Posted on 10/24/2010 10:43:27 AM PDT by Brices Crossroads
The establishment clause again has come up for discussion. Delaware Republican Christine O’Donnell brought it up in a debate with her Democratic opponent Chris Coons. O’Donnell asked Coons (who is a lawyer) exactly where the Constitution requires “separation of church and state.”
The law school audience laughed, evidently finding it a stupid question. But in fact “separation of church and state” is not mentioned in the Constitution. Coons’ reply was that “The First Amendment establishes a separation.” And so it does, if we believe the Supreme Court.
But this is a case where we should not believe the Court, which actually found “wall of separation between church and state” in a letter written by President Jefferson. Jefferson’s colorful words are a grossly inadequate generalization about the establishment clause.
The clause reads: “Congress shall make no law respecting an establishment of religion . . . .”; The key word is “respecting,” which means “having to do with” an establishment of religion. This awkward expression was used because the amendment’s drafters intended it to do two things, not just one: 1, Prevent Congress from establishing a religion; and 2, Prevent Congress from interfering if state governments establish a religion. (Several states had established churches when the First Amendment was written; others had religious tests for public officials.
Most establishment clause cases challenge actions by state governments (including school districts) rather than by the federal government.
If the clause were interpreted as written all these cases would be thrown out of court. Most of them involve actions (monuments in parks, prayer in public schools, Bible reading in schools, etc.) which it is a stretch to consider “establishments” of religion. But, assuming that they are indeed establishments, the right of the states and school districts to engage in them would be protected by the establishment clause, not prohibited!
But the Supreme Court has been striking down state government actions under the establishment clause for more than half a century. It has held that although the original Bill of Rights (Amendments 1 to 10) placed limits only on the federal government, the 14th Amendment, added after the Civil War, was intended to place many of these same limits on the state governments. There is convincing evidence that this was indeed intended when Congress wrote the 14th Amendment. And for the most part this “incorporation” of the Bill of Rights made sense. It did not undermine our protection against federal censorship, for example, to hold that the First Amendment also protects us from state government censorship.
But when the court “incorporated” the first purpose of the establishment clause to prevent state establishments as well as federal establishments, this totally contradicted the clause’s second purpose, protecting the right of states to establish a religion. The 14th Amendment’s drafters intended no such result. Their report to Congress conspicuously omitted the establishment clause as one of the long list of provisions that would be “incorporated” against the states.
No doubt it would be a bad idea for a state to establish a religion today. But letting nine unelected justices twist a key clause of the Constitution so that it means the opposite of what it originally meant is an even worse idea. There can be no doubt that the Supreme Court has pulled a fast one here, quite possibly without realizing what they were doing. The proper thing for them to do now would be to recognize their error, overturn all of the cases based on that error, and leave issues of church-state relations to the political and legal process at the state level as our Founders intended.
While no one is advocating individual state religions (which is,as the author observes a bad policy idea), the fact that these were tolerated since antiquity shows just how far the Court has gone in subverting the First Amendment from its original pro-religion orientation to the current anti-religion, secular humanist construction.
Bully for Christine O'Donnell for standing up to these fascists.
The Dummies at this “Law School” , the moderators and the idiot Coons made fools of themselves. COD was right.
This is going to blow up in their faces.
Of course, the reprehensible Hugo Black was a Klansman and a Democrat. But I repeat myself.
Scalia rejected the libtard meme that the constitution declares seperation of Church and State
O’Donnell’s response was not effective...instead of saying “the Constitution does not say there is a separation of church and state...”...she should have said something like this.
“It is appalling how ignorant my opponent is of the first amendment and he is running for US Senator? Just a simple reading of the First Amendment reveals to any 8th grade student of civics that CONGRESS is limited BY THE PEOPLE...CONGRESS is NOT PERMITTED to establish a religion (e.g. Anglican church in the UK) nor are they allowed to PERMIT the free exercise of religion - which at the time was only understood in a christian context....”
When the Bill of Rights was adopted, several states had their own churches established ....the FEDS cannot intervene.
Chris Coons, you flunked that one.
I was surprised at how ignorant the audience was, when they chuckled and laughed at Christine O’Donnell. Then everyone tried to attack her, which only proved they don’t know the difference in the “establishment clause” and “separation of church and state”. But as usual, the media will not do their homework by researching and reporting accurately.
Glad we have the 14th. Al Gore as President otherwise
The First Amendment does no such thing. That's just "law school" bovine scatology. The First Amendment prohibits the U.S. Government from establishing another Church of England in the United States. It also prohibits the government from interferring with religious freedom as they so frequently do now. Every time a so-called "judge" bans prayer in school, bans displaying a nativity scene or the Ten Commandments, that so-called "judge" is violating the First Amendment. This is what Jefferson actually was saying in his letter to the Danbury Baptists. The commie libs turned the whole meaning of Jefferson's letter on its head.
The use of Jefferson's letter to the Danbury Baptists was wrong for two reasons.
First, opinions of ex-Presidents are neither dicta nor precedent. Second, Jefferson was not at the Constitutional Convention and was not a signer.
Even if ALL of the signers had written and signed that letter, it could only reflect their state of mind, which would not trump the text.
Everson was wrongly decided, and its poisoned offspring continue to distort the plain meaning of Amendment I, and the collected jurisprudence following that line of cases has made the Free Exercise clause a nullity.
Everson must be overruled.
Liberals would have you reject anything Christian in the Gov AND public forum, but they promote Wicca and islam, gaia or any other religion du jour.
All while screeching about separation of church and state.
“This is going to blow up in their faces.”
I don’t think they will be yukking it up on November 2. They are in for a real surprise. She is going to win. I have said it over and over again. I daresay the private polls are saying the same. Notice there has been no public polls released for 10 days since the Rasmussen one showed it 51-40. (The Conservative Journal had one a few days ago with her behind by 7).
Trust me. She is overtaking and passing him. The turnout differential is going to be so massive that she is going to sweep him away.
The same idiots that chastise her for the witch thing promote Wicca
Never under estimate democrat cheatery and shennanigans at the polls.
Unfortunately, all levels of government HAVE established a religion for American:
PSYCHIATRY
And it's a religion that says nothing is a sin.
Aha! FINALLY, someone gets it right! The states were protecting themselves in the issue of religion in that they did not want the new fed gov't telling them what THEY could or could not do in this sphere. Twelve of the 13 emerging states had religious requirements for office holders (and VA was working on theirs), so one must know the context to understand the First Amendment. All it says to the feds is: "Stay out of MY religion."
Here is the problem: it makes no difference here whether she was right or wrong (She was right, in spades, both in her observation and dismissive tone)
The problem is, the MSM is going to keep spreading the meme that “Ha! The idiot O’Donnell didn’t know the Constitution doesn’t provide for a separation of church and state! Of course it does!”
The MSM in this country will not engage in a sober and accurate discussion (as this article does) because it will highlight the abject ignorance of both a liberal candidate and a liberal crowd, each of whom should understand this basic discussion COMPLETELY given their statuses as a supposed “lawyer” and “law school”.
The scare quotes are deliberate.
Good find Brices Crossroads. There has been so very very much blather written by people who don’t know what they’re talking about on this issue.
This is a very good article.
See also Elk Grove, Clarence Thomas concurrence and Everson.
http://www.freerepublic.com/focus/f-news/2610824/posts - everson
http://www.freerepublic.com/focus/f-news/2610810/posts - elk grove
“Glad we have the 14th. Al Gore as President otherwise.”
Actually, no. Article 2, Section 1 covered the situation, as the concurring opinion of Rehnquist, Scalia and Thomas in Bush v. Gore points out. I recommend you read it. The electors are apportioned in the manner decided by the state legislature. The Florida Supreme Court in extending deadlines and interfering was violating the prerogatives of the state legislature under Article 2. The Supreme Court should have stated as much and it would have been a 2 page opinion
The 14th Amendment was a ridiculous diversion in Bush v. Gore and showed how constitutionally illiterate the other justices were and are. The 14th Amendment has been used, along with the Commerce clause, as a vehicle for much “judicial legislation” over the past 50 years. It has a lot of loose language that courts have used to impose their will on the people and the states by judicial fiat.
The real story here is that Mr. Smartypants-Lawyer Coons was unable to name all 5 freedoms provided by the First Amendment (religion, speech, petition, assembly and press.)
When O’Donnell asked, thereby proving her knowledge of the Amendment in question, he was only able to name one.
Only one of five!
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