliefs or traditions, because it essentially makes it de facto state policy that without belief in the Judeo-Christian God, no justice can be obtained. (In other words, I think that the onus is on the objector, be they atheist or whatever, to respect the wishes of the others in expressing their religious beliefs up to the point where that expression takes on the patina of state policy.) That, I believe is an establishment.
Now, that's just my belief with regard to this particular monument. I've seen others where the 10 Commandments are displayed where it is not made out to be the equivalent to the state making a profession of faith. (The Pennsylvania Supreme Court courtroom in Harrisburg is one such example.)
Exegetical
Cool word, I had to look that one up. Here's the definition:
exegetical
adj :
Of or relating to exegesis
Exegetical
Cool word, I had to look that one up. Here's the definition:
exegetical
adj :
Of or relating to exegesis
Although I was writing in the context of a critique of the main article, I hope I did not give the impression that the context and historical meaning common to a word at the time it was written are not legitimate concerns. Quite the opposite. In fact, I think that be pointing out the two more common definitions, that I was actually being more faithful to the precept of common usage.
On this question particularly, I tend to believe that the framers were intending to remove the question of religion from the Federal sphere, but feared that if one was of an establishmentarianist bent, one could use the absence of any particular prohibition as evidence that a Federal Church could be established, the Tenth Amendment be damned. So, in the context of the passage of the bill of rights, I believe you are correct in that there was a Federalism issue here.
With regard to the use of "religion", rather than "church", I was merely pointing out the more expansive nature of that first word. Your point on 18th Century use of calling Protestantism a "religion" is well taken. But I rather think that the fear and hatred of Catholicism that was rampant in the colonies (see, the overblown objections to the Quebec Act, for instance) leads me to believe that if "religion" were chose because of potential Catholic- and Jewish-Americans, it would be to ensure that Catholicism never became the established Church, and not to protect these groups from Protestantism. (After all, nothing was done to protect them from the established and Protestant state Churches...)
I am a textualist. (I don't believe in "original intent" because I do not believe that a group of people can have an intent, although its members might.) I believe that using the most common usage is one of the ways to determine what the text means. I'm just not convinced that the words used were solely limited to prevent the establishment of a single Federal established Church.
LOL!
exegetical - by way of critical analysis.
You need a better dictionary!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.