ContraSuggest Responds to Doug Indeap:
On 5/15/2011, Doug Indeap posted a response to the OTPE interview linked here:
Funny stuff. Anita Mann, clever. I'll comment on one of your (serious) points.
The principle of separation of church and state is derived from the Constitution (1) establishing a secular government on the power of 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 and the First Amendment provisions constraining the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those 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.
James 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.”
It is important to distinguish between the "public sphere" and "government" and between "individual" and "government" speech about religion. The principle of separation of church and state does not purge religion from the public sphere--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.
The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion.
Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx
Response to Doug Indeap by ContraSuggest
Since the mock interview wasn’t designed to be a detailed exposition on constitutional church/state issues, there isn’t much detail in the fictional tit-for-tat between the characters. Allow me to elucidate.
For a historically accurate view of this, one has to first understand the basic differences between the old European style of government and the newer American model. In the old European model, rights and authority were viewed as coming from God, were bestowed upon the monarch, and if the subjects were allowed any rights at all, they were conferred only at the sufferance of the king. In the American model of government, rights and authority were also viewed as coming from God, but they were bestowed directly on the people, who in turn loaned those powers to the government. In the American model, the power and authority resides with the people. What are the first three words of the U.S. Constitution? I’ll give you a hint, they’re not, “We the Aristocracy,” (or “We the White Males,” or “We the Wealthy Landowners,” or “We the Free and Accepted Masons”); the first three words of the Constitution are, “We the People.” Specifically, we the people, who derive our rights from God, in order to form a more perfect union, establish justice, etc. Interwoven in the fabric of the legal document that established our laws and created our government is an indissoluble religious expression, whether or not the statists want to accept it or not.
Since Judeo-Christian theistic thought is based not only upon faith, but also upon reason, it has always been at the heart of responsive, if imperfect, government. Whether we’re talking about the Ten Commandments, the Mosaic Law that rose from them, the posting of the Twelve Tablets that bestowed rights and privileges on citizens of the Roman Republic
Although the words ‘Separation of Powers’ aren’t mentioned in the text of the Constitution, it’s clear that the intent of the framers was to provide co-equal branches whose powers served as checks against the others. To say that the Constitution calls for a ‘Separation of Powers,’ or for ‘Checks and Balances’ is no stretch, and anyone stating as much would get no argument from me. However, stating that the Constitution calls for a “wall of separation between Church and State,” defined as the federal government erecting a barrier between religious expression and the public square, is simply false, figuratively and literally.
It is a fact that the actual words “wall of separation between Church and State,” are nowhere to be found in the Constitution or the Declaration of Independence, and that is a critical point. The words come from Thomas Jefferson’s 1802 letter to the Danbury Baptist Association. The letter was a response to a letter from the Association congratulating Jefferson on his recent reelection; Jefferson was addressing why he did not call for national days of fasting and thanksgiving like his predecessors had. Now here’s the rest of the story. Two days after penning that letter, Jefferson attended Church services in the House of Representatives, which he did on a regular basis for the remainder of his presidency. He regularly allowed the use of public buildings for church services and the use of public funds to subsidize Catholic missionaries to proselytize various Indian tribes. When he wrote the first plan of education adopted by the District of Columbia Jefferson quotes:
We hold these truths to be self-evident: That all men are created equal, and endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness (Declaration of Independence)
God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are a gift of God? Indeed I tremble for my country when I reflect that God is just, that His justice cannot sleep forever. Commerce between master and slave is despotism. Nothing is more certainly written in the book of fate than that these people are to be free. (Notes on the State of Virginia
I have sworn upon the alter of God, eternal hostility against every form of tyranny over the minds of man (the dome of the Jefferson Memorial)
And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not violated but with his wrath?
Although, along with Madison , Jefferson was the most secular of the founders, do these sound like the words and actions of a man who is in agreement with modern-day progressives in their attempts to banish religious expression from the public square? Of course not. It is particularly offensive to me that Jefferson ’s words would be selectively quoted and taken out of context to support the eradication of religious expression from public life. Jefferson is rolling in his grave. So let’s stop telling people half a story in order to arrive at preconceived, half-assed conclusions. Let’s instead endeavor to tell the whole story and let people decide for themselves.
James Madison, near the end of his life wrote that belief in God was “essential to the moral order.” John Adams, famously remarked, like the Roman Livy, and the Greek Aristotle before him, that a true republic was “a government of laws, not of men.” There would be no laws, or rule of law, if it were not for the precepts of Judeo-Christian religion. The founders knew this, and so it is inconceivable that the system of laws that they created was meant to banish religious expression from the public square; or somehow prevent partnerships between faith-based human aid organizations and the instrumentalities of the government. In toto, their writings and actions as legislators and presidents support this view. Only beginning in the late 1940s, after nearly 150 years of sound constitutionally-based governing and court decisions in the area of public religious expression, did an activist Supreme Court drive us off the rails by citing Jefferson ’s obscure letter as proof of the existence of the “wall.” The court declared that this misreading of the 1st Amendment, also extended to state and local governments, something that the framers never intended. The Constitution gave the states the freedom to deal with religion in their own way; thanks to public apathy towards our history, and the brainwashing our culture has suffered at the hands of leftist educational institutions, this fact has been lost in the mists of time.
1.
ReplyDeleteWe agree that the Constitution founds the government on the power of "We the People." The Constitution says that in so many words.
You then assert that we the people derive our rights from God and suppose that assertion is somehow "interwoven in the fabric" of the Constitution. (You must, I hope, appreciate the irony of such a claim being voiced by one who in the next breath objects that because the words "separation of church and state" are not in the Constitution, neither is the principle.) The Constitution itself, of course, says nothing remotely suggesting god(s) or religion play the role you suggest.
While some, like you, draw meaning from the reference to "Nature's God" and "Creator" in the Declaration of Independence and try to connect that meaning to the Constitution, the effort is baseless. Apart from the fact that these references could mean any number of things (some at odds with the Christian idea of God), there simply is no such "legal" connection or effect between the two documents. Important as the Declaration is in our history, it did not operate to bring about independence, nor did it found a government. The colonists issued the Declaration not to effect their independence, but rather to explain and justify the move to independence that was already well underway. Nothing in the Constitution depends on anything said in the Declaration. Nor does anything said in the Declaration purport to limit or define the government later formed by the free people of the former colonies. Nor could it even if it purported to do so. Once independent, the people of the former colonies could choose whatever form of government they deemed appropriate. They were not somehow limited by anything said in the Declaration. Sure, they could take it as inspiration and guidance if, and to the extent, they chose--or they could not. They could have formed a theocracy if they wished--or, as they ultimately chose, a secular government founded on the power of the people (not a deity).
You rightfully reject the idea that separation of church and state "erect[s] a barrier between religious expression and the public square." The principle is often falsely maligned in this fashion. I said much the same in my comment above.
The history of how the founders applied the Constitution with respect to religion and government is sufficiently complex to largely preclude simplistic black and white characterizations. For instance, while Washington offered Thanksgiving proclamations, seemingly seeing no problem in that, Jefferson refrained from issuing any such proclamations for the very reason he thought the Constitution precluded it. Madison would have preferred not to issue any such proclamations, but upon being requested by Congress to do so, reluctantly issued one, though taking pains to word it so as merely to encourage those so inclined to celebrate the day. He later almost sheepishly acknowledged that had been a mistake.
2.
ReplyDeleteDuring his presidency, Madison also vetoed two bills, neither of which would have formed a national religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. He pocket vetoed a third bill that would have exempted from import duties plates to print Bibles. Separation of church and state is not some new invention of the courts.
Some of the other actions you mention similarly raise the questions: Are they indicative of what the founders understood the Constitution and First Amendment to mean? Or are they mistakes of the sort sometimes made when announcing new principles while not entirely shaking old habits.
In his Detached Memoranda, Madison also discussed what to make of some government actions concerning religion such as appointing chaplains for the houses of Congress and the army and navy or issuing proclamations recommending thanksgiving. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” It appears he thought that because many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.
We look to the courts to resolve just such issues of law. In its jurisprudence, the Supreme Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to some governmental statements or actions about religion as ceremonial deism or some such. As the Wake Forest paper serves to show, notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).