The First Amendment in the United States Constitution states that,
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peaceably to assemble, and to petition the government for a redress of grievances.”
There are (obviously), different opinions on the meaning of this amendment. Some think it means religion has no place in government because of “Separation of Church and State” doctrine. Others say that there is no real separation of church and state anywhere, in the Constitution.
A question then arises,
“Where in the world did separation of church and state come from anyway?”
To answer that question, we have to go back to the 19th century, during Thomas Jefferson’s term as president. The Danbury Baptists (a minority denomination in Connecticut) had written Jefferson about their concern over religious rights. The president wrote back to them, and you can read the transcript of Jefferson’s letter below:
Mr. President
To Messers Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson a committee of the Danbury Baptist association in the state of Connecticut.
Gentlemen
The affectionate sentiments of esteem & approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. My duties dictate a faithful & zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more & more pleasing.
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, and 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 and state. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection and blessing of the common Father and creator of man, and tender you for yourselves and your religious association, assurances of my high respect & esteem.
Thomas Jefferson
Jan.1.1802.
(Source: http://www.newgenevacenter.org/06_Historical-Documents/1802_Jefferson's-'Wall-of-Separation'-Letter.html)
That, ladies and Gentleman, is where the term “Separation of Church and State” originated. To make a long story short, Jefferson’s letter (or rather that specific section of the letter) is used to justify the efforts to remove any and all expressions of religion from essentially every aspect of government.
So what do I think? What are MiThoughts on the issue?
I do believe that the first Amendment creates a “wall of separation” between Church and State.
Now, before you start jumping to conclusions, allow me to explain what I mean: The First Amendment CLEARLY STATES that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
SOOOO…the Constitution CLEARLY forbids Congress to make any law that concerns an establishment of religion… I believe that the constitution has separated congress from affecting and influencing religion. But I won’t get into what an “establishment of religion” means. SO MANY other people are concerned with that, and there are so many wonderful debates on the subject.
I want to touch on a DIFFERENT aspect of the amendment, specifically the part that says CONGRESS SHALL MAKE NO LAW…
Does the First Amendment say that THE PRESIDENT is expressly forbidden to be religious or to express his religious beliefs? Does it say that a STATE SUPREME COURT may not have the Ten Commandments on display? Does it say that SCHOOLS are forbidden to have prayer, or to express religion in any way?
Does it mention ANYTHING other than forbidding CONGRESS to make a LAW?
I have not heard many people asking these questions, and I think it is high time somebody did!
The fact is, the Constitution does NOT say anything other than Congress shall make no LAW… or prohibit the free exercise thereof.
Don’t be caught up by asking the wrong questions, or letting someone trick you into answering the wrong questions….
The mind of El Pensador doesn’t work that way, and neither should yours.
Rock on, America!
Good job! I like this. The mind of el pensador is very bright.
ReplyDeleteYou correctly note that, by its terms, the First Amendment constrains only "Congress." By a literal reading, do you suppose this means the President could, by proclamation, establish a national religion? Or could the Executive declare the views of a particular sect of Christianity to be true, but stop short of officially declaring that sect to be our national religion? Or could the Executive direct all federal agencies to use stationery bearing statements touting the virtues of Scientology?
ReplyDeleteThe answers to these and the other questions you pose are readily at hand. If you understand law, you understand that simple semantics rarely cut it in the real world.
First, Congress itself cannot make any law whatsoever without the approval of the President, except in the instance of overriding a President's veto, so to read the language as simplistically and literally as you suggest would actually do violence to the intent of the Amendment. As laws in the ordinary course are "made" by actions by both Congress and the Executive, the establishment clause is reasonably understood to constrain both branches of government. By the literal reading you suggest, it would, I suppose, only stop Congress from overriding a veto to make a law establishing a religion--a manifestly silly result.
Second, as the Constitution designs the Executive to carry out laws that have been passed by Congress and does not give the Executive any independent power to establish religion, the establishment clause is reasonably understood to constrain the Executive in its carrying out of laws that Congress passed. That is the way James Madison understood the clause; in his Detached Memoranda, he explained that "[r]eligious proclamations by the Executive recommending thanksgivings and fasts" are not consistent with it. If the clause were interpreted to leave the Executive free, by proclamation or some such, to establish a religion, what really would be the point of the clause? No, such an interpretation would enable the Executive to eviscerate the purpose of the clause.
With respect to application of the establishment clause's constraints to states and their political subdivisions, courts have interpreted the 14th Amendment’s guarantee of privileges and immunities of citizenship, due process, and equal protection of the laws to effectively extend the First Amendment’s guarantees vis a vis the federal government to the states and their subdivisions--hence the law does reach the city councils and public school teachers. (While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments, e.g., the 14th, could extend the First Amendment's constraints to state and local governments.)
I was simply stating that the purpose of the 1st amendment was NOT to eliminate religion (They did however, not wish to have a situation like the Church of England) from government. It is obvious that the president could not make such a decree as to create a national religion or anything of the sort.
ReplyDeleteI am not and HAVE NOT suggested by any means that there should be a national religion, denomination, etc. I have simply stated that the 1st Amendment HAS been abused, and has been taken to unwarranted extremes.
I am not ignorant of law by any means, but I know that law OFTEN gets taken away from "common sense" and becomes far more difficult than it was ever intended to be. Being a lawyer, I am sure you understand what I mean. I have the highest respect for law, and am planning on attending law school.
I appreciate your comments. Thank you.
You'll get no argument from me that the law sometimes gets more complicated than necessary and that any given law (including the First Amendment) sometimes gets misapplied. That said, there's no getting away from it that sometimes applying a general law or principle to many different factual circumstances naturally and necessarily does get complicated.
ReplyDeleteWake 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
And best wishes in your future studies.