Posted on 08/21/2003 9:53:39 AM PDT by Gargantua
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"
Judge Moore is about to be held in contempt of a court order demanding that he remove the statue of the Ten Commandments from in front of the courthouse where he has honorably served for years.
This fact raises an interesting question, and exemplifies a blatant contradiction as well as our modern-day courts' insitence on trying to legislate from the bench.
Our Congress is strictly and explicitly probitied by our Constitution from passing any laws prohibiting the free excercise of one's religion.
If Judge Moore's religion (Christianity) demands that he spread the Word of God (and it does), then the issuance of a legal order which deigns to prevent him this religious right is both unconstitutional and out of order in the extreme. It is also illegal, for it attempts to legally enforce a position of the Court which contravenes our Constitution.
If Congress can't pass a law restricting one's right to exercise his religion, then how can the courts try to enforce such a law?
Why did this court not demand that the words "In God We Trust" be removed from all U.S. currency? Why did this court not demand that all religious carvings and statuary be removed from all Government buildings (The U.S.Supreme Court, the Capitol, etc.)?
This court needs to be slapped down, hard, and Judge Moore is just the man for the job.
Founders are on record supporting the interpretive use of historical knowledge of laws and practices.
I agree not to use the Alien and Sedition Acts as an example since they were later declared unconstitutional.
Your example of the Massachusetts established Congregationalist church is out of order, since the First Amendment did not then apply to Massachusetts law.
James Madison, in the veto message quoted above, certainly seems to have felt that taxpayer money should not support religious institutions. Do you disagree with him?
When "support" really approaches "establish", naturally it should be disallowed. When funds are used for partially secular purposes, it should be allowed.
"Partially secular purposes?" That's a loophole you could drive a proverbial truck through. Would Madison have allowed the donation of land for a church if they had promised to allow the city council to meet there? If they had promised to feed the poor? I don't think that either of those partially secular purposes would have swayed him. Note that he objects to even the use of taxpayer funds by a religious society.
Then why do you discount the last 63 years of jurisprudence and precedence? That is more than a quarter of our nation's history.
I agree not to use the Alien and Sedition Acts as an example since they were later declared unconstitutional.
No, there were never ruled on. As I mentioned earlier, the SCOTUS rarely ruled on BOR cases before the 20th Century. Even if it had, the Alien and Sedition Acts would still call into question the practice of relying on all the actions of the Founders for examples that should be followed in the present day. Our law is the Constitution, not the assembled quotes (or misquotes) of random statesmen nor their actions in the rough and tumble of the early republic.
Alien and Sedition Acts
1798, four laws enacted by the Federalist-controlled U.S. Congress, allegedly in response to the hostile actions of the French Revolutionary government on the seas and in the councils of diplomacy (see XYZ Affair), but actually designed to destroy Thomas Jefferson?s Republican party, which had openly expressed its sympathies for the French Revolutionaries. Depending on recent arrivals from Europe for much of their voting strength, the Republicans were adversely affected by the Naturalization Act, which postponed citizenship, and thus voting privileges, until the completion of 14 (rather than 5) years of residence, and by the Alien Act and the Alien Enemies Act, which gave the President the power to imprison or deport aliens suspected of activities posing a threat to the national government. President John Adams made no use of the alien acts. Most controversial, however, was the Sedition Act, devised to silence Republican criticism of the Federalists. Its broad proscription of spoken or written criticism of the government, the Congress, or the President virtually nullified the First Amendment freedoms of speech and the press. Prominent Jeffersonians, most of them journalists, such as John Daly Burk, James T. Callender, Thomas Cooper, William Duane (1760?1835), and Matthew Lyon were tried, and some were convicted, in sedition proceedings. The Alien and Sedition Acts provoked the Kentucky and Virginia Resolutions and did much to unify the Republican party and to foster Republican victory in the election of 1800. The Republican-controlled Congress repealed the Naturalization Act in 1802; the others were allowed to expire (1800?1801).
The Columbia Encyclopedia, Sixth Edition. 2001.
Your example of the Massachusetts established Congregationalist church is out of order, since the First Amendment did not then apply to Massachusetts law.
Fair enough.
It would clearly be a judgement call what level of support constitutes establishment. The present-day interpretation does not use a Madisonion test, and it would be ludicrous to institute one now given circumstances beyond the control of we First Amendment interpreters.
I guess SCOTUS would have to construct a conventional test narrower than a truck.
So much for original intent. Please expand on that: how were his views of treasury expenditures different from current practice. Are you saying that if he were president today he ould not have vetoed the gift of public land for a church?
It would clearly be a judgement call what level of support constitutes establishment. The present-day interpretation does not use a Madisonion test, and it would be ludicrous to institute one now given circumstances beyond the control of we First Amendment interpreters.
I guess the 'Madisonian test' as exemplified by this veto message would be : "Are government funds being appropriate for the use and support of a religous society?" Note the lack of a threshold below which establishment does not occur.
One of the tests formulated by the SCOTUS is the "Lemon Test"
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion."I'd say that the bill which failed Madison's test would also fail this test, the first two prongs in particular.
I ask a favor. Do me the kindness of reading my posts. I am not saying each and every one of my points is made of gold. No, in fact there is plenty of room for refutation, but I plead innocent to hypocrisy.
I believe the 1947 decision totally jettisoned original intent without any careful balancing. In my balancing, I believe there would be direct harm to religion by unfairly imposing a strict Madisonian expenditure test for establishment while not imposing a correspondingly strict test on other government expenditures. Government would have in effect passed a law respecting establishment of irreligion.
Anyway, I suggest we move on to other points.
Fine. Take your pick.
I agree that in that clear case, it would make sense to do the same today. As would any other post-1820 President.
In other in between cases, you and I may disagree as to whether an absolutist stance on any funds whatever going to faith-based groups would even still be on the radar screen in the light of the utter horror he would undoubtedly experience at the bloat and intrusiveness of our federal government.
Indeed. But that is certainly another issue.
Quite right. Indeed that is one of Everson's flaws. TJ's infamous wall of separation blown way out of proportion. I hurt my case by doing something similar. Our law is the Constitution. But if we know for certain what a particular word meant in that Constitution, then that meaning is important. Do you agree?
Congress shall make no law respecting an establishment of religion.
Why did SCOTUS expand the definition of the word establishment, causing us all this trouble? I don't buy for a minute that if SCOTUS decided very few Establishment cases up to 1947, then the territory is up for grabs for any runaway activist court who wants to fill the vacuum. What was the extra problem they were trying to solve? Had the modern age changed the equation somehow?
My thesis is that Everson was a terrible mistake and should be rolled back. This aligns with what a legitimate Constitutional movement of originalists is trying to do. What I have been saying should be right at home on this Conservative forum.
The 56 years between then and now make it familiar, but not right.
Motivations for Everson:
1. progressive More effectively attenuate the inherent threat, recognized by the framers, from co-amplifying the power of church with that of the state.
2. doctrinal Outline cleanly defined rules to minimize ambiguity and thus minimize the difficulty in reaching resolutions.
Ambiguity is most effectively reduced by careful abstraction. Unfortunately, the application of abstraction to human affairs is a deceptively dangerous undertaking.
I'll repeat the key passage from Everson, underlining the clauses which have turned out to be dangerous in my opinion. The simplicity and enforceability of each rule made it attractive to these men. The unintended result is that easily decideably infractions were then disproportionately harshly applied.
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. [Very easy to recognize and punish a mostly benign preference. This is happening with Equal Protection adjudication.]
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 entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied [Easily detectable if funds go from here to there] to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. [Easier to identify whiffs of religious reverence than to codify the recognition of potentially pernicious power structures]
Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. [The term Government covers voluminous territory, but is always easily decidable. Wickedly simple for these men to write law defining laboratory religion-free zones] 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."
Yes, but I don't think we will ever know that for certain. The offical action of Madison in vetoing the gift of land to a church is one indication. Even better is the record of deliberations of the Constitutional Convention. But ultimately the text and the accumulated interpretations of it are our guide.
Why did SCOTUS expand the definition of the word establishment, causing us all this trouble?
What proof do you have that they did?
What was the extra problem they were trying to solve? Had the modern age changed the equation somehow?
They were addressing a case that came before them. The State of New Jersey was providing free busing for school children at all schools: public, private, and parochial. Somebody, perhaps an anti-Catholic, took exception to the state paying for transporting kids to a religious school and sued the state to have it stopped. SCOTUS decided that providing busing for all children regardless of type of school did not represent an establishment of religion because it did not meet any of the elements in the paragraph we've been discussing. Do you disagree with their decision or only with the logic behind it?
Later courts found the Everson standard to be perhaps too broad and Warren Burger formulated the Lemon Test (1971), which is the current primary standard. The Marsh decision (1983) states an exception which allows for traditional and historical "ceremonial recognitions of God." While Everson was precedent setting, it is no longer the operative interpretation of the Establishment Clause.
The major lasting effect of Everson was not a redefinition of the word "establishment," it was the clear extension of the 1st Amendment to the states, via the 14th Amendment. Even Clarence Thomas, a soldly conservative justice accepts that interpration, with reservations.
Whatever the textual and historical merits of incorporating the Establishment Clause, I can accept that the Fourteenth Amendment protects religious liberty rights.The 14h Amendment is interpeted as extending all the Bill of Rights to the states. If you don't think that the 1st Amendment should apply to states then what about the others? Should states be permitted to search and sieze your property without due process? Should they be able to compel self-incrimination? Should they be able to regulate arms? (Oops, stupid question.)
Zelman v. Simmons-Harris (2002)
I don't know what you mean by a "legitimate Constitutional movement of originalists." You probably mean a "legitimate movement of Constitutional originalists." Even so, I don't see any proof that the Founders would have interpreted the Establishment Clause, as modified by the Fourteenth Amendment, any differently then Judge Thompson did.
to protect state and individual rights from a national govt - religion ---
that WALL has been breeched - demolished by liberals !
"The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any ... national ecclesiastical establishment --- which should give to a hierarchy the exclusive patronage * * of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . ." (Footnotes omitted.)
Check out the link above !
Old wall constitutionalist ... keep govt out ---
new wall constitutionalist (( sharia )) --- keep God out !
... * * ... guess who --- rag heads - liberals !
Old wall constitutionalist ... keep govt out ---
new wall constitutionalist (( sharia )) --- keep God out !
Funny how walls work both ways.
Check out the link above !
OK, I did. That link has a whole bunch of miscellaneous quotes stripped of their context. Here is the context. The paragraph you quote is footnote 36 in this excerpt from the opinion of the court.
[I apologize that the embedded links don't work. Visit the main like below to follow the embedded links.]
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WALLACE v. JAFFREE, 472 U.S. 38 (1985)
Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. 36 But when the underlying principle has been examined in the crucible of litigation, the [472 U.S. 38, 53] Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. 37 This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, 38 [472 U.S. 38, 54] and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects - or even intolerance among "religions" - to encompass intolerance of the disbeliever and the uncertain. 39 [472 U.S. 38, 55]
As Justice Jackson eloquently stated in West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943):
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Where'd you get that from? Roy Moore is free to privately worship in whatever fashion he pleases.
States don't have rights, never did. They have 'reversed powers.'
[PS - Are you going to post that same note on every single 10 Commandments thread on the forum?]
Representative Benjamin Huntington then expressed the view that the Committee's language might "be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it." Huntington, from Connecticut, was concerned that in the New England States, where state-established religions were the rule rather than the exception, the federal courts might not be able to entertain claims based upon an obligation under the bylaws of a religious organization to contribute to the support of a minister or the building of a place of worship. He hoped that "the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all." Id., at 730-731.
Madison responded that the insertion of the word "national" before the word "religion" in the Committee version should satisfy the minds of those who had criticized the language. "He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought that if the word 'national' was introduced, it would point the amendment directly to the object it was intended to prevent." Id., at 731. Representative Samuel Livermore expressed himself as dissatisfied with Madison's proposed amendment, and thought it would be better if the Committee language were altered to read that "Congress shall make no laws touching religion, or infringing the rights of conscience." Ibid.
Representative Gerry spoke in opposition to the use of the word "national" because of strong feelings expressed during the ratification debates that a federal government, not a national government, was created by the Constitution. Madison thereby withdrew his proposal but insisted that his reference to a "national religion" only referred to a national establishment and did not mean that the Government was a national one. The question was taken on Representative Livermore's motion, which passed by a vote of 31 for and 20 against. Ibid.
The following week, without any apparent debate, the House voted to alter the language of the Religion Clauses to read "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." Id., at 766. The floor debates in the Senate were secret, and therefore not reported in the Annals. The Senate on September 3, 1789, considered several different forms of the Religion Amendment, and reported this language back to the House:
"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 130 (1964).
The House refused to accept the Senate's changes in the Bill of Rights and asked for a conference; the version which emerged from the conference was that which ultimately found its way into the Constitution as a part of the First Amendment.
"Congress shall make no law respecting an establishment of religion, or ... prohibiting --- the free exercise thereof."
The House and the Senate both accepted this language on successive days, and the Amendment was proposed in this form.
There is a limit to how much you can make out of uncertainty. It is not an excuse to insert a brand spanking new interpetation. Also, you have discounted the actions of officials, citing the rough-and-tumble, as indicative of their intentions with regard to Establishment when I bring them up. But here you are construing something from Madison's action.
Be that as it may, there is a real smoking gun in the accumulated interpretations. The 1947 court appears to have made a blind jump, chronicled by Rehnquist in a dissent, to which a majority member responded (paraphrasing) "Establishment meant something different at that time" (that time being the Framing). When will it be time to correct errors in the accumulated interpretations?
What was the extra problem they were trying to solve?Had the modern age changed the equation somehow?-NutCrackerBoy.
They were addressing a case that came before them
They could have ducked the case. I don't think I am out of line in asserting that they took the opportunity to create doctrine.
While Everson was precedent setting, it is no longer the operative interpretation of the Establishment Clause.
Then why did you quote that "key passage?"
Look, I understand and appreciate your being precise. I am learning a lot from you, but I am uncomfortable with your seeming evasion of the seemingly obvious truth that there is no basis in original intent, even after correcting for differences like the 14th Amendment, for the current interpretation of the word "establishment."
Even Clarence Thomas, a [solidly] conservative justice accepts that interpration [extension of the 1st Amendment to the states, via the 14th Amendment], with reservations.
I am hoping for 12 consecutive years of appointments from Republican administrations. I am also hoping for a Chief Justice Clarence Thomas.
Of course that extension was key. Without Incorporation of the Establishment clause, we wouldn't even be discussing this. I am not completely comfortable with the way SCOTUS interprets states rights regarding A1, A10, and A14. But the real source of the tyranny (as I call it) is the radical interpretation of the word Establishment, not the incorporation per se.
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