The Papers of Thomas Jefferson (Supreme Court got Jefferson's "wall of separation" wrong)

Princeton University: Jefferson's Draft ^ | Thomas Jefferson

[Amendment10]

"3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people’: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people..." --Thomas Jefferson, Kentucky Resolutions, 1798. http://tinyurl.com/oozoo

1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Amendment10]

The 10th Amendment was initially unchecked

What does "unchecked" mean as you use the word; and who said it was unchecked

I'm talking about the checks and balances that the Founders incorporated into the federal Constitution, the 1st Amendment's checks (aka prohibitions) on certain federal government powers for example.

What were those problems?

The abuse of 10th A. protected state powers contributed to the social injustices that culminated in the Civil War. For example, here's a case where, despite the post Civil War 14th Amendment, a state was slow to change its thinking and successfully argued its 10th A. protected powers to justify segregated seating.

http://www.landmarkcases.org/plessy/14th_10th_amendments.html

Who says they check each other?

For one, if you hadn't defiled your God-given common sense then you'd be able to apply Jefferson's "secret formulas" for interpreting the Constitution to figure it out:

"Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure." --Thomas Jefferson to William Johnson, 1823. ME 15:450

"Common sense [is] the foundation of all authorities, of the laws themselves, and of their construction." --Thomas Jefferson: Batture at New Orleans, 1812. ME 18:92

But since you evidently need somebody who wears a black robe to lead you by the hand and interpret the laws for you, consider what Justice Reed wrote about the 10th and 14th Amendments. Justice Reed, undoubtedly frustrated with his colleague Justice Black's treasonous interpretation of the establishment clause, noted the checks and balances of the 1st, 10th and 14th Amendments. Justice Reed indicated that it was the job of judges who take their oaths to defend the Constitution seriously to balance the 10th A. protected powers of the states with 14th A. protected personal federal rights:

"Conflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living without which constitutional guarantees of civil liberties would be a mockery." --Justice Reed, Jones v. City of Opelika, 1942. http://tinyurl.com/8dzqg

Can you give us a good example of this checking?

I've already referenced Plessy v. Ferguson which is actually a sad example.

Otherwise, I haven't come across a good example of a 10th v. 14th case. This probably for the simple reason that corrupt, secular judges have been using Black's twisted interpretation of the establishment clause for decades as a license to wrongly ignore the 10th A., instead using the politically correct interpretation of the 14th A. as an excuse to unconstitutionally force the 1st A.'s prohibitons on religious powers of the federal government onto the state governments.

[Amendment10]

I read those words to mean that the government of the State of Texas has only those powers granted to it by the people of Texas who have all political power. Now, please show me where the people granted the Government of Texas the power(s) you claim the State of Texas has with regarding religion?

Please note that Clause 3 of Article VI of the Constitution requires public officials in any state to swear to uphold the US (the federal) Constitution:

"Article VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

So Texas is bound by the US Constitution, just as any state is.

The exception, as evidenced by the 10th Amendment, is that Texas and the rest of the states have those powers which have been explicitly prohibited only to the federal government, such as the powers listed in the 1st Amendment of the federal Constitution, particularly the power to address religious issues.

[Luis Gonzalez]

"Thank you for your opinion about Jefferson's writings."

It isn't my opinion of what he said, it's what he said.

"...proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage..."

Not electing people based on their religious opinions is both against an individual's natural right, and corrupts the principles of the religion it's meant to encourage.

How so?

"... by bribing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it..."

By electing to offices of power people who EXTERNALLY profess to those religious beliefs, meaning that SAYING that one is a Christian does not make one a Christian.

So, like religion, politics would be corrupted by people externally professing adherence to this or that religious opinion in order to gain and maintain themselves in political offices.

[MamaTexan]

I agree with your reasoning about Jefferson's words, but disagree that it was unintentional, I believe they knew exactly what they were doing. Without the basic morals of our Christian roots, the People would no longer understand what it was that made them sovereign.

§ 1871. The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.

§ 1873.It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject.
(snip)
The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship

Joseph Story, Commentaries on the Constitution 3:§§ 1865—73 1833

The Supreme Court should have found they had no jurisdiction in the case.

[MamaTexan]

we've got two historical extracts where Jefferson acknowledges the unique, 10th A. protected power of the states to address religious issues.

Not only the 10th, but the 12th as well.

I think one of the biggest perversions of the Constitution is the 'supremacy clause'. Here's what Madison said about the limited power of the federal/national government;

However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
James Madison, Report on the Virginia Resolutions

It would make perfect sense, because the 3 branches of government are separate, but EQUAL.

[MamaTexan]

Not only the 10th, but the 12th 9th as well.

[Amendment10]

So, like religion, politics would be corrupted by people externally professing adherence to this or that religious opinion in order to gain and maintain themselves in political offices.

Yes, let the buyer beware with respect to what people say. But Jefferson is not saying that mixing religion and government is a bad thing.

So what is your point?

[Amendment10]

I agree with your reasoning about Jefferson's words, but disagree that it was unintentional, I believe they knew exactly what they were doing. Without the basic morals of our Christian roots, the People would no longer understand what it was that made them sovereign.

I'm sorry, but will you please refresh my memory as to what I said was unintentional.

[an amused spectator]

To answer your question, I posted 10 minutes after stumbling on FR after years of knock-down drag out discussions of the issue in other message boards. I posted because my FR keyword search returned an anemic total of five posts relating to the issue. I probaby should have tried more keywords.

Take heart. I "stumbled on FR" ten years ago looking for information that I knew wasn't being discussed in the mainstream media. Your opinions on these matters may be right, they may be wrong. I can see from your postings that you aren't a quitter.

Welcome home!

[MamaTexan]

I'm sorry, but will you please refresh my memory as to what I said was unintentional.

Post #1:

The Supreme Court misunderstood Jefferson's "wall of separation" and consequently got its interpretation of the establishment clause wrong.

The usage of the word 'misunderstood' gave the impression of ignorance on the part of the Supreme Court.

I believe the court knew exactly what it was doing.

Did I incorrectly interpret the intent of your words?

Do you think the finding was from ignorance, or do you think it was intentional in order to expand the federal power?

[Amendment10]

The Supreme Court misunderstood Jefferson's "wall of separation" and consequently got its interpretation of the establishment clause wrong.

Thank you for that clarification.

I was a brand new member of FreeRepublic ten minutes after finding it and was treading carefully with respect to my assertion.

Note that I have since been using the word "treasonous" in conjunction with Justice Black's interpretation of the establishment clause. But I still have one reservation concerning the Supreme Court's "misunderstanding" of Jefferson's "wall of separation"...

Another FR poster has noted that Justice Black didn't do his homework with respect to researching the establishment clause. So it's possible that Black did not fully understand Jefferon's ideas about federal versus state c&s separation. (Note that searchable computer databases were essentially unheard of when Everson was written.)

Regardless, my initial statement wrongly gives the idea that the Supreme Court innocently misunderstood the establishment clause.

[Amendment10]

I've been researching why c&s separation related Court opinions actually contradicted Jefferson's ideas for awhile. Based on Jefferson's actual understanding of the 1st and 10th Amendments, I knew that the Supreme Court was wrong about the establishment clause except that I didn't know why. But I suspected some kind of politically correct religious bias at work.

Then I discovered Philip Hamburger's book "Separation of Church and State". Mr. Hamburger's book revealed that anti-Roman Catholic bias concerning the tsunami of Catholic immigrants in the 19th century was the prevalent political correctness in the USA for that century. Justice Black's anti-Roman Catholic bias beautifully fit the last hole in this puzzle. So the idea of absolute "separation of church and state" that Black forced into the establishment clause is presumably the politically correct front end for the idea of "separation of Roman Catholic Church and state governments".

[MamaTexan]

Regardless, my initial statement wrongly gives the idea that the Supreme Court innocently misunderstood the establishment clause.

Thank you for clearing that up.

While I'm certainly glad you found FR, I agree with your conclusion so completely that this particular subject leaves us little to discuss.

I'm looking forward to your input on any future Constitutional questions.

Respectfully,
MamaTexan

[Amendment10]

While I'm certainly glad you found FR, I agree with your conclusion so completely that this particular subject leaves us little to discuss.

A milestone reply! :^)

You're the first person in my cyberspace odyssey to defend the Constitution that has come to the same conclusion about this issue that I have. Indeed, given Jefferson's notes about the 1st and 10th Amendments, there is actually no debate about how the Constitution is properly interpreted concerning c&s separation. I share with you the words that best expressed my feelings about discovering the truth about the Founder's intentions for c&s separation:

Free at last! Free at last!

Thank God Almighty, we are free at last!

--Martin Luther King, Jr. 1963

Indeed, Jesus said that we shall know the truth and the truth will set us free (John 8:32).

But just as some of the freed slaves did not know how to be free after Lincoln set them free, the question that remains is how long will the epidemic ignorance of both the Constitution and how our government is supposed to work last? How long before the people wise up to the fact that they are essentially prisoners of conscious to the bogus interpretation of the establishment clause by a renegade, anti-religious expression Supreme Court majority? This tragic ignorance is evidenced by these links:

http://tinyurl.com/npt6t
http://tinyurl.com/hehr8

As I've mentioned elsewhere, the people need to heed Lincoln's advice for dealing with government leaders who don't take their oaths to defend the Constitution seriously:

We the People are the rightful master of both congress and the courts - not to overthrow the Constitution, but to overthrow the men who pervert the Constitution. --Abraham Lincoln, Political debates between Lincoln and Douglas, 1858.

I wish that liberal, Constitution-ignoring Supreme Court Justices would resign yesterday so that the current republican president could appoint Justices who take their oaths to defend the Constitution seriously. After all, it was a liberal-minded democratic president who appointed Constitution-ignoring Justice Black in the first place.

[MamaTexan]

A milestone reply! :^)

It's frustrating to be sure. It creates a great deal of confusion in people when you try to explain you ARE defending the Constitution by telling them it is not ALWAYS the 'law of the land'.

What a conundrum that creates!

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Jefferson's notes about the 1st and 10th Amendments, there is actually no debate about how the Constitution is properly interpreted concerning c&s separation.

No, there is not.

I'm assuming (and please correct me if I'm wrong) that you've read Blackstone's Commentaries on the Laws of England?

Have you ever read A View of the Constitution of the United States by St. George Tucker? Tucker was St. George Tucker was an officer in the American Revolutionary Army, a Professor of Law, justice of the Supreme Court of Virginia, judge of the Federal District Court for Virginia by appointment of President James Madison. THIS is a very interesting work that was printed and circulated by Congress so the People would understand the legal workings of the newly-created Constitution.

St. George Tucker’s View of the Constitution of the United States was the first extended, systematic commentary on the Constitution after it had been ratified by the people of the several states and amended by the Bill of Rights. Published in 1803 by a distinguished patriot and jurist, it was for much of the first half of the nineteenth century an important handbook for American law students, lawyers, judges, and statesmen. Though nearly forgotten since, Tucker’s work remains an important piece of constitutional history and a key document of Jeffersonian republicanism.

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How long before the people wise up to the fact that they are essentially prisoners of conscious to the bogus interpretation of the establishment clause by a renegade, anti-religious expression Supreme Court majority?

Sometimes I believe they will soon awake. Other times I fear they will sleep forever.

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As I've mentioned elsewhere, the people need to heed Lincoln's advice for dealing with government leaders who don't take their oaths to defend the Constitution seriously:

While I'll agree with the advice of Lincoln, we might have much to discuss on the Constitutionality of his actions.

Many people cannot discuss that subject from an unemotional, Constitutional view, so it's one I hesitate to even mention.

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After all, it was a liberal-minded democratic president who appointed Constitution-ignoring Justice Black in the first place.

I do have a question on this, though.

You say the Justice decided wrongly. You do realize they NEVER has jurisdiction to hear the case in the first place, don't you?

[MamaTexan]

Please pardon the apparent stutter in the middle of my previous post. I was trying to find the most complete work of Tucker available and did a poor job on the preview. :-)

IMHO, the Founders were brilliant men that created an exceptional document to protect the rights of the People.

A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives
James Madison, Letter to W.T. Barry, Aug. 4, 1822

[Amendment10]

A milestone reply! :^)

It's frustrating to be sure. It creates a great deal of confusion in people when you try to explain you ARE defending the Constitution by telling them it is not ALWAYS the 'law of the land'.

What a conundrum that creates!

I'm tired so I'm going to reply to your post in parts.

Could you clarify your assertion that the Constitution is not always the law of the land?

[Amendment10]

After all, it was a liberal-minded democratic president who appointed Constitution-ignoring Justice Black in the first place.

I do have a question on this, though.
You say the Justice decided wrongly. You do realize they NEVER has jurisdiction to hear the case in the first place, don't you?

Please correct me if I've suggested otherwise, but I don't believe that I've ever commented about Justices deciding Everson rightly or wrongly.

What I have noted regarding the way that Everson was decided is that Justice Black appeared to be covering his anti-Catholic biases by deciding in favor of the Roman Catholic position, his real agenda being to seed the Everson opinion with unconstitutional notes as evidenced by Justice Jackson's dissenting notes in the opinion.

Regarding jurisdiction, I've been reviewing Everson and I believe that it was a bona-fide 14th A. consideration. But let's do a little time-warping so that I can emphasize my point.

If Everson had been heard before the 14th Amendment was made then the Supreme Court probably shouldn't have had jurisdiction.

However...

It's because of cases like Everson that I'm glad the 14th A. was made. This is because of Jefferson's words concerning the protection of people's wallets:

"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical." --Thomas Jefferson: Bill for Religious Freedom, 1779. Papers 2:545 http://tinyurl.com/rkwvo

The problem is that because Jefferson's words aren't law, there would have been nothing protecting the appellant's tax dollars from the 10th A. protected powers of the states if it weren't for the 14th A. So it was probably cases such as Everson but in pre-Civil War times that justified the making of the 14th Amendment. So the 14th A. gave the Supreme Court a bona-fide license to stick its nose in the business of the states concerning 10th A. issues.

But the problem with Everson and the 14th Amendment is that crooked Court Justices weren't interested in the honest interpretation of the 14th Amendment. Again, there is no mention of the 10th A., which checks the 14th A., in the Everson opinon. Instead, corrupt Justices seized the opportunity provided by Everson to strengthen politically correct interpretation of the 14th by using Everson to continue to seed opinions with unconstitutional notes about the 14th A. just as they had started doing in the Cantwell opinion; legislating absolute c&s separation from the bench.

I've got to hit the hay. After a good night's rest I should have new energy to bluff by way out of any glaring errors that I've made above. ;^)

[MamaTexan]

After a good night's rest I should have new energy to bluff by way out of any glaring errors that I've made above. ;^)

LOL!

Don't concern yourself with having to 'bluff'. We're all human, and I've found communicating only via the written word can create it's own set of difficulties.

I must say, too, how refreshing it is to actually have a discussion over these matters. Many people are concerned only with imposing their view on others or justifying twisting the Constitution to defend their own personal preferences.

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I've been reviewing Everson and I believe that it was a bona-fide 14th A. consideration.

Therein lies the problem. The 14th is a legal nullity. All it did was reiterate what was already established.

§ 1218. The inhabitants enjoy all their civil, religious, and political rights. They live substantially under the same laws, as at the time of the cession, such changes only having been made, as have been devised, and sought by themselves. They are not indeed citizens of any state, entitled to the privileges of such; but they are citizens of the United States. They have no immediate representatives in congress.
Joseph Story, Commentaries on the Constitution

So the 14th, which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Says exactly the same thing as:

Article 1, Section 8, Clause 17
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--

The only people 'subject to the jurisdiction of the United States" are those in the areas designated as 'exclusive jurisdiction' in the Constitution.

(and don't get me started on the unconstitutional method of HOW the 14th Amendment was passed)

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The problem is that because Jefferson's words aren't law, there would have been nothing protecting the appellant's tax dollars from the 10th A. protected powers of the states if it weren't for the 14th A.

Actually, there is quite a bit of protection already there.

Both the 1st A. as well as the restricted power of taxation (Article I, Section 8) impedes the federal government's ability to access our wallets.

Here's a previous thread on a recent ruling:

Court ruling shakes ground under IRS

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So much of the Constitution hinges on the understanding of natural/common law and positive/statutory law. Not to mention the confusion that is added when the terms 'States' or 'United States' are used for the political entity, NOT the physical geographical area.

I thought perhaps we should try to discuss only one Constitutional issue at a time in order to avoid bouncing from issue to issue or posting mile-long replies, but so much of the document hinges on the other parts, I can't think of a viable way to do so.

Do you have any suggestions, perhaps?

[Amendment10]

I've been reviewing Everson and I believe that it was a bona-fide 14th A. consideration.

Therein lies the problem. The 14th is a legal nullity. All it did was reiterate what was already established.

I'm open to people's opinions on the 14th but I'm going to disagree with you about the 14th for now.

The issue is government powers versus personal rights. The Founders actually complicated the issue of government powers versus personal rights by recognizing two sovereign governments in our system, the federal and state governments, although the Founders schrewdly divided government powers between them so that we wouldn't have the chaos associated with having two masters.

The problem is that while the Founders wrote the federal Constitution to appropriately check federal government powers with personal federal rights, the Founders essentially left a window open by not formally checking state powers with personal federal rights. Although we would like to think that the states would "find it in their heart" to respect personal federal rights, there was initially no language in the Constitution or its amendments to make it mandatory for the states to do so.

Am I overlooking something?