Skip to comments.Ala. Judge Loses Ten Commandments Appeal
Posted on 07/01/2003 2:47:12 PM PDT by Lurking Libertarian
click here to read article
The U.S. Marshals are the judiciary cops.
Oh, riiight. I see now. It's so the hoards of illiterate Georgians who come to the Supreme Court can recognize the central hallway as a place of law.
James Madison, principal drafter of the First Amendment, thought that it prohibited Congress from hiring chaplains, and the President from proclaiming Thanksgiving Day. His thoughts on the subject are here.
First, let's take a look at what Jefferson says to do in interpreting the Constitution. Jefferson expresses a strict constructionist attitude in this June 12, 1823 letter to Supreme Court Justice William Johnson:
"On every question of interpretation, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
In other words, do not do like these judges do and ignore the history of the Constitution and amendments. Instead, examine the history and the feelings at the time of their adoption.
That is what this post is going to do.
An obvious requirement for determining original intent is a study of the original debates on the Bill of Rights. During the debates on the Constitution, religion was a subject that did not come up much, except when the framers discussed Article IV, clause 3, which prohibits religious tests for public office. Religious freedom came up so little that it seems perhaps the delegates to the Constitutional Convention saw the prohibition on religious tests as an adequate restriction on the federal government in regards to religion. At the very least, this belief in the adequacy of the Constitution is the attitude expressed by the Federalist Papers. Alexander Hamilton says, For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed (Federalist 84)? Edmund Randolph had this to say: No part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion" (qtd. in Stokes & Pfeffer 151). This Federalist attitude was one that was pretty common. In fact, James Madison, father of the Bill of Rights, did not consider any amendments necessary, but proposed them to secure votes from anti-Federalists for the Constitution. Anti-Federalists were concerned about the rights of states under a Constitution; they feared their rights would be hurt by a strong national government. Therefore, the states ended up leading the charge for the Bill of Rights. Massachusetts, New Hampshire, North Carolina, New York, Rhode Island, and Virginia all submitted suggested amendments securing personal liberties and the only state that did not address religion was Massachusetts. In any event, eventually, James Madison proposed his Bill of Rights to pacify the Anti-Federalists (Davis 441).
The history of the First Amendments adoption provides important insight into its intent. James Madison introduced the First Amendment in the House of Representatives June 8, 1789, with the original text reading: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed (Annals of Congress). By August 15, it read: No religion shall be established by law, nor shall the equal rights of conscience be infringed. Importantly, in the debate that day, Roger Sherman is recorded in the Annals as thinking, since Congress had no power to establish religious establishments, an amendment to forbid it was unnecessary. Such was the belief of both Madison and Jefferson. In a significant announcement, Madison explained the intent of his amendment recorded in the Annals for August 15, as it is recorded that 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, nor compel men to worship God in any manner contrary to their conscience. Nothing in this explanation supports a contention that the federal government could not ever pass an act supporting religion in general, even perhaps generally the Christian religion. Madison (who in some cases seems to broadly interpret establish) very narrowly construes the meaning of establish in the amendment.
Of course, this amendment went through further changes. An example is the final draft of the House version in the Annals for August 20, 1789: "Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed." A person attempted to alter the amendment in the Senate to stop any state from doing such, not just Congress. However, the motion failed. The final version in the Senate (from the Annals of Congress for September 9) read as follows: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion. It should be noted that the Senate beat back attempts to alter the language to prohibit the establishment of a particular denomination (Annals, September 3). One major First Amendment authority believes that rejecting the wording of "denomination" shows that the narrow constructionist view of the establishment clause was rejected (Stokes & Pfeffer 98). However, in the very final Senate version quoted above, the legislators did narrowly construct the amendment contrary to Stokes' claim. Congress is only forbidden from establishing articles of faith and manner of worship, not a broad restriction in any sense of the word. Furthermore, a consistent wording in changes to the First Amendment as offered initially is the banning of acts establishing a religion (an example is the House version), putting in doubt the statement of one author that any law even touching upon something of a religious nature is unconstitutional (Lowell 8).
Annals of Congress. Library of Congress. 28 Feb. 2003. http://memory.loc.gov/ammem/amlaw/lwac.html
Davis, Derek. Original Intent: Chief Justice Rehnquist and the Course of American Church-State Relations. Buffalo: Prometheus Books, 1991.
Hamilton, Alexander, et al. The Federalist Papers. Ed. Clinton Rossiter. New York: New American Library, 1999. 481-482.
Lowell, C. Stanley. The Great Church-State Fraud. Washington: Robert B. Luce, 1973. (pro-separationist, btw)
Stokes, Anson, and Leo Pfeffer. Church and State in the United States. New York: Harper and Row, 1950. (pro-separationist)
The court building also contains plaques with quotes from Martin Luther King, Jr. So what does that bode for defendants who are on record as opposed to the fact that that Communist gets his own federal holiday?
He has a good point, but he never claims that he is the authority on the Constitution but that it was the product of many and that the final authority lies in it's ratifiers- which many (most?) of those in the congress that voted for the chaplains were.
There may have been sound reasons for saying that that still don't apply to the current case. Madison defined religion (correctly) as "the duty which we owe to our Creator, and the manner of discharging it" - that is, the prayers, the rituals, the hymns, etc. Certainly chaplains and thanksgiving are part of that definition. But merely making a statement regarding the source of moral law is not, in itself, religion. It's simply a view of the way the world works, without which no human institution can properly function.
Anybody who has not bothered to read the actual court decision linked in this article is making a decision to deliberately remain ignorant. That is their perogative, of course, but it doesn't really contribute to informed discussions.
I can envision the year 2400 when Islam or Gaia or some other religion has gained predominance in America. This ruling would protect me and uphold the Constitution.
This country is becoming vastly latino, and catholic while baptists aren't noticing. They are having struggles in Poland right now regarding the rights of those who are non catholic christians because of the super majority catholic faith of people over there.
I wish people would take the long sided view. Demographics should teach people that what exists now, won't necessarily exist later. California, Texas, Arizona, Florida, and New Mexico for example will soon be overwhelmingly Catholic, not protestant. Alot of evangelicals would not want to go to court where a statue of the pope is required to be passed before they enter.
What are you even talking about? Whose ox is being gored right now? Whose rights are being violated?
But there's no need for him to erect it in a government building, and a reasonable reading of the Constitution precludes it.
If Judge Moore can do this, then Judge I.M. Antichrist can put up whatever he wants in the rotunda of his Supreme Court Building.
Nobody wants to look at the flip side.
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