Re: Church-State -- some history

From: George Murphy <>
Date: Sat May 15 2004 - 20:09:30 EDT

----- Original Message -----
From: "John W Burgeson" <>
To: <>
Cc: <>
Sent: Saturday, May 15, 2004 6:35 PM
Subject: Re: Church-State -- some history

> When I wrote: ">>You may have heard in the news that a couple of Post
> Offices in Texas
> have been forced to take down small posters that say "IN GOD WE TRUST."
> They claim that the law is being violated; something silly involving
> "electioneering posters.">>
> No -- the law that is being violated is the 1st amendment to the
> constitution.>>
> George replied: "No, what is being violated is an extrapolation from the
> 1st Amendment.
> "An establishment of religion" in 1790 meant an established church, such
> as
> the Church of England. It did not mean that congress could not favor
> religion over no religion, use "God" language, &c."
> I see your comment and mine saying exactly the same thing. The issue of
> favoring or not favoring "religion" does not come into play here. The
> Post Office posters clearly did favor one "brand" of religion (Theism,
> and , by implication, Christianity) over all others.

        The 1st Amendment does not say that the state cannot favor belief in
God over non-belief in God, which is all the poster does. (The implication
you mention is something you may or may not choose to make.) It says only
that there can be no "establishment of religion" in the sense in which that
term was understood at the time.

> George continues: "But my point here is simply that a strict reading of
> the constitution doesn't rule it out, whatever some
> courts have decided in recent years"
> As I say above, I disagree. "Strict" reading or not, the posters are out
> of bounds.

        Sorry, this just isn't true. You are not limiting consideration to
what the exact language of the Amendment meant at the time it was written &
adopted. & as I note in the following, you don't have to. But if you
don't, you aren't adopting a strict construction.
> George ends with: "Of course this argument is valid only to the
> extent that one holds to (a) the original intent of framers of parts of
> the constitution in question and (b) strict construction of the
> constitution. I would argue for both."
> I would probably oppose you on this. The constitution is not a dead
> document; it is living. Just like scripture, we must approach it with our
> thinking caps on.

        Of course some interpretation of what the law means but it is
something else to say "It means A but I want a law that says A' so A = A'."
Unlike scripture, the
constitution has provided a clear procedure for its own amendment. If the
constitution is to be changed, that's the way to do it.

        I find it mildly amusing that there is such a disjunction between
the way many people apply strict or loose construction to the 1st & 2d
Amendments. Many liberals read the 1st Amendment as broadly as possible,
seeing the establishment clause as forbidding any mention of God by the
state, freedom of speech as including "symbolic speech" like flag burning,
&c. But with the 2d Amendment they become strict constructionists, say that
the right to keep & bear arms means only the existence of a militia, and try
to ban certain types of weapons.
        Conservatives, on the other hand, often read the 2d Amendment as
broadly as possible and see it as ruling out any restriction at all on gun
ownership. But with the 1st Amendment they may be quite strict, defending
state use of God language and trying to outlaw flag burning.

        I think consistency is in order in legal interpretation, & don't
think Emerson would classify it as "foolish." Of course strict
construction still leaves a lot of room for the types of statutes that one
favors. I don't think "under God" in the Pledge of Allegiance is
unconstitutional but I could very well live without it. (I learned the
Pledge without those words.)

Received on Sat May 15 20:10:23 2004

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