May 10 2013

Separation of Church and State

A comment on my recent post about Backdoor Creationism calls into question the premise that the US Constitution demands separation of church and state, and therefore religious beliefs cannot be taught in public schools. The comment reads:

The first amendment states that the federal government can neither (sic) or prohibit the exercise of religion. “separation of church and state” is just a propaganda term used by some to stave off religious nuts who use undue social pressures or indoctrination to push their beliefs to others.

Here’s a section of the first amendment.

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

And here’s the definition of the word “respecting” from a dictionary dated 5 years after the adoption of the Bill of Rights.

RESPECT’ING, ppr. Regarding; having regard to ; relating to.

A little bit of history is in order. The term “separation of church and state” is not a propaganda term. It is a quote from Thomas Jefferson (who, I understand, had some familiarity with the Constitution) from his letter to the Danbury Baptists. He wrote:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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.

The commenter appeals to a dictionary definition in order to make their point, but this is not a valid method of argument when it comes to law. The only thing that matters is legal precedence – how have the courts interpreted the law, and in the case of the Constitution what matters most is how the Supreme Court has interpreted the law.

Over the years the Supreme Court, based on their decisions of specific cases, have established three tests to see if any specific activity violates the establishment clause of the Constitution. They are:

The Lemon Test
Based on the 1971 case of Lemon v. Kurtzman, 403 U.S. 602, 612-13, the Court will rule a practice unconstitutional if:

  1. It lacks any secular purpose. That is, if the practice lacks any non-religious purpose.
  2. The practice either promotes or inhibits religion.
  3. Or the practice excessively (in the Court’s opinion) involves government with a religion.

The Coercion Test
Based on the 1992 case of Lee v. Weisman, 505 U.S. 577 the religious practice is examined to see to what extent, if any, pressure is applied to force or coerce individuals to participate.

The Court has defined that “Unconstitutional coercion occurs when: (1) the government directs (2) a formal religious exercise (3) in such a way as to oblige the participation of objectors.”

The Endorsement Test
Finally, drawing from the 1989 case of Allegheny County v. ACLU, 492 U.S. 573, the practice is examined to see if it unconstitutionally endorses religion by conveying “a message that religion is ‘favored,’ ‘preferred,’ or ‘promoted’ over other beliefs.”

Teaching what is essentially a religious doctrine in publicly funded and government run schools promotes those religious beliefs, entangles government in religion, establishes those religious doctrines as favored, and coerces students to participate in a religious activity.  Webster has nothing to say on the matter. The Supreme Court has spoken.

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35 responses so far

35 Responses to “Separation of Church and State”

  1. John Piereton 10 May 2013 at 9:07 am

    The Constitution is, of course, what the Supreme Court, not some blog commenter, says it is. Here is Justice Hugo Black’s eloquent description of the meaning of the Establishment Clause from Everson v. Board of Education:

    “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 from 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.”

  2. BillyJoe7on 10 May 2013 at 9:13 am

    Perhaps we should name it the “Argument by Definition” fallacy.
    The point being that dictionary definitions are guides only and that the actual meaning of a word has to be understood in the context in which it is used.

  3. TheDawgLiveson 10 May 2013 at 9:17 am

    “…Neither can pass laws which aid one religion, aid all religions…”

    Wouldn’t granting tax-exempt status to religious organizations be “aiding all religions”?

  4. John Piereton 10 May 2013 at 9:37 am

    TheDawgLives:

    The argument is that it keeps governments out of religions finances and prevents establishment of a state religion by use of taxes to destroy non-favored religions. Chief Justice Warren E. Burger wrote in Walz v. Tax Commission of the City of New York, “The exemption creates only a minimal and remote involvement between church and state, and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.”

    …and:

    “The grant of a tax exemption is not sponsorship, since the government does not transfer part of its revenue to churches, but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees ‘on the public payroll.’ There is no genuine nexus between tax exemption and establishment of religion.”

    It was and is a controversial issue in constitutional law.

  5. evhantheinfidelon 10 May 2013 at 9:41 am

    I think one of the dangers of governments giving exemptions to anything for religious purposes is that it puts them in the place of determining which ideologies are “valid” religions and which ones aren’t. People often think that freedom of religion means that any law prohibiting something their religion demands is infringing upon their rights, but a proper interpretation is, in my opinion, one in which religion isn’t considered. If something is illegal, it should be whether or not it is religious in nature. There shouldn’t be a religious exemption for vaccinations and schooling, there shouldn’t be for taxes, drug laws, or anything else. That is my opinion, but a good one, I think.

  6. simonhon 10 May 2013 at 11:13 am

    As an interesting aside, this is the European Convention of Human Rights take on the issue:

    “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

    It does feel rather strange that here in Sweden where, depending on the poll, sometimes only 18% say they believe in a god, where we have lesbian bishops and same-sex marriage, there are many religious charter schools which receive full government funding yet are allowed more or less free reign on their curriculum including teaching creationism and dubious family values as long as they meet the minimum guidelines for Swedish, English, Math and such. Not quite sure what to make of that really.

    Also, the Lutheran Church of Sweden held the position of State Church as recent as 2000. You still have to specifically opt-out of paying church tax to them!

    A rather ironic state of affairs isn’t it?

  7. ccbowerson 10 May 2013 at 11:18 am

    John Pieret-

    For completeness I must point out that it is the 14th amendment that makes the 1st amendment apply to the states (not mentioned in that quote). I only point this out because a common argument for people who don’t like a separation from ‘their’ church and government is to claim that the first amendment should only apply to congress. Of course they are wrong, and a big part of the reason is the interpretation that the 14th amendment expands the bill of rights to apply to state and local governments as well. That is a very important amendment, and often overlooked in these discussions

  8. jryanon 10 May 2013 at 2:13 pm

    Hi Steven,

    The commenter is accurately describing a new argument in Constitutional interpretation that is, while currently fringe, being argued by some prominent legal scholars. They are from the Originalist school of Constitutional interpretation–and this specific argument comes from a libertarian subset. There are a few basic points to the argument:

    1) The Constitution should be interpreted by the original public meaning of the time the text was written. In this sense, contemporary dictionary definitions are relevant to the inquiry. Strong Originalists often find them dispositive, but even “Living Constitutionalists” rely on them as an interpretative aid.

    2) The Libertarian subset argues that only individual rights from the Bill of Rights are incorporated through the 14th Amendment. They argue this through a specific textual reading of the 14th amendment. The 1st Amendment, they argue, contains both individual (freedom of speech) and collective rights.

    3) The 1st amendment only specifically prohibits Congress from making a law “respecting an establishment of religion”. Because some colonies has established religions at the time of ratification, they argue that this simply means the Federal government could not make any law altering an individual state’s choice.

    4) While there is Supreme Court precedent on the issue of church and state, the Supreme Court is not bound to follow their own precedent. An Originalist argues that the Supreme Court has gotten the Constitution “wrong” at various points and advocates “correcting” these misinterpretations in future decisions.

    Originalism has enjoyed increasing acceptance over the last several decades, and several members of the current Court accept it to varying degrees. This specific argument regarding church/state is fringe now, but so was the Commerce Clause argument a few years before the ACA challenge. Unfortunately, the the law is not science and a vast consensus in legal academia doesn’t mean too much if the Court finds a “fringe” argument to be appealing.

    The only correction I would make to your original post would be the current accepted use of contemporaneous dictionary definitions as a valid interpretive method, and the recognition that the Court is free to disregard its precedents (and could very well do so considering the current make up of the Court). I agree that there are strong policy, historical, and even Originalist arguments for the separation of Church and State–but for those of us who care about maintaining it, we should do well to not consider the issue completely resolved and be prepared to better counter the opposition’s arguments.

  9. Kawarthajonon 10 May 2013 at 2:24 pm

    Thank God for the separation of church and state! Unless you’re an athiest.

  10. Steven Novellaon 10 May 2013 at 4:16 pm

    jryan – thanks for your thoughtful comment.

    I know this is a popular position – I hear it frequently. I just don’t buy it, for the reasons stated.

    Thomas Jefferson’s statement about the “wall of separation” is extremely relevant. You don’t get more “originalist” than Jefferson.

    We could also cite the treaty of Tripoli, which was ratified and is therefore law. The US is not a Christiian, but a secular, nation.

    I don’t think the dictionary definition is very relevant, as it in no way resolves any dispute about interpretation. The issue is not with the word “respecting” but the bounds of “establishing” a religion or “prohibiting free exercise.” The words themselves are not a matter of dispute. The implications of those statements are.

    We now have over 200 years of legal precedent, which is summarized above. Of course the Supreme Court can change its own decisions, and does so all the time. The current standard, however, is in place unless and until they do. That makes it law, not propaganda, as the e-mailer suggested.

    On a side note, I don’t find originalist arguments that compelling overall. In practice they seem like a conveniently employed argument against unwanted legislation, but are happily ignored for favorable legislation. I seems like an attempt to replace thoughtful legal precedent with narrow semantic arguments whenever the legal arguments don’t go your way.

  11. HHCon 10 May 2013 at 6:47 pm

    Separation of church and state in America? See numerus claussus and legacy preferences at Yale University and others in recent history.

  12. ccbowerson 10 May 2013 at 11:19 pm

    “The 1st amendment only specifically prohibits Congress from making a law “respecting an establishment of religion”. Because some colonies has established religions at the time of ratification, they argue that this simply means the Federal government could not make any law altering an individual state’s choice.”

    I’m not sure what is being implied here. Just because individual colonies had established religious laws, this does not say anything about what was intended in the Constitution. At the time the Consitution was formed these laws already existed, and remember that over the next several decades most of these colony/state laws supporting religion were effectively removed/superseded. Also, remember it was about 80 years after the Constitution was ratified that the 14th amendment was adopted, and by this time many of those laws were long gone. The few that were left became null and void. There are many documents that make the intent of the constitution regarding religion pretty clear, particularly by James Madison and Thomas Jefferson, so any “originalist” view would need to be compatible with those, and the arguments you outline are not.

    Regarding overturning legal precedent, this is not taken lightly by the courts. Particularly for topics that have such a long history such as the establishment clause. We are not talking about overturning a mistake or two by the courts of a particular time. We are talking about legal precedent from many different time periods (throughout our nations history) that pretty much point in the same general direction. No, this is not hard science, but it is not as arbitrary as fashion fads either.

  13. ConspicuousCarlon 11 May 2013 at 2:14 am

    Ccbowers said,
    “Just because individual colonies
    had established religious laws, this
    does not say anything about what
    was intended in the Constitution. ”

    I’ll be God’s advocate here. If they knew of such local laws and only worded the first amendment to refer to Congress, that actually would legally imply that they didn’t intend to overturn the local laws. Even worse, the constitution has many passages which refer to state and federal government and presents different roles for each so it can’t be the standard to assume that no distinction was intended.

  14. starikon 11 May 2013 at 2:31 am

    What if Thomas Jefferson had wanted Chritianity to be the law of the land? Would that make it right? It’s argument from authority either way.

  15. Steven Novellaon 11 May 2013 at 7:16 am

    What is law is an argument from authority, by definition. We are talking about what is law, not what is right.

    What is right is a separate post and discussion entirely. Of course I believe that nothing short of total and complete church-state separation is ethically defensible.

    At issue here is what is law in the US. That is determined by the Supreme Court’s interpretation of the Constitution – and that is very clear.

  16. Halfdeadon 11 May 2013 at 9:50 am

    Luckily there are still religious people who realize what would happen to them if another sect ever gets the state to back its flavor of Christianity.

  17. BillyJoe7on 11 May 2013 at 10:33 am

    de,
    [that translates as half dead ;) ]

    “Luckily there are still religious people who realize what would happen to them if another sect ever gets the state to back its flavor of Christianity”

    That was the point wasn’t it?
    The “founding fathers” observed the inter-religious wars in Europe and wished to avoid repeating that error in America.

  18. Waydudeon 11 May 2013 at 11:40 am

    the argument from definition should be known as the Pandantic Fallacy

  19. Aidanon 11 May 2013 at 12:40 pm

    jryan, originalist arguments are popular but have some serious problems. Words are inherently ambiguous and trying to determine how a short phrase–”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”–should be interpreted in light of real world events is very difficult. The problem of ambiguity makes it impossible to determine what that phrase originally meant as applied to a specific event, i.e. non-taxation of churches. This is exactly why the supreme court interprets the constitution and applies it to the real world.

    Some argue we should use original intent to overcome ambiguity. But this has its own problem. It is impossible to determine original intent of a document that was created and signed by a group of people. 39 People signed the constitution and each likely had different beliefs on what each section meant. To make it worse, these people were not signing in their own capacity but as representatives of other people. How could you ever arrive at original intent? Should we find out what each signers believed a section meant and then somehow try to arrive at an “average” belief?

    A document drafted by a group simply cannot have an original intent or original meaning. The primary reason people argue that we should use original meaning is because they disagree with the modern path of interpretation of the constitution as created by Supreme Court. But the constitution is highly ambiguous, especially with respect to the religion clause which consists of a few short words. Thus, there are many different possible interpretations of that clause. It is of course difficult to determine which interpretation of the constitution is more “original” than the others.

  20. Halfdeadon 11 May 2013 at 2:36 pm

    That was the point wasn’t it?
    The “founding fathers” observed the inter-religious wars in Europe and wished to avoid repeating that error in America.

    Yes it was the point however many Christians have forgotten this, as is evident from people saying things like “its a Christian nation!!!@!!!!111!”.

    One gets the feeling they actually believe it would be their sect that gets power and the world would be all sunshine and roses. Little do they realize should this nation become such a theocracy it will be mostly other religious sects (mostly Christian) that bear the brunt of the righteous Christian rage over heresy.

  21. TheBlackCaton 11 May 2013 at 8:52 pm

    If they knew of such local laws and only worded the first amendment to refer to Congress, that actually would legally imply that they didn’t intend to overturn the local laws.

    That is true, but they also didn’t intend to band slavery. The whole point of amending the constitution is to change it.

    So the question is not whether those who wrote the 1st amendment intended for it to apply to the states. They obviously didn’t intend any of the bill of rights to apply to the states.

    But the whole point of the 14th amendment was to change that, to make sure that the states were not allowed to infringe the rights of the people.

    So the question that is relevant is whether those who wrote the 14th amendment intended for it to apply all the rights of the constitution to the states or just some of them. The authors of the 14th amendment were quite explicit that their intention was to apply all of the rights.

  22. ccbowerson 11 May 2013 at 10:47 pm

    “I’ll be God’s advocate here. If they knew of such local laws and only worded the first amendment to refer to Congress, that actually would legally imply that they didn’t intend to overturn the local laws.”

    Conspicuous Carl:

    That is where the 14th amendment comes into play. Read my first comments above. Let’s not forget that amendments are part of the constitution, and the courts have consistently interpreted that the Bill of rights also apply to the state and local governments as a result of the 14th amendment.

    You are correct in that the wording of the first amendment (prior to the 14th) does not explicitly address local and state laws, and this careful wording has to do with creating a document that was palatable to the colonies/states at a time at which they were leary of a strong national government telling them what to do, in general. For obvious historical reasons the wording could not be so strong in a way that implied too much centralized power.

    Don’t get it wrong though, concept the separation of church and state was there from the very beginning. In ways that matter, the fact that there were Catholic and Protestant colonies is really irrelevant. State established religions were mostly gone even before the 14th amendment, and that amendment invalidated the few that remained.

  23. ccbowerson 11 May 2013 at 10:49 pm

    I didn’t read TheBlackCat’s comments until now, which overlaps with my recent comments

  24. BillyJoe7on 11 May 2013 at 11:25 pm

    No, that was clearly plagiarism. Send him all your money that has “In God We Trust” written on it or face the legal consequences.

  25. rocken1844on 12 May 2013 at 12:49 am

    look at the flip side – a union of church and state – James Madison wrote (to Bradford Jan 1774) ” Union of religious sentiments begets a surprising confidence, and ecclesiastical establishments tend to great ignorance and corruption; all of which facilitate the execution of mischievous projects…Poverty and luxury prevail among all sorts; pride, ignorance, and knavery among the priesthood, and vice and wickedness among the laity. This is bad enough, but it is not the worst I have to tell you. That diabolical, hell-conceived principle of persecution rages among some; and to their eternal infamy, the clergy can furnish their quota of imps for such business. This vexes me the worst of anything whatever. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk, or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. So I must beg you to pity me, and pray for liberty of conscience to all.”

  26. BrainFromArouson 12 May 2013 at 3:15 am

    Dr. Novella,

    I have to express one caveat regarding your statement:

    “We could also cite the treaty of Tripoli, which was ratified and is therefore law. The US is not a Christian, but a secular, nation.”

    The actual phrasing in Article 11 was:

    “As the Government of the United States of America is not, in any sense, founded on the Christian religion…”

    (( http://avalon.law.yale.edu/subject_menus/barmenu.asp ))

    Government, not nation.

    Obviously the young republic known as the USA was a Christian country (or nation, if you will) for the simple reason that the vast majority of its citizens and leaders both were Christians. Just as, say, Turkey didn’t stop being a Muslim country after the secular Kemalist revolution, neither did the USA cease being a Christian one following the ratification of the First Amendment.

    The significance of the treaty language is that it made, at that early date, the clear and correct statement that the government of the USA was secular. No small thing, that, but still quite different from claiming that the USA is not a Christian country.

    Love SGU and the ‘blogs, Dr. N! Many thanks for all you do.

  27. TheBlackCaton 12 May 2013 at 5:04 am

    @ Brain: by that logic the U.S. is a “white nation”, since”the vast majority of its citizens and leaders both were [white]“. It was also a protestant nation, an agrarian nation, a British nation, and a traitor nation. But that is not a useful definition of a ___ nation, since it ignores two major issues:

    1. The intent of those founding the country. Did they intend to found a country by and for a particular group, or was it intended to be a pluralistic society where the majority ___ didn’t get special privileges. Turkey still to this day gives a lot of special privileges to Muslims, while the founding fathers were quit explicit that they intended this U.S. to be a country for all people, not just Christians.

    2. The role of the minority in the country. Were those not members of ___ considered to be a part of the country, or a group of outsiders only allowed to live there? Again, considering the prominent role of non-Christians in the founding of the U.S. it is clear they were considered important members of society.

  28. ccbowerson 12 May 2013 at 1:42 pm

    “No, that was clearly plagiarism. Send him all your money that has “In God We Trust” written on it or face the legal consequences.”

    I’ve edited that out of all my bills. Joking of course. For those who are unaware “In God we Trust” was added as a motto of the United States in 1956, and “E pluribus unum” was adopted as the motto in 1782. Notice the dates- the Cold war was at its peak and paranoia was at a high when “In god we trust” was adopted. That phrase was printed on various currency on and off since the mid 1800′s (since the beginning of American Civil war), but it wasn’t until 1955 that it became mandatory on all currency (at the height of the “red scare.”) Apparently fear drives both nationalism and clinging to religion.

  29. dougindeapon 12 May 2013 at 3:01 pm

    Two issues are raised here. First, how do courts interpret laws, particularly the Constitution? Second, how did courts interpret the Constitution to separate government and religion?

    1. In order to resolve cases that involve issues about what the Constitution means with respect to this or that subject, the courts necessarily must decide what it means in pertinent respects, i.e., they must interpret it. Courts (and philosophers) have developed various ideas about how courts should go about this task. At the risk of oversimplifying a complex subject, the guiding principle in interpreting a law is to determine the intent of the legislature–or, in the case of the Constitution, the intent of those who drafted and ratified the Constitution (which theoretically, in the end, was all of “We the People”). The courts typically look first to the words of a legal provision. If the meaning of the words is plain, the courts generally leave it at that. Sometimes, though, (and this is particularly so of broadly worded constitutional provisions) a simple literal reading may not reveal, or may otherwise fall short of honoring and implementing, the provision’s intent. In that event, courts may look for other evidence of the intent of the legislature. Generally, that entails reviewing the legislative history of the provision, typically found in the reports and documents of the pertinent legislative proceedings leading to enactment of the provision. Sometimes though, such efforts shed little light, e.g., when the legislative history is spare or silent on a particular point. If that does not suffice to resolve the issue, they may look further afield for relevant evidence (like the Supreme Court did when it considered Jefferson’s letter to the Danbury Baptists in determining the meaning of the First Amendment’s religion clauses). If all of that still leaves the issue unresolved, the courts may step back and assess the function or purpose of the provision in the context of the constitutional or statutory scheme and interpret it to best serve that function or purpose. While not a perfect system, it’s not bad.

    While we and courts speak of ascertaining the “intent” of the founders in the Constitution and First Amendment, actually doing so in any precise sense is problematic for many reasons, not the least of which is we are speaking of the intent not of a single person or even a single legislative body, but rather of all who participated in drafting and ratifying the Constitution and later the Amendment. They were, of course, not all of the same mind. Practicality leads us to seek evidence of this collective intent from those most central to the process who remain most readily accessible to us today, e.g., those in Congress who worked and spoke most on the subject, at least on the record. It is important also to recognize that in some provisions the founders spoke in general, even cryptic terms (as commonly is necessary to achieve political agreement) to establish general principles, well aware that future generations would necessarily determine the full meaning and effect of those principles. In interpreting the Constitution and First Amendment, we strive to honor the “intent” of the founders as best we can discern it, knowing that such intent is in one sense real and in another sense a legal fiction and that we necessarily draw on other aids in that effort, including our understanding of the functions of the Amendment’s principles in our scheme of government and how they are best applied to serve those functions in the circumstances at hand.

    2. In this manner, the courts have found separation of church and state to be a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. 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) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), 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, 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 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.

    That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor 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 simply wrong.

    Perhaps even more than Jefferson, Madison influenced the Court’s view. 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). 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.”

  30. BillyJoe7on 12 May 2013 at 6:00 pm

    BFA,

    SN: “The US is not a Christian, but a secular, nation”
    BFA: “Government, not nation….obviously the young republic known as the USA was a Christian country (or nation)”

    Well, obviously, by ‘nation’ SN meant ‘government’, and his use of the word ‘nation’ was not really incorrect.
    But your statement is not really correct either if it implies that every man woman and child in the USA was Christian. And not incorrect either. But, more correctly, the USA was largely a Christian nation. Defining ‘nation’ as a ‘community’, the Christian nation/community was not co-spacial with the USA.
    In any case, the word ‘nation’ has a wide variety of meanings, including a legal meaning and, in a sense, there is really no such thing as a nation. In a sense it is imaginary rather than something that actually exists.
    Finally, I don’t want to say that I live in a Christian nation, especially if i’m not part of that christian community within the country (or nation) in which I live.

    Oh, the hazards of pedantry….

  31. rocken1844on 12 May 2013 at 8:53 pm

    even committed Christians know better than to claim “Christian nation” status – evangelical historian Mark Noll writes about “…the distorted and overinflated view of America as a distinctively Christian nation.” for example he reports “Historians have known for a long time that the number of people in full church membership was surprisingly small in the colonial period.” from his book – The Search for Christian America (co-authored with George Marsden and Nathan Hatch)

  32. ccbowerson 13 May 2013 at 10:12 am

    dougindeap-

    You make very good points, although they are difficult ones to make because they require a decent understanding of both the contents of the consitution and history more broadly.
    Particularly the following quotes from your comments:

    “The basic principle, thus, rests on much more than just the First Amendment.”

    One point that you make that is underappreciated is that it is not just what was written into the Constitution, but what was not written (e.g. not a single reference to a god, and the only references to religion are the 1st amendment and the “No religious test clause,” which both limit the influence of religion on government)

    “To those familiar with the Constitution, the absence of the metaphor 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.”

    Very good way to point out why the absence of the phrase “separation of church and state” in the Constitution is not important when the meaning of that phrase is clearly there, and for those who don’t want to see it, the courts have determined that it is.

    These are not arbitrary determinations, and those laypeople who come along with very little knowledge of the constitution and history surrounding it, and proclaim that we got it wrong this whole time, display the same Dunning-Kruger husbris as those cranks who develop their own theory-of-everything and claim that physicists had it all wrong this whole time.

  33. steve12on 13 May 2013 at 3:08 pm

    All the relevant points having been made and made well, a rhetorical question:

    When is this absurd and naive libertarian fantasy going to be over with? The notion that the same rules that might be useful to govern a village of 100 can ben applied to billions on a finite resourced planet, coupled with the false assumption that tyranny can only come from governments, has turned the US into a country on the fast decline. And it’s all fine with these people so long as their precious philosophy is adhered to.

    I just hope we wake from this delusion before too long.

  34. jryanon 14 May 2013 at 12:56 am

    ccbowers – I agree with much of what you said. However, I do disagree with the assertion that this argument originates from laypeople with no understanding of Constitutional law. The theory that the Establishment Clause is a federalist protection and therefore incorrectly incorporated in 1947 was developed by a Constitutional law scholars and has the endorsement of at least one sitting Justice. I do not agree with it, at least four Justices do not agree with it, but it was not invented by an amateur who thought they decoded the secret meaning of the Constitution.

    The well-regarded Akhil Amar has a brief explanation of the theory here that is worth reading: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1953&context=fss_papers

    It is not akin to pseudo-scientists because the laws of physics will not change no matter what they write. Constitutional law experienced several periods of dramatic shifts, dependent largely upon the makeup of the bench and the persuasiveness of legal scholars. There is currently a resurgence of federalist opinions and many are rooted in New Originalism. That does not mean Everson is likely to be overturned soon or ever, but this theory is not the construction of cranks. I say this as someone who considers de-incorporation of the Establishment Clause to be a very bad idea.

  35. ccbowerson 14 May 2013 at 10:31 am

    “I agree with much of what you said. However, I do disagree with the assertion that this argument originates from laypeople with no understanding of Constitutional law.”

    I never said it originates with laypeople, so you are disagreeing with a misunderstanding. There are many laypeople, some in front of microphones or who write books and articles who push this view without proper understanding and perspective. That is all. Yes, there is a minority of law scholars who take a similar perspective seriously, but that is a separate but related issue to what I was writing about.

    “It is not akin to pseudo-scientists because the laws of physics will not change no matter what they write.”

    You are taking my comparison too far. (also, in theory there is no reason why the understanding of a science could not change with evidence… its just that the cranks are wrong.)

    But back to my point- I was talking about the intellectual hubris of laypeople (e.g. politicians, political pundits) who think they have found a fatal “flaw” in the interpretation of the constitution over the past 200 years using meaningless “gotcha” phrases and jargon to make their points seem convincing to their audience.

    The analogy is more apt than you are giving credit for: both assume that experts (law scholars and supreme court justices, and scientists respectively) over many years/decades missed something that appears very obvious that a few minutes of reading would have uncovered. You are hung up on the minority of law scholars that think that there is a legitimate argument to be made regarding the topic, but again that is different than what I was commenting on. I agree that there is a legitimate academic perspective related to the crank perspective, and is likely where the crank perspective originates from, but I don’t want to conflate the two.

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