Posted on 08/26/2006 7:03:38 PM PDT by Amendment10
I think this has been a great discussion but I still feel it has been signficantly misguided in some respects:
1. Jefferson's wall metaphor is but one potential interpretation of the religion clauses. In its first application in 1878 it was arguably used to defend the government's establishment of religion [marriage between a man and a woman]. Black's interpretation of the wall metaphor has progressively turned the meaning of the first amendment entirely inside out. We are now allowing religious speech to be banned from government space to preserve the excessive reading of the establishment clause. This is why Scalia was right when he observed that it is not a wall separating church and state but a bulldozer-- pusing religion out of public life.
2. The establishment clause is in reference to the state establishments of religion that existed within the colonies at the time of the Constitution. It was a promise that the federal government would not interfere with those establishments. This historical reality annihilates much of what is being defended in this thread as normative readings of the establishment clause. THE ESTABLISHMENT CLAUSE IS A FEDERAL GUARANTEE THAT STATE CHURCHES WILL NOT BE UNDERMINED BY THE FEDERAL GOVERNMENT.
3. This does set up problems for the incorporation processes understood in light of the passage of the 14th amendment. It seems quite possible that the incorporation OUGHT to mean that local establishments of religion [churches I suppose and religious non profits] cannot be interfered with by governing authorities. I think almost no one is prepared to accept this though I actually think it is quite defensible.
Because our jurisprudence is so fundamentally flawed on this question we are tending toward the abolition of religious speech. There is constant reference on this thread that the government can support non-religious speech. That is the functional annihilation of religious speech. Because if a religious speech person is standing on a square centimeter of government funded property they cease to have free speech rights as far as religious content is concerned. Radical secularists are fully aware of this and pretend to not notice the radical case for censorship that they are practicing and advancing in America's public sphere.
Ironically, I do have hope that the Supreme Court will gradually undo the damage done by Black. I do not personally think the 10th amendment plays a critical role in this.
1Jo 4:5 They are of the world: therefore speak they of the world, and the world heareth them.
1Jo 4:6 We are of God: he that knoweth God heareth us; he that is not of God heareth not us.
Hey ndt,
I've only been participating in FR for a few days and I'm already beginning to recognize your posts before I get to your screen name.
Yes, many issues will need to be dealt with when the states wake up to their 10th Amendment powers.
"Ironically, I do have hope that the Supreme Court will gradually undo the damage done by Black. I do not personally think the 10th amendment plays a critical role in this."
Again, given that both Jefferson and Justice Reed noted the significance of the 10th Amendment where our basic freedom's are concerned, unless I have misunderstood you, I disagree with you that the 10th is not significant, if that is what you meant.
"Note that, as far as I can tell (corrections welcome, I could be wrong), the Lemon opinion fails to reference the 10th Amendment in any way"
'Because it is totally inapplicable.'
Your remark about the "lost" 10th A. where c&s separation cases are concerned reflects the denial that I typically get from religious expression hating secularists.
'Oh, by the way, can you provide me with the text of a proposal for a Constitutional Amendment that is sufficiently explicit in it language as to be beyond misinterpretation by the judiciary?'
Concerning the 10th Amendment, regardless if its relationship to the 1st Amendment is debatable when no other information is considered, given Jefferson's notes about these amendments, your question is merely an attempt to sidestep the reality that there is no question about the Founder's intentions concerning the division of federal and state powers of these amendments. And this is regardless how your hero Justice Black spinned the meaning of the establishment clause.
"What you are proposing, the reinterpretation of the 10th to regain what amounts to a kind of national sovereignty for states would be a huge shock to all levels of government and would radically redefine America from it's current state. I'm not saying that is wrong, but it is much bigger than c&s issues. "
It's also typical of anti-religious expression secularists to avoid referencing the 10th and 14th Amendments in the same sentence. Your goal is evidently to deny the middle ground between the 10th and 14th Amendments that Justice Reed pointed out.
They DIDN'T misunderstand it.Those liberal pukes had their own agenda and kick the snot out of the Constitution knowing full well what they were doing !!!
>>>In fact, note that regardless that secularists will argue that the USSC has the power to essentially read anything they want to into the Constitution in the name of case precedent, they ignore that Justice Marshall set the precedent that judges are bound by the Constitution. <<<
Marshall also called it a crime for a judge to ignore his oath to adhere to the constitution, as follows:
"Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime." -- Marbury vs. Madison
Thank you for your patience with this dicussion but we're just wasting each others time.
"Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime." -- Marbury vs. Madison
Good reference!
Sadly, the reason that crooked judges are getting away with trampling our religious freedoms is because of widespread ignorance of both the Constituiton and the government.
http://tinyurl.com/npt6t
http://tinyurl.com/hehr8
I've stated elsewhere that the people need to get a grip on what the honest interpretations of the 1st, 10th and 14th Amendments actually say about their religious freedoms. Then, when 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, they will hopefully heed Lincoln's advice for dealing with corrupt judges:
"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 suspect that the fact that the case supported parochial schools may have been an attempt by Black to cover his tracks. I believe, based on a comment by Justice Jackson in Everson, that Black was more interested in seeding the Everson opinion with his treasonous interpretation of the establishment clause than he was with the outcome of the case.
"The Court's opinion marshals every argument in favor of state aid and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, 'whispering 'I will ne'er consent,'- consented.'" --Justice Jackson, Everson v. Board oF Education Of Ewing TP. 1947
Again, in my opinion, Black was more interested in establishing unconstitutional case precedents that could later be regarded as more important that the Constitution.
Hi, ndt. Just saw your question. I don't think many people like the Lemon test although afaik it continues to be used. It is useful to notice, that the first branch, as you cite it, has nothing whatsoever to do with state/religion issues at all. It in itself is simply an arrogation of what ought to be legislative function(to determine the legitimacy of 'secular purpose'). It is not the province of judges to rule on the "purpose" of legislators. They are to rule on what the law is, and whether it conforms to Constitutional provisions, whatever its putative "purpose."
The second branch is historically irrelevant in that it addresses "religion" generically rather than in terms of government favoring a particular sect or denomination or faith, over others. There should be no judicial objection to an action which has the effect of "advancing religion", so long as it fosters the advance of any religion which chooses to respond to the act at hand. History and writings of the Founders are clear that the posture of government toward religious practice generically was intended to be a benign accommodation of all religions, hence the free exercise clause. This posture was written into organic law, incidentally, in the Ordinance of 1787, which explicitly recognized the importance of fostering religious faith in the citizenry of the new nation. That law is still on the books, right after the Declaration of Independence This second test does violence to the free exercise clause while failing utterly to relate properly to the establishment clause.
The third branch begins to address the actual issue, but also should be narrowed to relate to relative preferential treatment by government of one faith over others. Only in this context does the "entanglement" issue carry weight. If government treats all religions equally, either through creation of a supportive environment or through benign neglect, it is in harmony with the intent of the first amendment.
I would require judges to decide these cases on the basis of discriminatory impact of the law, and the need for "equal protection" of all religions under the law.
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