Skip to comments.EVERSON v. BOARD OF EDUCATION (O'Donnell / Coons / Establishment Clause)
Posted on 10/19/2010 8:06:43 PM PDT by truthfreedom
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
(Excerpt) Read more at law.umkc.edu ...
This is the case that put that phrase "in" the Constitution.
Many believe that this case, and the cases that follow after this one, were wrongly decided.
Many believe that Clarence Thomas has thought long and hard about this matter and his interpretation, in Elk Grove, is the proper way to interpret the establishment clause.
Many believe that Everson, like Roe v Wade, should be overturned.
"August 15, 1789. Mr. [Peter] Sylvester [of New York] had some doubts...He feared it [the First Amendment] might be thought to have a tendency to abolish religion altogether...Mr. [Elbridge] Gerry [of Massachusetts] said it would read better if it was that "no religious doctrine shall be established by law."...Mr. [James] Madison [of Virginia] said he apprehended the meaning of the words to be, that "Congress should not establish a religion, and enforce the legal observation of it by law."...[T]he State[s]...seemed to entertain an opinion that under the clause of the Constitution...it enabled them [Congress] to make laws of such a nature as might...establish a national religion; to prevent these effects he presumed the amendment was intended...Mr. Madison thought if the word "National" was inserted before religion, it would satisfy the minds of honorable gentlemen...He thought if the word "national" was introduced, it would point the amendment directly to the object it was intended to prevent. (Debates and Proceedings in the Congress of the United States (Washington D.C.: Gales & Seaton, 1834, Vol. I pp. 757-759, August 15, 1789)
"wall of separation" or "separation of church and state" just aren't in the Constitution.
Make of it what you will, the expressions aren't there, never were there, never will be there.
Agreed. “A wall of separation between church and State” does not appear in the text of the Constitution.
Many constitutional scholars believe that what the Supreme Court holds, as in Everson (technical issues aside), becomes part of the Constitution. That’s one thing that you learn in law school. That the rulings of the Supreme Court have the same effect as the words of the text itself.
Law students like those in the audience today are taught that Everson put that phrase “in” the Constitution.
It wasn’t the fact that Thomas Jefferson wrote it. It was the fact that it was a Supreme Court decision.
I personally agree with Thomas in Elk Grove. I believe that Everson was wrongly decided (or poorly written, poorly argued).
Of course it was wrongly decided. Hugo Black was an anti- Catholic bigot pos who saw Popedoms in his demented mind.
Many of these things were going on in the US after ratification without furor from Congress. Below is quoted from a column by M. Stanton Evans in Imprimis Magazine in 1995 (Full Link) Reprinted by permission from Imprimis, a publication of Hillsdale College.
...In South Carolina, for example, the Constitution of 1778 said that the Christian Protestant religion shall be deemed the established religion of the state. It further said that no religious society could be considered a church unless it agreed that there is one eternal God and a future state of rewards and punishment; that the Christian religion is the true religion; that the Holy Scriptures of the Old and New Testaments are of divine inspiration. South Carolina also asserted that no person who denies the existence of a Supreme Being shall hold any office under this Constitution.
Similar statements can be gleaned from other state enactments of the period. The Maryland Constitution of 1776 decreed, for instance, a general and equal tax for the support of the Christian religion. New Jersey that year expressed its idea of toleration by saying that no Protestant inhabitant of this colony shall be denied the enjoyment of any civil right. Massachusetts, in 1780, authorized a special levy to support public Protestant teachers of piety, religion and moralitya formula adopted verbatim by New Hampshire.
Official support for religious faith and state religious requirements for public office persisted well after adoption of the First Amendment. The established church of Massachusetts was not abolished until 1833. In New Hampshire, the requirement that one had to be Protestant to serve in the legislature was continued until 1877. In New Jersey, Roman Catholics were not permitted to hold office until 1844. In Maryland, the stipulation that one had to be a Christian lasted until 1826. As late as 1835, one had to be a Protestant to take office in North Carolina; until 1868, the requirement was that one had to be a Christian; thereafter that one had to profess a belief in God.
The biggest fault with the decision centers on the decision by FDR to appoint a Klansman to the Supreme Court. But hey, what do you expect from Democrats?
I have to reach back to the law school days - something about the holding not requiring the “wall of separation” part. I wanted to fudge there. I will say that a whole bunch of words in that there SCt opinion I think are bad law.
And Clarence Thomas is a lot closer to right in Elk Grove.
The sad reality is that even the supreme court has repudiated the separation doctrine. Only stevens— now retired—and a stubbornly ignorant media push the wall meme as fact.
Ok, that’s what it is. They didn’t need the “wall” part at all to get the holding they wanted. They just wanted to put the “wall” in there at that time.
Agreed. I prefer Elk Grove. Here’s the Elk Grove Thread.
I think Thomas’s reasoning in Elk Grove is persuasive. Perhaps there is a longer, more detailed, more recent analysis
of this from Thomas?
I wish Miss O’Donnell had been more familiar with the writings of Clarence Thomas so she could have better jumped on Mr. Coons’ bland assertion of lefty PC Constitutional “wisdom”.
Justice Rehnquists minority destruction of Everson.
Geez, I must have one of them “abridged versions” of the Constitution, ‘cause my copy of the Constitution only has sixteen words within the First Amendment about religion:
“Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof; ...”
I’ll jus have to trot down to my DNC headquarters an’git me a copy of this here new Constitution!
It was a bit of victory for parents of parochial school kids and escaped the feds since the New Jersey money went direct to the parents but not the Catholic schools and they went to all kids parents who used said transit (reimbursement)
but Black as an anti-Catholic went further and instilled this wall of separation(from Tom’s old letters to NE Baptists) clause as an expansion of The Establishment Clause and libs have run with it ever since.
I doubt one could argue Black did not do this intentionally.
the irony in all this that escapes media and academia today is that Jefferson wrote what he did to assure the Baptists to be free of government inhibition and that this clause by Hugo Black also put religious control firmly in the Feds hands after being with the states for 150 years
arguably one of the worst living breathing Constitution rationalizations ever...up there with Right to Privacy and the abortion argument or the usurpations of Freedom of Association that have sprung forth from the Civil Rights era
but this one can be rolled back too
I agree. And I’m a little bit surprised that she isn’t, or wasn’t, or forgot it.
There’s always the possibility that she and her handlers have a disagreement about how much she should talk about things like creationism, school prayer and all the rest of the post Everson issues. She knows this stuff, or knew enough to talk about it back in the day on the TV. Perhaps her advisers have tried to convince her that it’s better to sound ill informed than to say that there are no real constitutional barriers to an official state church. Not a national church, a federal church, but a state church.
The 1st Amendment protects the rights of states to do religion their own way. That could mean some pretty serious religion in some states. A lot of moderates in the northeast are wary of theocracy. A proper, Clarence Thomas style reading of the Constitution does not stop a statewide theocracy. I don’t think the voters would vote for it, but it’s a possibility under the kind of thinking in Elk Grove.
So, I think that Christine might’ve been trying to walk a fine line.
I really don’t know. She could’ve said “before Everson in 1947 there was no “separation of church and state” in the Constitution. It doesn’t appear in the text of the Constitution. It was put there by Hugo Black in 1947.” which is what pretty much every kid in that crappy law school who took Con Law and covered establishment cases already knew. But if she was planning another “shame on you” ad, Coons was wrong and Christine was right - except for what she said to national review, where she tried to bring the free exercise clause into it where it probably didn’t belong. I’ve known for weeks that Everson would be discussed in some way. It’s her version of Rand Paul’s Civil Rights Act.
“The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.”
That would be why the 1st amendment reads this:
“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.”
Why specify congress if you meant any law making body?
O’Donnell’s mistake was actually to read the constitution and presume that its text mean anything. Thats apparently a big no-no in law-school that gets you laughed at...
Maybe thats why everyone hates lawyers as much or more then they hate politicians? Lawyers thing they are the law makers in the court, that the rulings they help bring about redefining our constitution are somehow legit usurpations of our constitution...
My daughter the other day was commenting on her college government class....they were discussing the pros and cons of both the original Constitution and the “Living Constitution.” Yep, you heard me right...I think I am still trying to pick my jaw up off the floor!