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 peaceably to assemble, and to petition the Government for a redress of grievances.
Does this sentence separate church and state, or does it merely imply that government will not write laws that endorse a particular religion? Let’s analyze these words carefully: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”, would the founding fathers have been more precise if they wanted to say that there will be a distinct demarcation between church and state? These were brilliant men, who expressed themselves extremely well: to create a gulf between church and state is not a difficult passage to express, but to write that there should be no church given priority over another as a state religion is a more difficult task to phrase.
Coons, a dedicated Marxist who obviously feels we don’t have enough Marxists in Washington DC, is a polished debater, but he drew a blank when asked about the other provisions in the First Amendment and passed off the provision concerning church and state with the generic and inaccurate description, “the separation of church and state”. The elitist crowd of law students laughed, yet perhaps they were exhibiting their own naivete on the subject.
Thomas Jefferson was the founding father possessed with Freedom of Speech and Freedom of Religion. He was the driving force behind the Bill of Rights. The phrase “Wall of Separation”, attributed to Jefferson, was lifted from a “letter” he wrote to the the Danbury Baptists in 1802: this is described by Mark Levin in his book, Men In Black. The phrase was ignored for a 145 years, until Supreme Court Justice Hugo Black, in 1947, ruled in the Everson case, upholding the use of taxpayer money to transport catholic and parochial children to non-secular schools- citing the Jefferson phrase. Thus the anti-religous precedent was set to cause antipathy and damage to religious freedom.
It is doubtful whether those that laughed at Ms O’Donnell understood the significance of her answer or the insignificance of their derision.
Chief Justice Rehnquist: In a dissent on a 1985 ruling against school prayer, “There is simply no historical foundation for the proposition that the framers intended to build the ‘wall of separation’ that was constitutionalized in Everson….” He termed Jefferson’s “wall”, “a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.”
Columbia Law School Professor Phillip Hamburger in his 2002 book “Separation of Church and State” argues that the early Americans enacted the Establishment Clause to prevent the corruption of religion by worldly influences, and that “the constitutional authority for separation is without historical foundation.”
The arrogance of students is preceded only by their ignorance. Skook, 2010
More here.
A professional horseman for over 50 years, Skook continues to work with horses. Skook has finished an historical novel, Fifty Thousand Years, that traces a mitochondrial line of DNA from 50,000 years ago to the present. The story follows a line of courageous women, from the Ice Ages to the present, as they meet the challenges of survival with grit and creativity. These are not women who whimper of being victims, they meet the challenges of survival as women who use their abilities without excuses or remorse, these women are winners, they are our ancestors.
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Very well said Skookum, I’ve been trying to write this up but I couldn’t do a better job than yourself. So now I’ll just link the article.
Hi Skookum.
Would you consider the following hypothetical legislation to be constitutional:
If you feel it is unconstitutional, you should have no problems articulating your reasoning. Please, humor me, and take a minute to do so (for I fail to see how the law would be giving any one church priority over another).
If you feel the law would/should pass constitutional muster, wouldn’t you agree that a society goverened by such a law lacks “religious freedom”? From that, would you not also need to conclude that our Constitution does not guarantee “religious freedom”?
Thanks!
-Kevin
I also note the amendment is very specific – Congress shall make no law. . . As in the Federal Congress. Does this not imply the States / Counties / City governments can?
Kevin,
Congress shall make no law . . . or prohibiting free exercise.
Congress shall make no law – unconstitutional
Free exercise includes the free to not exercise. – unconstitutional.
We have one clause that says Congress shall not establish any religion, and another saying that Congress shall not interfere with the free exercise of religion. Add in the Ninth Amendment’s statements about unenumerated rights retained in the people, add in the 14th Amendment applying the First Amendment to the states, and you have the entire concept that there is a separation between church and state. This means neither the feds nor the states should be establishing or promoting religion, or favoring one religion over another, discriminating against anyone because of their religion, or interfering in a person’s exercise of their religion, their choice whether to have a religion.
Hi Mike,
For the record, I was mostly responding to Skookum’s notion that the founders simply wanted the government to avoid favoring one religion over another.
I do appreciate your clear-cut statement of this principle “Free exercise includes the free to not exercise. ” Incredible as it seems, some in the conservative mindset don’t think things are that cut and dry. My follow-up question to you: when we get to real-life, sticky, nuanced situations, do you allow for a little “wiggle room” into this principle?
A couple examples to find out:
Many Christians exercise a religious practice called “group prayer”, whereby a group of believers collect in a closed area and remain silent while one person loudly offers invocations to the Christian god. Should Congress be able to enact laws which force all citizens to participate in group prayer (under penalty of banishment from, say, town hall meetings)?
Many Christians exercise a religious practice of creed vocalization – that is, stating the creeds and beliefs of their religion aloud and publically. Should Congress be able to enact laws which force citizens to vocalize religious beliefs (e.g, the religious belief that there is a “God” that is “over” us); or enact laws that demonstratably coerce children into doing the same?
I’m also curious about your attitude toward taxation (specifically, the allocation of tax revenue to religious institutions). Would you consider it constitutional for congress to levy the following tax:
If not, why not? Circling this back to “real life”, should congress be able to tax its citizens and give the revenue to a Christian church to spend on construction of a massive 200-foot-tall cross?
Thanks!
-Kevin
The “Wall of Separation” phrase comes not from the Constitution, but from President Jefferson’s letter to the Danbury Baptists in 1802.
B-Rob, If the new comer religion is seen as a threat to AMERICA DO you FAVOR them,?
PROTECT THEM against AMERICA? GIVE them A free TAX EXEMPTION?,
AND SEND YOUR SPACE MEN to their COUNTRIES TO give them an ADVANTAGE TEACHING
PAID by AMERICANS HARD WORKERS? DO you apologise to our enemies,
while the blood of AMERICANS are spilling?.
The alternate interpretation is that they correctly understood the significance of her answer instantly.
What popped into my own mind was where this sort of revisionist thinking can lead. There are people such as Sharron Angle, for example, who would deny the victims of incest or rape the freedom to decide to terminate a resultant pregnancy, because “God has a plan”.
What’s of far greater concern to me is that far-right conservatives have a plan.
@Greg:
What “revisionist thinking” are you referring to here?
The thought that the first part of the First Amendment wasn’t specifically intended to constrain government from either promoting or impeding various expressions of religious belief.
@Greg:
Seems to me that you’re attempting to revise the crux of the O’Donnell / Coons discussion at the debate.
Of course we expect you libs to do that when you cannot win the debate based strictly on the matter at hand.
It struck me that that’s what Spinmeister Limbaugh is doing. To my way of thinking, the exchange at the debate pretty much speaks for itself. Obviously opinions vary.
GREG: SURE GOD HAS A PLAN and don’t you forget that CONSERVATIVES haven’t
DENIED GOD IN AMERICA, THIS land of FREEDOM has the MAJORITY of CHRISTIANS AND JEWISH
GOD LOVING PEOPLE, living peacefully, respecting each other,not trying to impose their beliefs; and now it has come to a point where it has become embarrassing to proclaim JESUS out loud; because SOME
minority religion are protesting that it offend their own religion:
that is wrong for AMERICA’S FREEDOM, and the people have notice and know what to to do to correct it now and once time for good.
Ever so slightly off topic:
I made it out to be a simple mistake a while back when Obama ”forgot” or lost his place on his teleprompter and omitted the CREATOR from his quote of the Declaration of Independence.
But he did it again!
Oct 18th, 2010:
Remarks by the President at a DSCC Dinner in Rockville, Maryland
…..
Most of us here came from someplace else — or our parents came from someplace else, or our grandparents, our great grandparents came from someplace else. And they were inspired by a particular idea, this idea of America. As wonderful as the land is here in the United States, as much as we have been blessed by the bounty of this magnificent continent that stretches from the Atlantic to the Pacific, what makes this place special is not something physical. It has to do with this idea that was started by 13 colonies that decided to throw off the yoke of an empire, and said, “We hold these truths to be self-evident, that all men are created equal, that each of us are endowed with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.”
And that idea,…..
http://www.whitehouse.gov/the-press-office/2010/10/19/remarks-president-a-dscc-dinner-rockville-maryland
What does the document really say?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.
It is starting to look like Obama is doing it on purpose.
Nan G : hi, I would believe also, a slip of a so important word as CREATOR, is
very suspicious; WHAT look like a chicken is surely it.
WaPo/AP Caught Revising the O’Donnell Story Without Issuing a Correction
Great catch, Curt.
I really appreciate how completely Patterico makes the case.
Some dino-media still thinks there is a real ”memory hole” down which they can disappear things.
Hi Kevin,
I assume you enjoy amateur law; at least, your condescending attitude indicates a willingness to be amused by the ramblings of a back country horseman’s opinions on Constitutional law. I hope I don’t disappoint you.
Although the First Amendment forbids a state religion or a preference of one religion over another, it doesn’t imply that religion is mandatory.
In the new Obama Care, citizens will be required to purchase insurance or face fines that will equal the cost of insurance: the logic or argument for HR-9999, will surely be found in the logic for penalizing those who feel they can pay cash for medical services or those elect not to participate.
What If Christine O’Donnell Were Right About The First Amendment?
http://legalinsurrection.blogspot.com/2010/10/what-if-christine-odonnell-were-right.html
http://www.blogger.com/profile/16433685588536441422
Ok, another Lawyer but more credible than our resident pest Billy Bob and from what I have read at his blog, he is an actual Professor, not an Affirmative Action hire “Lecturer” and he does post his experiences in practice. instead of making vague references.
Kevin,
I’ll take a shot at your hypothetical bill…
Seems to me this would fail constitutional muster… not so much the first amendment, but the 10th. There is no enumerated power for the feds to enact anything like this.
The other bill …
Would seem to be an obvious violation of the first amendment. After all a person’s religion may well prohibit them from supporting folks they consider heretics…. so by forcing them to support another religion through taxes would be interfering with the free exercise. On the other hand, nothing is so cut & dried. We don’t allow human sacrifice, even if your religion allows it.
FWIW.
The constitution was ratified by states which had established religions–or denominations, more accurately.
Therefore, the idea that NO government entity could have anything to do with an establishment of religion did not seem to be the case. It was congress only.
Practice and doctrine have evolved, so that from time to time we hear of nonsense like el ed principals forbidding kids from handing out Christmas candy with a wrapping saying, “Jesus loves you.”
But it’s not in the First Amendment. Another item which is in the Noble First is “nor prohibiting the free exercise thereof”.
@ jim s, We draw the line at human sacrifice, polygamy, honor killings and dueling.
Pretty narrow minded Eh… 😯
Hi Skookum,
My apologies. Re-reading, I see that the “humor me” comment does come across as condescending. It was not meant to be. It was meant in the context “I realize my hypothetical law will probably be considered laughably unconstitutional; however, if you will humor me by articulating why it is unconstitutional, perhaps you will see why equating the first ammendmant to simply “not favoring one religion over another” weakens the ammendment far beyond what our forefathers could have intended. A socratic attempt at making an overarching point that, either one must accept that the first ammendment says more than, “not favoring one religion over another”, or that our first ammendment doesn’t truly enshrine religious freedom in any real sense.
Also, you mis-guage me if you think that I support the health care mandates one bit. Part of the “psychosis” that keeps me attuned to FA is that I do see a lot of sense in the Tea Party movement. I do want government to take a huge step back out of places it has no business being. However, I keep running into the distinct sense that Tea Partiers want a small governemnt EXCEPT when it comes to using the power of the government to advance their religious agenda (e.g. by weakening the sentiments expressed in the first ammendment).
Kevin: hi, I read your comment above, and I thought that maybe the FATHERS never intended
THAT AMERICANS would become so “free for all” as to keep the border open to let any other religion who claim to eventuely slowly like a rampant snake, take over the power of ruling,
over AMERICA, and erase the values, they the fathers of the CONSTITUTION” work hard to install for the future of this beautiful AMERICA; EVEN more so, they never believe that it would be
accepted by the protectors of this country without any reprisal from the people,;
but I think that they will be found right at the end because their thrust in the AMERICANS,
will show that it will be taken care of returning to their ROOTS is to find the SOLUTION,
AS the FATHERS INTENDED.
bye SR
From BRob
For once, his wording and choice of phrasing is correct. Unfortunately, his meaning is much different than that of conservatives, and he implies earlier in his post of a “separation of church and state”. How wrong that is. Apparently, our founding fathers didn’t know nearly as much as BRob does, and their numerous writings and quotes on the topic mean nothing.
In reality, liberals and progressives wish to remove all trace of “God” from public life, even when it is widely known that Christians, Jews and Muslims all worship the same God, including the many denominations of those particular religions. To remove “God” from public life, is to remove the very mechanism which has granted all of our individual rights, and to force the false Idolatry of government upon the masses. In their mind, government grants the rights, and can take them away as well.
No one can deny the founding fathers based our freedoms on the Bible. We have it in their own words.
Just one of many. The progressives wish not to believe this, as it destroys their intentions to make our society a completely godless one. If that ever happens, we should all weep for what our nation once was, and what is has become.
Wrong, wrong, wrong. Did I mention, this is wrong? Have you ever seen an atheist object to the existence of Christian billboards? To the religion section of the newspaper? To boundless religious broadcasts on radio or television?
The only common element to the things atheists, liberals, and progressives do object to is when Christians use the power of the US Government to promote their religious agenda. When Christians use the privately owned newspapers to proclaim their message, fine. When they use the federal monetary printing presses to decree “God is real and we trust him”, we cringe. Put a nativity scene in front of a home, church, or private business; even to the exclusion of any alternative message? Yawn. Put it on government property, excluding any alternative messages: cringe. A public school teacher proclaiming to her bible study group, “God is great”. Yawn. On her facebook page? Yawn. In editorials to the newspaper? Yawn. Blog? Yawn. Banner on her house? Yawn. Bumper stickers on her car? Yawn. But…. proclaiming it to students mandated by law to be her captive audience: cringe.
Like many conservatives, you seem a smart person, johngalt. This distinction is not complex. How does it so completely elude you guys? Christians can put their Christian message in any public place they want, and nobody will lift a finger to stop them, so long as no Government power is used to prevent others from using that same platform. Could this be made any clearer?
Why, yes.
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7712513/Mojave-desert-cross-stolen.html
Freedom not to participate does not mean freedom to prevent my participation – or my communitees.
@Kevin
By public, I mean the public that is government, not public as in “can be seen by all”. And yes, I do mean that liberals and progressives wish to remove all trace of God from public spaces. You make the same mistake that many have made, and that is equating the word God with only the Christian religion. The truth is, and I stated it above, that Christians, Jews, and Muslims all worship the same God, and many other religions have a single deity that they sometimes refer to as “the God”.
What is more, from writings and quotes on the subject, one can easily see that this nation was founded on Christian principles, but, because of the atmosphere that caused many to come to this land, the religious freedom of all is protected by our Constitution. No where in it, is there any form desire for the complete removal of God from government. There is only the singular action, or expressed prevention, of Congress promoting a national religion.
One must understand history, and read the writings of those who came before, to understand their intentions, and liberals and progressives do not do this. Instead, they warp the writings, and the Constitution itself, to convince the masses of their “rightness” on not only this issue, but others as well. They have coopted the atheists into their cause to remove God from public life.
As for Christians using the federal government to promote their religious agenda, name something they have done in the recent past that proves this.
Kevin: what about the CHRISTIAN MINISTER WHO was invited to make a PRAYER speech at
a STATE GATHERING, and the person representing this government,who ask to read the copy
before, TOLD him not to MENTION JESUS in his PRAYER, because it might OFFEND some.
YES OPEN your EYES and EARS, THAT is happening at this now time, and came from ELECTED one.
bye
I don’t understand what this part means, “or prohibiting the free exercise thereof”, and I don’t think Congress does either…just saying 🙂