The Myth of Church-State Separation

Recently I have discussed the issues involved in the controversy surrounding Alabama Chief Justice Roy Moore. Before finally leaving the subject, I want to address this nettlesome notion of the separation of church and state.

Often the sword of separation is used to smother, rather than promote religious liberty. There is nothing in the Constitution mandating a separation of church and state. (The phrase originated in a letter from Thomas Jefferson.) When you hear people talking about the supposed "separation of church and state," what they usually mean is "The Establishment Clause of the First Amendment requires a separation." But it doesn't.

Aside from the fact that the Establishment Clause has been erroneously extended to apply to the states as well as Congress, let's look how far the scope of "establishment" has been stretched on both the state and federal levels. It's darn near criminal.

The Framers meant that Congress couldn't establish a national church. They did not intend to forbid every little activity on government property or partially funded by the government. Justice Moore's monument flap is just the tip of the iceberg.

The courts are using the Establishment Clause to scrub Christianity entirely from the public square, including public schools. Their restrictions on religious freedom in schools illustrate the obscene extremes to which the law has been extended.

The separationists contend that public schools, because they are funded by federal and state money, cannot engage in activities that are deemed an endorsement of a religion. Just the slightest nod toward a religion will be enough to trigger an Establishment Clause violation.

Consider the case in which public high school students held their own two-step election, first, to decide whether a student address, possibly containing a prayer, could be delivered at a football game, and second, which student would deliver it. The Supreme Court ruled, in effect, that just by permitting such an election the state was violating the Establishment Clause.

Now seriously, just how far do we have to suspend our disbelief to conclude that the Framers intended to prohibit such an election merely facilitated -- not initiated -- by a public school?

Well, first we have to ignore that the First Amendment restricted the federal Congress only. Second, we have to disregard that it also prohibited Congress from intruding on the states' right to establish religion if they so chose. Third, we have to assume that a local school, which happens to receive funding from both the state and federal governments, is deemed to be an extension of those governments, keeping in mind that there were no such government funded and controlled schools at the time of the nation's founding.

Fourth, we have to find that the students' voluntary action to elect a speaker to deliver a statement that might or might not contain a prayer, with no involvement from the school beyond permitting the election, should be imputed to the state or federal governments -- as if they are the ones choosing to say the prayer.

Fifth, we have to conclude that the reading of the prayer itself is tantamount to establishing a federal or state religion -- notwithstanding that there are thousands of other government-run schools throughout the United States that would be completely unaffected by the prayer and no other part of the nation would be affected by it. (How can we conclude that a single public school in a single community in a single state, by merely permitting and not encouraging its students to choose, on their own, to read a prayer at a football game, constitutes the establishment of a particular denomination as the national or state religion?)

Sixth, we have to assume that you can ignore all these obstacles, even though in the very process you are emasculating that other critically important religion clause of the First Amendment, the Free Exercise Clause, which also guarantees our religious liberty.

By precluding the student-led prayer through these outrageous legal fictions and convoluted reasoning, the Court sanctioned the school's encroachment on the freedom of students to worship as they pleased -- thwarting the very purpose of both First Amendment religion clauses.

The point here is not that it is desirable for the government to endorse religious activities. Rather it is that courts have made the law up as they've gone along, completing mucking up Establishment Clause jurisprudence, and, in the name of protecting religious freedom, have greatly suppressed it.

Alabama Chief Justice Roy Moore's defiance of a federal court's mandate to remove a Ten Commandments display from the rotunda at the Alabama judicial building has been debated vigorously in recent weeks, mostly out of context.

Much of the public debate about this case has taken a wide detour around the substantive constitutional question, instead focusing on the Ten Commandments: Are they the foundation of Western law? Should they be displayed in state and local public places? Are such displays promotions of religion or history? While these are interesting questions, they are not relevant to the substance of this case.

Those content to reduce this case to a colloquy on the merits of the Ten Commandments either do not grasp the serious constitutional issue being contested, or they harbor a disingenuous motive to avoid the relevant. The latter group, well represented in the pop media, has framed this case as an insurrection led by a religious zealot and his gaggle of street preachers, thus depreciating its legal significance in order to avoid substantive and instructive discussion about our Constitution.

As The Federalist reported weeks ago, the federal judges, ACLU plaintiffs and Justice Moore all agree that the issue is not the Ten Commandments but the First and, thus, Tenth Amendments, and how these are to be interpreted. U.S. 11th Circuit Court Appellate Judge Ed Carnes, in his denial of Justice Moore's appeal, wrote, "If Alabama Chief Justice Roy Moore's Ten Commandments monument were allowed to stand, it would mean a massive revision of how the courts have interpreted the First Amendment for years." The ACLU's counsel stated, "This case is not about the Ten Commandments. This case is not about Roy Moore. It is about the First Amendment...." Indeed, Justice Moore wrote, "Have we become so ignorant of our nation's history that we have forgotten the reason for the adoption of the Bill of Rights? It was meant to restrict the federal government's power over the states...."

Notwithstanding the fact that the federal courts, the plaintiffs and defendant all declared this case to be about our Constitution, few media pundits and commentators dared venture into its real substance -- much too cerebral, fear they, for the dumbed-down masses who can't distinguish between the First and Tenth Amendment and first-and-ten to go. But in doing so, they are selling out our Founders' courageous legacy, as well as those Patriots who keep the torch burning today.

Indeed, the substance of this case solely concerns the rule of law as plainly written by our Founders in the U.S. Constitution, the protection of which is entrusted to the federal judiciary, whom it authorizes by oath to defend it, and its Bill of Rights, as adopted by the several states (including Alabama). The core question raised by this case is whether our Constitution should be altered by amendment (as per original intent), or adulterated by adjudication, which our Founders (as explicated in the Federalist Papers) and the states clearly rejected.

The Constitution clearly states that "All legislative Powers herein granted shall be vested in a Congress of the United States...." (Article I, Section 1). Conspicuously absent here is any language that allows federal judicial activists to render interpretive rulings that distort the Constitution such that it comports with their political and social agendas. On the subject of judicial activists, the Constitution declares, "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour" (Article III, Section 1). In other words, they should be impeached. Unfortunately, as Thomas Jefferson noted, impeachment is "a scarecrow," a straw man.

The First Amendment states "Congress shall make no law respecting an establishment of religion...," and the Tenth Amendment ensures "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In the Federalist Papers, the definitive exposition of the Constitution's original intent, James Madison wrote, "Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. ... The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

Madison, our Constitution's author, meant that the Constitution is to be read and ruled upon constructively, not as a matter of interpretive opinion, which circumvents its prescribed method of amendment. Those are the terms under which the states, including Alabama, ratified the Constitution.

As for the suggestion that the Fourteenth Amendment's "Privileges or Immunities" clause applies the Bill of Rights' restrictions on the central government to all levels of government -- it didn't and it doesn't. That notion was settled by the Supreme Court long ago, though the Fourteenth continues to be dredged up by judicial activists -- the same ones who interpret the First Amendment to read "separation of church and state" -- in an effort to eviscerate the Bill of Rights. It only applies in this case -- in the correct application of the amendment -- in support of Justice Moore's position, in that it bars the state of Alabama, and Moore as its chief judicial officer, from acting on the order handed down from the federal court.

Justice Moore, in his defiance of the federal courts, wrote, "Under the 10th Amendment to the U.S. Constitution, federal courts have absolutely no power, authority or jurisdiction [in this case]." He is, correctly in our opinion, arguing that he cannot be in disobedience of a judicial order where there is no jurisdiction. Thus, his actions do not rise even to the level of civil disobedience -- just defiance of an unlawful ruling. Of course, this distinction is predicated on respect for the rule of law under our Constitution, not the rule of judges, or what Thomas Jefferson characterized as "the Despotic branch." Justice Moore is currently suspended for his defiance and faces ethics charges before the seven-member Court of the Judiciary.

On Tuesday, the Ten Commandments display was removed from the judicial rotunda in Montgomery, to the shrieks of a few eccentric street preachers whose tirade (replayed repeatedly by Leftmedia outlets) served only to discredit the thoughtful objections of millions of Christian Patriots across the nation and further obfuscate the constitutional case being made by Justice Moore. In neighboring Mississippi, Gov. Ron Musgrove (D) called on governors around the nation to put the monument on display in their state capitol buildings -- starting with his.

So what's next? A new appeal to the Supreme Court is in the works, while Alabama Gov. Bob Riley, Attorney General Bill Pryor and the eight Associate Justices are busy trying to convince the people of Alabama that they support the Ten Commandments but were bound to obey the rule of law. "Because we are a society of laws, the Alabama Supreme Court has a duty to comply with the federal court order, whether they agree with it or not," said Riley. Indeed, they do -- unless the order is unlawful. Riley did not say how far from the "rule of law" they are willing to let judicial activists stray before adhering to Alabama's state motto, "We Dare Defend our Rights."

Perhaps that will be best left to Governor Roy Moore.... 29 August 2003,Federalist No. 03-35,Friday Digest

From limbs article

On the other hand, our liberties also depend on two other very important concepts that are at issue in this case. The Framers believed that our Constitution was grounded in the principles of the Christian religion and that without that foundation neither our Constitution nor the liberty it guarantees could survive. Justice Moore is fighting laudably to preserve that tradition.

The Framers also believed that liberty could best be achieved and sustained through a system of federalism – which they quite specifically established, dividing governmental power between the federal and state governments. To be sure, they made the federal government supreme as to those matters on which they conferred it authority – but the 10th Amendment expressly reserved the balance to the individual states.

Justice Moore is aware that the federal courts have egregiously exceeded their authority, usurping power properly reserved to the states. He is fighting to preserve the principle of federalism in furtherance of the cause of liberty.

Here's where it gets messy. The First Amendment contains two religion clauses, the Establishment Clause: "Congress shall make no law respecting an establishment of religion"; and the Free Exercise Clause: "or prohibiting the free exercise thereof." The federal courts have ordered Justice Moore to remove the monument on the grounds that it constitutes an unconstitutional establishment of religion.

Their ruling is flawed on a number of grounds, but unfortunately seems to follow the precedent of earlier lamentable Supreme Court decisions. As you can see, the Establishment Clause, on its face, prohibits only the U.S. Congress from "establishing" a religion. Sadly, the Supreme Court has repeatedly held that the Establishment Clause is also applicable to state governments through incorporation in the Due Process Clause of the 14th Amendment.

But the 14th Amendment was never intended to make the federal Establishment Clause binding on the states. Nor did the Framers intend that the Establishment prevent the federal government, much less the states, from all support for religion.

Supreme Court Chief Justice Joseph Story wrote, "Thus, the whole power over the subject of religion was left exclusively to State governments, to be acted on according to their own sense of justice and the State Constitutions." And, "Probably, at the time of the adoption of the Constitution, and of the (First Amendment), the general, if not universal, sentiment in America was that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."

The federal courts have greatly eroded states rights and religious freedoms through renegade decisions in the most cynical tradition of judicial activism. So while our federal law is certainly entitled to supremacy, at what point do citizens stand up and say that federal courts have claimed supremacy in areas over which they were never given authority? What can be done about their obscene misinterpretations of the Constitution?

A) The Federalist, esp Madison, did not want a “Bill of Rights”, and believed that power should be centralized in the Federal Government i.e. the Federal part of Federalist.
B) If we are going to talk about Madison lets remember that he was a “staunch republican to whom any suggestion of monarchy, hereditary aristocracy, dictator ship, or control of politics by the church was not even worth discussing” “Madison: On the Separation of Church and State”
C) Some have quoted Federalist 45 out of context. As to the power of the States in a Federalist context start at Federalist 39 and read past 45. Pay particular attention to Federalist 44.

D) Madison to Congress, June 8, 1789 . "I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against."

Now you were saying the intent was ???

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