Constitutional Apologetics on Prayer in School

Self | 20-October-2001 | Michael Miessen

[Doe Eyes]

I missed the part in which the majority religion determined the prayers the students were to recite. Where does that part come from. The first amendment?

[Non-Sequitur]

Of course not because the Constitution is clear on the matter. Yellow vehicles are required by the Constitution so yellow vehicles it is. But not all issues are so crystal clear. That is where an interpretation of what the Constitution means is required and the Supreme Court is tasked to issue that interpretation. Sometimes they get it wrong. But right or wrong, their decision is still the law until some future Supreme Court modifies or overrules their decision.

[Non-Sequitur]

Really? So in your opinion the Supreme Court had no right to step in and issue a decision on Bush v. Gore? When Chief Justice Rehnquist wrote, "When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront" I'm sure that he had no idea that he was acting outside his Constitutional duties as outlined by tex-oma. So then what the heck is George Bush doing in Al Gores house?

[Dumb_Ox]

I have been reading state constitutions as well as assorted documents regarding the meaning, understanding and practice of "establishment" at the dawn of the USA for a course.

Would you happen to know good books on the topic? A local scholar recommended to me The American Myth of Individualism, but I haven't stopped by the library yet. There is a review of that book over here which might merit posting here on FR.

[Non-Sequitur]

So you don't think that Bush v. Gore constitutes an interpretation of the meaning of due process protection outlined in the Constitution?

[Twodees]

You're right, of course. The document is very short, succinct and written in very plain, spare English. It is not a collection of parables, nor is it written in Martian. No "interpretation" is necessary for anyone reasonably fluent in the English language.

[goodieD]

Exactly!

[Notwithstanding]

I am looking it up at Amazon. Back in a minute.

[Notwithstanding]

Professor Bradley wrote this in 1987. He is now a tenured law professor at Notre Dame and is also teaching 2 courses at Ave Maria School of Law in Ann Arbor - where he also sits on the Board of Governors.

Church-State Relationships in America. --

---

-->

Church-State Relationships in America.
By Gerard V. Bradley
Legal Studies, Contributions in, No. 37 (ISSN: 0147-1074)
Greenwood Press. Westport, Conn. 1987. 180 pages
LC 86-27149. ISBN 0-313-25494-X. BYC/ $49.95
Out of Stock, no restock date (Status Information Updated 10/18/2001)

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** Description **

"In a well-researched, scholarly, impressive public policy thesis, Bradley argues in seven chapters that the US Supreme Court `has been fundamentally in error since (Everson v. Board of Education, 330 U.S.1) 1947' in its interpretations of the establishment clause of the First Amendment.... In arguing from `the plain meaning of words,' Bradley's reasoning is often disingenuous-e.g., citing the amendment requirements (Article Five) for his thesis that `the Court's wall of separation and complete ban on aid to religion could (not) have mustered constitutional majorities'.... excellent appendixes, and a good bibliographic essay. Upper-division and graduate students."

Choice

Although the Supreme Court has stated that the framers of the Constitution erected a "wall of separation" between church and state, history shows that collective political activity in the United States has been and remains an intensely religious enterprise. Despite seemingly clear agreement on the principle of separation, what that principle entails in controversies involving not only the activities and demands of religious groups but the Court itself has proved contentious. Professor Bradley's book is the most comprehensive analysis of the subject attempted to date. It offers a detailed exploration of the historical meaning of the Establishment Clause of the United States Constitution and church-state relations from the founding period down to the controversies that are a feature of our modern political life.

** Table of Contents **

-- Acknowledgments
-- Introduction
-- Everson's History: The One (and Only?) Justification of No Aid
-- The Sacred Canopy: Law and Lexicon of Church-State in the Founding Era
-- Ratification of the Constitution: The "Whale's" Demands
-- In Congress: Throwing a Tub, or Tubs, to the "Whale"
-- Ratification: The "Whale" Satisfied
-- The Founder's Worldview: The Sacred Canopy Explained
-- The Meaning of the Words: Yesterday and Today
-- Appendixes
-- Bibliographical Essay
-- Index

** Author **

GERARD V. BRADLEY, Assistant Professor of Law, University of Illinois at Urbana-Champaign co-authored Labor Racketeering and has written numerous articles published in law journals.

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[JMJ333]

Isn't it more accurate to say that the SC interprets the Constitution such that it casts a light on the legislation in question and renders it either within Constitutional limits or not?

In this day and age it would be more accurate to say that the SC legislateS from the bench [like much of the judicial branch], especially in terms of abortion and the 4th amendment, but also on a slew of other issures.

Did you ever find out why there has never been a referendum on abortion?

[Dumb_Ox]

Thanks!

A related thread: Religion and the Constitution

[Notwithstanding]

"Most of the states had an established (Protestant) church when they ratified the Constitution. The Constitution forbids a federally established church. But the Constitution does not REQUIRE that the states each have an established church, so it is nonsensical to say that getting rid of the state churches means that the Constitution has been ignored. I.e., while the Constitution permits state churches, it does NOT mandate anti-Catholicism or anti-Semitism or anti-Judaism, etc.

Where the Constitution HAS been ignored and/or distorted is the claim that it forbids any state promotion of religion and even private religious acts occurring in public places. "

You are not making any sense. The federal Constitution included anti-establishment language. This meant that vanilla Protestant Christianity was acknowledged and even funded in the form of chaplains for instance - but no sectarian notions of Christanity ("sects" were religions such as Quakerism or Catholicism) could be supported by the federal government. The Establishment prohibition was seen only as preventing something such as a federal declaration that Anglicanism was the federal religion - BUT IT DID NOT PROHIBIT the declaration that the nation was a Christian nation nor did it prohibit federal financial support of non-sectarian Christian activity. In fact federal actions did indeed support religious activity. Thus the federal Constitution was (is) anti-Catholic in that it allowed and even afforded (affords) special federal status to vanilla Protestanism and explicitly denied such status to Judaism, Catholicism, Quakerism, etc. Quite simply, spending federal dollars on Methodist activity was allowed by federal Constistution (though I am not certain it ever occired) - spending them on Catholic activity was prohibited.

As I pointed out in #18 and #20, the state constitutions also understood that there would be no Establishment if a state government were to afford special status to vanilla Protestanism over Judaism, Catholicism, Quakerism, etc. And states were actually free to have state religions or Established religions - as each state Constitution allowed. Virtually all of the original states had in 1787 and for decades afterwards official anti-Catholic (pro-vanilla-Protestant) laws and state funding of Protestant church activities (and prohibitions of such money going to Catholic, Jewish, Quaker activities). The federal Constitution originally (prior to the 13/14/15 Amendments that followed the Civil War) restricted states in no way regarding religion and state.

Once the jurists succeeded in turning the meaning of "establishment" on its head, then all constitutions relying on the universal traditional definition were likewise turned on their head. This definitional change had the welcome effect of prohibiting offcial anti-Judaism, anti-Catholicism etc. at fed & state level. But in doing so the traditional understanding and juridical practice of acknowledging the Christian nature of the USA was destroyed.

And of course eventually the establishment clause was held to be applicable to the states as well as the fed govt.

[Notwithstanding]

BTW, Professor Bradley is also heads up the Religion section of the national Federalist Society.

[gcruse]

In this day and age it would be more accurate to say that the SC legislateS from the bench [like much of the judicial branch],
especially in terms of abortion and the 4th amendment, but also on a slew of other issures.

  But do they do it by interpreting the Constitution or by interpreting the legislation? That
is the question at hand.  Is it that you cannot compare two objects and interpret only
one of them?  Is it a matter of logic that, in order to interpret legislation vis a vis
constitutionality, one must simultaneously interpret the Constitution?  In which case
the question,   "Where does it say the SC is to interpret the Constitution?" has to
be answered, "It is logically impossible to judge legislation otherwise."

Did you ever find out why there has never been a referendum on abortion?

Is making common cause with all those against totally permissive abortion a Catholic position? The bishops' support of the
Hatch Amendment was a move in this direction. But generally, the pro-life movement has been for an absolute prohihition of
abortion. If such a total solution is not possible in our pluralistic society, and, in fact, was voted down by national referendum in
Catholic Italy, will Catholics cooperate with other Americans of good will and ethical conviction to work for a more restrictive
abortion law?

Vis a vis America,

          On November 3, 1970, Washington voters approved
          Referendum 20, which legalized abortion in the early
          months of pregnancy. Fifteen other states had liberalized
          their abortion laws by that time, but Washington was the
          first — and so far the only — state to do so through a
          vote of the people. It was a triumphant moment in a
          campaign that had its genesis in 1967, in the office of
          Seattle psychologist Samuel Goldenberg, who had been
          asked to help two patients, one middle-aged and the
          other a young college student, both desperate for a way
          to end an unwanted pregnancy.

[Notwithstanding]

Italians are hugely though nominally Catholic - which says nothing of their adherance or lack therof to Catholic doctrines and mores.

Italy also has the lowest birth rate in the West - which indicates their being Catholic is lttle more than a label of heritage - not belief or conviction.

[gcruse]

The question of taking a vote on abortion arose with Ann Coulter. Since that is the nature of initiative and referendum, JMJ333 and I wondered if, in fact, such a vote has ever been taken. The Italian part just surfaced in my search. Though it seems if an overwhelmingly Catholic nation voted that way, a diverse society such as ours would be even less likely to prohibit abortion. Hence, Ann Coulter's demand for a vote on it might be a Phyrric (sp?) victory.

[1L]

since the Supreme Court is tasked with interpreting the meaning of the Constitution. Where is this written? Marbury v. Madison