hezekiah jones

*Wonders why Finch didn't address the initial objections to the OP*

Spazmatic

Damned you guys wrote a lot. ;-) I'm tired, so I'll only be doing a cursory rather than my newly minted standard detailed response.

Well, yeah. There are a lot of things the Constitution doesn't make direct reference to. It's easier, and saner, to say wall of separation than anti-religious-establishment-by-the-government. And, the fact is, it was coined by our good friend Thomas Jefferson (who, while not at the convention, was in constant communication with Madison).

Uhh, no. While that's true, that's not it at all. Read the clause a bit more carefully (someone else already went into more detail).

Now, see, they do bring up good points. But... The points happen to be heavily misinterpreted.

First, dealing with days of prayer, one has to realize that there were, at the time, little (as in probably under 10) to no atheists in America (atheism was still primarily European). Does that mean the likes of Madison didn't believe atheism deserved its place? It seems unlikely considering, at the time, atheism was held about the same as deism, namely no one really gave a shit. It seems that this ruling is more likely because there was no good reason to do otherwise. While this is an accomodation to the demographics of the nation, it hardly seems remotely conclusive, or even persuasive, in stating that the SC has severely misinterpreted the Establishment clause.

Plus, I can go one step further. Madison did, in fact, object to this. Until he was pressured by Congress during the War of 1812, he released no proclamations for days of prayer. In fact, even after he did so, he wrote that it was a "deviation from the strict principle . . . in the eye of the Constitution", aka he didn't like it, and was pissed that he even had to release an optional proclamation.

Second, the Congressional Chaplain system means shit. First, Madison himself wrote this as to why he did not raise a huge uproar, "Are not the daily devotions conducted by these legal ecclesiastics already degenerating into a scanty attendance, and a tiresome formality?" Second, Madison voted against it, and did state that he objected, though not loudly for the reasons above. He wrote, "It was not with my approbation [approval] that the deviation from it took place in Cong[ress], when they appointed Chaplains, to be paid from the Nat[ional] Treasury."

The third one is utterly irrelevant, and, in fact, your book is giving you a very inaccurate picture of the event. Jefferson wanted land. He was dealing with a poor, Catholic tribe (yes, they were Catholic already). So, he said, hey, you want a priest, you can take this money and make a Church and get a priest! Well, when I think about this, this isn't respecting jack shit. If they wanted to erect a new school and hire a French teacher, it'd be precisely the same thing. It's not that the government is respecting an establishment. It's giving the tribe cash which ends up getting used in a religious way. If the government pays a worker for its services, and the worker donates that money to his church...

So, in summary, I advise you to trash that book, and take a good, hard look at any books you get from places like the "University of Tulsa". This person is obviously purposely twisting the truth and leaving out key historical facts to support his argument (which is severely despised by the academic community), all because it lacks any sort of water at all. Try bigger universities in the future.

Can we get more obvious to what the framers wanted than what Madison wrote over and over and over in his writings? Or what Jefferson wrote? He wasn't there, but his opinions still had a huge impact through Madison.

No it's not. And, the point is, we're not supposed to say the Supreme Court's wrong after they've made a decision. They are like forum moderators... Right or wrong, their word is final so we stop flaming each other about it.

Damn, this cursory overview has turned into a detailed reply. Doh! Time to go play Jedi Knight II, whoopee! Oh, and, uhm, dude... While your argument looks good on paper and sounds good and fancy, it lacks substance, probably because of the source you read. Don't believe everything you read.

Grumpy

Wouldn't a "strict constructionalist" be more worried about Congress overstepping its authority into areas not included under Article I? Remember, some thought the Bill of Rights was superfluous because it limited powers that Congress had not been explicitly granted anyway.

Suppose that "under God" does not rise to the level of an Establishment Clause violation. Well, what gives Congress the power to pass acts that fall just short of that limit? Look at Article I very closely: is it related to the power to lay & collect taxes? To regulate commerce with Indian tribes? Maybe it's related to Congress' authority over post roads. No?

And don't say it falls under the "General Welfare" clause, because that's no good either. If having schoolkids say "under God" is supposed to be for their own good, that means it is not a trivial, ineffectual, ceremonial act. It becomes an overt establishment of religion.

Ironically, proposing a Constitutional amendment to enshrine the pledge (as Sen. Joe Lieberman has already done) gives away the whole game! It's an admission that the phrasing is not protected under the current Constitution.

Buffman

Atticus_Finch

I am a strict constructionalist and believe that the only consistent and objective means by which courts can and should interpret the Constitution is first by the plain meaning of the words and then with reference to the intent of the framers.

You claim to be concerned with only two primary factors, in a specific order, to interpret and decide constitutionality...the plain meaning of the written words, and only then with reference to the intent of the framers. When one uses the expression "plain meaning," have they not already placed that meaning within their own subjective framework? Words are not as immutable as you seem to infer. Their meanings can change not simply over time, but by their use in context as well. Don't we immediately encounter problems with the use and meaning of Articles and Prepositions just as much as we do Nouns, Verbs, Adjectives and Adverbs? If you were to compare a copy of the 1st Amendment forwarded to the State of Rhode for ratification, I believe you would discover a one word difference. Rather than "an" establishment of religion, it reads "the" establishment of religion. What meaning and interpretation would you apply to that difference? Was it an accidental transcription error or an intentional change? Does it matter? Why? Why not?

Three things are clear from the plain language of the amendment. First, it only applies to Congress and not the states.

That was true until the ratification of the 14th Amendment. And do you believe that you could have determined that interpretation without resort to the intent of those men who crafted the final words and what motivated their individual input? "The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins" edited by Neil H. Cogan, Oxford Univ. Press, New York/Oxford, 1997, provides 82 pages of the most accurate information I have found concerning "Amendment I: Establishment and Free Exercise Clauses." (Everything is meticulously sourced.)

Second, Congress is prohibited from creating an "established" religion. What does that mean? Well, at the time, England had an "established" religion. The state declared that the Anglican Church was the church of England and paid its ministers. A number of the U.S. states, at the time the Bill of Rights was passed also had "established" state churches

That , too, is true. After the ratification of the Bill of Rights, the states still maintaining any financial and legal relationship to religion were, Conn., Maryland, N.H. and Mass. However, in those four states there was no longer a single established church. As a concession to those demanding complete separation of church and state, they had already substituted for single established churches multiple establishments. Mass., in 1833, was the last state to do away with the established religions.

Finally, it prohibited Congress from inhibiting the free exercise of religion.

(See "The Complete Bill of Rights...." to aid in the Congressional wording and meaning.)

Did the framers intend by the "Establishment Clause" that the federal government was to have no involvement in religion whatsoever? Did the intend that government should not show any support for religion whatsoever? One good way to know their intent is to look at there actions surronding the passage of the amendment.

I agree! And I have. The "plain meaning of the words" criteria simply can not provide the insights necessary to make reasoned and accurate interpretations. A determination of meaning must resort to intent and, where ever possible, the motivations behind that intent.

The following is a quote from a law review on this subject:

I'm sorry! I found the information contained in that quote to be somewhat deficient in accuracy and scholarship. Therefore I found the remainder of your premises to be based on questionable, if not faulty, data. ---I would like to recommend "Origins of the Bill of Rights" by Leonard W. Levy, Yale University Press, New Haven, 1999, Chapter Four, for your reading pleasure.

(Personally, I believe that an Attorney has an ethical and professional obligation to put forth only the most accurate information/knowledge available to the public. But then I look at Congress and can only sadly shake my head in shame and concern for this once great land of liberty and promise for all.)

GunnerJ

And the Bible makes no reference to the word "Trinity." Your point, please?

And you do, hopefully, mean ALL the words...

Uh-oh, I foretell wanton deification of the founders on the horizon...

*cough* *cough* Fourtheenth Amendment, *cough*

Also, given that the inclusion of "under God" in the Pledge was an act of Congress, what relevence does this have?

WOW! For a "strict constructionist" you sure do play fast and loose with the wording of the Constitution!

As I recall from just a few lines ago, the wording was "shall make no law respecting the establishment of religion." This includes, but is not limited to, an established state religion. It could also, from the meaning of the text, include prohibiting laws that interfere with private citizens establishing a religion.

I really don't see the relevance here, though, as a criticism. Every day, we have millions of children across the nation following an authority figure's lead in reverently saluting an idol and reciting the ritual words affirming that the country is governed by a single, male god. If that isn't an established religion, I don't know what is.

(BTW, don't try and sneak any "but they don't have to say the pledge!" bulldonkey in here. Technically, a student is free to not say the pledge; but then, technically, Scientologists can leave the Org at any time. Peer pressure is a wonderous thing, and most successful religions know how to exploit it.)

I really like how you sneak this in here. You're saying that making a public loyalty oath affirm that patriarchal monotheism is a requirement for American citizenship and patriotism doesn't inhibit the free exercise of religion in America? And that leading young children in this oath daily doesn't inhibit non-patriarchal monothesitic parents from raising their children in non-patriarchal monotheistic ways?

Whoo-hoo! Who saw me call it?

I like rhetorical questions, here's another: Does it make any flipping difference?

The Founders were not inerrent gods, nor were they even a cohesive and united group of mere men. They all held differing opinions on various subjects, including the Constitution and its amendments. Clearly, if the Constitution is any guide to their will, it would lead us to belive they didn't consider themselves so inerring as you do. Otherwise, why make it possible to amend the Constitution? Why include an elastic clause allowing governemnt to make laws "nessisary and proper" for carrying out its duties? Why have a judiciary branch to interprate their words?

The answer: because they knew that times would change, and that the Constitution couldn't be a dead document that limits the right course of government actions to their own opinions, from their own historical context. The Constitution is elastic because it is built to last.

Well, from your viewpoint, anyway. But given your unfamilliarity with the 14th amendment, I don't know how much to trust your opinion on the Constitution's interpretation.

A HUGE non-sequitir, given the irrelevance of the framers' opinions.

Exactly. This is the first thing in the entire post that actually deals with the 9th circut ruling, the subject of this post. The rest has been a lame attempt to trash church/state separation.

As it should.

Complete horseshit. This is a demonstratable lie, and you have "set" nothing "forth" "above" to indicate this. If you dispute this, then please point to where the supreme court amended the Constitution. Which amendment is it? The wall of serparation is a classic case of judicial interpretation, and changes nothing in the words of the Constitution.

[ June 29, 2002: Message edited by: Rimstalker ]</p>

Stephen Maturin

Atticus,

In my experience, nowadays the term "strict constructionism" is little more than a euphamism for a set of political beliefs. In the context of church-state separation, calling oneself a strict constructionist essentially means, "I'm a fiscal conservative on most issues, but as to this one I favor spending public money hand over fist to advance forms of Christianity founded on the belief that everything in the Bible is literally true."

This description touches upon all the factors that make strict constructionism so inherently unreliable. Buffman has already addressed "plain meaning" accurately and in detail. I'll only add that plain meaning is a particularly irresponsible basis for legal decision-making where, as in the case of the Establishment Clause, people in the know are still debating the "plain meaning" of certain word combinations centuries after the fact.

The real problem with your approach is this "intent of the framers" business. Strict construtionists assume that, for each constitutional issue, there's some monolithic precept or set of precepts that embodies the sole, unitary and indivisible intent of all the framers. In short, they assume that something called "THE intent of the framers" exists. It doesn't. If by "framers" you mean the people who drafted the Bill of Rights, we're talking about numerous men with diverse interests and viewpoints. The notion that they all held the same view about how the First Amendment would operate is ludicrous on its face.

Moreover, why limit your inquiry to the framers? What about the ratifiers, the state legislators who actually had to decide whether or not the Bill of Rights would become law? Seems to me that their intent regarding how the Religion Clauses would work operate is much more important that the intent of the framers. Lots of luck trying to dig through the heads of all those legislators and cull a single "intent."

Given the aforementioned flaws, strict constructionism produces results that are neither consistent nor objective.

Irrelevant, as demonstrated by other posters in this thread.

Incomplete and misleading, as also shown by other posters.

Funny you should mention that. The concept of complete separation of church and state actually arose within the dissident movement that started when the Church of England was founded, and thus has a much more extensive historical pedigree than accomodationalists care to admit.

It seems safe to assume that you're familiar with textual legislative history. Try running a TLH analysis on the First Amendment sometime. That'll dispel conclusively any notion that the Establishment Clause was intended only to prevent Congress from setting up a national religion.

It's "prohibiting," which isn't exactly synonymous with "inhibiting."

Others have already done a fine job here. I would simply add that, in the context of this particular discussion, your questions posit a straw man. What we have here goes way beyond mere "involvement" or "support." The 9th Cir. case involved: (1) an act of Congress inserting the words "under God" into the previously secular Pledge of Allegiance; and (2) a local school board policy of teacher-led Pledge recitation that, while nominally voluntary, is implemented under conditions that are actually quite coercive. Put those two factors together, and you've got a rather blatant government endorsement of monotheistic religious belief, to say the least. To say it more accurately, you've got government shoving Jehovah down the throats of second graders.

From what little I've been able to find on the www, it appears that this excerpt comes from a student-written case note. Please don't get me wrong; I'm not disparaging student-written law review articles in general or Mr. Freeman's work in particular. I went down the same road, and know full well the massive amount of time, effort and energy that goes into it. But hey, my article got published too, and I'm a numbskull.

As others have shown, your conclusion doesn't follow from the evidence you cited.

In light of the undeniable politicization of the term "strict constructionist," the second sentence should read something like: "From a strict constructionist viewpoint, those cases were wrongly decided because they fail to comport with the Religious Right's position that public money should be spent freely to advance evangelical, Biblical-literalist Christianity."

Take out the "most likely" and we're in complete agreement here.

As set forth above, (1) there's no such thing as "THE intent of the framers" and (2) there's no principled basis for elevating the intent of the framers above the intent of others involved in the process by which the Bill of Rights became law.

Interesting. You're a strict constructionist, yet here you're implying that some sort of interpretation is appropriate. Surely you've read enough case law to know that courts don't consider ascertaining and applying "plain meaning" an act of interpretation. In fact, the decisions typically say that where the meaning of the language of a statute, etc. is plain, then resort to interpretation is neither necessary or appropriate. As you see it, the language of the Establishment Clause is plain. Given that, what sort of "interpretation" are we talking about here?

As for "amending the constitution by judicial fiat," well, this is nothing more than hyperbole and appeal to emotion. But let's assume for the sake of discussion that you're in the ballpark. The question then becomes, "So what?"

Truth be told, it's just plain wrong for government to endorse or otherwise get involved with religion. For a far more articulate explanation of the reasons than I could ever provide, check out the dissents in the newly-decided <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-1751" target="_blank">Zelman</a> case, particularly Justice Breyer's. Note also that religion has flourished in the United States as never before during the thirty-year span you referenced. I submit that this is a direct result of the C-S separation cases against which you're arguing.

I agree completely, but for reasons that are no doubt considerably different from yours.

From another of your posts in this thread:

Likewise, if you don't like the way the federal judiciary operates you should move for the repeal of Article III. Think it through carefully, though. After all, do you really want to lose all those agenda judges that Reagan appointed to federal trial courts? And what would be the point anyway? There's no reason to believe that Congress or the President would be any better at "strict constructionism" than the judiciary.

[ June 29, 2002: Message edited by: Stephen Maturin ]</p>

GunnerJ

I know Finch said he couldn't guarantee a response to everything, but this complete lack of response... well, let's just say the silence is deafening.

Looks like we've done it again!

The Naked Mage

&lt;cries on Finch's behalf&gt;

hezekiah jones

Quite. To which I might add, "And the irony of this position is completely lost on me."

theyeti

So obviously, the Strict Constructionist position is that only white males between 18 and 45 can be in a militia and own arms, that being the intent of the framers? Take that, negros!