Posted on 09/27/2005 9:21:27 AM PDT by PatrickHenry
Read Rehnquists dissent in Wallace v Jaffree if you're interested in an education about the establishment clause, the free exercise clause and state established religions.
Oy vey, more 14th Amendment jurisprudence?
So you assert. Why don't you prove me wrong? Just tell me which states, at the time the Constitution was adopted or proximate thereto, established a single church or denomination.
I'm claiming that the American pattern of religious establishment both at the time the constitution was adopted, and prevailing also through most of the colonial period, was one of multiple or general establishments -- and therefore that the understanding of what "establishment of religion" meant to a late 18th Century American was the support of religion by the state in general, and not just state sponsorship of a single church or sect.
So what states had a single establishment on the "Church of England" type model that you're claiming the authors and congress had in mind?
An assertion based in fact.
Why don't you prove me wrong?
I'll be happy to prove you wrong, again.
Just tell me which states, at the time the Constitution was adopted or proximate thereto, established a single church or denomination.
Congregationalism was the state established religion in Ct until disestablishmnet in 1818. The effect of Congregationalism was to force Baptists to support a state established religion with their tax money, a state established religion not of their choosing.
I chose Ct because I live in Ct but Ct was not unique.
Did you read Rehnquists history lesson? It kind of puts the kabash on your penunmbral reading of the history of the establishment clause.
I tell you for sure tomorrow, after I've had a chance to consult my library, but I'm very confident that you are WRONG.
Connecticut may have had a single establishment when Jefferson wrote the Danbury Baptists in 1801, but they had a multiple establishment by the time the Constitution was adopted. (I don't know whether or not it included the Baptists, which of course they wouldn't have liked anyway being opposed as they were to any form of establishment, including multiple and general establishments.)
Again, my point was and is accurate. Single establishments of religion were extremely rare in America following the revolution, and were even unusual in the colonial period, excepting in the southern colonies. But even this exception proves the rule -- that multiple or general establishments were the American pattern -- as the southern colonies established the Anglican church exclusively precisely because they were chartered by the English government directly and more tightly controlled by England than the northern colonies.
BTW here's what one of Bush's appointments, Judge McConnell of the 10th Circuit, recently said on this issue (emphasis added):
The biggest debate in the 1780s in the various states was over whether the state should provide support for religion -- not one religion, but multiple sets of religions, religion at the choice of the individual taxpayer. In four states in New England, counting Vermont, there was actually a system in which taxpayers would be able to support a "Protestant minister of piety and morality," is the way the statute puts it, of their choice, thus allowing a multiple establishment, that is, support for a number of different religions. Vermont went even further than that and was generally neutral among virtually every religious denomination. Schemes of that sort were proposed and almost adopted in a number of other states, including Virginia, Maryland, Georgia, almost went in New Jersey as well. So this idea of general government support for religion was very much debated, and that was essentially the alternative. By the time of the adoption of the First Amendment, there was no state in the Union that even considered having an establishment of one religion, which had been the classic form of establishment of religion.
source
Stultis, you simply know very little history. The BOR's was ratified in 1791, CT disestablished in 1820. You're wrong and McConnell is wrong and what's more if you read the entire link you'd understand that McConnell contradicted himself.
You'll also note that he said nothing about Stultis' liberal view that original intent was that the government can promote religion only if it furthers a secular purpose. The original intent of the establishment clause was very simple. It proscribed Congress from establishing a state religion or favoring one religion over another. That's it.
I'm aware of those facts. I'm disputing that CT had a SINGLE establishment of religion in 1791. This in illustration of my general claim that MULTIPLE or GENERAL establishments were the American pattern, and long had been, and that in the spirit of original intent the meaning of "establishment" in the 1st Amendment should be understood in this light. More later, just trying to maintain clarity for the time being.
Cromwell conceived his government to be generically Christian, but without giving state aid to any ecclesiastic constitution preferentially. As he administered the pariah system, benefices were held by ministers of Congregational, Presbyterian, Baptist and Episcopal persuasions indifferently. To this extent it was multiple establishments, based on the novel conception of a number of equal and independent denominations cooperating to shape Christian nation. The state represented all collectively and equally on the basis of what was called "the common light of Christianity."
The state constitutions of Massachusetts, Connecticut, New Hampshire and Maryland represented substantially this position in the 1780's. Public provision conld be made for school teachers and religious ministrations or whatever denomination the several towns might wish and in some cases at least, dissenting minorities were exempt from taxation. Nearly half of the states of the new republic maintained multiple establishments of this general type and the Congress provided something of the same sort for the Northwest Territory of which Five mid-Western states have since been erected.
CONNECTICUT COLONY CHARTER
1662
CHARLES THE SECOND, BY THE GRACE OF GOD, King of England, Scotland, France and Ireland, defender of the Faith, &c.; To all to whome theis presents shall come Greetinge:
* * * *
AND WEE DOE FURTHER, of our especiall grace, certeine Knowledge and meere Mocon, give and Graunt unto the said Governour and Company of the English Colony of Connecticutt in New-England in America, and their Successors, That itt shall and may bee lawful to and for the Governour, or Deputy Governour and such of the Assistants of the said Company for the tyme being as shall bee Assembled in any of the Generall Courts aforesaid, or in any Courts to be especially Sumoned or Assembled for that Purpose, or the greater parte of them, whereof the Governour or Deputy Governour and Six of the Assistants, to be all wayes Seaven. . . . And for the directing, ruleing and disposing of all other matters and things whereby our said people, Inhabitants there, may bee soe religiously, peaceably and civilly Governed as their good life and orderly Conversacon may wynn and invite the Natives of the Country to the knowledge and obedience of the onely true God and Saviour of mankind, and the Christian faith, which in our Royall intencons and the Adventurers free profession is the onely and principall end of this Plantacon; WILLING, Commanding and requireing, and by these presents, for us, our heires and Successors, Ordaineing and appointeing.
http://churchstatelaw.com/historicalmaterials/8_1_2_1.asp
Congregationalism was the established religion in Ct. Period.
Like I say, I need to get to some references, but I'm highly confident you are incorrect, and that the Episcopal Church was also established in Connecticut.
In the meantime, if the establishment clause was only meant to prohibit the establishment of a national church, then why does it say "religion" instead of "church"? Note that if we assume that "religion" effectively means "church" then it makes nonsense of the free exercise clause, which doesn't include it's own noun but instead says "exercise thereof," referring back to "religion" in the establishment clause.
IOW if establishment means, in effect, the establishment of a national religion, then the other clause must only protect the free exercise of the national religion, and yet the free exercise clause is clearly meant to protect the exercise of religion in general.
Furthermore, why doesn't the Amendment simply use an adjective like "national" religion, if this is what was meant?
Much as I admired Rehnquist in most respects, the historical note you referred me to is incomplete and intellectually dishonest in that it completely failed to acknowledge the clearly relevant fact that this very language was proposed by the Senate, and rejected by the conference committee that finalized the language. (You wouldn't even know from Rehnquists' note that this process ever occurred, or that one of the participants -- James Madison -- reported extensively on the process and the reasons why more specific and limited language was rejected. Rehnquist left out the inconvenient facts that falsified his views, and got much of the history he did discuss wrong besides.)
You can oppose the original intent of the 1A and debate that forcefully if you wish but arguing that the 1A originally proscribed state established religion is nonsense.
Have a good weekend.
No I haven't. The First Amendment didn't allow or disallow anything regarding establishment of religion by the states; it didn't effect them at all; it wasn't applied to them (until after the Civil War).
Although I've repeated the point several times you seem to have missed it, so I'll repeat myself yet again: I've noted that multiple and general state establishments of religion were common, even predominant, among the colonies and later the states because this informs of us of what must have been understood to be the nature of "establishment" by the authors of the First Amendment and the Congress that enacted it. Their experience was one in which the idea of "establishment of religion" was NOT restricted to the establishment of a single denomination, and in which multiple or general establishments were always common.
but arguing that the 1A originally proscribed state established religion is nonsense
Of course it is. But I've never argued that. See above.
It was originally, but did not remain so. What happened (long before formal disestablishment) was that the specific laws in Connecticut governing church and state came to variously include other denominations in their substantive provisions (mainly the mandatory religious tax and compulsory church attendance measures) and eventually ceased to mention the Congregational Church by name. So, even though no other Church apart from Congregationalism was formally "established" by explicit affirmation, there did develop a multiple establishment in fact, in that other churches came to receive the same actual support from the State that early on had been extended exclusively to the Congregational Church, while at the same time the affirmative establishment of the Congregational Church by name was dropped from all applicable laws.
I've located my copy of Leonard W. Levy's The Establishment Clause (Macmillan, 1986). Levy covers the relevant history of establishment in all the colonies, and later the states, in detail. Connecticut specifically is discussed on pages 20-22, 40-44, and 206. Here's a very brief summary:
Now by this point at least, even if the Congregationalist majority in Connecticut thought of this as nothing more than a moderate accommodation for dissenters, you have the substance of a multiple establishment since the government is renumerating taxes to the Anglican churches, and is imposing associated regulations (e.g. regarding the ordination of qualifying ministers). Nor was this insignificant since the Anglicans had more than a dozen congregations in the colony before the middle of the century.
So in summary you had, in Connecticut, before the Constitution:
Once again single establishment was NOT the predominant or normal American model, and so we can't assume that the authors of the Constitution had in mind a model that was opposite to their own experience. This is addition to the many other reasons we have for believing that "establishment of religion" is meant to be general rather than specific. I.e. it's close grammatical linkage to the free exercise clause, which clearly is general; and the rejection by the six member reconciliation committee of the Senate formulation "national religion" as well as other more narrow or specific formulations; and the explicit testimony of one of the committee members, James Madison, as to what "establishment" meant, and that it was general.
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