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.

[ndt]

"Note that, as far as I can tell (corrections welcome, I could be wrong), the Lemon opinion fails to reference the 10th Amendment in any way"

Because it is totally inapplicable.

"Also, please consider applying the "10th Amendment test" to the opinions of any questionable c&s court cases."

Alright, it's considered and rejected as not applicable. I do have to go to court for a parking ticket though I see if I can sneak it in there.

Oh, by the way, can you provide me with the text of a proposal for a Constitutional Amendment that is sufficiently explicit in it language as to be beyond misinterpretation by the judiciary?

[lonestar67]

I think this has been a great discussion but I still feel it has been signficantly misguided in some respects:

1. Jefferson's wall metaphor is but one potential interpretation of the religion clauses. In its first application in 1878 it was arguably used to defend the government's establishment of religion [marriage between a man and a woman]. Black's interpretation of the wall metaphor has progressively turned the meaning of the first amendment entirely inside out. We are now allowing religious speech to be banned from government space to preserve the excessive reading of the establishment clause. This is why Scalia was right when he observed that it is not a wall separating church and state but a bulldozer-- pusing religion out of public life.

2. The establishment clause is in reference to the state establishments of religion that existed within the colonies at the time of the Constitution. It was a promise that the federal government would not interfere with those establishments. This historical reality annihilates much of what is being defended in this thread as normative readings of the establishment clause. THE ESTABLISHMENT CLAUSE IS A FEDERAL GUARANTEE THAT STATE CHURCHES WILL NOT BE UNDERMINED BY THE FEDERAL GOVERNMENT.

3. This does set up problems for the incorporation processes understood in light of the passage of the 14th amendment. It seems quite possible that the incorporation OUGHT to mean that local establishments of religion [churches I suppose and religious non profits] cannot be interfered with by governing authorities. I think almost no one is prepared to accept this though I actually think it is quite defensible.


Because our jurisprudence is so fundamentally flawed on this question we are tending toward the abolition of religious speech. There is constant reference on this thread that the government can support non-religious speech. That is the functional annihilation of religious speech. Because if a religious speech person is standing on a square centimeter of government funded property they cease to have free speech rights as far as religious content is concerned. Radical secularists are fully aware of this and pretend to not notice the radical case for censorship that they are practicing and advancing in America's public sphere.

Ironically, I do have hope that the Supreme Court will gradually undo the damage done by Black. I do not personally think the 10th amendment plays a critical role in this.

[shield]

USSC more or less made it up...they used it as a way to knock down the Christian Faith in America.

Wall Builders

1Jo 4:5 They are of the world: therefore speak they of the world, and the world heareth them.
1Jo 4:6 We are of God: he that knoweth God heareth us; he that is not of God heareth not us.

[Amendment10]

Hey ndt,

I've only been participating in FR for a few days and I'm already beginning to recognize your posts before I get to your screen name.

[ndt]

"I've only been participating in FR for a few days and I'm already beginning to recognize your posts before I get to your screen name."

And still no answer to a simple question...

I will be happy to engage you when you are willing to be engaged. By my count, you are up to 20-25 paragraphs without ever addressing my one question. Up to now, you seem happy to chat with yourself.

So let me try a different question. As a supporter of the 10th are you willing to accept that each state can allow gay marriage, legal drugs and anything else not explicitly outlined in the constitution as a power of the federal government?

[Amendment10]

Yes, many issues will need to be dealt with when the states wake up to their 10th Amendment powers.

[Amendment10]

"Ironically, I do have hope that the Supreme Court will gradually undo the damage done by Black. I do not personally think the 10th amendment plays a critical role in this."

Again, given that both Jefferson and Justice Reed noted the significance of the 10th Amendment where our basic freedom's are concerned, unless I have misunderstood you, I disagree with you that the 10th is not significant, if that is what you meant.

[Amendment10]

"Note that, as far as I can tell (corrections welcome, I could be wrong), the Lemon opinion fails to reference the 10th Amendment in any way"

'Because it is totally inapplicable.'

Your remark about the "lost" 10th A. where c&s separation cases are concerned reflects the denial that I typically get from religious expression hating secularists.

'Oh, by the way, can you provide me with the text of a proposal for a Constitutional Amendment that is sufficiently explicit in it language as to be beyond misinterpretation by the judiciary?'

Concerning the 10th Amendment, regardless if its relationship to the 1st Amendment is debatable when no other information is considered, given Jefferson's notes about these amendments, your question is merely an attempt to sidestep the reality that there is no question about the Founder's intentions concerning the division of federal and state powers of these amendments. And this is regardless how your hero Justice Black spinned the meaning of the establishment clause.

[ndt]

"Your remark about the "lost" 10th A. where c&s separation cases are concerned reflects the denial that I typically get from religious expression hating secularists."

And the ones that usually scream the loudest about the 10th are religious zelots that want the right to impose a state religion based on "states rights" but choose to keep trying to pass the legislation of morality at the federal level. I'm not saying that is you, just that that is what I usually hear. As long as you dont' want it both ways we should not have a problem.

It is "lost" and hence inapplicable because there had been so many prior decisions to come out of the SCOTUS that had already shredded states rights to tiny ity bits. To try to bring it up as an argument to say they don't have jurisdiction would be to overthrow a dozen previous cases. Trying to argue the 10th at this point (or that point) after so many accepted overreaches by the judiciary, legislative and the executive is doom to fall flat on it's face.

The federal government has spoken and they do consider themselves superior to the states and not just on c&s cases. There is no going back now through any simple law or court decision, not going to happen, period. Any attempt to do so is just banging your head against a wall.

The only way to change that is through a very clear constitutional amendment. Hence why I brought it up in the first place.

What you are proposing, the reinterpretation of the 10th to regain what amounts to a kind of national sovereignty for states would be a huge shock to all levels of government and would radically redefine America from it's current state. I'm not saying that is wrong, but it is much bigger than c&s issues.

You should think carefully about the ramifications of becoming a North American version of the E.U.

[Amendment10]

"What you are proposing, the reinterpretation of the 10th to regain what amounts to a kind of national sovereignty for states would be a huge shock to all levels of government and would radically redefine America from it's current state. I'm not saying that is wrong, but it is much bigger than c&s issues. "

It's also typical of anti-religious expression secularists to avoid referencing the 10th and 14th Amendments in the same sentence. Your goal is evidently to deny the middle ground between the 10th and 14th Amendments that Justice Reed pointed out.

[Obie Wan]

They DIDN'T misunderstand it.Those liberal pukes had their own agenda and kick the snot out of the Constitution knowing full well what they were doing !!!

[RobbyS]

In Reynolds the Court did not establish relgion so much as it recognized a Judeo-Christian basis of marriage in the common law. Much of the Courts acitivity since Griswold, however, has been a deliberate effort to undermine that basis and to substitute a purely secular basis. Ironically, IMHO, the only no arbitrary basis is biological, which centers marriage in reproduction. Resisting that, the judges can only found it on the shifting sands of convention.

[PhilipFreneau]

>>>In fact, note that regardless that secularists will argue that the USSC has the power to essentially read anything they want to into the Constitution in the name of case precedent, they ignore that Justice Marshall set the precedent that judges are bound by the Constitution. <<<

Marshall also called it a crime for a judge to ignore his oath to adhere to the constitution, as follows:

"Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime." -- Marbury vs. Madison

[ndt]

"Your goal is evidently to deny the middle ground between the 10th and 14th Amendments that Justice Reed pointed out."

You know the irony here? I actually agree with you about the 10th. You never even bothered to ask whether I thought it was correctly interpreted or whether I thought it would be better to move to rectify it.

Like I mentioned earlier, you are arguing against yourself and refuting points I did not make. If you would stop ranting for a second and ask a question you might learn something about me.

Since you apparently also know what I, the anti-religious expression secularist, thinks about the 14th, why don't you tell me what it is.

By the way, did you just graduate collage or are you still in school?

[ndt]

"Your goal is evidently to deny the middle ground between the 10th and 14th Amendments that Justice Reed pointed out."

Either the federal government is or is not limited to the powers delegated by the U.S. Constitution. In other words, no, there is no middle ground.

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."

"Middle Ground" is just a weak attempt at a justification for forcing the acceptance of states rights on the issues you don't think you can win at a national level.

If we take the clear interpretation of the 10th (which by the way I do think was the original intent) then the Federal Government will be reduced in size by around 95%. That includes the things you like as well as the ones you don't, no picking and choosing.

There are very few powers actually delegated to the federal government. It's not just the Judiciary that you will have to fight over this. This would be fought by the Legislative and Executive every bit as hard. Oh, you will hear a lot of lip service given to states rights, but few congressmen would ever give up the bulk of their federal legislation powers.

[Amendment10]

Thank you for your patience with this dicussion but we're just wasting each others time.

[Amendment10]

"Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime." -- Marbury vs. Madison

Good reference!

Sadly, the reason that crooked judges are getting away with trampling our religious freedoms is because of widespread ignorance of both the Constituiton and the government.

http://tinyurl.com/npt6t
http://tinyurl.com/hehr8

I've stated elsewhere that the people need to get a grip on what the honest interpretations of the 1st, 10th and 14th Amendments actually say about their religious freedoms. Then, when the people wise up to the fact that they are essentially prisoners of conscious to the bogus interpretation of the establishment clause by a renegade, anti-religious expression Supreme Court, they will hopefully heed Lincoln's advice for dealing with corrupt judges:

"We the People are the rightful master of both congress and the courts - not to overthrow the Constitution, but to overthrow the men who pervert the Constitution." --Abraham Lincoln, Political debates between Lincoln and Douglas, 1858.

[Amendment10]

I suspect that the fact that the case supported parochial schools may have been an attempt by Black to cover his tracks. I believe, based on a comment by Justice Jackson in Everson, that Black was more interested in seeding the Everson opinion with his treasonous interpretation of the establishment clause than he was with the outcome of the case.

"The Court's opinion marshals every argument in favor of state aid and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, 'whispering 'I will ne'er consent,'- consented.'" --Justice Jackson, Everson v. Board oF Education Of Ewing TP. 1947

Again, in my opinion, Black was more interested in establishing unconstitutional case precedents that could later be regarded as more important that the Constitution.

[hinckley buzzard]

The Lemon Test 1) Does the challenged legislation or activity have a legitimate secular purpose?; 2) Does the legislation or activity have a primary effect that neither advances nor inhibits religion? and 3) Does the legislation or activity excessively entangle government with religion? That sounds reasonable to me. How would you change it?

Hi, ndt. Just saw your question. I don't think many people like the Lemon test although afaik it continues to be used. It is useful to notice, that the first branch, as you cite it, has nothing whatsoever to do with state/religion issues at all. It in itself is simply an arrogation of what ought to be legislative function(to determine the legitimacy of 'secular purpose'). It is not the province of judges to rule on the "purpose" of legislators. They are to rule on what the law is, and whether it conforms to Constitutional provisions, whatever its putative "purpose."

The second branch is historically irrelevant in that it addresses "religion" generically rather than in terms of government favoring a particular sect or denomination or faith, over others. There should be no judicial objection to an action which has the effect of "advancing religion", so long as it fosters the advance of any religion which chooses to respond to the act at hand. History and writings of the Founders are clear that the posture of government toward religious practice generically was intended to be a benign accommodation of all religions, hence the free exercise clause. This posture was written into organic law, incidentally, in the Ordinance of 1787, which explicitly recognized the importance of fostering religious faith in the citizenry of the new nation. That law is still on the books, right after the Declaration of Independence This second test does violence to the free exercise clause while failing utterly to relate properly to the establishment clause.

The third branch begins to address the actual issue, but also should be narrowed to relate to relative preferential treatment by government of one faith over others. Only in this context does the "entanglement" issue carry weight. If government treats all religions equally, either through creation of a supportive environment or through benign neglect, it is in harmony with the intent of the first amendment.

I would require judges to decide these cases on the basis of discriminatory impact of the law, and the need for "equal protection" of all religions under the law.

[TexasJackFlash]

"The Founders wrote the 1st and 10th Amendments in part to delegate government power to address religious issues uniquely to the state governments."


The U. S. Government had no power over religion to delegate to the states. The National Government was never granted any power over religion, in the first place.

At the founding, the people of the several states had for the most part reclaimed the freedom of religion that they had been deprived of by the colonial governments.