What Does the Constitution Really Say About Religion?
The Supreme Court has redefined the Establishment Clause far beyond the original public meaning.
If you want the best possible example of the gap between the original intent of the Constitution and what the Supreme Court has misinterpreted the Constitution to mean, it would be difficult to find a better example than the First Amendment’s “Congress shall make no law respecting an establishment of religion.”
When Congress passed the First Amendment, many states had a church establishment that enjoyed special legal status and even direct funding from taxes. In some states it was the Anglican Church; in others, it was the Congregational Church. In many states, you had to be a Christian, sometimes specifically a Protestant, to hold public office. Had Americans been of one Protestant denomination, we might well have had a single national church. As Noah Webster observed, “a singular concurrence of circumstances, the possibility of establishing this influence, as a pillar of government, is totally precluded.”
Even state constitutions that prohibited state establishment of a particular church, such as New Jersey (1776), specified that “no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles.” Catholics, Muslims, Jews — they had no such guarantee. This isn’t the ACLU’s prohibition of an “establishment of religion,” is it?
The first Congress said essentially nothing about what that prohibition on establishment of religion meant — suggesting that there was general agreement — but what was that agreement? We can get some idea by looking at what Congress and the president did. As the Library of Congress’s recent exhibit about religion in the early republic points out:
It is no exaggeration to say that on Sundays in Washington during the administrations of Thomas Jefferson (1801-1809) and of James Madison (1809-1817) the state became the church. Within a year of his inauguration, Jefferson began attending church services in the House of Representatives. … Worship services in the House — a practice that continued until after the Civil War — were acceptable to Jefferson because they were nondiscriminatory and voluntary. … Throughout his administration Jefferson permitted church services in executive branch buildings. The Gospel was also preached in the Supreme Court chambers. … In attending church services on public property, Jefferson and Madison consciously and deliberately were offering symbolic support to religion as a prop for republican government.
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Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores. His web site is www.claytoncramer.com.
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63 Comments
1. mrt:This is a link I have bookmarked:
http://www.free2pray.info/1separationchurchstate.html
Oct 11, 2009 - 4:06 am 2. pelaut:Ditto the 2nd Amendment where the word “regulated” in “well regulated militia” didn’t mean ‘well controlled’, but it meant militias with lots of soldiers, as in a “regular” in the army.
Just the opposite of what the anit-gun people, including the nitwits on the Supreme Court, say it means.
Oct 11, 2009 - 6:25 am 3. Richard:Oh, give me a break! Noone is stopping you from praying.
Your right to pray stops when you start telling me I have to pray with you. If you’re a teacher, legislator, what-have-you, you can pray all you like to yourself. You don’t get to abuse your position of authority by trying to lead others in a prayer of your own making. Religions are established by people, not faceless government entitites, and leading a group of students or other subordinates is the beginning of establishing a religion.
So-con fail. Again.
Oct 11, 2009 - 6:26 am 4. Tom Perkins:“Your right to pray stops when you start telling me I have to pray with you.”
Who’s doing that?
No one at all.
It is about the government being neutral and not against religion. The way you want it to be.
Oct 11, 2009 - 6:41 am 5. MarkD:Why do we grant such deference to a Court that has basically usurped its power, anyway?
There is nothing in the Constitution giving this Court the power it says it has.
Oct 11, 2009 - 7:11 am 6. BillH:Thanks Clayton, that’s what we were taught in the ’50’s. It’s too bad the First Amendment wasn’t written in plain understandable English, so folks like Richard and the ACLU could understand it. We have far more to fear from the State and the Courts than wee do from the Bible or a cross in the middle of the desert.
Oct 11, 2009 - 7:14 am 7. BackwardsBoy:How can anyone be offended by a religion that emphasizes compassion, patience and forgiveness?
I mean, really. That offends you?
Oct 11, 2009 - 8:00 am 8. David S:The constitution also allowed slavery – thankfully we have come a long way since those days.
The establishment clause requires the government to exercise discretion on religious matters – and like the rest of the constitution, it has been interpreted and re-interpreted over the history of the Republic.
The fact that Mr. Cramer has to reach back to 1833 to find a reference supporting his interpretation is not a good sign for his position.
The reason that Mr. Cramer has to reach so far into history is simple – the 14th amendment completely changed the manner in which the first amendment applied to the states.
When it comes down to the specific issue of the cross in the desert, it is pretty easy to see that the federal government’s actions constitute an establishment of this religious symbol as a monument, to the exclusion of others. That’s an impermissible establishment of religion, and the transparent efforts to avoid this obvious violation of the principles of the first amendment by transferring the property on which this symbol stands are even more troubling than the underlying religious endorsement.
Looking at the establishment clause from the perspective of a 19th century jurist is a fun exercise, but it is hardly a rational way to look at the role of the state in relation to religious expression. The jingoistic interpretations of contemporary judges are not the basis for current practice, and rightly so. The days of legal slavery and state sanctioned churches are, thankfully, behind us.
Peace.
DS
Oct 11, 2009 - 8:49 am 9. Cichawoda:7. BackwardsBoy:
offended by a religion that emphasizes compassion, patience and forgiveness?
Your being sarcastic – right?
Oct 11, 2009 - 8:55 am 10. SteveB/Colorado:Mr. Cramer is being somewhat selective in his expose of the daily workings & beliefs of our founding fathers. One thing I learned in my graduate work in the 1970s was that due to the lack of government office buildings in D.C. in the early days, government leaders often conducted business in local brothels. Of course, unlike religion, prostitution is legal only in a few places now. And back then, Catholics and Jews were often considered as second class citizens, and there weren’t other religions around.
I think Richard’s comments (#3) are relevant. I’ll refer Mr. Perkins to this web site: http://www.au.org . Some of the stuff posted there is downright scary, as it chronicles the effort of the religious right groups to impose their particular brand of religion on all society.
#6 BillH: “we have far more to fear from the State and the Courts than we do from the Bible…..” I’ll agree with that. What I fear are those who view the Bible as literally the word of their God. After all, the Old Testament condones such things as rape, murder, genocide and slavery.
#7 BackwardsBoy: “how can anyone be offended…….” If that was all there is to Christianity, you have a valid point. But sadly, there is much, much more, from the Catholic Church’s stance on birth control and the role of women in the church, to the efforts of so called conservative groups to “dumb down” our students with teaching of creationism as science.
Then there are groups like the Christian Coalition, Family Resource Council, Focus on the Family, etc. Jesus Christ said “leave all your possessions and follow me….” Guess He never envisioned multi million dollar media empires.
Oct 11, 2009 - 9:06 am 11. Tom Perkins:“I’ll refer Mr. Perkins to this web site: http://www.au.org.”
So what? At a thirty second glance, you’ve linked to a site that proves my point, the ACLU/left’s view of religion is that is should be forcibly expunged from every aspect of the public sphere. Why do you imagine that is a constitutionally defensible goal?
“I’ll agree with that. What I fear are those who view the Bible as literally the word of their God.”
Yeah, all few hundred thousand of them who might actually be willing to try to make the Bible the law of the land are really a force to be feared.
The Social Conservatives want to be left alone. I have great common cause with them in making sure the national government does leave them alone, since there is no power in the constitution for the national government to eliminate them from the community. I like the government obeying the constitution.
By far, the dangerous camel’s nose under the tent is government getting out from under the constitution.
I’ll worry about the fundies if and when they are problematic.
They aren’t who is breaking my legs or picking my pocket’s now. Or then.
Or ever in our history that I can think of, actually.
Oct 11, 2009 - 10:07 am 12. mph:Long live the theocrats!
Oct 11, 2009 - 10:08 am 13. texexpatriate:How any educated person—on the Supreme Court,or in the company of commentators above—can interpret the First Amendment in any way other than the plain language in which it is written remains a mystery to me. It is asinine to argue that religious quotations and symbols in government buildings or on government property constitute Congress making a law respecting the establishment of a religion.
The lefitist Supreme Court that made the original misinterpretation was merely following its standard leftist tactic: words mean what the leftist says it means, and not what they really mean. The handful of leftist commentators above are doing the same thing, denying plain English.
Oct 11, 2009 - 10:13 am 14. Tom Perkins:@DS
There weren’t a whole lot of references to what the second amendment meant until after leftists tried to pretend it was about state militias. Then there were a great many claiming it was about the states.
The interpretation which was popular among the “intelligentsia” had changed. The truth of it had not.
The parts of the constitution which prohibited the national government from interfering with slavery were removed by amendment. There is no amendment which states the national government is to be hostile to religion, to fail to fund religious charities when it funds other charities, to forbid moments of silence–even with no prescribed purpose–from public schools.
If it is important enough to change something so basic about the national government’s scope of power, it will require an amendment.
Good luck with that.
Because you’re making it up.
Oct 11, 2009 - 10:20 am 15. genomega:“#6 BillH: “we have far more to fear from the State and the Courts than we do from the Bible…..” I’ll agree with that. What I fear are those who view the Bible as literally the word of their God. After all, the Old Testament condones such things as rape, murder, genocide and slavery.”
Oct 11, 2009 - 11:14 am 16. Delia:The old Testament has nothing to do with Christians. It belongs to the Jews. No one on the left seems to have a problem with the Government endorsing Sharia law.
I believe in me.
God is the glue that keeps my soul together.
I once hated God.
I once hated life.
I once hated humanity.
I learned.
God is good.
I am good.
Life is good.
Humanity is good.
A few bad apples don’t have to spoil the bunch.
Those are apples.
We are souls.
Trust.
Oct 11, 2009 - 11:21 am 17. SteveB/Colorado:#11 Tom Perkins: “So what, at a thirty second glance, you’ve linked to a site that proves my point; the ACLU/left’s view of religion…..” Umm, maybe you should spend more time there than 30 seconds. The reference is the web site of Americans United for Separation of Church & State, headed by an ordained minister. If you read through the site and its case histories, you will find many instances of use of public facilities and even laws to impose religious ideology on a greater society.
“The social conservatives want to be left alone…..I’ll worry about the fundies if and when they are problematic….” I wouldn’t call the continual anti-abortion crusade an sign of those who “want to be left alone.” Rather, it’s a sign of those who desire to impose their religious beliefs on all of society.
Here in Denver, the office of Planned Parenthood is picketed daily by anti-abortion activists, even though abortion services are a very small portion of the total service provided by P.P. When P.P. was building a new building, anti-abortion activists picketed the homes of executives of the contractors. “Being left alone?” Not hardly.
#15 genomega: “the Old Testament has nothing to do with Christians. It belongs to the Jews.” Then why do so many Christian groups continue to cite Old Testament scripture; and to claim it is the word of God?
#13 texexpatriate: “the handful of leftist commentators above are doing the same thing, denying plain English….” So, how do you know those commentators are leftists? I’m a lifelong conservative Republican. If one is truly conservative, then one not only supports the right of the people to worship as they please, but also supports the rights of those who don’t want to worship anyone or anything. The amendment is very obvious: Congress and the government shall make no law…….. Contrary to Mr. Perkins’ apparent belief, that includes not using taxpayer dollars to fund religious charities; moments of silence in public schools for one religion’s prayers; whatever.
Oct 11, 2009 - 12:39 pm 18. David S:@14. Tom Perkins:
There is no amendment which states the national government is to be hostile to religion, to fail to fund religious charities when it funds other charities, to forbid moments of silence–even with no prescribed purpose–from public schools.
The national government is hardly hostile to religion. Religions enjoy equal treatment. Funding religious charities amounts to a law respecting an establishment of religion – and requiring a moment of silence does also. The intent of such activities is clear, and it clearly violates the intent of the first amendment to protect the people from exactly this kind of government endorsement of religion.
There is an amendment which states the government will not make any laws respecting an establishment of religion. And it means what it says. There is no authority in the American system for the government to discriminate for or against any religion.
Peace.
DS
Oct 11, 2009 - 3:04 pm 19. Brian:An 8′ cross in the middle of the desert place there by veterans is hardly a sign of state sponsored religeon… It ludicrist that courts even listen to this garbage.
Oct 11, 2009 - 3:41 pm 20. Sam:The whole reason the founders even placed the clause in the constitution was because of the actions in England where people of certain beliefs where having their churches and homes burned to the ground by the government! A cross in the desert is hardly a step in that direction.
So what is supposed to be the point of those citations?
That anyone who is not a Christian should be happy they have any religious freedom at all, and would be smart to just shut up before they get the Constitutionally intended and permitted oppression they deserve?
Yeah, using that as a base is really going to appeal to a whole bunch of people to just trust your assertion of original intent.
Oct 11, 2009 - 4:14 pm 21. Tom Perkins:I trust that as much as I trust Pelosi’s, Reid’s, and Obama’s promises about healthcare.
“The national government is hardly hostile to religion.”
Of course it is, particularly the Christian one. What you’ve just said is as ludicrous as saying the MSM is not generically biased to the left.
“Religions enjoy equal treatment.”
At best, equally second class treatment compared to other organizing foci of society.
“Funding religious charities amounts to a law respecting an establishment of religion – and requiring a moment of silence does also.”
Not even slightly true in either case. Funding a charity is funding a charity. Either the government should treat charities alike, or it shouldn’t do it at all.
“The intent of such activities is clear, and it clearly violates the intent of the first amendment to protect the people from exactly this kind of government endorsement of religion.”
Failing to treat religious charities as being as worthy of government support as other charities it being anti-religious, which is outside the purview of government discretion. Government is to be religiously neutral, not anti-religious. What you say is clear to you, is in fact your callow presumption.
“There is an amendment which states the government will not make any laws respecting an establishment of religion.”
Including effectively anti-religious laws.
“And it means what it says.”
Which is neutrality, not antipathy.
“There is no authority in the American system for the government to discriminate for or against any religion.”
Exactly true. You fall down in implementing the against part.
“Peace.”
Unlikely to be had at any point in history. Nice wishful thinking though.
Oct 11, 2009 - 4:52 pm 22. Tom Perkins:“the against” /= “the or against”
Oct 11, 2009 - 5:40 pm 23. Clayton E. Cramer:Oh, give me a break! Noone is stopping you from praying.
And the relevance of this to the question of a cross on federal land in the middle of the Mojave Desert is?
Oct 11, 2009 - 8:50 pm 24. Clayton E. Cramer:The constitution also allowed slavery – thankfully we have come a long way since those days.
The establishment clause requires the government to exercise discretion on religious matters – and like the rest of the constitution, it has been interpreted and re-interpreted over the history of the Republic.
How does it require them to exercise discretion on religious matters?
The fact that Mr. Cramer has to reach back to 1833 to find a reference supporting his interpretation is not a good sign for his position.
I reached even further back than that-to get to original intent, as expressed by the actions of the Articles of Confederation Congress, and the Congresses in 1800-1809–and two presidents whose values are especially noteworthy: Jefferson and Madison. Jefferson was one of the more freethinking of the Framers on religion; Madison was the author of the first draft of the Bill of Rights.
The reason that Mr. Cramer has to reach so far into history is simple – the 14th amendment completely changed the manner in which the first amendment applied to the states.
It certainly did. But the dispute going on before the Court this term involves a strictly federal government question. So the Fourteenth Amendment is completely irrelevant.
Oct 11, 2009 - 8:53 pm 25. Clayton E. Cramer:The constitution also allowed slavery – thankfully we have come a long way since those days.
But we fixed that by amending the Constitution (Amendment XIII)–not interpreting it to mean something that it didn’t.
Oct 11, 2009 - 8:54 pm 26. Clayton E. Cramer:When it comes down to the specific issue of the cross in the desert, it is pretty easy to see that the federal government’s actions constitute an establishment of this religious symbol as a monument, to the exclusion of others.
Except that the Framers would not have considered that an “establishment of religion.” And that pretty well blows out your argument.
Oct 11, 2009 - 8:56 pm 27. Clayton E. Cramer:Here in Denver, the office of Planned Parenthood is picketed daily by anti-abortion activists, even though abortion services are a very small portion of the total service provided by P.P. When P.P. was building a new building, anti-abortion activists picketed the homes of executives of the contractors. “Being left alone?” Not hardly.
So, you believe that freedom of speech doesn’t apply to people that don’t agree with you?
Now, if you want to argue that laws against abortion are a bad idea, make that argument. But protesting abortion is no more a problem than protesting racial discrimination.
Even laws prohibiting abortion are not creating an establishment of religion. If you want to argue that abortion laws reflect the religious beliefs of those who oppose abortion, that’s generally true (although there are non-religious opponents of abortion as well). But show me a law that doesn’t reflect the religious beliefs of the population. You might agree with many of those laws–but at the core of our entire criminal code is the belief that there are some things that are WRONG. And guess what? Our criminal laws reflect the Judeo-Christian belief system of our population.
Oct 11, 2009 - 9:00 pm 28. Stevemmn:6. BillH:
“It’s too bad the First Amendment wasn’t written in plain understandable English, so folks like Richard and the ACLU could understand it.”
Actually the First Amendment was written in plain understandable English, no one in their right minds back then would be so stupid as to think the language meant religious symbols in the middle of open federal land would not be allowed, much less in government buildings or that voluntary prayer was somehow not allowed.
The reference dating to 1833 was for a very good reason, the First Amendment was written before then and the wording has not changed. Therefore and older reference is closer to the original meaning of the Amendment. The idea that the Constitution somehow changes (”lives and breathes”) over time is a croc of B.S.
Oct 11, 2009 - 9:09 pm 29. Clayton E. Cramer:The national government is hardly hostile to religion. Religions enjoy equal treatment. Funding religious charities amounts to a law respecting an establishment of religion – and requiring a moment of silence does also.
It would help if you actually knew something about this subject. A variety of institutions enjoy the tax-exempt status, including educational, cultural, and charitable organizations. To discriminate against churches (which are a type of charitable organization) would certainly violate the establishment clause, because as the language says, Congress shall pass no law “respecting an establishment of religion.” This means that any law that in any way specifies or identifies an establishment of religion (meaning a particular organized body of believers or denomination) as the subject of a law is contrary to the First Amendment. If Congress passes a law that prohibited all charitable organizations from enjoying a tax exemption, that would probably survive court challenge. But one that applied only to religious organizations would clearly be in violation.
The intent of such activities is clear, and it clearly violates the intent of the first amendment to protect the people from exactly this kind of government endorsement of religion.
You might want to take this up with the Framers. As I pointed out, they were in agreement that as long as the federal government was not playing favorites, it was perfectly fine–even a good thing–to encourage religious belief. See George Washington’s Farewell Address to Congress in 1796:
“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” [emphasis added]
Now, maybe Washington was wrong about that. But it is a statement that clearly fits into the widely held belief of the time that government promotion of religion–and specifically of Christianity–was a good thing.
There is an amendment which states the government will not make any laws respecting an establishment of religion. And it means what it says. There is no authority in the American system for the government to discriminate for or against any religion.
You can say it all you want. I have the evidence that shows that this is a modern concept. It is very clear, from the actions and statements above, that Congress and several presidents at the beginning understood that the federal government was allowed to promote Christianity–and that the establishment clause was not understood to require a strict neutrality between religion and irreligion.
Oct 11, 2009 - 9:11 pm 30. Clayton E. Cramer:So what is supposed to be the point of those citations?
That anyone who is not a Christian should be happy they have any religious freedom at all, and would be smart to just shut up before they get the Constitutionally intended and permitted oppression they deserve?
No, the freedom of exercise of religion clause is separate from the establishment clause. The point is that governmental promotion of Christianity was completely acceptable to the Framers–and even direct federal government support of particular denominations seems to have caused no problem with respect to section 29 of townships in Ohio Territory. The idea that a cross on federal land violates the establishment clause is simply wrong.
Should Congress take a broader view today? Sure. But that doesn’t make that cross an establishment clause violation.
Oct 11, 2009 - 9:15 pm 31. Clayton E. Cramer:How any educated person—on the Supreme Court,or in the company of commentators above—can interpret the First Amendment in any way other than the plain language in which it is written remains a mystery to me.
You figured it out in the rest of your comment. The problem is that the Framers intended one thing: the government was free to promote religion if they so chose, because it was generally understood that without a religious basis for morals, most people act pretty poorly. (And even with a religious basis for morals, the record of human beings isn’t all that good. Better, but not great.)
The problem is that by the latter half of the 19th century, intellectuals were becoming increasingly uncomfortable with acknowledging the Christian basis of our government and laws. When the Supreme Court upheld the federal prohibition on polygamy in the territories, they were reluctant to admit that the basis for this was that polygamy was contrary to Christianity. While the federal ban was not specific to Mormons (which might have been a religious exercise clause violation), it was clearly passed because of the Mormon practice of polygamy in Utah Territory. So they hunted around for some way to justify it in a non-religious way–hence the Court’s explanation that the goal was to prevent “patriarchy.” (Yes, really, they used that word in 1878 to justify the ban!)
By the middle of the 20th century, the secularists who dominated the Court were intent on suppressing any form of assistance or encouragement to religion–even, as in the case that started us down this road, the religion classes that were being taught (by a priest, a rabbi, and a pastor) were with the permission of the parents, and were targeted at students who had been brought up in the respective faiths that they were being taught. The Lemon v. Kurtzman case, in the 1970s, was even more of an attempt to protect public schools from private competition.
Oct 11, 2009 - 9:28 pm 32. Clayton E. Cramer:For those who want to imagine the Framers and their times as religion-neutral, make sure you read this. It should get you really fuming.
Here’s one example. From Massachusetts’ 1780 Constitution:
Oct 11, 2009 - 9:37 pm 33. dave morris:Interesting analysis. Makes you wonder why the gun nuts ignore the first part of the 2nd amendment, the one that says their right to pack heat is tied to membership in a government-controlled militia.
Oct 12, 2009 - 4:14 am 34. Now and Then:32. Clayton E. Cramer:
Gee, I wonder if I could Google any quotes from the Founding Fathers that pinto to the negative effects of religion? I should try that sometime.
“History I believe furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance, of which their political as well as religious leaders will always avail themselves for their own purpose. ”
Oops, how’d that happen? That Jefferson, what a leftist, socialist, pre-Marxist liberal anti-American! Want more? There are tons.
Oct 12, 2009 - 6:53 am 35. Clayton E. Cramer:Interesting analysis. Makes you wonder why the gun nuts ignore the first part of the 2nd amendment, the one that says their right to pack heat is tied to membership in a government-controlled militia.
Except that the text doesn’t say that the right is tied to membership in a government-controlled militia. And there is not a single remark, claim, or constitutional commentary from the Framers’ time that makes that claim. The first such claim appears in State v. Buzzard (Ark. 1842), and with respect to the Arkansas Constitution’s more narrowly written “for their common defense” arms provision. The claim that you are making about the Second Amendment does not appear anywhere until after 1900.
Oct 12, 2009 - 7:43 am 36. Clayton E. Cramer:“History I believe furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance, of which their political as well as religious leaders will always avail themselves for their own purpose. ”
Oops, how’d that happen? That Jefferson, what a leftist, socialist, pre-Marxist liberal anti-American! Want more? There are tons.
Suggestion: learn to read in context. Jefferson was referring specifically to the Spanish colonies.
Jefferson, like nearly all the Framers, regarded Catholicism with considerable contempt. Hence “priest-ridden.”
Oct 12, 2009 - 7:48 am 37. dumbfounded:Whats next cover up all the crosses at Arlington National Cemetery? I’m sure thats next on the David S type hit list. I wonder will it be offensive when Hamas crucifies a Christian as they claim is is their right to do so?
Oct 12, 2009 - 10:06 am 38. Sam:“Should Congress take a broader view today? Sure. But that doesn’t make that cross an establishment clause violation.”
That is nice, but that is not what you argued, or produced evidence to support.
You went out of your way to make the point that the establishment clause, and by inference all related guarantees, including to free exercise, were written solely to protect Christian sects and nothing else, and that therefore there was no basis for taking a broader view. Indeed, you later quote the Massachussetts Constitution of 1780 which restricts that to Protestants, permitting the forced support and attendance of such, calling into question whether Catholicism is included, despite it being part and parcel of Maryland, one of the original colonies, and thus contributers to the Constitution.
Again, if you are going to use such as the core of your argument, there is very little reason to trust to a “broader view” in the area of recognizing the rights of non-Protestants and non-Christians today. You have effectively built an argument that recognizing and guaranteeing such rights would require a separate and explicit Constitutional Amendment.
Oct 12, 2009 - 10:26 am 39. Clayton E. Cramer:Again, if you are going to use such as the core of your argument, there is very little reason to trust to a “broader view” in the area of recognizing the rights of non-Protestants and non-Christians today. You have effectively built an argument that recognizing and guaranteeing such rights would require a separate and explicit Constitutional Amendment.
Yes, it would. Although at this point, there is simply no reason to worry that Congress or any of the states is going to pass laws that require such an amendment to protect the rights of non-Christians. Remember that no one–not even the most virulent fundamentalists–supports such limitations. There are leftists, such as Garrison Keillor, who have argued that the right of Christians to vote should be taken away–but fortunately, few Christians are as intolerant as Garrison Keillor.
By the way, the changes that disestablished state churches in the period 1786-1834, and eliminated the religious disabilities of Jews and Catholics to hold public office were the result of legislative action and popular sentiment, not the judiciary ruling that these disabilities were a violation of anyone’s constitutional rights. For example, Maryland removed the requirement that office holders be Christians in 1809, when they first included “religious Jews” among those allowed to hold office.
Oct 12, 2009 - 10:41 am 40. Clayton E. Cramer:Indeed, you later quote the Massachussetts Constitution of 1780 which restricts that to Protestants, permitting the forced support and attendance of such, calling into question whether Catholicism is included, despite it being part and parcel of Maryland, one of the original colonies, and thus contributers to the Constitution.
Maryland’s history on this is actually uglier than you think. Originally, Lord Baltimore intended Maryland to be a place where Catholics could practice their faith without abuse, and was originally quite tolerant in its laws. Alas, it didn’t stay that way, and soon, Catholics, while not abused as severely as they had been in Britain, were certainly second-class citizens. (This changed by the time Maryland ratifies the Constitution–and one of its delegates to the Philadelphia Convention, if memory serves me correctly, was a Catholic.)
If every state had limited office holding to Protestants (as some did), you might have a strong case that the establishment clause only required equality of governmental assistance to Protestant denominations. But quite a number of states by the time of the Bill of Rights are treating Catholics and Protestants the same.
Oct 12, 2009 - 10:47 am 41. Jon Rowe:I’ve long followed this debate. Re the claim about Jefferson and Roman Catholics, it’s a bit of a punt. (And a common one among “Christian Nationalists.)
Yes, the Framers thought Roman Catholicism was the most “superstitious”; however when Jefferson and J. Adams railed against “superstition” and “Priests,” they by NO means limited their remarks to Roman Catholic Priests. They were actually referring to the whole institutional edifice of orthodox Trinitarian Christianity, especially Calvinism.
Oct 12, 2009 - 11:26 am 42. Jon Rowe:If anyone is interested in the best conservative scholarship on what the Framers believed I’d suggest Notre Dame’s Phillip Munoz’s two new books (the second one isn’t out yet) published by Notre Dame Press. The first book, which he sent me, explores Madison’s, Washington’s and Jefferson’s subjective views on religion & govt (he concludes, they different so you can’t form a top down consensus view based on their subjective views, at least as it relates to EC issues).
The second one looks at the objective original meaning of the religion clauses. Munoz is with Justice Thomas that the EC, properly understood, does not incorporate against state and local governments.
His chapter on Jefferson is quite illuminating: It’s entitled “Thomas Jefferson’s Natural Rights Philosophy and Anticlerical Politics of Religious Liberty.”
He shows conclusively that TJ was not just referring to Roman Catholics when he railed against the clergy.
Jefferson absolutely hated the doctrine of the Trinity and hated Calvinism. “Hate” is a strong word, and I don’t use it lightly. But he did hate these things.
For instance, in TJ’s letter to John Adams dated April 11, 1823, he wrote:
“I can never join Calvin in addressing his god. He was indeed an Atheist, which I can never be; or rather his religion was Daemonism. If ever man worshipped a false god, he did. The being described in his 5. points is not the God whom you and I acknolege and adore, the Creator and benevolent governor of the world; but a daemon of malignant spirit. It would be more pardonable to believe in no god at all, than to blaspheme him by the atrocious attributes of Calvin.”
Oct 12, 2009 - 11:38 am 43. Jon Rowe:And by the way, when I met with Munoz at Princeton (where he was a fellow at the James Madison Program, preparing for his transition from Tufts to Notre Dame), he told private lunch to which I was invited that he didn’t think much of Joseph Story’s Commentaries on the original religion clauses.
Basically there is a Mass. view of establishments endorsed by Washington and J. Adams, and a VA view of establishments endorsed by Jefferson and Madison. Story essentially reads in a partisan Mass. view to the federal religion clauses. Munoz’s point is that no such view CAN be read into the Establishment Clause (not Jefferson’s/Madison’s OR Washington’s/J. Adams’) because they DIFFERENT and settled on a federalist mechanism (i.e., the states choose their own EC policy) as a compromise.
Any kind of original meaning of how the states should, if at all, incorporate the EC must be done through how the 14th Am. framers would approach the issue.
And finally, I’m not even sure if Joseph Story’s standard of equality among Christian sects is possible because Story himself was a unitarian and his definition of “Christianity” wouldn’t pass Clayton’s test.
Here is Story on what he DIDN’T believe about Christianity:
TO WILLIAM WILLIAMS, ESQ.
Washington, March 6th, 1824.
…The Unitarians are universally steadfast, sincere, and earnest Christians.
They all believe in the divine mission of Christ, the credibility and authenticity of the Bible, the miracles wrought by our Saviour and his apostles, and the efficacy of his precepts to lead men to salvation….They differ among themselves as to the nature of our Saviour, but they all agree that he was the special messenger of God, and that what he taught is of Divine authority. In truth, they principally differ from other Christians in disbelieving the Trinity, for they think Christ was not God, but in the Scripture language “the Son of God.”
And here is testimony from Story’s brother, speaking to and through Story’s son:
After my continued absence from home for four or five years, we met again, your father being now about eighteen years old, and renewed our former affection towards each other. At this time we were, from a similarity of sentiment, drawn more closely together. I allude particularly to our religious opinions. We frequently discussed the subject of the divinity and the humanity of Christ, and we both agreed in believing in his humanity. Thus you see that your father and myself were early Unitarians, long before the doctrine was preached among us by any one, unless I except Dr. Bentley of Salem.
In other words, Story was, like Jefferson, a Socinian Unitarian, believing Jesus was 100% human and not divine at all. And here is what Story thought on salvation:
This faith he retained during his whole life, and was ever ardent in his advocacy of the views of Liberal Christians. He was several times President of the American Unitarian Association, and was in the habit of attending its meetings and joining in its discussions. No man, however, was ever more free from a spirit of bigotry and proselytism. He gladly allowed every one freedom of belief, and claimed only that it should be a genuine conviction and not a mere theologic opinion, considering the true faith of every man to be the necessary exponent of his nature, and honoring a religious life more than a formal creed. He admitted within the pale of salvation Mahommedan and Christian, Catholic and Infidel. He believed that whatever is sincere and honest is recognized of God; — that as the views of any sect are but human opinion, susceptible of error on every side, it behooves all men to be on their guard against arrogance of belief; — and that in the sight of God it is not the truth or falsity of our views, but the spirit in which we believe, which alone is of vital consequence. [Bold mine.]
Perhaps Clayton can answer is the theological system that Joseph Story personally endorsed — one he termed “Christian” — indeed qualifies as such.
Oct 12, 2009 - 11:48 am 44. Jon Rowe:Let me make a correction in my above post (42) on where Munoz’s books are published. It’s Cambridge, not Notre Dame (though he does indeed teach at Notre Dame).
Oct 12, 2009 - 11:50 am 45. Clayton E. Cramer:He shows conclusively that TJ was not just referring to Roman Catholics when he railed against the clergy.
Jefferson absolutely hated the doctrine of the Trinity and hated Calvinism. “Hate” is a strong word, and I don’t use it lightly. But he did hate these things.
And yet Jefferson contributed, voluntarily, to a church in Williamsburg. Jefferson certainly had substantial disagreements with much of orthodox Christianity, especially later in life. And yet, he didn’t seem to have a problem with uses of government buildings for church services that the ACLU would blow a gasket about today.
Oct 12, 2009 - 1:40 pm 46. Anonymous:Basically there is a Mass. view of establishments endorsed by Washington and J. Adams, and a VA view of establishments endorsed by Jefferson and Madison. Story essentially reads in a partisan Mass. view to the federal religion clauses. Munoz’s point is that no such view CAN be read into the Establishment Clause (not Jefferson’s/Madison’s OR Washington’s/J. Adams’) because they DIFFERENT and settled on a federalist mechanism (i.e., the states choose their own EC policy) as a compromise.
Nor do I disagree that there was a federalist solution on this. The states were free to do as they wished; the national government did not have authority to establish a church. But there was an agreement about what constituted establishment of a church, and it doesn’t match the ACLU’s attempt to define any support of religion, even at the lowest common denominator level (a church as a memorial on federal law, for example), as establishment.
Any kind of original meaning of how the states should, if at all, incorporate the EC must be done through how the 14th Am. framers would approach the issue.
Without question. Nor do I say anything in this article that says differently. You would have to look at what the establishment clause was understood to mean in 1866–not what it meant in 1791. And the ACLU’s definition is still wrong.
And finally, I’m not even sure if Joseph Story’s standard of equality among Christian sects is possible because Story himself was a unitarian and his definition of “Christianity” wouldn’t pass Clayton’s test.
It would have met Joseph Story’s standard, however. Broader than the definition of many Christians today, no question, as I pointed out in the article.
Oct 12, 2009 - 1:44 pm 47. Clayton E. Cramer:Basically there is a Mass. view of establishments endorsed by Washington and J. Adams, and a VA view of establishments endorsed by Jefferson and Madison. Story essentially reads in a partisan Mass. view to the federal religion clauses. Munoz’s point is that no such view CAN be read into the Establishment Clause (not Jefferson’s/Madison’s OR Washington’s/J. Adams’) because they DIFFERENT and settled on a federalist mechanism (i.e., the states choose their own EC policy) as a compromise.
Nor do I disagree. The question is what constitutes “establishment of religion.” There seems to be an agreement at the time that a generalized, perhaps lowest common denominator support of religion was not a problem, as long as no particular denomination enjoyed special privileges or advantages. That’s completely contrary to the ACLU’s view, and largely contrary to what the Supreme Court’s precedents currently hold.
Any kind of original meaning of how the states should, if at all, incorporate the EC must be done through how the 14th Am. framers would approach the issue.
Completely agreed. But the definition of EC in 1866 would not fit the ACLU’s definition, either.
And finally, I’m not even sure if Joseph Story’s standard of equality among Christian sects is possible because Story himself was a unitarian and his definition of “Christianity” wouldn’t pass Clayton’s test.
A number of the Framers were definitely more liberal than what many Christians today would define as Christian. But this has no relevance to the question of what constitutes “establishment of religion.” Do you really think that any of the Framers would have considered the presence of a cross (a symbol of all Christian denominations) on public land as a war memorial to be establishing a particular religion? If so, holding Protestant church services in the Hall of Representatives is at least as big of a problem.
Oct 12, 2009 - 1:50 pm 48. Sam:“Yes, it would. Although at this point, there is simply no reason to worry that Congress or any of the states is going to pass laws that require such an amendment to protect the rights of non-Christians. Remember that no one–not even the most virulent fundamentalists–supports such limitations.”
So I am only to worry about what you feel there is need for me to worry about?
Your fear-mongering is superior to everyone elses?
And there are more than a few dominionist and quasi-dominionist groups out there that very much do support such limitations. Garrison Keillor gives you cause for concern, they give me much more, particularly when your evidence supports their position of intolerance more than it supports yours of expanded tolerance.
“Maryland’s history on this is actually uglier than you think. Originally, Lord Baltimore intended Maryland to be a place where Catholics could practice their faith without abuse, and was originally quite tolerant in its laws. Alas, it didn’t stay that way, and soon, Catholics, while not abused as severely as they had been in Britain, were certainly second-class citizens.”
So intent is not enough protection.
But you said it was.
You really should be more careful about what parts of our history you cite in support of your argument. All you keep doing is giving even greater reason not to accept your original intent as sufficient in either scope of protection or guarantee of future security, as the only thing that ensures it now is popular support for a different interpretation.
Oct 12, 2009 - 1:56 pm 49. Clayton E. Cramer:Munoz is with Justice Thomas that the EC, properly understood, does not incorporate against state and local governments.
One of the issues that the Supreme Court is going to be taking up in McDonald v. Chicago this term is whether the 14th Amendment incorporates through the due process clause, or through the privileges or immunities clause. I’m hard pressed to see how the entire First Amendment (along with Amendments 2 through
doesn’t get incorporated.
You can argue that when Congress did this, they didn’t fully understand the implications of what they were doing, but that’s an error in what they did, not an argument for ignoring what they did.
Any kind of original meaning of how the states should, if at all, incorporate the EC must be done through how the 14th Am. framers would approach the issue.
I’m glad to hear you say that. It means that Lawrence v. Texas (2003) was wrongly decided. What is abundantly clear is that the authors of the 14th Amendment had no intention of striking down sodomy laws, which were present in 32 of the 37 states and the time, and were generally treated as very serious felonies. They discussed at length the effect that the 14th Amendment would have on the Black Codes, and it is clear that they intended to strike down these laws, which among other actions, disarmed freedmen, except under rather restrictive licensing. (And opponents of the 14th Amendment said the same thing: it would strike down state and local laws disarming blacks.) But there isn’t a word anywhere that even hints at the prospect that anyone expected the 14th Amendment to strike down the existing sodomy laws.
Oct 12, 2009 - 2:27 pm 50. Clayton E. Cramer:“Yes, it would. Although at this point, there is simply no reason to worry that Congress or any of the states is going to pass laws that require such an amendment to protect the rights of non-Christians. Remember that no one–not even the most virulent fundamentalists–supports such limitations.”
So I am only to worry about what you feel there is need for me to worry about?
Your fear-mongering is superior to everyone elses?
And there are more than a few dominionist and quasi-dominionist groups out there that very much do support such limitations. Garrison Keillor gives you cause for concern, they give me much more, particularly when your evidence supports their position of intolerance more than it supports yours of expanded tolerance.
I’ve heard about these dominionists–although entirely from those who are afraid of them. I’ve never met one, in more than 30 years of attending Christian churches. I can’t recall ever seeing any books published by them. They must exist, somewhere. But what percentage of the population are they? Is it even 0.1%? That’s like worrying that Communists are going to take away all of our property by their control of Congress.
“Maryland’s history on this is actually uglier than you think. Originally, Lord Baltimore intended Maryland to be a place where Catholics could practice their faith without abuse, and was originally quite tolerant in its laws. Alas, it didn’t stay that way, and soon, Catholics, while not abused as severely as they had been in Britain, were certainly second-class citizens.”
So intent is not enough protection.
But you said it was.
Intent, without a binding constitution, is not enough protection. But it is difficult to have a binding constitution when judges ignore intent because it doesn’t make them happy in its results. And you are apparently arguing that judges should do exactly that: ignore original intent because otherwise you will be terrified of perhaps 0.1% somehow taking over our government.
You really should be more careful about what parts of our history you cite in support of your argument. All you keep doing is giving even greater reason not to accept your original intent as sufficient in either scope of protection or guarantee of future security, as the only thing that ensures it now is popular support for a different interpretation.
It isn’t “popular support for a different interpretation” that stops what you fear: it is that there is NO popular support for denying rights to non-Christian religions. (Not to say that there isn’t some popular support to do something about those Islamists who are prepared to justify war against the West–but in my experience, the Islamists aren’t even a majority among Muslims.)
The bigger issue here is that regardless of what you want history to be, there are objective facts behind this. Pretending that the past was different than it was, or claiming that the Constitution is no longer binding because it would be inconvenient or uncomfortable, doesn’t make it so.
Oct 12, 2009 - 2:36 pm 51. Sam:“I’ve heard about these dominionists–although entirely from those who are afraid of them. I’ve never met one, in more than 30 years of attending Christian churches. I can’t recall ever seeing any books published by them. They must exist, somewhere.”
Oh, well . . .
I have never met Garrison Keillor. I do not believe he exists either.
“Intent, without a binding constitution, is not enough protection. But it is difficult to have a binding constitution when judges ignore intent because it doesn’t make them happy in its results. And you are apparently arguing that judges should do exactly that: ignore original intent because otherwise you will be terrified of perhaps 0.1% somehow taking over our government.”
No, you argued that they have done that in regards to permitting freedom from imposition of sect on non-Christians.
You are apparently satistfied with that ignoring of original intent because you are otherwise terrified of the consequences of your assertions and the conclusions of your research into your assertions of original intent.
“It isn’t “popular support for a different interpretation” that stops what you fear: it is that there is NO popular support for denying rights to non-Christian religions.”
Right now.
Tomorrow?
Ten years from now?
That is your whole point after all, that things change, and what was an inconceivable interpretation 230 years ago is now being portrayed as “self-evident”.
So again, we am to take your fear mongering as superior to anyone else’s.
I see no difference between you and the radical atheists claiming that the existence of a bible in the Library of Congress constitutes an unconstitutional establishment of religion, or similar absurdity, in terms of trying to use fear to drive an agenda.
“The bigger issue here is that regardless of what you want history to be, there are objective facts behind this. Pretending that the past was different than it was, or claiming that the Constitution is no longer binding because it would be inconvenient or uncomfortable, doesn’t make it so.”
The same applies to you.
Oct 12, 2009 - 4:28 pm 52. Jon Rowe:Pretending that the original intent was not for the Courts to interpret the Constitution and their rulings should no longer be binding because it is inconvenient and uncomfortable for you does not make it so.
There are equally objective facts of non-Christians being forced to participate in Christian practices by order of the government, be it federal or state. Just because you do not care about such because you feel your research has “proven” to you the existence of sufficent objective facts that the Constitution was not intended to prohibit such does not mean that others take the existence of those objective much more seriously, and consequently reject your insistence on original intent as constituting binding constitutional precedent.
I’m hard pressed to see how the entire First Amendment (along with Amendments 2 through
doesn’t get incorporated.
Amar’s book on the BOR deals with this. Munoz’s law review article is here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963447
The bottom line is “privileges or immunities” relates to “rights,” and whereas the FEC clearly deals with a “right,” it’s not clear that the EC does. Or, to the extent that it does, that’s all that should get incorporated. I told him that if he (and some others, Hamburger, Amar) succeeds in getting the Court to view the EC this way (not bloody likely as he concedes) Equal Protection or non-discrimination on religious grounds principles are likely to rise out of its ashes.
Those are the kinds of “rights” that if anything the EC properly vindicates. Amar notes this as well.
Oct 12, 2009 - 6:35 pm 53. Jon Rowe:But this has no relevance to the question of what constitutes “establishment of religion.” Do you really think that any of the Framers would have considered the presence of a cross (a symbol of all Christian denominations) on public land as a war memorial to be establishing a particular religion?
Oh I doubt they would; but I don’t think it has “no relevance….”
Does “establishment of religion” mean “religion” or “Christianity.” If “religion” then whatever protection/prohibition the EC delivers applies equally to all or lack thereof. If that’s the case, then you are right that Story’s unitarianism has NO relevance.
Some Christian Nationalists, however, argue (using that very quote) that the original meaning of the religion clauses protects “Christianity only.” And if that’s the case then one has to define “Christianity” (so we know what gets protected). And then we get into the whole muck of whether one who denies the Trinity is a Christian or not.
This may sound like an abstruse concern; but I can show you in James Madison’s notes where he raised that VERY concern. And in fact this very concern was what led to the final disestablishment in Mass. in 1833.
Oct 12, 2009 - 6:43 pm 54. Sydney Carton:Clayton, it might help to be even more basic and define what exactly it means to “establish” a Church. The Church of England is an Established church. That is, the Queen of England is the head of government and of the Church, and it is supported by tax dollars. In the colonies, state established Churches were either Anglican or Congregational. Citizens of such states saw their taxes pay for Churches and ministers, and in some cases failure to attend Sunday services meant jail or other fines. That is an established Church.
The Founders were quite familiar with established Churches. They were very satisfied with those states which had them, and didn’t want those state established churches to be obliterated or overwhelmed if a National Established Church were created. That is the reason for the prohibition of establishing a Church in the First Amendment. At the time, its purpose was to protect state established churches.
Additionally, as you say, the Founders certainly wouldn’t have viewed benign tolerance of religious activities on government property or with government support as the Establishment of a Church, if such activities were open to all. The very fact that they were open to all means that it was NOT establishing a specific church.
The 14th Amendment did nothing to change this situation other than to overturn State established churches. Yet, since state established churches were all removed by legislative act prior to the 14th amendment, then it really had no effect on the states.
The strict government hostility towards religion only came about during the modern era, when the left gained power during FDR’s administration. It is an entirely modern development that has no basis in long-term Constitutional law.
Oct 12, 2009 - 10:03 pm 55. Dave Surls:“The 6-foot Latin cross was erected by the local Veterans of Foreign Wars in a remote part of the California desert in 1934 to honor war dead. It has been rebuilt several times over the years, and Easter services are held on the site every year.”
Private citizens should be free to do that on lands owned by the United States. It’s our land, it doesn’t really belong to the government. We let them use land for certain things, where they need to exercise some control (like military bases, for example), but this is not a situation where they need to be telling folks what they can or cannot do on public lands.
Not a first amendment issue (i.e. Congress has made no law respecting an establishment of religion here). The SCOTUS needs to butt out.
Now, if the federal govermnet had passed a bill and paid for the monument, then you might have an argument on 1A grounds.
Oct 12, 2009 - 10:43 pm 56. David S:@55. Dave Surls:
Private citizens should be free to do that on lands owned by the United States. It’s our land, it doesn’t really belong to the government.
In this case, private citizens wanted to erect a Buddhist shrine in the same vicinity and were denied that right. Therefore this monument is being given special treatment based on the religion it represents.
Not a first amendment issue (i.e. Congress has made no law respecting an establishment of religion here). The SCOTUS needs to butt out.
It would not have been a first amendment issue if there were no discrimination being perpetrated by the government.
Now, if the federal govermnet had passed a bill and paid for the monument, then you might have an argument on 1A grounds.
Essentially, that is what the land trade in this case would amount to – a bill passed to provide special rights to the supporters of this monument. To establish the cross as the official memorial, to the exclusion of other religious symbols.
If private citizens are granted unrestricted rights to erect religious monuments on public land, the problems are much worse. Better to just move the cross to a private location (and not with legal maneuvering by Congress).
Peace.
DS
Oct 13, 2009 - 9:22 am 57. Dave Surls:“A former Park Service employee brought suit, saying that such symbols represent government endorsement of the Christian faith.”
Baloney.
I have every right in the world to go put up a cross on land owned by the United States, and the federal government is specifically prohibited from preventing me from doing so by the establishment clause.
The suit is total hogwash, and never should have been allowed in court.
Not a 1A issue.
Now, if the feds had tried to pass a law preventing someone from putting up a cross (or a Buddhist shrine), then you would have grounds for a suit against the feds.
That would be a 1A issue.
Oct 13, 2009 - 12:04 pm 58. Clayton E. Cramer:“I’ve heard about these dominionists–although entirely from those who are afraid of them. I’ve never met one, in more than 30 years of attending Christian churches. I can’t recall ever seeing any books published by them. They must exist, somewhere.”
Oh, well . . .
I have never met Garrison Keillor. I do not believe he exists either.
There’s good evidence for it. He has a national radio show that your tax dollars and mine fund. Where are the national radio shows (or even local ones) hosted by dominionists?
So again, we am to take your fear mongering as superior to anyone else’s.
I see no difference between you and the radical atheists claiming that the existence of a bible in the Library of Congress constitutes an unconstitutional establishment of religion, or similar absurdity, in terms of trying to use fear to drive an agenda.
What “fear mongering” am I promoting?
The same applies to you.
Pretending that the original intent was not for the Courts to interpret the Constitution and their rulings should no longer be binding because it is inconvenient and uncomfortable for you does not make it so.
Where did I claim this? I don’t make that claim in this article, and have never found it plausible. I do claim that the Supreme Court has misinterpreted the Constitution in a way that makes some justices comfortable, without regard to the facts.
There are equally objective facts of non-Christians being forced to participate in Christian practices by order of the government, be it federal or state. Just because you do not care about such because you feel your research has “proven” to you the existence of sufficent objective facts that the Constitution was not intended to prohibit such does not mean that others take the existence of those objective much more seriously, and consequently reject your insistence on original intent as constituting binding constitutional precedent.
Which Christian practices does our government force you to engage in? You aren’t allowed to murder people, or commit rape, certainly. But those are hardly specific to Christianity.
Oct 13, 2009 - 12:45 pm 59. Clayton E. Cramer:“I’m hard pressed to see how the entire First Amendment (along with Amendments 2 through
doesn’t get incorporated.”
Amar’s book on the BOR deals with this.
Indeed it does. I have it, literally, at hand, since I have been citing from it for an upcoming law review article. I just don’t find his theory of incorporation anymore plausible than the current selective incorporation practice. (I hesitate to call the current practice a “theory,” because there is no theory there–just a series of “Well, we want to believe it” statements by various collections of Supreme Court justices.)
Oct 13, 2009 - 12:48 pm 60. Clayton E. Cramer:Oh I doubt they would; but I don’t think it has “no relevance….”
Does “establishment of religion” mean “religion” or “Christianity.” If “religion” then whatever protection/prohibition the EC delivers applies equally to all or lack thereof. If that’s the case, then you are right that Story’s unitarianism has NO relevance.
Some Christian Nationalists, however, argue (using that very quote) that the original meaning of the religion clauses protects “Christianity only.” And if that’s the case then one has to define “Christianity” (so we know what gets protected). And then we get into the whole muck of whether one who denies the Trinity is a Christian or not.
Story thought he was a Christian, and called himself that, even some Christians today (and then) wouldn’t agree. I’m prepared to accept a pretty broad definition of that term. A law that discriminated against other religions might run into equal protection clause implications (at the federal level, or through the 14th Amendment at the state level) for such discrimination. But the ACLU’s definition of “establishment” is vastly broader than that.
Oct 13, 2009 - 12:51 pm 61. Clayton E. Cramer:And in fact this very concern was what led to the final disestablishment in Mass. in 1833.
And yet the following year, the Massachusetts courts upheld a blasphemy conviction where the defense attorney made your very argument.
Oct 13, 2009 - 12:53 pm 62. Clayton E. Cramer:In this case, private citizens wanted to erect a Buddhist shrine in the same vicinity and were denied that right. Therefore this monument is being given special treatment based on the religion it represents.
Could you give a link to some news coverage of that? This is first that I have heard of this. Or was the problem that the federal government was afraid of the ACLU suing them for allowing a new religious symbol to be put up, but figured an existing symbol that had been there for decades probably wouldn’t be a problem?
Keep in mind that Christians haven’t had a problem with other religions being allowed their place in the public space as well. It has been the ACLU’s insistence that religious symbols aren’t allowed–but that a menorah isn’t a religious symbol!
Oct 13, 2009 - 12:56 pm 63. prophet666:governments should stay clear of religion,religion should be left as a personel matter of ones choosing,if is we who should decide what is best for us according to our conscious.
Oct 16, 2009 - 6:43 am