FEDERALISM AND RELIGIOUS LIBERTY: WERE CHURCH AND STATE MEANT TO BE SEPARATE?

Original Intent and The Free Exercise of Religion

1. THE DOCTRINE OF ORIGINAL INTENT.

The doctrine of original intent relies upon long-settled rules of contract interpretation. "The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense and the terms and the intentions of the parties." JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES Vol. III, p.. 383 §400 (1833). Justice Story was appointed to the U.S. Supreme Court by James Madison and served between 1811-1845. He was elected President of Harvard Law School and is considered by many to be the father of American jurisprudence due to his prolific contributions to American law.

On every question of construction, carry [y]ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. President Thomas Jefferson, Letter to Supreme Court Justice William Johnson, June 12, 1823.

2. ORIGINAL INTENT: THE FRAMERS DID NOT INTEND THE SUPREME COURT TO BE THE ULTIMATE ARBITER OF ALL CONSTITUTIONAL ISSUES.

The doctrine of original intent holds that the legislature--not the judiciary--is the "predominant" branch⁵; that the judiciary was the "weakest" of the three branches of government.⁶ To the Founders, the opinion that the Supreme Court was the ultimate arbiter of all constitutional issues was "never proper,"⁷ and a "dangerous doctrine"⁸ which would lead to the judiciary becoming a "despotic branch."⁹ They were concerned that the federal judiciary would usurp all the powers from the States.¹⁰ This was the system of checks and balances implemented in the Constitution. Recall the Dred Scott decision in 1857¹¹ wherein the Supreme Court held that "a man of African descent, whether a slave or not, was not and could not be a citizen of a state of the United States." In other words, black slaves were not "persons" protected by the laws of the United States. In a collision of the federal branches, Abraham Lincoln issued the Emancipation Proclamation and the Congress passed the 13th amendment. Lincoln disregarded the Dred Scott decision because he did not wish to resign the future of the country "into the hands of that eminent tribunal."¹² In other words, a century ago, our leaders believed that both the President and Congress had the Constitutional authority to pass "constitutional" laws or orders without waiting for Supreme Court review. And the President and Congress could disregard or overrule Supreme Court decisions that were contrary to natural law, like the Dred Scott decision, by issuing the Emancipation Proclamation and by passing the 13th Amendment, respectively. This was the original intent of the Framers concerning the checks and balances of our national government. Imagine the Dred Scott Court in the late 1800's declaring the Emancipation Proclamation "unconstitutional" or that the 13th amendment was not a "proper exercise" of Congress' powers.

3. ORIGINAL INTENT: THE FIRST AMENDMENT AND THE METAPHORICAL "WALL OF SEPARATION BETWEEN CHURCH AND STATE"

Whatever Jefferson meant by the "wall of separation" phrase, he clearly did not intend the modern notion of an impenetrable wall preventing individuals from religious expression.

I consider the government of the United States as interdicted [prevented] by the Constitution from intermeddling with religious institutions, their doctrines, discipline or practices. Clearly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the States.¹⁷

In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken, on no occasion, to prescribe the religious exercise suited to it, but have left them, as the Constitution found them, under the direction and discipline of state and church authorities. . . .¹⁸

The "wall" was a jurisdictional limitation against the federal government's interference with an individual's natural right to the free exercise of religion. The federal government, reasoned Jefferson, has jurisdiction over "actions only and not opinions"; it had no jurisdiction over religion, which was a matter "solely between man and his God."

Further, on a facial review, the object of the First Amendment, which begins with the word "Congress", was clearly not intended to apply to the States. Rather the intent of the First Amendment's "establishment" clause was, according to Supreme Court Justice Joseph Story, ". . . to exclude all rivalry among Christian sects." ¹⁹ This is confirmed by the preliminary draft of the First Amendment proposed by James Madison to the House of Representatives in 1789:

The Civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.²⁰

According to the Secretary,

Mr. Madison thought, if the word 'National' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.²¹

In sum, the object of the First Amendment was to prevent the national government from choosing one Christian sect [denomination] over another and establishing a single national denomination.

However in 1947, the Supreme Court, in Everson v. Board of Education,²³ used Jefferson's Danbury letter as a pretext to disregard centuries of legal tradition in the common law, the Declaration of Independence, the writings of the founding fathers, the notes and records of the Constitutional Convention and over a century of American constitutional jurisprudence. With the stroke of a pen, the Court created a new "law" by incorporating the Fourteenth Amendment (which dealt exclusively with specific State powers) with the First Amendment's federal provision against an "establishment of religion".

The result of this legal hocus pocus was devastating: first, the Court reversed 150 years of Constitutional precedent which limited the First Amendment's application to Congress, i.e., the national government; second, the Court declared that federal courts were now empowered to restrict not only the religious activities of the national government, but the religious expressions of the people and the States as well. Five years later in Zorach, the Court tried in vain to resuscitate the First Amendment's original intent:

We are a religious people who institutions presuppose a Supreme Being. When the state encourages religious authorities. . . it follows the best of our traditions. For it then respects the religious nature of our people. . . . To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious group. That would be preferring those who believe in no religion over those who do believe. . . .[W]e cannot read into the Bill of Rights such a philosophy of hostility to religion.²⁴

"There is simply no historical foundation for the proposition," wrote Chief Justice Rehnquist in his dissent in Wallace v. Jaffree,²⁵ "that the Framers intended to build the 'wall of separation' that was constitutionalized in Everson. But the greatest injury of the 'wall' notion," continued Justice Rehnquist, is the mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. [N]o amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and state" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.²⁶

Ultimately, however, the Everson case and its progeny prevailed.²⁷

Although the First Amendment reads "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof. . ., " most of the Court's recent decisions in this area involve neither Congress nor the "making of a law." For example, in Lee v. Weisman, the Court equates a Rabbi at a high school graduation ceremony with "Congress" and Rabbi's prayer during the graduation ceremony as the "making of a law." Indeed, using the Court's criteria, the First Amendment is internally inconsistent: a person's right to "free exercise" of religion may now collide with the prohibited "establishment" of a religion.

Finally, the Constitutional Framers understood that government encouragement of religion was not equal to the establishment of religion; that, as George Washington said, "religion and morality were indispensable supports" to political prosperity.³⁰ Indeed, on the day the First Amendment was passed by the Congress in 1789, Washington accepted Congress' charge to proclaim a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." As Chief Justice Rehnquist opined in the Jaffree case, "History must judge whether it was the Father of our country in 1789, or. . . the Court . . . which has strayed from the meaning of the Establishment Clause."³¹

JEFFERSON'S WALL OF SEPARATION: A JURISDICTIONAL INTERPRETATION OF THE 'WALL' METAPHOR footnotes @ link.

The federal Bill of Rights, which includes the First Amendment, served a dual purpose. It was to assure the citizenry that the federal government would not encroach upon the civil and religious liberties of individuals, and to guarantee the states that the federal government would not usurp the states' jurisdiction over civil and religious liberties. The Bill of Rights embodied a principle of federalism; it was essentially a states' rights document.

Thomas Jefferson and the Wall of Separation, Daniel L. Dreisbach ... Daniel L. Dreisbach, D.Phil. (Oxford University) and J.D. (University of Virginia), is a Professor in the Department of Justice, Law, and Society at American University. He is the editor of Religion and Political Culture in Jefferson's Virginia (2000) and Religion and Politics in the Early Republic (1996).

No phrase in American letters has had a more profound influence on church-state law, policy, and discourse than Thomas Jefferson's "wall of separation between church and state," and few metaphors have provoked more passionate debate. Introduced in an 1802 letter to the Danbury, Connecticut Baptist Association, Jefferson's "wall" is accepted by many Americans as a concise description of the U.S. Constitution's church-state arrangement and conceived as a virtual rule of constitutional law.

Despite the enormous influence of the "wall" metaphor, almost no scholarship has investigated the text of the Danbury letter, the context in which it was written, or Jefferson's understanding of his famous phrase. Thomas Jefferson and the Wall of Separation Between Church and State offers an in-depth examination of the origins, controversial uses, and competing interpretations of this powerful metaphor in law and public policy.

From Library Journal
President Jefferson's "wall of separation" metaphor is central to U.S. Supreme Court analysis of First Amendment religious practices and relations between religious institutions and governmental activities. Dreisbach (justice, law, and society, American Univ.) demonstrates the underpinnings and both 19th- and 20th-century interpretations of this pervasive metaphor, which began as a phrase in a letter Jefferson wrote to the Danbury, CT, Baptist Association in 1802. He shows how the "wall" metaphor represents a struggle for religious liberty and in a similar fashion has been used as a component of a strict separation policy between church and state. This historical analysis offers new insight into the foundations of church-state discourse in the United States while also providing documentary underpinnings to Phillip Hamburger's analysis of 17th- to 19th-century religious writings in Separation of Church and State. Almost half of Dreisbach's volume contains extensive appendixes, notes, and a bibliography. This well-constructed book will be useful for academic libraries as an addition to their history and law collections.

Harvard University Press/Separation of Church and State

In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.

Hamburger provides an alternate historical and political understanding concerning the development of the separation concept, relying on 17th-through 19th-century religious arguments and social patterns to challenge our accepted understanding of relationships between church and state...This clear historical analysis will be accessible to anyone interested in U.S. church-state relations and civil liberties. Highly recommended. --Steven Puro, Library Journal

Philip Hamburger has, simply, produced the best and most important book ever written on the subject of the separation of church and state in the United States. He has laid to rest the historical credentials of the Jeffersonian myth of the "wall of separation," and shown how the notion of separation gained wide acceptance in the nineteenth century primarily due to the pervasiveness of American anti-Catholicism. He has also destroyed the notion that separation is the only alternative to the union of church and state, and demonstrated that acceptance of separation has in fact undermined the vitality of our original anti-establishment notions of religious freedom. Hamburger underplays the current constitutional implications of his historical arguments, but it is clear that this book will have a profound impact on the current law and politics of church and state.--Stanley N. Katz, Princeton University, President, Emeritus, American Council of Learned Societies

This richly documented and cogently argued book challenges conventional interpretations of separation of church and state as a constitutional standard in American history and promises to reshape the debate on the constitutional and prudential relations between religion and American public life.--Daniel L. Dreisbach, American University

Phyllis Schlafly Column 3/05/97 -- Republicans Have Duty To Hold Judges Accountable Mrs. Schlafly is a Phi Beta Kappa graduate of Washington University, received her J.D. from Washington University Law School, and received her Master's in Political Science from Harvard University. Mrs. Schlafly is a lawyer and served as a member of the Commission on the Bicentennial of the U.S. Constitution, 1985-1991, appointed by President Reagan. She has testified before more than 50 Congressional and State Legislative committees on constitutional, national defense, and family issues.

Even that great advocate of judicial power, Chief Justice John Marshall, wrote during impeachment proceedings against Justice Samuel Chase, for his arbitrary use of judicial power, that "a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment." Carter and Clinton judges are constantly making rulings contrary to what the legislature intended.

When President Gerald Ford was a Congressman, he proposed the impeachment of Supreme Court Justices William O. Douglas. Ford explained Congress's tremendous and far-reaching power of impeachment: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office."

Evolution and the Law:"A Death Struggle Between Two Civilizations"

Under this current theory, judges are solely responsible for the evolution of the Constitution, and it is living and organic according to their decree. As Justice Cardozo acknowledged, "I take judge-made law as one of the existing realities of life." [223] And Chief-Justice Charles Evans Hughes (1862-1948) similarly declared, "We are under a Constitution, but the Constitution is what the judges say it is." [224]

Religion and Political Culture in in Jefferson's Virginia , Daniel L. Dreisbach (Editor) Garrett Ward Sheldon (Editor)
Ten essays examine the religious concepts and communities that influenced Thomas Jefferson and James Madison and may have informed their political thought, the political culture of their time, and the development of the American approach to church-state relations. Among the topics discussed are an analysis of the religious and philosophical influences on Jefferson and Madison, a profile of Christian communities in Virginia, and the impact of deism on organized religion in Virginia. Annotation c. Book News, Inc., Portland, OR

Religion and Political Culture in Jefferson's Virginia examines the influential statesmen and the political struggles in revolutionary Virginia that played a decisive role in developing a distinctive American approach to religious liberty and church-state relations. This collection of innovative essays by leading scholars profiles the Christian communities in Virginia, analyses the religious philosophical influences of Thomas Jefferson and James Madison, and discusses the Virginian contributions to the American experiment in religious liberty. Religion and Political Culture in Jefferson's Virginia presents a fresh perspective on religion's role in Virginian and American political culture and provides a critical reassessment of the existing scholarship in the field.

This is an exceptionally important and readable book. Students of religion and politics owe a deep debt of gratitude to Dreisbach and Sheldon for putting together a systematic correction of myths and misunderstandings about religion and politics in America. -(Charles W. Dunn, author of The Scarlet Thread of Scandal: Morality and the American Presidency) -Charles W. Dunn

Kentucky and Virginia Resolutions Ghost-written by James Madison and Thomas Jefferson, the Virginia and Kentucky Resolutions (both 1798) were state laws that asserted the states' power and authority to declare federal laws unconstitutional.

Christianity, Our Early State Constitutions, and American Federalism

America's Christian federalism is nearly dead. Those who are in positions of power in education, cultural influence, law, and politics are either ignorant of it or hostile to it. Virtually all of those who run our national government and state governments have world-and-life-views which are alien to the spiritual, ethical, legal, and political foundations upon which our Christian federalism was established. Despite lip service to the Constitution, they are ignorant of, or hostile to the intentions behind our Constitution and the federal system which it established. Hence, they misinterpret, neglect, and violate the Constitution the Bill of Rights, and the intended role of the states in our federal system with impunity.

Sadly, American Christians are ignorant of their heritage in religion, ethics, civil government and law. Most denominations have long since departed from the full-orbed Christian faith which established the moral, legal, and governmental foundations of this once great nation of states. Though recent decades have seen a great revival of Christian schools and home education, few Christian schools or curricula teach a Biblical view of the world and of life, an understanding of the Biblical foundations and principles upon which our civil governments and laws were based, and the duty of Christians to attempt to revive, restore, and improve the Christian federalism which is evident in our early constitutions, declarations, and bills of rights.

The Lord blessed Americans through our early constitutions, declarations, and bills of rights because of the Christian faith and obedience of the people and their elected representatives which was represented in those documents. Despite the shortcomings of these early documents, their nature, principles, and practical consequences are far superior to those of American civil governments today.

We will not see a revival of America's Christian federalism until there is a revival of the Christian foundations upon which our traditional Christian federalism was based. For this to occur, there must at least be a mighty movement of God's Spirit, which will produce a revival of true belief in the sovereignty of God over all areas of life, an application of Biblical principles to all areas of human thought and practice, a restoration of understanding of the true nature and principles of our early constitutions, declarations, bills of rights and laws, and comprehensive action by Christians to restore and improve the precious heritage which is visible in our early state constitutions, declarations of rights, and bills of rights. CM

The Implosion of American Federalism

A truly robust federalism, in Nagel's view, requires not only a legal structure conducive to its maintenance, but a settled disposition on the part of the people in favor of local diversity and prerogative, and a disciplined love of liberty that transcends the desire for immediate gratification. None of these, he says, are to be found in great abundance these days. Instead, he finds a desire to avoid risk, an impatience with conflict, and a servile yearning for simple solutions decreed by centralized authority. These are not the hallüarks of a people that wishes to remain free. Indeed, says Nagel, "we may be witnessing the rapid realization of Tocqueville's foreboding vision of a mass of striving but discontented individuals 'endeavoring to procure . . . the pleasures with which they glut their lives' under the shadow of one 'immense and tutelary power.'"

A glum prognosis, to be sure, but one that is hard to take issue with. Virtually every important change in American social policy in the past two generations has been driven, if not initiated, by the judiciary. The Supreme Court has rewritten many of our cultural rules on the most sensitive matters, touching everything from sexual mores and the family to the place of religion in the social order. The striking feature in the Court's agenda is not only its radical departure from constitutional text and custom, nor even its almost contemptuous disregard for the expressed will of representative bodies. The remarkable thing is that, despite occasional wailing about wretched judicial excess, the American people tolerate it.

Not only do we willingly yield our responsibilities and liberties, Nagel contends, but we lie to ourselves when we do so. In his concluding chapter, "Lies and Nationhood," Nagel argues that the Clinton impeachment controversy demonstrates how deeply the cynicism of the legal elite has cut into common culture. The President's artful conjugation of "is," in Nagel's view, did not differ qualitatively from the routine pangloss of the professorial class when, for example, it argues without blushing that the right to abortion is deeply rooted in our constitutional tradition. Clinton's defense was but a particular application of the wink-and-nod sophistry that today passes for sophisticated legal advocacy. Everyone knew he had lied and dishonored the office of the President, but a majority of the public comforted itself either by pretending he hadn't, or if he had, by pretending it didn't matter. The entire sorry episode, Nagel concludes, confirms that "our system rests precariously on the edge of systematized dishonesty."

The Battle over the Tenth Amendment: Opening a Second Front

The question before us is not, unfortunately, that of the title of this workshop: What ever happened to the Tenth Amendment? We know the answer to that question -- in the past half century the Supreme Court has so emasculated the Tenth Amendment that it now resembles a wise and beloved ancestor -- revered and fondly remembered, but of very little consequence in day-to-day living.

The question before us is what we intend to do about it, and the answer to that question is far from clear. Of course the Supreme Court should overrule Garcia and its kin, including the majority's decision in Term Limits. We should continue to seek out and argue cases before the Court to persuade it to do so.

But it is unlikely that the High Court will act until it is given direction by Congress or the people. And so we must fight the battle for federalism by persuading both that a revival of the federalist principles embraced by the drafters of the Constitution is important to the future of the Republic and its citizens. A federalism statute would begin the debate; a proposal to utilize the "Exceptions Clause" of Article III of the Constitution to limit judicial consideration of the exercise of state power would sharpen it; and a proposed constitutional amendment would propel the debate to the forefront of social commentary.

Historic Supreme Court Cases on Federalism Starting with Marbury v. Madison, U.S. Supreme Court opinions that have defined and shaped the limits of American federailism.

Real Federalism: Why It Matters, How It Could Happen

The most plausible constituency for federalism (and the only currently available one) is what political analyst and activist Grover Norquist has called the "Leave-Us-Alone" coalition. The members of that coalition-including, for example, religious groups, property-rights groups, the term-limits movement, home-school and school-choice organizations, gun owners, and tax-limitation advocates-have a strategic interest in more open, decentralized political arrangements. Were the Supreme Court to endorse, embolden, and legitimize those constituencies, they would in turn defend the Supreme Court and its federalist jurisprudence against political assaults. Over time, a virtuous cycle of progressive accommodation and (often implicit) cooperation between the Court and federalist forces might succeed in advancing federalism.

The Leave-Us-Aloners and the Supreme Court

Federalism as an abstract proposition has never had a constituency. Political constituencies favor (or oppose) federalism to advance their substantive interests and agenda-and most of them agitate for centralization most of the time. Interest groups and parties thrive on redistribution, which is best accomplished at a highly centralized level of government-because it spreads the costs over a larger number of losers and eliminates exit options for them. Moreover, contrary to popular lore and the presumptions of New Deal jurisprudence, the states do not favor real federalism; they oppose it. While the states will defend their narrow prerogatives (such as immunity from suit under federal statutes), experience shows that they cannot be expected to support federalist competition.

In contrast, the Leave-Us-Alone constituencies identified earlier are a genuinely federalist force. Deeply suspicious of Washington politics, all Leave-Us-Alone constituencies fight against national impositions, from gun control to federal land-use regulations in environmental disguise. Most have maintained highly decentralized organizations. None pursue the redistributionist objectives that draw ordinary economic interests into the Beltway.

The difficulty in envisioning a virtuous cycle of (implicit) cooperation between the Leave-Us-Aloners and the Supreme Court is the pronounced mutual distrust between the Justices and federal-ism's constituencies. By design the most nationalist and most elitist of all our institutions, the Supreme Court is naturally suspicious of an open, indeterminate politics that would leave too much beyond the reach of the Constitution. On issues that are central to the Leave-Us-Aloners-term limits, abortion, homosexual rights, the role of religion in public life-the Court has often displayed an exasperating tendency to cater to elite opinion and, correspondingly, to treat populist constituencies as gauche and irresponsible. Conversely (and consequently), Leave-Us-Aloners tend to view the Supreme Court as the institutional bulwark of a despised elite culture.

That mutual distrust need not be permanent, however. The Supreme Court's decisions on civil rights-a central, hotly contested issue-provide a clear-cut example of a rapprochement. For a full decade, the Court has methodically curtailed racial preferences. It has also effectively sanctioned a state-by-state campaign for the abolition of such preferences. As a result, advocates of official colorblindness have come to view the Supreme Court as a reliable ally-in fact, as the only public institution that will support and lend legitimacy to their endeavor. Civil rights law illustrates that the relation between the Supreme Court and Leave-Us-Alone constituencies can change, in the span of a decade, from intense hostility to mutual (if guarded) trust and reliance.

A similar dynamic may be unfolding in the area of religion, where the Supreme Court has moved from the selective disenfranchisement of religion to official neutrality as the constitutional baseline. In a departure from past precedent, the Court has held repeatedly that religious groups and institutions may participate in public subsidy and financial aid programs. That posture may suffice to win the Leave-Us-Alone battles that matter-foremost among them, the battle over the participation of religious schools in school choice and voucher schemes. Here, too, the signs point toward progressive mutual accommodation.

Federalism on the Bench

This body of law is the principal target of the Rehnquist Court's federalism. Through narrow statutory constructions, the expansion of state immunity against federal lawsuits and commandeering, and a re-limitation of the federal government's constitutionally enumerated powers, the Court has made it much more difficult for Congress to impose its interest-group schemes on state and local governments. The Rehnquist Court is only two or three decisions away from a wholesale reversal of the Brennan legacy.

The obstacles to a more robust federalism after September 11 are the ones that Nagel identified before the event. The Supreme Court seems to have an obsessive fear of national disunity, especially concerning sexual mores, and it has shown an inability to build institutional, organized support for federalism. National unity seems, after September 11, not to require judicial edict. The signs of unity are the millions of American flags, which citizens would yet wave even if the Supreme Court were to allow them to govern themselves, in the various states, on abortion and gay rights.

MORE SERIOUS is federalism's lack of political resonance. Our national institutions are split between a ruthlessly nationalist Democratic party and a Republican party that sacrifices its strategic interest in a more open, federalist politics to poll-tested federal "reforms," from crime to education; between interest groups whose appetites can be satiated only in Washington and state governments whose idea of "federalism" is more federal funding with fewer strings. Without a rupture in these alignments, the Supreme Court's federalism, and ours, will remain feeble and domesticated.

Laws and Standards - Do They Evolve?

The way in which a society addresses such controversies is directly related to how it answers the following three foundational questions: (1) Can man legislate morality? (2) If so, by what standard should man legislate? and, (3) Does this standard evolve? The answer to each of these questions is determined by one's approach to origins. By convincing large numbers of Christians that law is morally neutral, that human reason is the arbiter of truth, and that standards change as cultures mature, Darwinism has neutralized the restraining influence of Biblical Christianity on culture. While many Christians resist formal acceptance of the evolutionary hypothesis, they have implicitly accepted the assumptions on which the theory rests.

Is Religion Dangerous for America? The Supreme Court's Liberals Think So.

The Supreme Court's decision upholding the constitutionality of taxpayer-financed vouchers for private and religious schools was doubtless a significant victory for the cause of religious and educational freedom in America. But supporters of vouchers - and the prerogatives of religion in our national life generally - should note soberly that the victory was the result of a sharply divided 5-4 decision. And more important than the closeness of the vote was the clear and frightening hostility of the Court's liberal bloc toward those who take their faith seriously.

As all four of the dissenters imply, in varying degrees, those who take their religious faith seriously enough to pursue religious education for their children may pose a danger to society. You see, taking one's religious faith seriously may mean taking it too seriously for the public good, or so these wise men argue. All three dissenting opinions contend that such religious devotion is a grave threat to America, and advocate the use of the Constitution's Establishment Clause as a weapon against it. (see "The Nazi Master Plan: The Persecution of the Christian Churches")

Reply To Judge Richard A. Posner on The Inseparability of Law and Morality

The age-old debate among philosophers, legal theorists, constitutional law scholars, politicians, judges, and academics, between what law is (Positive law) and what law ought to be (Natural law) can be summarized in the following two statements. The first is by Supreme Court Justice Benjamin Cardozo, who wrote that, "if there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or moralist." 7 Justice Cardozo’s statement is a classic Positive law position–raw, statist power over the people. However, as I shall detail later in this article, there are many theoretical problems and internal contradictions with Positive law legal theory. The other statement is by Lawrence P. McDonald, who elucidates a contrasting legal philosophy called Natural law stating that, "if a judge can interpret the Constitution or laws to mean something obviously not intended by the original makers . . . then the nation’s Constitution and laws are meaningless."8 Which one was right about the nature of law? -- Cardozo or McDonald? – Positive law or Natural law? Is law a devise, tool or creation of man qua man or is law a set of tablets written by the "finger of God" to serve as a foundation of all laws of men? What presuppositions are at the foundations of our laws? Our statutes? Our Constitution?

In this article I would like to discuss one of the primary philosophical and intellectual suppositions that is the foundation of our contemporary conceptions of what law is – Positive law or legal positivism, as opposed to what law ought to be – Natural law or "the law of nature" as philosophers, Montesquieu, Hobbes, Blackstone, Locke, and Thomas Jefferson understood it.

Impeachment of Federal Judges

Although Congress is ultimately responsible for the discipline of judges, far too many of our Congressmen (like far too many of our citizens) have no understanding of the proper use of impeachment. However, a wise political axiom declares that "Congress sees the light when it feels the heat," and this is especially true on this issue. As citizens, we need to educate ourselves on the proper use of judicial impeachment, and then we need to educate our Representatives, reminding them of the need for judicial reform and alerting them to those judges showing a pattern of abuse. The time for encouraging judicial accountability is once again ripe. This is a golden opportunity for citizens to weigh in and make a difference.

Impeaching Federal Judges: A Covenantal And Constitutional Response To Judicial Tyranny cited twenty-four times at the House Impeachment Hearings in 1999. Steven Fitschen, ENDNOTES:

There is evidence that the mere threat of impeachment will have a salutary effect on the federal judiciary. As noted in the Introduction, the law school deans found this aspect of the impeachment movement especially troubling. Yet, the historical data clearly reflect that the Framers intended the threat of impeachment to have exactly this effect. Impeachment is a multi-step process. Resolutions can be introduced, authorizing impeachment directly or authorizing an investigation into possible impeachment proceedings. Assuming that an investigation occurs first, the steps leading to conviction would include investigation, debate on whether or not to draft articles of impeachment, a vote on passage of the articles, a trial in the Senate, and conviction. The farther the process goes, the greater the salutary impact will likely be. Those who are persuaded that impeaching judicial tyrants is correct should not give up before they start simply because they don't think they can obtain the final goal of conviction.

Joseph Story understood that the threat of impeachment must be real in order to serve as an effective check. He wrote that on the one hand, impeachment should not "be a power so operative and instant that it may intimidate a modest and conscientious statesman or other functionary from accepting office," but that on the other hand, it must not be "so weak and torpid as to be capable of lulling offenders into a general security and indifference."

The Separation of Church and State

One further note should be made about the now infamous "separation" dogma. The Congressional Records from June 7 to September 25, 1789, record the months of discussions and debates of the ninety Founding Fathers who framed the First Amendment. Significantly, not only was Thomas Jefferson not one of those ninety who framed the First Amendment, but also, during those debates not one of those ninety Framers ever mentioned the phrase "separation of church and state." It seems logical that if this had been the intent for the First Amendment-as is so frequently asserted-then at least one of those ninety who framed the Amendment would have mentioned that phrase; none did.

Bump for retirement reading.

When the Muslims have the majority in this country, you'll want a wall of separation.

No time to read this now but the First Amendment was only to ensure that there was no official National Religion. "Separation" was another piece of Jeffersonian humbug. One of many by the most overrated American president.

Stand to Reason Commentary - The Real Murderers: Atheism or ...

Bump for later reading.

requires further review.

I have no problem with religious morality as the starting point for laws, but the decision to outlaw official religion was the smartest thing done in our constitution.

"When the Muslims have the majority in this country..."

Please tell me you're kidding...

America is a Christian Nation, and will be until the End of the Age, denoted as "A.D." After that, you won't have to worry about Muslims, because they'll all have eternity to contemplate their bad judgement, and won't be bothering anybody.

"No time to read this now but the First Amendment was only to ensure that there was no official National Religion. "Separation" was another piece of Jeffersonian humbug. One of many by the most overrated American president."

Could you explain in more detail your last two sentences? Not to start too big a fight, but the most overrated? What about x42?

Outlawing official religion is different from outlawing religious expression in, for example, official ceremonies like swearings-in of witnesses and office-holders. True establishment of religion is a fairly high standard, and we have made that standard so hyper-sensitive that it effectively turned what should be a mandate for tolerance into a regulation against religion (except, of course, for pseudo-religions like "Gaia," etc. which now flourish under the umbrella of the twisted interpretation of anti-establishment).

I've never been a fan of public swearing-in ceremonies. Those who are honest will be so with or without the ceremony. Those who are dishonest are not detered by the ceremony.

And what about Confucianism? Kung Fu Tze was a kind of Peter Drucker of his day, with a goal of improving the performance of the Chinese bureaucracy. Many of our nominally Christian bureaucrats would benefit from a reading of the analects.

bump and print for later reading

Also, my bad for calling the anti-establishment clause "outlawing" establishment. It is, of course, a constitutional prosciption of law, and not a law itself. It says the government shall not make a law that establishes religion. Treating it like a law or regulation is part of the problem: This clause and surrounding doctrine is now brandished like a law against individual acts.

"Separation" was another piece of Jeffersonian humbug. One of many by the most overrated American president.

Sounds like an ad hominem dodge by someone who wants goobermint and religion to NOT be separate.

Have you forgotten the "No religious oath or affirmation" clause?

The founders knew damn good and well that allowing ANY religion to use the goobermint for it's purposes would quickly result in tyranny.

I have no problem with religious morality as the starting point for laws, but the decision to outlaw official religion was the smartest thing done in our constitution.

In sum, the object of the First Amendment was to prevent the national government from choosing one Christian sect [denomination] over another and establishing a single national denomination.

"Those of us who venerate freedom, be we Jewish or Christian, be we religious or secularized, have no option but to pray for the health of Christianity in America. No other group possesses both the faith and the numbers sufficient to hold back the ever-encroaching, sometimes sinister, power of the state. Rabbi Daniel Lapin's Toward Tradition " Sept. 2, 2000 ,Volume 15, Number 34, WORLD ON THE WEB, Marvin Olasky

Confucians will be right alongside the Muslims, with an excruciating eternity in Hell to spend regretting their bad judgement.

Four Models of Western Religious Thought

Summit Ministries

928 Osage Ave.

Manitou Springs, CO 80829

x-42 is not highly rated by anyone except the most die hard lunatics. Jefferson has been accorded hosannas of praise from the University professors for 200 yrs. and has his bust on a Mountain yet his administration achieved one thing of value, it blundered into the Louisiana Purchase (which in his insane interpretation of the Constitution he believed unconstitutional.) Napoleon essentially threw it into Jefferson's lap as a reward for his pro-French activities including support of the French attempt to re-enslave Haiti. Napoleon's defeat there spelled an end to his plans to invade Louisiana and reconquer that lost in the New World by France decades before.

Even Jefferson's supporters do not deny that his second term was a disaster. He destroyed the military and wanted to reduce the navy to impotence believing navies were a source of war. Thus, we were to have no navy or merchant marine. His social theories of an agricultural nation with a pitifully weak federal government would have resulted in a weak country with no means of protecting itself. The military consequences of this almost resulted in disaster under his protege, Madison, as the nation's capital was burned by 5,000 British soldiers.

His idea of foreign policy, an embargo of France and Great Britain, caused immense misery in the American seaports and prevented farmers from shipping their grain abroad hurting them as well. This policy was the equivalent of hiding under the bed and was cowardly as well as being unsuccessful.

His reputation was blown up and enhanced by a hired crew of Republican flacks created to destroy the influence of Hamilton. He allowed them to traduce the reputation of Washington while he was in office earning that gentleman's eternal contempt so that he never spoke to him after he left the cabinet.

His version of the Constitution disemboweled it and made it into a mockery totally reversing the ideals of Washington, Adams and Hamilton and even the pre-1790 Madison. And the Virginia dynasty entrenched itself so firmly through his thought that it strengthened the influence of Slavers and eventually led to the Civil War.

Do some research about the real Jefferson. It is disgusting and horrific after about 1790. And that does not even consider the fact that he enslaved his own children. His highflown phrases are not the real Jefferson but rather his actions (mostly hidden from view.)