Posted on 08/21/2003 9:53:39 AM PDT by Gargantua
But here you are construing something from Madison's action.
Mea culpa.
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).
I couldn't find where he said that. But if you are interested in Rehnquist's arguemtnes you should also read O'Connor's opinion from the same case, in which she refutes some of his points.
When will it be time to correct errors in the accumulated interpretations?
"...stare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history." -CJ Rehnquist
First folks have to agree that there are errors.
...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."
The issue boils down to whether the Establishment Clause was meant to favor "Judeo-Christian" religions over all other sects (which is what CJ Moore believes), whether it simply prevents government from setting up a national church (which is what I hear you saying), or whether it requires government to stay neutral in all religious matters, including preference for religion over non-religion (which is what I believe the SCOTUS has decided over and over again).
Here is an excerpt from the Rehnquist dissenting opinion that F.Christian shared with us. It includes a part of the minimal debate over the drafting of the religion clauses.
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.The Framers in the House voted in favor of language which would be more sweeping - "Congress shall make no laws touching religion, or infringing the rights of conscience." Somehow the text got changed in conference between the House and Senate (there's a tradition which as remained!). While Madison wanted it to read "national religion" he was voted down.
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.
In his dissenting opinion in Wallace, Rehnquist criticizes Everson and Lemon without recommending an alternative. He did not get a single other justice to sign that opinion. In the 18 years since then he has not managed to convince 4 other justices of the correctness of his view.
...the real source of the tyranny (as I call it) is the radical interpretation of the word Establishment...
I don't think that 56 years worth of Supreme Court Justices have supported a radical interpretation. Wrong perhaps, but not radically wrong.
*********
As I mentioned before, my time for discussion, even of this important topic with a fine thinker such as yourself, has become limited. Can we draw this to a close?
Of course. Enjoyed the discussion. I may take the opportunity later on to post a couple of references I found: no replies expected.
Speaking of references, Judge Bork on O'Reilly tonight validated both our positions, I think. He agreed with you that the Court has already decided the Moore case. He agreed with me (and CJ Rehnquist) that the severity with which "separation of church and state" is now applied has nothing to do with the original intent, which was to forbid a national church.
Our Constitution may as well not even exist given the way it is twisted, misused and abused by everyone from pseudo-lawyers who purport to be looking for "Diogenes" right on up to our Supreme Court "Rubes in Robes."
The good news is that God has a plan for taking all this garbage out where it belongs, so it can spend eternity with equally putrefacted rubbish.
One wonders if the trash would be so hell-bent on being trash if it but knew what lies in store for trash?
;-/
However, every session of the House and the Senate begins with a prayer by the Official Congressional Chaplain. Many members of both Houses of Congress and our President are active members of Christian Churches, and even serve as Elders, Servants, etc. in those churches affairs.
Gee... how the Congress and the Supreme Courts disagree, huh?
"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."
Hey wait! Those are your words, with a few of Jefferson's words added on at the end for effect. The first twelve words there (wherewith you deceifully purport to establish predicate) are yours. The last eight words are archival records of Jefferson, taken from a private letter he wrote to one guy, which you take out of context and add your own dishonest meaning to.
Keep "Looking for Diogenes" pally... you haven't found him yet.
;-/
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