Re: Church-State -- some history

From: Dr. Blake Nelson <>
Date: Sat May 15 2004 - 20:51:46 EDT

--- George Murphy <> wrote:
> ----- 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 would use the term interpretation rather than
extrapolation in that there was some variety in what
individuals framers might have thought. What is clear
is that George's point is largely correct. The
framers knew what a State church was. Many states had
them. Of course, the framers had no intent of
superseding state State churches, which is one of the
reasons that provision of the First Amendment is in

Historically, there have been several interpretations
and the interpretation has changed repeatedly. As a
result, First Amendment jurisprudence is currently a
mess and one can argue the establishment clause and
free exercise clause are partially in substantial
disjunction from one another.

> >
> > 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.

This is true to a point. If the point is to give no
religious preference, promoting theism over
non-theistic religions, such as Buddhism is often said
to be, could be problematic under middle of the road
and extreme separatist interpretations of the First
Amendment. This of course begs the question of how
one should interpret the First Amendment, more
generally on that below.

> (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.

The language states: "Congress shall make no law
respecting an establishment of religion." Did
Congress pass a law mandating that the posters be
there, under the language of the Amendment, would be
the first natural question one would ask in regard to
whether the posters violated the First Amendment.

If Congress did not mandate them to be there, a strict
reading would say end of story. No violation. Of
course, that is not what Supreme Court jurisprudence
says about the establishment clause.

One has to go the next step and ask, not even the
logical question "who put the posters there?" if they
were not put there by act of Congress, but a different
questions, would such a poster in a post office be
considered some sort of "endorsement" of religion by
the government in the eyes of the postal customer who
sees the poster. That is a far way down field and an
entirely different set of questions from what the
Amendment says. Of course, these may be reasonable
interpretations to effectuate a purpose of the
Amendment, but how do you determine the purpose?
Burgy and I will disagree and I am more in line with
George as will be discussed briefly below.

> >
> > 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.

Ah, but herein lies the rub. One can say that the
Constitution is a living document, but what does that
mean? Does that mean what I think the document should
mean is what it means and the Supreme Court should
vote accordingly? You have to, as in scriptural
matters, have some interpretive principles. There are
massive disagreements about this and the pastiche that
is used of original intent folks like Scalia (or Bork)
is often not an accurate portrayal of what those sorts
of folks say. Likewise, someone like Brennan may not
be as utterly wooly headed make it up out of whole
cloth as Douglas admittedly was. However, the
questions about how you interpret are real. To throw
out any caring about what the words meant to the
framers and what their intent was is to IMHO toss out
any sense of the rule of law and to introduce huge
countermajoritarian difficulties in the polity.

In some areas, you can say that the framers intent
would encompass some things that they had not
anticipated. For example, it is not a stretch to
apply free speech protections to electronic media even
though the founders would have no concept of such
things because there were plenty of scurrilous scandal
rags around at the time of the Bill of Rights (the
Sedition Acts aside) that were not being censored. It
is a different thing, however, to craft a right of
privacy out of several amendments and say that if you
take these vague principles inherent in them you can
come up with some new constitutional principles. Both
liberals and conservatives have had problems with
this. The development of the Right to Contract was a
huge amount of conservative judicial activism up
through the early Roosevelt terms. I would suggest
Burgy that you read those cases striking down all
sorts of labor protection laws and see if you agree
that the constitution is a living document in the way
that the "Four Horsemen" read the Constitution to
mean. I would suspect, strongly, that you would
vociferously disagree with their analysis of the
reality of life and their interpretation of the living
constitution and be advocating some other itnerpretive
principle. ;)

> 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.

Hear, hear. Of course, some interpretations are more
clear than others.
> 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.

Actually, they do not go nearly as far as they could.
Since the purpose of the Second Amendment, in part,
was clearly to provide for national defense against
foreign attack and invasion, one could argue that
individual citizens not only have a right to hand guns
and long arms, they have a right to automatic weapons,
Bradleys, Abrams, B-52s and their own nukes. How else
can we be sure that we can fight off the Russians
should they attack? ;)

> 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.)

Even though I learned it with the words in it, I think
the words in practice mean very little and while the
pledge may have been better off without it to strike
down something so blandly meaningless that is wanted
in it by such a large proportion of the population is
an absolutely stupid thing to do. That's why the
Ninth Circuit did it. ;) Anyone who knows anything
about the chaos that is the nearly 40 (plus senior
judges) that make up that circuit and the degree to
which the Ninth Circuit gets over turned compared to
other circuits know it's absolute jurisprudential

It reminds me of when I clerked in the Eighth Circuit,
there were three judges whom when you read a decision
where they sat together on the deciding the case, you
could figure it the decision was probably wrong and,
if you followed it, you stood a high chance of getting
overturned on appeal because they were three
ideologues who agreed with one another, but no one
else in the circuit. Without someone to alloy their
ideological impulses on the panel, they made a lot of
bad law that was rarely ever followed by anyone else
on the Eighth Circuit (other panels would simply
distinguish their holdings, limiting them to the facts
of the particular case) and occasionally overturned
outright by an en banc rehearing of the whole circuit
or by the Supremes.

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Received on Sat May 15 20:51:56 2004

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