Everyone's Wrong on the Establishment Clause

GulliverSwift

[GulliverSwift]

Throughout American history, religion in the public square was utterly noncontroversial. But beginning in the 20th century, such expressions aroused disputes. Whereas at the beginning of the country, religion in public life was regarded as permissible by the legal establishment, it is now said to be unquestionably impermissible.

Most conservatives (and many libertarians) argue the reason for this situation is a gross misinterpretation of the establishment clause in the First Amendment. Anti-religious secularists, so the argument goes, have distorted the original language to mean that government cannot have anything at all to do with religion or religious organizations. All the Establishment Clause says, in fact, is that the federal government must not designate a particular religious denomination or sect as the official church of the United States. If Supreme Court Justice Hugo Black had but followed the original intent of the Establishment Clause in his opinion in the 1947 case Everson v. Board of Education, we wouldn't be in the mess we are currently in.

While there is a lot of truth in this argument, there are serious problems with its fundamental point--its view of the Establishment Clause. In fact, this interpretation of the Establishment Clause is incorrect and, to some degree, is responsible for the genesis of the secularist view for it, too, is a departure from the original intentions of our founders.

While it is true that the federal government is proscribed from establishing (i.e. designating an "official" religion), the Establishment Clause actually does say quite a bit more--that the federal government should not have any power whatsoever over religious organizations. Such regulatory powers are delegated to the states.

Look at the wording: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

In the text, the words "respecting an establishment of religion" are used. Most portions of the Constitution are quite clear as to their meaning and this famous clause is equally lucid. If the founders had meant only to forbid the federal government from designating an official religion, the wording would have been something like this: "Congress shall make no law establishing a religion, or prohibiting the free exercise thereof."

But that wasn't what was intended. The original clause does the exact opposite of banishing any shred of religion from public. By including the word "an," the founders did more than just prohibit the federal government from creating an official church, they explicitly forbad it from having anything to do with regulation of religion.

It's a smaller word but "an" is actually the most significant syntactical operand here. It comes before the word "establishment," thus restricting its meaning (of its several possible denotations) to its concrete connotation. Had "an" not been included, "establishment" could rightly be interpreted to refer to the act of endorsing a sect or faith; but because "an" is there, "establishment" must be considered to mean an organization whose purpose is to facilitate and encourage the practice of religion.

Nor is "establishment" the only word where ambiguity can arise if no article is applied to clarify things. Take, for instance, the word "agreement." The phrase "the two sides reached agreement" can have two basic meanings. The first is that, after a time of disagreement, Side A and Side B somehow arrived at a solution that was amenable to both. The second meaning is equally plausible but perhaps less common: that Side A and Side B terminated an argument and certified this in a formal written accord. If, in fact, a written accord was signed, in order to inform someone who was not a witness to such a certification, it's quite obvious that our existing description is not sufficiently clear. To solve this, all we need do is add the word "an" before the word "agreement," thereby dispelling any confusion as to what happened. James Madison did the same with the Establishment Clause.

[GulliverSwift]

I'd like to finish this essay if I get some time in the next few weeks. I believe that to some extent, the incorrect, non-secularistst interpretation of the Establishment Clause paved the way for our present situation.

[basil]

So far, so good! Keep going!

[WOSG]

you are correct. go look at the article posted from Rachel Alexander, lots of good points there.

[Ahban]

worth a bump

[MalcolmS]

I think you are missing the specific historical meaning of the word establishment.

In England, the head of the state is the head of the church. The secular and church power structures are intertwined. It is far more than just designating one religion as the official religion. This organizational structure is known as the establishment. If you review historical documents, you will find reference to the phrase dis-establish. To dis-establish meant to abolish this connection.

At the time of founding, several states had "establishments" of religion. Over time, these were dis-established.

One of the fears of the founding states was that a national church would be established (with shared power structure, and the president appointing the equivalent of the Archbishop of Canterbury (or Cleveland)). Such a national established church would compete with the existing established churches of the states.

The word has become more generalized to the point now where anyone fighting authority fights "the establishment".

You need to do more research on this topic and rework your essay accordingly.

[LiteKeeper]

Look at Alan Keyes speech from the 10 Commandments Rally, posted earlier today here on FR. He takes this same interpretation (which I agree with) if I am not mistaken.

[mugsy]

A well-regulated bump.

[beelzepug]

Perfect! You are obviously one of the enlightened few who "get" it. I will save what you have done this far and will look forward to the rest. Good job.

[gorush]

...trouble is that any Constitutional arguement is meaningless...the Constitution has been null and void almost since it's inception... I can't help think of John Adams..always a foe of "parties". Of course he was against them, he was a federalist and wanted all to agree with him...he then went on to institute the Alien and Sedition acts...as blatently unconstitutional as the Dept. of Education, for example.

[inquest]

There's also the fact (which I'm currently debating someone on another thread about) that the establishment clause can't fit throught the 14th amendment. The EC applies only to Congress, and the 14th amendment only prohibits abridgement of "privileges and immunities", deprivation of "life, liberty, or property without due process of law", and denial of "the equal protection of the laws." Nothing in there that could apply to the establishment (as opposed to the free-exercise) clause.

[GulliverSwift]

I was aware of this. However, if you look at the letter written to Thomas Jefferson by the Danbury Baptist Association, you can see that they held my view. Jefferson, in his letter did nothing to dissuade them of their opinion because he believed the federal government was banned from such jurisdiction "But Sir our constitution of government is not specific. Our antient charter, together with the Laws made coincident therewith, were adopted as the Basis of our government at the time of our revolution; and such had been our laws & usages, & such still are; that Religion is considered as the first object of Legislation; & therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen. It is not to be wondered at therefore; if those who seek after power & gain under the pretence of government & Religion should reproach their fellow men - should reproach their chief Magistrate [Jefferson], as an enemy of religion Law & good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ.

Jefferson said:

"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 legitimate powers of 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."

See http://www.lonang.com/exlibris/misc/danbury.htm

[inquest]

The Sedition Act met strenous opposition and was allowed to sunset. The Constitution actually served us very well for a long time, until the organized assault on it that's been brewing for a few decades now. It still is better than nothing, as bruised as it is. The only thing that's necessary to restore it is for people to be educated about it.

[My2Cents]

So, what does the "establishment clause" mean?

[isaiah96]

Very nice. It's a shame so many people pretend the Constitution says anything about the "separation of Church and State." Do you think those people are ignorant of the facts or that they are purposely lying to those who will blindly follow their agenda?

In any case. Nice article. I have never been to this site, but I will be back.

[gorush]

My optomism for a resurgance of respect for the Constitution was severely dampened when the house voted down an amendment to the Campaign Finance Reform bill that stated the the legislators would not violate the First Amendment when crafting that legislation. Nay voters should have been executed for treason...instead, they're re-elected..Repubs and Dems alike.

[FreedomCalls]

You are absolutely correct.

Those who supported the dis-establishment of the state churches were dis-establishmentarians who advocated disestablishmentarianism. Those who opposed them and who wished that the states be allowed to establish official churches were, of course, anti-disestablishmentarians who advocated, here it comes, antidisestablishmentarianism, which is the origin of the longest non-chemical non-placename word in the English language.

[FastCoyote]

Atheism, is an "ism". That is, atheism is a religion itself. So, imposing a lack of religious reference is the same as imposing the atheistic religion. The null set, is still a set. Once people figure out what I just said, they will boot the ACLU in the keister.

[inquest]

So what's the option? Stop fighting? Where's that going to get us?

[GulliverSwift]

Read the article. It means that the federal government should have nothing to do with regulating or endorsing religions.

It actually has nothing to say about whether or not a judge can hang a plaque on a wall.

[gorush]

Oh, I'll keep fighting, but I'll also (have) aligned my life in a way to maximize day to day pleasure, enjoying the bounties that are availble to modern man. ...but I am sad as I watch our culture and republic decline...I'm just reasonable about our prospects of reversing the existing trends in any meaningful way.