First of all, the people who claim this is a victory for religious freedom say the government can't endorse religion. Really? Where in the Constitution does it say that? Oh, that's right, it doesn't say that. It says the government can't establish a religion. Just look at the dictionary: "endorse" means "to support;" "establish" means "to create." The government can't create a national religion and have you support it through taxation; just like the Church of England did to the colonists. Man, did the British do them dirty!
Secondly, the people who still claim this is a victory for religious freedom base it on the constitutional grounds of the wall of separation between church and state. Yes, that phrase that's found in Article...oh, what a minute, that's not in the fucking Constitution either. That phrase was written by Thomas Jefferson in a letter to the Danbury Baptists in Connecticut. What had happened was, after TJ was elected president, the Baptists wrote Jefferson that, while they do enjoy religious freedom in Connecticut, the state legislature, run by Quakers, is giving them this right, and they feared they could be forced to join a state church. The Baptists tried to appeal to TJ's firm stance on religious freedom when they wrote: "...we are sensible that the president of the United States is not the national legislator, and also sensible that the national government cannot destroy the laws of each state; but our hopes are strong that the sentiments of our beloved president, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these states..." Translated: "We know the president can't make laws, (my how the times have changed, huh?), and that congress can't override state laws, but can you do something about this?" The reply: "Believing with you that religion is a matter which lies solely between Man & his God...I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State." Translation: "I feel for you dog, but, like the First Amendment says, I, nor congress, can get involved with religion." Jefferson was saying the federal government stays out of religion, not religion stays out of the federal government; people constantly take this out of context.
And finally, there's this: "The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." What's this? That's the preamble to the Bill of Rights? Never seen it before? I'm sorry you had such shitty teachers. Or, maybe, you should've went to class that one day. In a nutshell, the preamble to the Bill of Rights says these first ten amendments, to make those bastard anti-federalists happy, will prove the federal government will not abuse natural rights. That's right, the First Amendment, and the whole establishment clause, applies only to the federal government. That's why the Danbury Baptists wrote "...the national government cannot destroy the laws of each state..." They knew if Connecticut wanted to establish a state church, the federal government couldn't so squadoosh about it. And this cross in San Diego? Put on local government land which means the First Amendment's establishment clause wouldn't apply to the state anyway.
So, there's my defense. Religious symbols can be proudly displayed on local, and federal government property. The only thing the federal government can't do is create a national church and make people support it through taxation and commit to its services, (by the way, James Madison said just that in his 1789 speech before congress on debating the Bill of Rights; it's not my fault y'all don't know history). And this atheist, Constitution hater, used the Constitution to prove it.
As a side note, if my points seemed to ramble on, it's because it's late, and I'm drunk. I will have no recollection of having written this come tomorrow morning. However, it doesn't change the fact that I'm right, more or less.
Great read... you point out an issue few are willing to discuss and that is that very THIN line that carries the weight of interpretative language and the lack of common sense today. Thank you for posting this, bro.
ReplyDelete1. Separation of church and state is a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the first place, the Supreme Court has thoughtfully, authoritatively, and repeatedly decided as much; it is long since established law. In the second place, the Court is right. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.
ReplyDeleteThat the words "separation of church and state" do not appear in the text of the Constitution assumes much importance, it seems, to some who mistakenly supposed they were there and, upon learning of their error, fancy they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphorical phrase commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is a red herring.
2. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). Indeed, he understood the original Constitution--without the First Amendment--to separate religion and government. He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”
ReplyDeleteIt is important to distinguish between "individual" and "government" speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square--far from it. Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views--publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties, they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.
With respect to symbols and such, generally, if a monument is displayed “by” a government on its land, then that likely will be regarded as “government speech” to be assessed for compliance with the establishment clause. If a monument is displayed by a private person or group on government land, it may well be regarded as “individual speech” to be evaluated under the free exercise clause. In the latter case, the government, of course, cannot discriminate against particular religions and thus generally must allow other persons or groups equal opportunity to express their religious views on the government land. In sorting this out, much depends on the details of each case.