The Papers of Thomas Jefferson (Supreme Court got Jefferson's "wall of separation" wrong)

Princeton University: Jefferson's Draft ^ | Thomas Jefferson

[Amendment10]

"3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people’: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people..." --Thomas Jefferson, Kentucky Resolutions, 1798. http://tinyurl.com/oozoo

1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Amendment10]

The Supreme Court misunderstood Jefferson's "wall of separation" and consequently got its interpretation of the establishment clause wrong. This is evidenced by the fact that Jefferson had also noted that the Founders wrote the 1st and 10th Amendments in part to delegate government power to address religious issues uniquely to the state governments.

[pgyanke]

No offense meant but how long did you lurk before signing up to think this teaches FReepers anything?

[RobbyS]

I've never seen that specific quote posted before. It does show how Hugo Black was an ideologue who did not scruple to quote Jefferson out of context.

[mrsmith]

Though everyone acknowledges that it was not the intent of it's authors or ratifiers...

The language of the Fourteenth Amendment is where the federal courts claim to find the power.

I can't remember the last Fourteenth amendment case that had anything to do with it's intent. "Brown", I guess.

[sageb1]

Welcome to FR.

[ndt]

There are a lot of these "they got it wrong" arguments floating around but it is really a moot point for anything but trying to stir up emotions. The authors of that same Constitution also granted the power to the SCOTUS to make exactly these determinations of intent.

Option B is an amendment. I would be interested in hearing any proposed amendments you may have.

"Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."

[dayglored]

> The Supreme Court misunderstood Jefferson's "wall of separation" and consequently got its interpretation of the establishment clause wrong.

You really ought to quote Jefferson's passage if you're going to talk about it:

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

Now, your point is well taken, that the U.S. Constitution speaks only about the limits on the powers of the federal government, and therefore does not prohibit any state from connecting church and state -- indeed early American history is filled with examples of religion-based states.

So I disagree that the Supreme Court misinterpreted Jefferson's statement. What happened, in fact, was that the 14th Amendment opened the door for an override of the limits on the powers of the federal government, as mrsmith correctly points out. It didn't misinterpret TJ, it ignored him (and the 10th Amendment).

Welcome to Free Republic. Those of us who study and revere the Constitution, and the Bill of Rights in particular, will gladly engage you in all the debate you care to join. Your handle suggests you're looking forward to it too.

[Fiddlstix]

Welcome to FR

[ndt]

Nobody has any specific proposals for an amendment? That seems strange for such a hot topic.

The only periods in the entire Bill of Rights are at the end of each amendment. It should be a simple task with all the thought and energy that has been put into the topic.

[lonestar67]

I have always thought it an interesting irony that the first time the Supreme Court referenced this metaphor created in the Danbury letter was in defense of marriage against polygamy in the Utah territories.

The court in Reynolds ruled in 1878 that the wall protected the American tradition of marriage.

I agree that the wall metaphor is bad law and bad interpretation of the religion clauses of the first amendment.

[Redbob]

"...strange women lying in ponds distributing swords is no basis for a system of government!"

Except for the "swords" part!
<grin>

[Amendment10]

No offence, but I'm happy that I evidently won't be the only undiplomatic poster in FR.

To answer your question, I posted 10 minutes after stumbling on FR after years of knock-down drag out discussions of the issue in other message boards. I posted because my FR keyword search returned an anemic total of five posts relating to the issue. I probaby should have tried more keywords.

I predict that my participation in FR is going to be short-lived anyway. This is because I have found it frustrating to try to address the historical material concerning the Court's treasonous interpretation of the establishment clause in length limited posts. In fact, I had to rip out much of my first post to get things to fit. And it's probaby time to wrap up this post and start again.

[Atchafalaya]

Welcome to FR; thanks for the post, I'm sure most here will agree.

[Amendment10]

There's a "little bit" of material to discuss concerning the Court's misrepresentation of Jefferson so I'm claustrophobic in these length-limited posts. Please allow me to be grouchy and bear with me with a religion-specific Jefferson example of the 10th A. protected powers of the states.

"I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the states the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in religious discipline has been delegated to the General Government. It must then rest with the states, as far as it can be in any human authority." --Thomas Jefferson to Samuel Miller, 1808. http://tinyurl.com/nkdu7

[hsalaw]

Interesting. There was recently a federal case - can't recall the name or the circuit, I think it was a circuit case - in which the court said that the "wall of separation" is a misnomer and there was never such an intent in the Constitution. It was a "Ten Commandments in a public building" case which the ACLU lost, if I recall correctly.

[Amendment10]

The people have forgotten that the states had the power to address religious issues before they established the federal government and its Constitution. The Founders had shrewdly reserved this power uniquely to the states via the 1st and 10th Amendmets as evidenced by the Jefferson extracts that I have already posted. Here is another Jefferson extract which emphasizes that government power to legislate religion was reserved uniquely to the states.

"Our citizens have wisely formed themselves into one nation as to others and several States as among themselves. To the united nation belong our external and mutual relations; to each State, severally, the care of our persons, our property, our reputation and religious freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262

[Amendment10]

Crooked Justices legislating a special-interest, anti-religous expression agenda from the bench twisted the honest interpretation of Section 1 of the 14th Amendment in the Cantwell opinion as much as they twisted the honest interpretation of the establishment clause in the Everson opinion.

The smoking gun with respect to the Court's dirty work in the Cantwell and Everson opinions is to note that neither of these opinions reference the 10th Amendment power of the states to legislate religion in any way. Justices who evidently didn't take their oaths to defend the Constitution seriously seemingly regarded the religious powers aspect of the 10th Amendment as too much of a loose canon to bring attention to in these opinions with respect to pushing their unconstitutional agenda of absolute c&s separation.

Cantwell v. State of Connecticut 1940
http://tinyurl.com/bvoc3

Everson v. Board of Education of Ewing TP 1947
http://tinyurl.com/8q3d8

[Amendment10]

Thank you for the welcome.

Please forgive me for being grouchier than usual because of the tone of some of the replies I've gotten so far.

Also, I'm anticipating that these limited length posts (at least I think that they are limited) are going to be a bear with respect the amount of historical material that I would like to reference.

[Lancey Howard]

No, the SCOTUS did not ignore Jefferson - - they deliberately took a handful of his words out of context and perverted them. I suggest that you check out ENGEL v. VITALE (the case which started the decades-long attack on that pesky second clause of the 1st Amendment) where you will read the following passage:

"The petitioners contend among other things that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government."

See how "government.... composing official prayers" has been perverted by the athiests of the ACLU and their Democrat brethren into the sick attack on American tradition and values (and even the Boy Scouts!) that we see today? Kids are being sent home for wearing crucixes; honors graduates are being told they are not allowed to make religious references in their graduation speeches; high school football players are told not to huddle in a pre-game prayer; decades-old public monuments are suddenly ruled unacceptable and ordered removed. Etc.

It's plain sick.

[Lancey Howard]

I don't know what you mean by "limited length posts" but this thread will continue for as long as people stay interested and offer responses or post new information, links, etc. In any event, all threads are archived and remain available to freepers.

This is a good topic, and it is one which has been discussed often (and passionately) here at Free Republic for years. By the way, as far as I can tell the vast majority of freepers would love to see the athiest Democrat scumbags of the ACLU thoroughly disavowed and defunded by Congress.