Posted on 02/01/2007 9:36:06 PM PST by Amendment10
Ground zero for today's social unrest concerning c&s separation issues, in my opinion, is Justice Black. Justice Black made a career, it seems, out of rewriting history in order to misrepresent the intentions of constitutional lawmakers, both the ratifiers of the Bill of Rights and the post Civil War 14th Amendment lawmakers. He misrepresented their intentions concerning religious related statutes, particularly ignoring the 10th A. power of the states to address religious issues. More specifically, he misrepresented their intentions in order to sell his treasonous interpretations of both the establishment clause and the religious aspects of the 14th Amendment. The purpose of Black's treasonous mischief was to unlawfully legislate absolute c&s separation from the bench.
In fact, I hope that you've got a few minutes to read this post because Constitution-ignoring political correctness concerning religious freedom in the good old USA is a big mess. The following essay is a rough timeline in paragraph form which attempts to untangle this mess.
So let us begin tearing Justice Black's self-serving version of history to pieces.
The colonies had the power to address religion long before they established the federal government and its Constitution. So government power to address religion was nothing new when the Constitution was made.
When the Founding Fathers, most of them Christian, established the federal government and its Constitution, they wrote the 1st and 10th Amendments in part to reserve government power to address religious issues, powers that the colonies already had, uniquely to the state governments. Are you beginning to see a discrepancy here with respect to current thinking about separation of church and state? Read on...
The problem with our constitutional religious freedoms seems to have begun when foreign Catholics started immigrating to our shores in droves in the early 1800s. The Protestants got disturbed when they became aware of the widening stream of Catholic immigrants. One of the reasons that the Protestants were troubled by this situation, in my opinion, is because of the Spanish Inquisition. The Protestants didn't want to have anything to do with the Pope and his "sheep" in part because of the cruelty of the Inquisition.
Another reason that the Protestants regarded the Catholics as a potential threat is because they anticipated that the Catholics were going to out-breed them. Out-breeding the Protestants meant that Catholics were eventually going to be able to outvote the Protestants, a major 10th A. concern.
The Protestant response to the tsunami of Catholic immigrants was to ignore the intentions of the Founders concerning no national religion and establish Protestant Christianity as the national religion, even if only informally. The Protestants accomplished this by shrewdly seizing control of relatively new common schools in the 1840s, incorporating the teaching of Protestant values into the curriculum. Students officially practiced Protestant religious exercises, such as daily readings from the KJV Bible. Up to this point in time, schools not only officially practiced religious exercises, but both Protestant and Catholic "public" schools were locally supported.
The idea behind the Protestant religious exercises was essentially to force Protestant brand Christianity down the throats of Catholic students in order to make them think, and eventually vote, like Protestants; again, a 10th A. concern. Additionally, laws were passed so that local governments could no longer support "sectarian" schools, the politically correct buzzword for Catholic schools. Catholics fought back by opening their own, privately supported schools.
I've now introduced enough material to show how Justice Black twisted the intentions of the ratifiers of the Bill of Rights with respect to their purpose for the establishment clause. After that, I will introduce material to show how Black likewise twisted the intentions of the post Civil War lawmakers concerning the 14th A.
Regardless that common schools, and then public schools, taught Protestant Christianity from essentially day one until Justice Black unconstitutionally put a stop to such practices in the 1900s, Justice Black misrepresented Jefferson, particularly Jefferson's famous "wall of separation" to mislead everybody to think that the Founders had decided on absolute c&s separation from the start. Note Black's reference to Jefferson's famous words in the last sentence of the following paragraph from the Everson opinion where Black gave his scandalous interpretation of the establishment clause.
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertain- [330 U.S. 1, 16] ing or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' Reynolds v. United States, supra, 98 U.S. at page 164." --Everson v. Board of Education of Ewing TP. 1947. http://tinyurl.com/ynkvra/8q3d8
(As a side note, there is no reference to the 10th A. in the Everson opinion.)
Getting back to the discrepancy that I noted earlier concerning "separation of church and state" versus the 10th A. powers of the states to address religious issues, despite what Justice Black wanted everybody to believe about Jefferson's "wall of separation" and the establishment clause, it turns out that Jefferson himself had acknowledged that the Founders had written the 1st and 10th Amendments in part to delegate government power to address religious issues to the state governments. See for yourself.
"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/oozooThe bottom line concerning his "profound insight" into the establishment clause is that by quoting Jefferson, Justice Black probably couldn't have picked a worse person to help justify his treasonous interpretation of this clause."In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the general government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it; but have left them as the Constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies." --Thomas Jefferson: 2nd Inaugural Address, 1805. ME 3:378 http://tinyurl.com/jmpm3
"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
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.
In fact, Black also ignored that not only was Jefferson known to attend church services held in the hall of the House of Representatives at the nation's capitol, but Jefferson had also authorized the US Marine Band to provide music for church services. So even Jefferson, Mr. "wall of separation" himself, a hero to today's atheists, knew where to draw the line with respect to understanding that the casual association of government and religion did not necessarily constitute a government establishment of religion.
So Black sidestepped the fact that, contrary to the way that the 1st A. of the federal Constitution essentially sterilized the federal government from any official religious association, the Founders had written the 10th A. in part to delegate government power to address religious issues uniquely to the states.
Revisiting the Protestant controlled common schools of the 19th century with respect to the religious aspects of the 10th A., the common schools show that the states clearly understood their 10th A. powers to address religion. In other words, practicing religious exercises in common schools was not an under the table operation to avoid separation of church and state lawsuits from atheists. Local governments were simply exercising their 10th A. powers with respect to supporting "public" schools which officially promoted religious exercises. (Public schools weren't formally established until after the Civil War.) Again, I emphasize that local governments legally supported both Protestant and Catholic "public" schools before the tsunami of Catholic immigrants in the 1800s.
Up to this point, keep in mind that I've already indicated that understanding the politically correct evolution of twisted, unconstitutional interpretations of our constitutional religious freedoms isn't easy. Indeed, beware that things are going to get even more involved from this point in the essay. For now, let's revisit the ratification of the Bill of Rights so that we can then go forward to the Civil War...
The ratifiers of the Bill of Rights arguably overlooked a formal check on the 10th A. powers of the states. Again, the unique, 10th A. powers of the states are actually powers not delegated to the federal government, the powers prohibited to the federal government by the 1st A. of the federal Constitution being a good example. Regarding the overlooked check on the 10th A. powers of the states, although we would like to think that every state to join the Union was zealous to uphold the spirit of the Constitution by respecting personal federal rights, our country's history, particularly the Civil War, tells us differently.
It turned out that many southern states seemingly used their unchecked 10th A. powers as a loophole to justify slavery. In contrast, the northern states evidently regarded the Declaration of Independence as law as much as the Bill of Rights and demanded that the slave states treat all men as having been created equal and abolish slavery. But the slave states wouldn't comply and the clash of values between the north and south helped to precipitate the Civil War. The 14th Amendment, the result of the Civil War, was arguably the needed check on the unique, 10th A. powers of the states, the 10th A. likewise a formal check on the 14th A. protected personal federal freedoms.
Meanwhile, back at the ranch...
A part of the post Civil War Reconstruction effort by northern lawmakers was the establishment of the Department of Education, at least the first try for this department. And with the advent of the DOE, today's public school system got started. Starting public schools with a clean slate, certainly official Protestant religious exercises in public schools were discontinued because of 14th A. considerations, right? After all, the Reconstruction effort was being led by the same lawmakers who made the 14th Amendment.
Actually, to the contrary, Protestant religious exercises continued to be practiced in public schools as if the 14th Amendment had never been made. Given that official religious exercises in public schools survived the 14th Amendment, 14th Amendment lawmakers clearly never intended for the 14th A. to stop Protestant religious exercises in public schools in their ongoing attempt to "reconcile" their differences with the Catholics. In fact, this brings us to another one of Justice Black's shenanigans, this time concerning his treasonous interpretation of the religious aspects of the 14th A.
Indeed, nobody was going to find out that post 14th A. religious exercises in public schools were protected by the 10th A. if Justice Black could help it. Again, Justice Black was evidently more interested in rewriting history so that he could misrepresent the intentions of lawmakers to make it easier to force his personal beliefs into religion related constitutional statutes. Knowing what we know about the intentions of the 14th A. lawmakers as evidenced by the survival of religious exercises in public schools, the following paragraph shows how Justice Black misrepresented the intentions of the 14th A. lawmakers in the Engel v. Vitale opinion.
'Because of the prohibition of the First Amendment against the enactment of any law "respecting an establishment of religion," which is made applicable to the States by the Fourteenth Amendment, state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day - even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited.' --Justice Black(?), Engel v. Vitale, 1962 http://tinyurl.com/lo2xg(As a side note, there is no reference to the 10th A. in the Engel v. Vitale opinion.)
Given the official practice of religious exercises in post Civil War public schools, where did Justice Black get his ideas about the 14th A. from?
It turns out that Justice Black evidently shared the belief of some Baptists that Matthew 22:21 was God's call for absolute c&s separation. So unlike other Protestant denominations, some Baptists evidently regarded practicing religious exercises in public schools as unbiblical. Also, Black unsurprisingly despised Roman Catholics. So by interpreting the 14th A. the way that he did, Black killed two birds with one stone by #1, getting Protestant despised Catholic religious exercises out of the public school classrooms, and #2, getting even religious exercises practiced by his fellow Protestants out of the classrooms - sorry guys.
But Black's rewrite of history did not go unnoticed. Indeed, Justice Reed, a frustrated colleague of Justice Black's, seemingly protested Black's version of history by noting the following in McCollum v. Board of Educaton:
"...As I am [333 U.S. 203 , 239] convinced that this interpretation of the First Amendment is erroneous, I feel impelled to express the reasons for my disagreement. ...From the holding and the language of the opinions, I can only deduce that religious instruction of public school children during school hours is prohibited. The history of American education is against such an interpretation of the First Amendment. ..." --Justice Reed, McCollum v. Board of Education, 1948. http://tinyurl.com/rguwyJustice Reed also seemingly protested Black's treasonous interpretations of both the establishment clause and the religious aspects of the 14th A. by noting the checks and balances of the 10th and 14th Amendments. Reed noted that it is the job of judges to balance the 10th A. sovereign powers of the states with 14th A. protected personal federal rights.
"Conflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living without which constitutional guarantees of civil liberties would be a mockery." --Justice Reed, Jones v. City of Opelika, 1942. http://tinyurl.com/yvtqoy
Despite Reed's concerns, Black succeeded in establishing the tradition where 10th A. ignoring, anti-religious expression judges use Black's interpetation of the 14th A. as a license to unlawfully force the 1st A.'s prohibition on religious powers of the federal government onto the state governments.
As a side note, I find it ironic to contrast Justice Black's forcing of Baptist beliefs into the establishment clause and the 14th A. with the fact that there were no known Baptists among the mostly Christian Founding Fathers.
http://tinyurl.com/jg2htThere are arguably two smoking guns, double barrels if you prefer, which expose the unconstitutional folly of Black's treasonous interpretation of the 14th A. with respect to stopping religious exercises in public schools. The evidence concerns historical examples which reflect religious exercises being officially practiced in public schools after the ratification of the 14th A.
Regarding the first smoking gun, Thomas Nast, a famous 19th century political cartoonist, just happened to make a series of political cartoons based on Catholics protesting Protestant religious exercises in public schools in the 1870s. Keep in mind that Nast's fact-twisting cartoons actually depict Catholics as controlling the public schools.
http://tinyurl.com/4d6pvThe second smoking gun is the Blaine Amendment. The Blaine Amendment was clearly intended to extend the scope of the 1st A.'s prohibition of religious powers on the federal government to include the state governments.
No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any state for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.But Black couldn't use the Blaine Amendment as an excuse to stop religious exercises in public schools because of a technicality; the Blaine Amendment had failed. But as evidenced by Black's paragraph from the Engel opinion, Black essentially forced the politically correct, anti-Catholic ideas behind the failed Blaine Amendment into his tortured interpretation of the previously ratified 14th Amendment.--Failed Federal Blaine Amendment, 1876 McAfee.pdf
As another example of Black's influence, let's consider the Cantwell opinion. The Cantwell opinion is regarded in some legal circles as the best example of unlawful legislation from the bench, particularly where absolute c&s separation is concerned. In fact, consider the following statement from the Cantwell opinion.
"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." -- Cantwell v. State of Connecticut 1940. http://tinyurl.com/38a87c(As a side note, there is no reference to the 10th A. in the Cantwell opinion.)
Although Justice Roberts wrote the Cantwell opinion, Justice Black was a member of the Supreme Court by that time and had undoubtedly made his politically correct ideas about the 14th Amendment known. The bottom line is that Justice Black would surely have loved to see the above statement from Cantwell refer to the failed Blaine Amendment instead of having to take the trouble to pervert the religious aspects of the 14th Amendment.
Again, as evidenced by Nast's political cartoons and the failed federal Blaine Amendment, 14th A. lawmakers clearly never intended for the 14th A. to stop religious exercises in public schools, despite Black's "profound insight" into this statute.
As we have seen, Black had a bad habit of rewriting history so that he could misrepresent the intentions of two generations of constitutional lawmakers to advance his special interest agenda.
Emphasizing something that has already been mentioned, the icing on Black's cake, Black's illegal "wall of separation," is that the opinions of most c&s separation cases that Black had influence in (Cantwell, Everson, Engel v. Vitale, Lemon v. Kurtzman, etc.) fail to reference the 10th A. power of the states, particularly its religious aspects, in any way. Black seems to have shrewdly regarded the 10th A. as too much of a loose canon to bring attention to with respect to unlawfully legislating absolute c&s separation from the bench.
And not only did Black and his crony Justice colleagues establish the tradition of sweeping the religious aspects of the 10th A. powers of the states under the carpet, but secular-minded Justices who have followed in their footsteps have regarded Black's unconstitutional, "sleeper cell" interpretations of the establishment clause and the 14th A. in case opinions as case precedents that are somehow more important than the Constitution. Indeed, does it surprise us that secular-minded judges who hypocritically bow down to Black's unconstitutional case precedents are actually ignoring the precedent established by Justice Marshall that the courts are bound to uphold the Constitution?
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument." --Mr. Chief Justice Marshall, Marbury v. Madison 1803. http://tinyurl.com/qf2vwJefferson's Orwell-like apprehensions concerning bogus interpretations of the Constitution are also appropriate.
"Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." --Thomas Jefferson to William Johnson, 1823. ME 15:450Given the former slave states were against the 14th Amendment, persisting social unrest concerning 10th A.-ignoring, anti-religious expression interpretations of the establishment clause and the 14th A., interpretations inspired by none other than southerner Justice Black, is enough to make one do a double-take on who really won the Civil War. Indeed, given today's dubious interpretations of the "living, breathing" Constitution by liberal judges, another Jefferson excerpt is appropriate."One single object... [will merit] the endless gratitude of society: that of restraining the judges from usurping legislation." --Thomas Jefferson to Edward Livingston, 1825. ME 16:113
"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:419
"Strained constructions... loosen all the bands of the Constitution." --Thomas Jefferson to George Ticknor, 1817. FE 10:81
Whew!
Are we having fun yet? :^P
The bottom line is that the people need to get a grip on what the honest interpretations of the 1st, 10th and 14th Amendments actually say about our religious freedoms. Then, when the people wise up to the fact that they are essentially prisoners of conscience to the bogus interpretation of both the establishment clause and the religious aspects of the 14th A. by a renegade, anti-religious expression Supreme Court majority, they will hopefully heed Lincoln's advice for dealing with crooked 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.
bump
"The purpose of Black's treasonous mischief was to unlawfully legislate absolute c&s separation from the bench."
You have an odd notion of treason. I gave the rest of the article the respect it deserved.
http://www.loc.gov/exhibits/religion/rel06-2.html
Excerpt:
The Old House of Representatives
Church services were held in what is now called Statuary Hall from 1807 to 1857. The first services in the Capitol, held when the government moved to Washington in the fall of 1800, were conducted in the "hall" of the House in the north wing of the building. In 1801 the House moved to temporary quarters in the south wing, called the "Oven," which it vacated in 1804, returning to the north wing for three years. Services were conducted in the House until after the Civil War. The Speaker's podium was used as the preacher's pulpit.
First Catholic Sermon in the House
On January 8, 1826, Bishop John England (1786-1842) of Charleston, South Carolina, became the first Catholic clergyman to preach in the House of Representatives. The overflow audience included President John Quincy Adams, whose July 4, 1821, speech England rebutted in his sermon. Adams had claimed that the Roman Catholic Church was intolerant of other religions and therefore incompatible with republican institutions. England asserted that "we do not believe that God gave to the church any power to interfere with our civil rights, or our civil concerns." "I would not allow to the Pope, or to any bishop of our church," added England, "the smallest interference with the humblest vote at our most insignificant balloting box."
For read when the sand man leaves me.
bttt
"Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: 'Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the 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...Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
Can a man excuse his practices to the contrary because of his religious belief? [98 U.S. 145, 167] To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances..."
REYNOLDS v. U.S., 98 U.S. 145 (1878) 98 U.S. 145
See post #8, where it is quoted at the end of the first excerpted paragraph...
Would this then apply to all the changes we are making to accommodate Muslims?
bump
Whatever happened?
This case is also central to the marriage issue. The Court did declare the legal restrictions for the religious rite of marriage was solely a statutory function in the secular law.
Marriage is not a civil right, it is a privileged religious rite and requires a license to be recognized by the state and federal government.
Since all adults have equal privilege to marry one consenting adult of opposite gender, 14th Amendment arguments concerning "equal privileges and immunities" do not apply to homosexual monogamists.
Thank you, but I don't concern myself with the Reynolds case. This is because Utah was a territory at the time, not a state. So while it can be argued that judges were trying to tamper with our religious freedoms, Reynolds wasn't a 10th Amendment issue. But I'd like to hear your thoughts about my stance on Reynolds if you have some.
As a side note, Black referred to Reynolds in Everson, carelessly implying that Utah was a state, in my opinion. Not only is this another example of Black rewriting history but it gave momentum to his distortions of the establishment clause and the 14th A.
Although my use of the word treason is not necessarily constitutional, keep in mind that my critiques about Black are presenty aimed at the jury of public opinion.
"Finally, Jefferson’s Danbury letter should never be invoked as a stand-alone document."If I understand you correctly, one problem with respect to things like marrage laws that arguably don't compliment the constitutional division of federal and state powers is that the Founding Fathers erroneously presumed, in my opinion, that pre-Constitution judges would be able to change their thinking about the law overnight.Whatever happened?This case is also central to the marriage issue. The Court did declare the legal restrictions for the religious rite of marriage was solely a statutory function in the secular law.
Marriage is not a civil right, it is a privileged religious rite and requires a license to be recognized by the state and federal government.
Since all adults have equal privilege to marry one consenting adult of opposite gender, 14th Amendment arguments concerning "equal privileges and immunities" do not apply to homosexual monogamists.
Another problem is that Constitution-ignoring, secular-minded judges are taking advantage of epidemic ignorance of both the Constitution and how our government is supposed to work by walking all over our constitutional freedoms, particularly our religious freedoms. This ignorance is evidenced by the following links.
http://tinyurl.com/npt6t
http://tinyurl.com/hehr8
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