Feather

I get it already, fromtheright. Argument from authority and all that. "It's what the Founders wanted" after all.

Regardless, I still fail to see how an official of the government posting statements commanding worship of a god on official government grounds is not tantamount to "establishing" the religion that concerns itself with the deity in the statements.

Judge Posts Document Commanding Worship of One God (i.e. commanding a particular religious view) somehow isn't the same as the Judge 'establishing' religion? The mind boggles, truly.

I suppose you'd expect that the judge build a church and appoint "holy men" before you'd even begin to consider it "establishment."

fromtheright

Jamie L,

We're in some agreement, I think. I agree that the electorate does have that affect on interpretation and IMO, it is then up to the judges to search for the meaning of the Constitution in a case starting with original intent. And I certainly agree, as I've said many times before, that it is not an easy search, nor are the answers one-sided when looking, such as the general welfare clause as I noted in another thread, where Hamilton took the more expansive view vs. Madison's more restrictive. I agree that we are having the same disagreements as the Founders though we are having some new ones and the older ones are in a more modern context.


Feather,

I'd say that establishment is much closer to your scenario than a granite monument. As I said above, though, I do think that State-written prayers are an establishment of religion, and, though I don't see the danger, I see the argument against teacher-led prayer.

I still fail to see how an official of the government posting statements commanding worship of a god on official government grounds is not tantamount to "establishing" the religion that concerns itself with the deity in the statements.

I'm sorry you don't understand. Seriously, it is not government commanding worship; surely, you understand that. There is no statutory requirement, there is no statutory punishment attending failure to so worship.

Bookman

I think you're being too narrow in your interpretation.

A government agent, acting in his official capacity, and making such a statement as Moore has made clearly violates the established tests for the establishment clause. It sends the message, even in the absence of specific statuatory requirements, that non-believers will not be afforded equal protection.

The establishment clause has been consistently interpreted to mean more than you seem to think it does.

Bookman

fromtheright

Bookman,

That is why I made an earlier point that, though I don't disagree with their legality (and hence their bindingess--is that a word?--on Judge Moore for orders based on those tests) I don't think they are Constitutionally correct, a disagreement that has been made in dissenting opinions. I am still allowed to disagree with the Supreme Court, even here, aren't I?

Bookman

Who suggested otherwise?

fromtheright

I apologize, I guess I was a bit of a smartass.

pug846

Fromtheright, do you believe the only way to interpret the constitution is by looking at the framer’s intent? If not, when should we ignore the framer’s intent? If we should, do you consistently interpret all the amendments in such a fashion? Do you believe brown v. board of education was decided correctly?

fromtheright

I believe that the starting point must be the Framers' intent.

Yes, I believe that the result in Brown was correct but disagree with paragraph (b) of the opening:

(b) The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation.

I don't think that the place of public education has any bearing, as I think that it is quite simply an equal protection argument. I understand that Bork's argument was that the agreed with the result but from different reasoning (I may be confused on that, I know that is his position on Griswold v. Connecticut , was thinking he said the same thing about Brown . If so, I would like to go back and read what he said; though I respect him I don't think he is nearly the originalist he has made himself out to be.

Feather

I understand there is no "written law" granting that Judge the power to use the authority of his office to preach. In fact, that is specifically forbidden by the Constitution. That's what I understand.

I understand that a person vested with authority (by statutes allowed under the applicable constitution of the state) erecting a command to worship God is precisely the body of government "establishing" religion.

You still have not explained how it is not. We're down to the nubs of what words mean and how they go together in a sentence, fromtheright. Either the Judge has authority derived in part from government statutes or he does not. Either he has endorsed, supported, or otherwise acknolwedged that a particular religion. If he has authority derived thus and he has, while executing the powers his authority allows, endorsed a particular religion, then he has used the power of government to do so. It defies any sort of logic to claim otherwise.

You can claim that endorsement does not equate to establishment only if you completely ignore one or more meanings of the word "establishment" and then further rely on the authority of dead men to assert that your meaning is correct. Hence, doublethink.

fromtheright

Feather,

You quoted my explanation of how it is not. I have no control over whether you can't or won't accept that as a satisfactory answer.

A judge's acting outside of his authority doesn't necessarily have constitutional ramifications, including establishment clause issues, but rather a question of judicial rules, ethics, and procedure.

I simply don't believe that endorsement = establishment. And I don't think that the history of what constituted an establishment at the time of the framing of the First Amendment or immediately preceding that time supports that view.

If your position is that the authority of dead men is meaningless, then what is your authority for viewing that the definition of establishment is to be stretched over time. Simply Supreme Court fiat? Does Supreme Court decision = the Constitution? As I have stated numerous times, while I do agree they have final authority to interpret the Constitution, I don't think this authority renders them or their decisions infallible or necessarily correct.

[granting a judge the power to use the authority of his office to preach--if I have correctly ellipsed this] is specifically forbidden by the Constitution.

"[S]pecifically forbidden by the Constitution" Where?