The use of the phrase “Establishment” to refer to the special legal position of the Anglican church in England was widespread in the late 18th century, and not novel to the First Amendment. And I think you mean 300 words or fewer.
But otherwise, right on.
The U. S. Constitution of 1787 is one of enumerated and limited powers; and excludes religion from the grant of authorities and powers to the general government. The First Amendment is rather ambiguous. The word religion is not defined and the term “an establishment of religion” was novel in 1789.
The ambiguity was resolved, during the first 50 years of the republic, in favor of the Perfect Separation of Church and State as generally articulated by the Jeffersonian Republicans and particularly as articulated by James Madison; as is evidenced by the fact that every major political dispute over the meaning of the religion clauses was decided in favor of James Madison’s view of religious liberty; which was that religion is the duty which we owe to our Creator and is exempt from the cognizance of the government.
During the early years of the republic, Congress never made God the object of human legislation by making laws respecting an establishment of the people’s duty to trust in God or to affirm a belief that the nation is under God. The Federal Government did not recommend or advise the people to read, reflect on and obey the religious commandments that God wrote and imposed on the Children of Israel.
The national government (after they found that it was not a wise practice) did not issue religious recommendation to the people. Congress, although it made a mistake by establishing Chaplains to Congress in 1789, did not compound its error; and on several occasions expressly rejected the argument that the civil establishments of the Chaplains to Congress were consistent with the religious liberty principles of the Constitution.
]]>Please post some evidence to support the claim that: “Immediately after the First Amendment was written, and until this day, sessions of Congress have been opened by invocations and prayers.”
The official records of the First U. S. Congress do not contain any evidence whatsoever that any daily session of the House or Senate was opened with invocations and/or prayers.
]]>Like Roderick, I am an anarchist. I don’t think there should be any State for Church to be separate or not separate from, and I don’t accept the moral or political authority of the Constitution in whole or in part. So this discussion of Jefferson, the separation of Church and State,
and the First Amendment, is strictly a matter of historical curiosity on my part.
If, however, you do accept the authority of the Constitution, then consistency would oblige you to care about what the First Amendment means or does not mean, as a practical matter of law, since accepting the legitimacy of the Constitution means accepting that we
(i.e., our present government) may not just make any old laws we
please, but rather only those laws licensed by the enumerated powers of the Constitution and not prohibited by the explicit restraints on government power placed in the Constitution.
If you don’t accept the legitimacy of the Constitution, well then, welcome, comrade. But then, without the Constitution, the so-called legislature has no claim to any political authority at all, and so is not going to get very far in the making of laws.
If Thomas Jefferson, Madison, Adams, and the other venerated and infallible
foundershad no issue with the benign use of religion in these contexts, then perhaps our modern conception of the impregnable wall between church and state is not the concept codified in the First Amendment.
But Chris, Madison did have an issue with the employment of chaplains and the holding of prayers at the opening of Congressional sessions:
Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?
In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.
The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: …
As mentioned above, Madison also, like Jefferson, repeatedly referred to the concept of a separation between church and state in his writings on the First Amendment and religious freedom.
“God” is a tradition, and invocations are only offensive to those who are looking to be offended.
This is, or ought to be, offensive to Christians, let alone to infidels like myself. If you’re a Christian, God is not a tradition
but rather a person, and using Him as an empty cultural placeholder for the purposes of civic religion is as crude a blasphemy as you could come up with (My Kingdom is not of this world…
). In any case, though, the issue is not who may or may not be offended, but rather that it’s fundamentally immoral to force someone to financially support a religion contrary to her own belief and conscience. Invocations of the Christian religion, or any other religion, in tax-funded government venues violate this principle, whether or not anyone finds them particularly offensive,
or cares enough about them to make a big fuss. Even very small ones like the ones that you mention. If you want to go around asking God’s blessing on the government, the tax-collectors, the money, or whatever you please, I think you have probably misunderstood Christian doctrine, but you’re free to do so on your own time and on your own dime. You may not, however, coerce me into observing or paying for it.
The country is full of symbols and traditions, and the invocation of God in such slight and harmless instances as “under God” and “in God we trust” is such an example. Hell, we even have a pair of fasces adorning the wall of the House. If Americans had any clue what fasces were, many wouldn’t care, but many would be highly offended. The latter would be clamouring for their removal and replacement by rainbow-colored smiley faces or something. But the fasces are symbols of historical importance, and we placed them on our government buildings long before 20th century fascism was ever conceived, so we keep them. They’re traditional. “God” is a tradition, and invocations are only offensive to those who are looking to be offended. After all, saying “in God we trust” is a far cry from the president telling us: “Believe in Christ our saviour or you will burn in hell … after you’re executed in prison for heresy.”
That said, who gives a flying damn what Thomas Jefferson or anyone else thought 230 years ago? (Other than because of an historical importance, that is.) Thomas Jefferson does not govern us. It is not his country any longer; it is ours, and we may make whatever laws we please. We owe the founders respect, thanks, and reverence — not deference.
]]>I wonder if you have a take on the arguments by Thomas E. Woods, Gene Healy, and others that the 14th amendment was never legitimately ratified and thus it is not really part of the constitution at all?
Well, as you may have gathered from more recent posts, I don’t think that anything in the Constitution was ever legitimately ratified, and so I just don’t care very much about this sort of legalistic argument. (I consider it to be about as enlightening and productive as the sort of magical thinking that legalistic tax protesters engage in. That is, not at all.)
That said, it’s clear that there was plenty of chicanery involved in the ratification process, but I think that Healy and Woods’s case is pretty weak on own internal logic. The rejection of the Fourteenth Amendment by the former Confederate states would only be relevant to the Article V amendment process if the former Confederate states were states of the Union. But if you’re going to support the idea that there is a constitutional right of secession, then the former Confederate states no longer were states of the Union, but rather conquered foreign provinces being given terms for admission. That former Confederate states would have to accept the Fourteenth Amendment to be admitted into the Union is, in that case, no more or less absurd than that any other territory would have to accept the Fourteenth Amendment, along with the rest of the Constitution, to be admitted into the Union as a new state. (This carries the irony that the pro-Dixie side seems to have stronger reasons to accept the ratification of the Fourteenth Amendment than the pro-Union side. Some of the hardline Reconstructionists advocated the argument I’m outlining, though.) The argument that the Amendment was not ratified because Oregon, New Jersey, and Ohio later rescinded their ratification logically requires the idea that ratification can be rescinded once approved–but Article V is simply silent on that procedural question, so the ipsissima verba just don’t seem to offer much guidance one way or the other.
In any case, there’s also very little good reason to think that Article V could effectively constrain whatever form of original adoption is supposed to have authorized the original articles of the Constitution to set their own terms for ratification, anyway. (After all, the articles of the Constitution weren’t adopted according to the rules laid down for amendments to the Articles of Confederation. But so what?)
That’s the brief. Fuller argumentation would take more space and time than, frankly, I think the topic is probably worth.
Clay:
So where does this
wall-of-separationlanguage come from? It doesn’t come from Thomas Jefferson. It comes from Hugo Black, in a 1947 in the Everson decision.
This is a bizarre and wilful misrepresentation of the facts. Those very words come from Jefferson’s letter to the Danbury Baptists, which I quoted for you above. Black was quoting Jefferson’s interpretation of the meaning of the First Amendment.
Madison, incidentally, used markedly similar language to describe his understanding of the matter; here are some examples:
The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State (Letter to Robert Walsh, Mar. 2, 1819).
Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history. (Detached Memoranda, ca. 1817)
Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together. (Letter to Edward Livingston, July 10, 1822)
To the Baptist Churches on Neal’s Greek on Black Creek, North Carolina
I have received, fellow-citizens, your address, approving my objection to the Bill containing a grant of public land to the Baptist Church at Salem Meeting House, Mississippi Territory. Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself. (Letter to Baptist Churches in North Carolina, June 3, 1811)
The idea of church-state separation just was not made up by a cabal of Liberal Judicial Activists in the middle of the 20th century. Sorry.
]]>So where does this
wall-of-separationlanguage come from? It doesn’t come from Thomas Jefferson. It comes from Hugo Black, in a 1947 in the Everson decision.
I comment: Isn’t it the concept, not the words that name it, that is important?
Dear Sergio Mendez
The ultimate purpose of James Madison’s principle of no government authority over the duty we owe to the Creator (To which the American people had attached the name Separation of Church and State
long before 1947) was to ensure that no man was hindered in any way whatsoever from fulfilling the obligations that God imposed upon him. The same reasoning that forbids the use of government force (coercive authority) to influence a man in religious matters, also forbids the use of non-coercive (advisory authority) to influence a man’s sentiments regarding religion.
When the First U. S. Congress (1789-1791), that framed the First Amendment, enacted An Act To Regulate Processes In The Courts Of The United States
(1789) to establish the Judicial Courts of the United States, it did not include a provision for the display of the Ten Commandments in Federal Court Houses. The idea of a government issuing religious advice was abhorrent to them.
Dear Phillip Williams:
What exactly are laws for Christian efforts?
Dear David Dangelo:
You wrote:
You left one thing out that has a Huge impact on the interpretation of Jefferson’s letter to the Danbury Baptists, that is how and why he selected the phrase
thus building a wall of separation between Church & State. Jefferson wanted to remove all fears that the state would make dictates to the church. He was establishing common ground with the Baptists by borrowing the words of Roger Williams, one of the Baptist’s own prominent preachers.
I reply:
Thomas Jefferson and the Baptist had been fighting upon common ground for over twenty-five years. That common ground
was what the Baptist called Soul Liberty
; and what Jefferson referred to as Separation of Church and State.
Sincerely,
Friday Slice
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