It was the letter written by Jefferson that gave rise to the concept of separation that has been used in the court rulings (a letter that has been misinterpreted, nay, twisted, into saying something that it didn't), so don't try that 'their private writings don't control..." line.
There's a significant difference between 'control' and 'provide guidance on' (which I address below), and moreover you seem to think the phrase from Jefferson's letter to the Danbury Baptists as quoted by Justice Black in Everson is a much worse summary of the First Amendment's intent than I do. But those things are beside the main point.
The main point is this: as Madison himself wrote (apparently in the part of his private writings that you didn't read), and as the framers agreed, the 'meaning' of the Constitution was its meaning as it would be understood by the ratifiers and by the courts that would have the job of applying it. No one among the framers thought that their 'intent' mattered a whit; what mattered was what they put into words, and more precisely what the ratifiers and the courts would understand those words to mean.
Those writings give us the insight into why they wrote what they wrote, and they gave further reasons and intentions of that document.
Again, this is beside the point. No one has argued that their private writings don't provide any insight or guidance into what they meant. What I, at least, have claimed is that their writings do not control the courts' interpretation of the Constitution. The courts are entitled to look at those writings if they think they're relevant (as Justice Black obviously did), but they don't have to and they're not bound to follow them if they do look at them.
The Constitution was never meant to be 'interpreted'.
Of course it was. Unless, that is, you think that all the delegates to the Constitutional Convention agreed about the precise meaning of phrases like 'necessary and proper' and 'privileges and immunities' and 'due process', and all the courts had to do was stick to what these phrases clearly and obviously meant.
As with their understanding of the judicial power, there was almost certainly a common 'core' of meaning that everybody intended (and, more importantly, that the ratifiers would have understood their words to include). But the suggestion that there was no room for interpretation by the courts, and that there wasn't supposed to be any, is hard to take seriously.
I don't think you have much appreciation for the amount of sheer compromise that went into the crafting of a document that delegates from the free states and the slave states could all agree on. There is a lot of 'play in the joints', and it's there deliberately.
You claim I am out of substantive arguments.
Yes, I do. I find that to be the case with people who resort to insulting my profession (or to insulting me based on my profession); it always, and I mean always, means that they can't think of anything to do but attack what they imagine my motives must be, because they don't see a way to address the substantive points at issue. It doesn't even pretend to be a reasoned response; it's nothing more than a nasty attack.
You cannot point to any portion of the Constitution that says it was, other than a claim that 'judicial power' means what YOU and your fellow lawyers say it means. Well, the private writings show that wasn't the intent of that phrase.
No, they do not. And more importantly, the debates on the Constitution do not. You will find the delegates rejecting a judicial veto (in which the judiciary would be involved in the actual process of legislation), but you will find time after time that they simply presume (and count on) that the judiciary has the power to refuse to enforce, even to strike down, unconstitutional laws. If you want references, go get a copy of Randy Barnett's Restoring the Lost Constitution and read chapter six; it's an excellent summary.
Courts have said that they divine the 'intent' of the Founders.
Have they? Which courts have said that?
So do not equate yourself with those men. Some of them may have had a background in law, but they knew the concept of honor, and they didn't seize power FOR themselves, but for the people they represented.
More insults (again in lieu of arguments, and again directed both at me personally and at my fellow skunks). I haven't seen any reason to change my mind about your lack of substantive arguments.
I generally give people three chances before I put them on my Life Is Too Short To Waste It Responding To These Idiots list. You've used up two of them. If you're going to use up your third one, there's no need to waste your time posting a reply.
"I generally give people three chances before I put them on my Life Is Too Short To Waste It Responding To These Idiots list. You've used up two of them. If you're going to use up your third one, there's no need to waste your time posting a reply."
Sorry, I was slightly busy last night, and failed to get back to you...
You presume I actually care one way or another if you put me on your 'list' that affects me not. Unfortunately for you, getting put on a 'list' by some lawyer from Ohio isn't very high on my list of worries. Sorry to burst your self-important bubble. (To which you will reply in the negative...)
The courts chose to use a single reference in a letter to a church vice a body of writings that said we were founded on Christian principles, et al. They used that single letter as their "controlling'(or guiding, if you prefer) factor in their deliberations. They were wrong then, and no judge or court has seen fit to correct that error. That speaks poorly of the one thing they are supposed to bring to the table... judgement.
In Federalist 78, Hamilton wrote "The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL (his emphasis), but merely judgement;and must ultimately depend on the aid of the executive arm...
Hamilton ultimately was wrong, as the courts have actively inserted themselves in nearly every aspect listed. He went so far as to say in Federalist 81 that he believed the dangers of the judiciary encroaching on the legislative authority a phantom. You may disagree, but the majority believe with good reason that such encroachment has occurred, and must be corrected. Hamilton did state that the will of the people is the uppermost power, above the legislative, and judiciary, and executive. We have found some judges strike down the will of the people on several occassions, on very dubious 'Constitutional' grounds.
You may not like it, but the judiciary has committed the greatest sin any branch of government can commit. It has abused, and then lost, the trust of the People. You may not like it, but your profession rates lower than the media in the polls measuring trust. Why is that? Because the lawyers have abused the trust that was placed in them by the legal system. It may not be you personally, but you are tainted by association (and your defense of the very practices that caused the loss of trust). Americans no longer believe that Justice walks the halls of our legal system, but her bastard child Process. As long as the i's are dotted and t's crossed all is hunky dory. Doesn't matter if the conclusions and rulings are wrong, just as long as Process is followed.
Your profession has lost its way, and corrupted the judiciary. Fix it, I beg of you, lest we are forced to fix it for you.