tag:blogger.com,1999:blog-3706997005523990770.post5939921674815385152..comments2012-09-11T12:55:17.968-04:00Comments on Poetica in Silentium: Separationpoetica in silentiumhttp://www.blogger.com/profile/06881374793984239361noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-3706997005523990770.post-79957593920265366542011-04-11T23:02:32.336-04:002011-04-11T23:02:32.336-04:00Doug,
And yet that simple metaphor, as you call i...Doug,<br /><br />And yet that simple metaphor, as you call it, has drastically altered our society. By extrapolation it has given way to courts who create rather than interpret law.<br /><br />Clearly, I stand in opposition to your interpretation, but thank you for your indulgence of me in mine, as well as for taking time to offer your comment.poetica in silentiumhttps://www.blogger.com/profile/06881374793984239361noreply@blogger.comtag:blogger.com,1999:blog-3706997005523990770.post-82738938284380770502011-04-11T21:53:10.150-04:002011-04-11T21:53:10.150-04:00The phrase “separation of church and state” is but...The phrase “separation of church and state” is but a metaphor to describe the principle 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 where the point is to confirm that each person enjoys religious liberty and that the government is not to take steps to establish religion. <br /><br />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 is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James 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.”<br /><br />During his presidency, Madison also vetoed two bills, neither of which would form 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.<br /><br />While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision ("no religion shall be established by law, nor shall the equal rights of conscience be infringed") and ultimately chose the more broadly phrased prohibition now found in the Amendment. In keeping with the Amendment's terms and legislative history and other evidence, e.g., Madison's statements, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by Congress and/or the Executive doing all sorts of things to promote this or that religion--stopping just short of a ribbon-cutting ceremony for its new church.<br /><br />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/6nnnxDoug Indeaphttps://www.blogger.com/profile/16049465653137283724noreply@blogger.com