Posted on 11/16/2005 2:38:35 PM PST by PatrickHenry
Yeah, eat steelhead or trout. Salmon lite!
And do take care of yourself. Just look at the big picture and ignore the messy details.
The argument that congressional chaplains are constitutional is not that they have to be Deists but that it has been an old tradition (predating the Constitution by 16 years IIANM) and that their function is mainly ceremonial.
Even Madison (as well as other founding fathers) recognized that this practice wasn't kosher according to the constitution but he concluded that is was de minimis and thus he decided not to rock the boat and give it a pass since there were more important matters to be addressed at that time.
Of course if congressional chaplains didn't exists and someone wanted to introduce them today then this would most likely be ruled to be unconstitutional but since it's a long-running tradition it's deemed OK.
So? First, there is the small matter of the 14th Amendment. Second, who gives a damn. I'm not an original intent theorist. I am a textualist with a strong respect for stare decisis where reasonable interpretations are made. I don't care what those that passed the act intended, I'm not going to worry about their feelings, I care about what they did; what they wrote.
Seems to me either you or they don't understand what the 1st Amendment menas. I'll go with the Founding Fathers, thank you very much.
No, I understand both. You just have a very shallow and ill-informed notion of legal thinking.
Huh? I was referring to FEDERALLY-sponsored displays and/or aids to religion, so I hardly see how the 14th Amendment is relevant here.
Second, who gives a damn. I'm not an original intent theorist. I am a textualist
Okay, so find the Lemon test in the Constitution. Not there? Didn't think so.
with a strong respect for stare decisis where reasonable interpretations are made.
Then you should respect the way it was interpreted for the 170 some odd years prior to the Lemon decision. But I suspect, like a liberal, you ignore stare deciscis when unless it's a precedent you like.
I don't care what those that passed the act intended, I'm not going to worry about their feelings, I care about what they did;
Do you care that the founders actually created the office of Congressional chaplain? Do you care that they let the Capitol building to be used as a Church free of charge? Do you care that they passed a law mandating that Federal territories encourage religion? Do you care that Washington added "so help me God" to the oath of office?
No, like a liberal, you ignore all precedent you don't like.
No, I understand both. You just have a very shallow and ill-informed notion of legal thinking.
The pot calls the kettle black.
Even Madison (as well as other founding fathers) recognized that this practice wasn't kosher according to the constitution
I looked this up. Madison only expressed this view long after he retired, in the so-called "detached memoranda." This was a flip-flop, as he was on record as supporting the chaplaincy while still active in politics. In addition, I could not find another founder who who agreed with him.
The clincher for me is that George Mason never once objected to any Federal public displays or references to religion, which were a commonplace in those days.
Yes, what about it? The NO was written by the last Continental Congress who was still under the authority of the Articles of Confederation and not under the Constitution which had not been approved yet. Moreover, that particular sentence was a last minute addition which was even watered down so the final version didn't mention religious institutions and the active support thereof. BTW, here is more detailed information on the Northwest Ordinance.
What about letting religious services to be held at the Capitol building?
Now I don't know whether religious services at the Capitol building have been explicitly ruled to be constitutional but lets assume that they haven't, the simple fact that they have been held at the Capitol doesn't automatically make this practice constitutional. It may well be that those who introduced this practice (or other practices pertaining to the involvement of the state with religion, whether sectarian or not) didn't think about its constitutionality or simply didn't care. And even if it is unconstitutional it can still go on if it's not challenged in court.
And religion is always a pretty delicate issue which means that challenging something like that in court can cause you a lot of trouble. In other words, even if you have the First Amendment on your side, you're still the party pooper or worse.
I looked this up. Madison only expressed this view long after he retired, in the so-called "detached memoranda." This was a flip-flop, as he was on record as supporting the chaplaincy while still active in politics. In addition, I could not find another founder who who agreed with him.
The clincher for me is that George Mason never once objected to any Federal public displays or references to religion, which were a commonplace in those days.
Well, of course he did. He was after all a politician. Do you really think he was eager to commit political suicide while he was still active? So of course it was easier for him to speak his mind after he retired.
You make it sound as if he changed his mind after he retired but from his writings (e.g. the Detached Memoranda or in a letter to Edward Livingston) it's clear that he did not and that it's more likely that in those instances you mentioned he rather acted against his convictions because he realized, like most politicians, that being pedantic on such issues doesn't take you very far. (on a side note: I always thought Madison was one of those who voted against the institution of congressional chaplains)
My mistake, I got this thread mixed up with another, where we were dealing with a state actor.
Okay, so find the Lemon test in the Constitution. Not there? Didn't think so.
The test is the way to determine what, exactly, the text means. It need not be in the text itself if it is a reasonable reflection of the text. (And I think it is mostly right, but not perfect.)
Then you should respect the way it was interpreted for the 170 some odd years prior to the Lemon decision. But I suspect, like a liberal, you ignore stare deciscis when unless it's a precedent you like.
I care for judicial precedent. Legislative practice is mostly irrelevant to my reasoning. The Congress could simply have been acting unconstitutionally for 200+ years. Lemon, itself, was an attempt to codify those judicial precedents. Not perfect, but it was mostly right.
...Do you care that the founders actually created the office of Congressional chaplain? Do you care that they let the Capitol building to be used as a Church free of charge? Do you care that they passed a law mandating that Federal territories encourage religion? Do you care that Washington added "so help me God" to the oath of office?
No, I don't care at all. The question isn't whether the legislative or executive branches have acted a certain way, but whether acting a certain way (even for 200+ years) goes against the Constitution. And I think that there is a strong case for the notion that Ceremonial Deism is incompatible with a prohibition against laws respecting the establishment of religion.
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