From today's New York Times Editorial:
With the religious right clamoring for more religious iconography in public spaces, it is understandable that the court might have shied away from a dramatic ruling that would have heightened what is already a strong antagonism toward the judiciary among some conservative groups. Ceding some ground on Ten Commandments displays may seem like a way to keep the peace. But as our country becomes more religiously diverse, putting one faith in a privileged position is likely to create more religious strife, not less. As with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right.
Its one thing to agree with the opinion and make an argument that the interpretation of the First Amendment should change with the ages, but no one seriously believes that it was the founders who "came up with the idea of a clear wall between church and state" do they?
Related Posts (on one page):
- Not the Founders' Wall.--
- The Founders' Wall (?):
I don't speak for Todd, but perhaps he was making reference to the fact that TJ was not a part of the Constitutional Convention (he was in France at the time, I believe) and his now famous "wall" quote comes from either correspondence or his inaugural address - in either event, approx. 15 years after the drafting of the Constitution.
If memory serves, the "Founders" (here meaning those actually present and participating in the drafting of the Constitution) initially considered another amendment which was phrased similar to that of the First Amendment's "establishment clause" except that instead of "Congress shall make no..." it placed a similar prohibition on the various state legislatures. That other amendment, as we know, did not make it into the Bill of Rights, the Founders deciding instead to leave that question up to the individual states.
And of course there is the inconvenient fact that until the mid 1800's at least 2 (North Carolina and Massachusetts - though I could be wrong about which states) states had "official" state religions - with the impact being that certain state benefits were not enjoyed by those who were not members of the officially recognized church.
So, while I think it's fair to say that the Founders may have thought that generally it was best that governments favor no particular religion over another, the only consensus - based on what we know of legislative history - among the founders on this point was that the FEDERAL government should not favor one religion over another. To say that the Founders embraced and endorsed Jefferson's "Wall of Separation" is to do the kind of mental gymnastics and stretching that would lead one to think that the 14th amendment somehow makes the phrase "Congress shall not" applicable to state legislative bodies.
Your argument would make more sense if Zywicki had written "framers" rather than "founders". Jefferson may not have written the Constitution, but he did write large chunks of the declaration of independence, did hold the first presidency after the first switch in party governance, and so on. It would be hard to exclude him from the category of those who "founded" the country.
Point taken. However, I don't think Todd is incorrect in asserting that the Founders did not subscribe to TJ's "wall" view of the establishment clause, especially not as it has been interpreted over the last 50+ years (starting with the Lemon case?).
I think by saying that the "Founders" subscribed to this view, the NYTimes is trying to give the "wall of sep" viewpoint more of a historical foundation than it actually enjoyed.
Of course, he could have just meant that the founders didn't come up with the idea in the first place, whether applied to the federal government or state governments, which others have pointed out.
It's worth noting that the Establishment Clause did not come out of the Constitutional Convention, but was a later amendment proposed by Congress. (The third one proposed, the first one ratified).
Yes, precise language is a must for discussions such as this. As a founder of our country, Jefferson certainly was influential. Of course, his direct influence on the "framing" of the Constitution is more debatable - as mentioned in numerous places.
Returning to my original point, much of the discussion is rather tangential to the issue. Because, regardless of what Jefferson really meant by his seperation line, if the framers and founders of our country really meant in the establishment clause what our modern SCOTUS has said it means. Then, you would have seen it repeated (or words similar) in other writings of the time and, more importantly, in the practices of their time. However, at most, what you have is that our founders in their other words and actions were weary of a particular religious denomination becoming the official state church. Rarely, if ever, did our founders and framers show hostility to religion in general. The debates focused on freedom of conscience and belief, but never does it appear that they even envisioned a freedom "from religion" - as the phrase seems to be interpreted today.
One could argue whether the words and actions of our founders and framers are correct for a modern pluaralistic society, but that is a different debate for another time. However, Zywicki is quite correct to criticize the NY Times for attempting to wrap the current SCOTUS interpretation of the establishment clause in a mantle of legimacy by appealing (falsely) to the founders for suport.
-- Maryland prohibited non-Christians from holding office; Pennsylvania's revolutionary Constitution required (and still requires) officeholders to believe in one God and a future state of rewards and punishments; North Carolina's Constitution only allowed Protestants to hold office; Massachusetts' 1780 Constitution required the legislature to pass mandatory church attendance laws, --
is that they are precisely the kind of COERCIVE establishments that there is good historical reason to believe the Fourteenth Amendment forbids. Even Justice Thomas in his dissent argues that if anything about the Establishment Clause is to be incorporated at all, it is proscriptions against THOSE types of things, which he labels "coercive establishments," that is establishments which cause some sort of tangible harm, above and beyond merely "being offended."
Moreover, Jefferson, Madison, and probably Washington, Adams, Mason and many others thought these practices to be repulsive violations of the natural rights of conscience. That's why they protected against such violations in Art. VI of the unamended Constitution.
Under principles of Federalism, the Federal government was initially powerless to prevent such violations of natural rights, just as it didn't give itself the power to abolish slavery. But certainly the 14th Amendment changed all of that.
The more apt question, as Justice Thomas points out, is what happens when you have government merely acknowledging a religious point of view, without causing any sort of tangible harm other than mere offense at the point of view.
I think "excluded" is a more accurate term. I do not feel offended at the fact that many people believe in the Ten Commandments, or that people want to pray to this alleged "God" fellow.
But when a public event includes a prayer to this alleged God, I am excluded from that portion of the event, and the basis for my exclusion is my religion (or lack of same). When my local public school posts a sign saying "In God We Trust," I am by definition excluded from whatever "we" they are referring to, since I do not trust in this God.
Contra Jon Rowe, this is not about "mere offense at the point of view." It's about governmental discrimination based on one's religious beliefs.
Huh? How can you feel "excluded" by an official's statement of belief? If a neighboring public school (not yours) put up a sign saying, "Our students are the best" (or, more likely, "Our student's are the best"), would you be excluded?
You are no more excluded from a public event where a prayer is offered than you would be if you were tone deaf and music were played. (Which may, after all, be a new offended class some bright lawyer might represent someday.)
My mind still isn't made up on this. But you'll have to convince me that you or I (b/c I don't believe the TC were divinely given by God) are actually suffering discriminatory harm, as opposed to being merely offended by something the government says, before it raises a federal issue in my mind.
But when the government itself is the actor, I see it differently. When the government is conducting an activity such as prayer to a God, that activity by definition excludes those who do not pray.
I agree that other activities can be exclusionary, such as concerts. But there are no constitutional principles suggesting that every governmental activity must be equally available to everyone of varying degrees of tone deafness or tone sensitivity. There are constitutional principles, however, suggesting that the availability of governmental activities should not depend on one's own religious beliefs.
Very well put, and far abler than I was about to do myself before I read that you'd already demonstrated the Civil War Amendments rebuttal to Cramer.
But with respect to cognizable harm: Surely you must concede the First Amendment doesn't operate by the same rules of standing as do other constitutional provisions? And if it's concrete harm you would demand, doesn't that make it hard to explain some of the school prayer cases? Far easier, I think, to read the First Amendment as granting a legal right and cause of action to all citizens that their government not violate Establishment.
As I said, I'm still trying to think through these things w/ an open mind.
Re: school prayer, certainly being forced to pray would be coercive and thus harmful and not constitutionally permitted.
If it's just sitting back and being forced to listen to a prayer that a school official recites...well as I've argued on my blog, if we constitutionally permit Christian prayers being broadcast in a school, then we must also constitutionally permit -- say a Muslim controlled schoolboard -- to have their prayers broadcast in a school where Christians and Jews may attend.
Note: I'm not saying I support any of this as a matter of public policy (I don't). I'm simply saying that if it's constitutionally permitted that Christian prayers be broadcast in a public school, then it's also constitutionally permitted for Muslims prayers, or Wiccan prayers, or unitarian prayers to broadcast in school IF these schools so choose.
While government may in some instances acknowledge certain religious points of view and disregard others (if all it's doing is merely acknowledging with words or symbols and nothing else), the Constitution does not offer any greater protection to any religion over another. In other words, the Constitution can never say it's Constitutional to engage in Judeo-Christian prayers, but un-Constitutional to engage in Muslim or Wiccan prayers.
As I said, I'm still trying to think through some of these issues. If the Court did "lower the Wall" and allowed for school prayers and some Alabama school engaged in overtly fundamentalist Christian prayers, given that public schools in most places are heavily into the diversity-multicultural ideal, I can see many schools, especially in the North East, going out of their way to include official Islamic, Buddhist, Hindu and New Age prayers.
And then how would the fundamentalist Christians like it when their children are being forced to listen to prayers that include Allah and Ganesh?
Careful what you wish for, you might just get it.
I think that since the NYT uses the phrase "the founders," and not some (or most) founders, they are suggesting that the idea of a clear wall of separation is actually embedded in the constitution.
Additionally, I believe that Cramer brings up the points he did not to advocate them or suggest that Jefferson and Madison advocated them, but to suggest that the existence of such examples belie the NYT assertion.
There was a point I wanted to make regarding affirmative action that borrowed the language and construction of steveh2's post immediately above, but I decided against it for it would have been mostly off-topic. Perhaps you can guess what I was going to say anyway.
The standard answer is that such official endorsements of religion exclude nonbelievers from the community. Well, sure. But so do lots of other things. The U.S. government has taken an official position that the war in Iraq was a good idea. I disagree. Thus I am, in a sense, excluded from the community.
To take an even more similar example: the government is obviously allowed to take the position that free-market democracy is good and Communism is pernicious. Let's say I'm a Communist. Aren't I likely to feel just as excluded as an atheist in a nominally Christian community? Yet no one thinks that my feelings preclude the government from taking a position.
Now, sure, I understand that religion is a special case because there's, you know, a special amendment about it and all. But the issue is what that clause should mean; and I don't see why arguments based on "divisiveness" and "exclusion" hold much water when the clause applies only to one small part (i.e., religion) of the many things that can divide and exclude people.
I'm not a Buddhist but I still go to my local Thai restaurant that has a statue of the Buddha.
I don't believe that a notion of harm is necessary to making a determination on the constitutionality of acknowledging religion, although I personally believe that religion is neither inherently divisive nor inherently exclusionary.
I think it is more helpful to think of the analogies with anti-discrimination legislation. There are a host of protections regarding discrimination (race, gender, etc.) in the constitution and law. The reason why the arguments you call into question hold water is because they involve arenas of society that the government has specifically decided to weigh in on, either in law or the constitution. That is reason enough.
On a more personal note, I believe that as long religious expressions do not uniformly favor one religion, are not invasive or pervasive, and are ignorable, then perhaps they would fulfill the Establishment Clause in my eyes. Of course, discrimination and coercive establishment would be indefensible.
I recently attended my sister's graduation at Brown University (for which I am very proud of her). At the Baccalaureate service, in the traditions of dozens of religions, thanks to God was expressed, but I'm certain that not every graduate's spiritual beliefs were covered during the ceremony. Would such a service have been in violation of the Establishment Clause had the service been organized and delivered by the Government?
I happen to tentatively agree with Zywicki and others in this thread on the interpretation of the establishment clause itself, but it's worth noting that that's not actually what Zywicki's post purported to be about-- the question was who "Came up with" the wall metaphor. The answer is that Jefferson came up with it, Chief Justice Waite adopted it in the 1870s, and Hugo Black dragged it into the sunlight for its modern revival. The New york Times is right on the specific point, but wrong on the legal question. Credit where credit is due.
It is essential to the meaning of the statement that the NYT used the plural with the word founders. The opinion of Thomas Jefferson cannot possibly be expanded to suggest that it was the founders who came up with the idea of a clear wall of separation. The correct characterization would be this: Thomas Jefferson believed that "the whole American people declared that [restatement of Establishment Clause], thus building a wall of separation between church and state."
Please note that Jefferson is suggesting that the Establishment Clause itself builds the wall of separation. This is merely the opinion of one man not involved in the process of drafting the constitution.
The NYT, as I stated before, is suggesting that the Establishment Clause is equal to a wall of separation. The NYT is suggesting that those who drafted the Establishment Clause came up with this idea. It was not the founders who came up with this idea. It was one man who was a founder but not a framer, who suggested that the framers built a wall of separation with this clause. By no means can the opinion of one person be taken as the truth of the matter, as the NYT has done, assuming they are trying to be faithful to historical fact.
I'm not really sure what else I can say to defend my position. At this hour, it is becoming more and more difficult to express my thoughts.
But perhaps one could look to Spinoza or Locke's work for what he might mean by this. I think they came up with the idea of a separation of religion and government long before the founders did.
Yes, I was careless in referring to the Constitutional Convention instead of the First Congress. However, Jefferson was not a party to either, and therefore, my point in bringing it up (that he was hardly an authoritative source of the "Founders" intent on the matter) still holds.
I'm reminded of that Monty Python line about watery tarts dispensing swords. here, TJeff seems to be the lady of the lake.
It would be swell if one of the blog posters could link us to a good law review quality article about the genesis of the Wall. I am almost certain that it was first introduced into constitutional law in the Lemon case and that the support for the assertion therein is rather weak.
Chief Justice Waite's Opinion for the Court in Reynolds v. United States, 98 U.S. 145, 1878 is the first one to introduce the wall into the jurisprudence of the supreme court. It quotes extensively from Jefferson's Danbury Baptists' letter, including the "Wall of separation" language, and then holds:
"(I)t may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. "
I believe that the next case to cite the wall, and the first case to incorporate the wall against the states, is Hugo Black's opinion in Everson v. Board of Ed. 330 U.S. 1 (1947). Black's opinion cites both Jefferson and Reynolds for this.
It's not a law review article, but I hope that will do.
From my digging, I believe that you are correct. But what is really interesting about this is that Reynolds is a decision that the ACLU would oppose today--because it banned polygamy. (The ACLU has taken the position that it opposes polygamy laws.) While Reynolds argued that the federal polygamy ban was to prevent "patriarchy," I don't think anyone seriously believes that it was anything other than a Christian majority imposing its views on a minority religion--exactly the sort of action that a serious application of "separation of church and state" would prohibit.
Concerning the 14th Amendment: there's no question that it imposes the First Amendment onto the states--but what meaning of the establishment clause does it impose? The behavior of the federal government with respect to church services in public buildings, and all the God-talk by the First Congress, would suggest that the 14th Amendment imposed an establishment clause considerably at variance from the ACLU's notion.
There is indeed question about whether all of the provisions of the First Amendment constitute liberties (or, as I prefer, privileges and immunities) of the sort that the 14th Amendment incorporates against the states. The Free Exercise and Free Speech clauses are surely incorporated, but not necessarily the Establishment Clause.
Thomas's Newdow opinion is only one example of this; there is plenty of anti-establishment-incorporation scholarship too. So one could quite reasonably stand for a federal wall but no establishment clause at all for states, so long as they respected the free exercise clause.
Anyway, Reynolds's citation of Jefferson's "Wall" is indeed quite strange, given what the opinion goes on to do, but I suppose that is the point that Michael McConnell made during his confirmation hearings when suggesting that Reynolds might be wrong today.
Essentially, no, that will not do. I'm looking for a more extensive examination of the subject matter than a conclusory statement in a Supreme Court Opinion. I would hope that it is clear that there is a difference between "what the Sup Ct says is so" and "the truth" (or as close as we can get to it.
Especially when, as here, the Court is going to interpret using the aid of something other than the writings/debates of those who were actually present and participating in the legislative process which resulted in the text at issue.
Supreme Court Justice Joseph Story’s Commentaries on the Constitution of the United States (1833) is still considered an important source by the federal courts for understanding original intent. Story argued that it was probable that when the Constitution and the First Amendment were adopted, “the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.” “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” [Joseph Story, Commentaries on the Constitution of the United States… (Boston: Hilliard, Gray And Company, 1833), §§ 1865, 1871, available at http://www.constitution.org/js/js_000.htm, last accessed July 7, 2004.]
So what happened to this understanding of the First Amendment? The U.S. Supreme Court’s first use of Jefferson’s quote about “separation” of church and state was in a case where today, the ACLU would almost certainly file a friend of the court brief on the losing side. The case involved a group that, at the time, most Americans considered sexual perverts—and worse, who insisted that marriage should not be limited to a man and a woman (at least, not just one woman). Congress prohibited polygamy in the territories, at least partly because the Church of Jesus Christ of Latter Day Saints (Mormons) were openly engaged in plural marriage.
In Reynolds v. U.S. (1878), the U.S. Supreme Court upheld that ban on polygamy. Rather than admit that American laws were based on Christianity (a position that could have been supported with reference to Justice Story’s Commentaries), the Court claimed that the law against polygamy was not based on religion: “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”[ Reynolds v. U.S., 98 U.S. 145, 165 (1878). ] Polygamy led to patriarchy, the Court decided,[Reynolds v. U.S., 98 U.S. 145, 166, 167 (1878).] and because Jefferson had written about the distinction between beliefs and actions—and polygamy was definitely an action, and not just a belief, they quoted Jefferson’s letter to the Danbury Baptists to defend their position.
Here was the first transmission error. Jefferson’s letter was sympathetic to the Danbury Baptists because Connecticut was playing favorites, giving one denomination legal and economic advantages not enjoyed by others. In the Reynolds case, Congress passed a law that applied equally to everyone in the territories, regardless of their religious beliefs. It did not matter if you were a Baptist, Catholic, Mormon, Muslim, or an atheist, federal law prohibited polygamy. That the polygamy law had more impact on Mormons at the time than other groups did not mean that the law discriminated against a particular religion. In modern terms, the polygamy statute had disparate impact (it affected one group more than another), but it was not narrowly written just for that group.
The next use of Jefferson’s “separation” metaphor was Everson v. Board Of Education Of Ewing Township (1947). In this case, a New Jersey township board of education provided for transportation services for children to both public and private schools—in some cases, Catholic schools. The lawsuit sought to prohibit payment for busing of children to Catholic schools, claiming that such payments violated the establishment of religion clause. The Supreme Court made a claim completely contrary to the available historical evidence, relying instead on the precedent from Reynolds: Nor did the Everson decision give any authority for its claim that the First Amendment required complete neutrality regarding religion. The Supreme Court pointed to Jefferson’s 1802 letter to the Danbury Baptists, which had only addressed the question of whether states should give legal preference to one church, and argued that the First Amendment should be understood as meaning no law could aid any religion—-a position that Jefferson did not take in that letter, and that Reynolds did not take, either. While both Jefferson and Madison (principal author of the Bill of Rights) had certainly played a role in disestablishing the Anglican Church in Virginia, the rest of the First Congress—-who also voted on the First Amendment—-did not share Jefferson and Madison’s views on disestablishing churches at the state level. There is also no evidence that Jefferson and Madison would have agreed with this claim that “no law could aid any religion”—and the actions of both Jefferson and Madison Administrations, as we have previously seen, suggest otherwise. While the Everson Court upheld the law—-because the money was only being spent on transportation to and from a Catholic school—-the decision established an incorrect precedent based on Reynolds—-and the game of telephone continued.
The following year, McCollum v. Board Of Education (1948) involved the use of public school facilities in Illinois for religious instruction. With parental consent, clergymen representing the Protestant, Catholic, and Jewish faiths provided religious instruction to children of their respective faiths. The Supreme Court ruled that this was an unconstitutional action. “This is beyond all question a utilization of the tax- established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education….” [McCollum v. Board Of Education, 333 U.S. 203, 210, 211 (1948).] But since Everson had misinterpreted Reynolds, which had misinterpreted Jefferson’s letter to the Danbury Baptists—-which only expressed a personal opinion, not a legal requirement, about state preference for a particular denomination, it is hard to take this decision seriously. Yet, decision after decision of the U.S. Supreme Court is based on McCollum—-a embarrassing chain of misinterpretations of what was, at best, only one point of view about the meaning of the First Amendment.
It is high time that “separation of church and state” be given a proper (and secular) burial. The history behind “separation of church and state” is embarrassingly sloppy, and a clear examination of original intent shows that the First Amendment was not intended to provide either complete separation, nor complete neutrality.
If you want to go back to proper original understanding of the First and Fourteenth Amendments, we must look at not only what they DID, but also the ideals they posited. Because often what the Founders did was inconsistent with their ideals.
RE: Religion, the natural rights theory that undergirds our Founding holds that all men have unalienable Free and Equal rights of conscience, and this applies not just to Christians but to, in Jefferson's" (and Madison's) words, "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination."
So the Constitution affords no more protection to Christianity than the atheistic or polytheistic religions.
Now this isn't to say that government may not through its mere acknowledgements seem to favor one religion over another.
I think this is where the notion of Thomas's "coercive establishments" comes in. Yes, government must remain neutral between religions and between religion and irreligion, but only when some tangible right is on the line. In other words with regard to the "Free Exercise of Religion" or any of the other "Privileges or Immunities" of citizenship than government may offer, it must remain neutral between the religions and between the religious and irreligious.
So that if government gives out aid in the form of a voucher program, it can't just give it to the Christian schools, but must make it generally available to the Muslim schools, the Scientologist schools, etc.
But what if government is doing nothing more than acknowledging with its mere words or symbols a preference of one religion over another or religion over irreligion. How does that "pick a person pocket or break his legs" to use Jefferson's words.
As a secularist, I think I need to offer more than "this offends me" to make it a federal issue.
Akhil Amar, I think, correctly notes that instead of the rubric of "Wall of Separation," instead, "the Equal Rights of Citizenship" is the more proper Constitutional place for these claims to be made.
From a post of mine where I quote Amar and his outstanding book on the Bill of Rights:
On another post I ask similar questions; what if the State of Alabama erects a Billboard stating, "The Catholic Church is the Whore of Babylon." I'm sure none of us would support this as a political act. The question is would it be unconstitutional?
On the one hand, we could argue that as long as the state lets Catholics worship as they please, and does not otherwise bar them from any government "Privileges or Immunities" that other religions may receive on an equal basis or tangibly harm them in any way, it's just a billboard, nothing else.
But on the other hand, it does seem to offend basic principles of equal citizenship and equal protection. But if we go down that road, we've just concluded, as a constitutional matter, government can not acknowledge with its mere words one religion over another.
Perhaps rather than their actions being inconsistent with their ideals, their ideals were inconsistent with our understanding of their ideals?
Once upon a time, it was popular (and remains so with the ACLU) to claim that freedom of speech and of the press was unlimited, based on the lack of exceptions written into the First Amendment's "Congress shall pass no law...." We know that laws prohibiting obscenity, and both civil and criminal libel laws remained on the books, and continued to be enforced throughout this period. So were the Founders inconsistent between ideals and actions? Or did free speech absolutists fail to understand that the Founders recognized that there were certain exceptions to this notion of freedom of the press?
Were there federal obscenity laws before the passage of the 14th Amendment? I dimly recall a few being smuggled into some provisions regulating seamen in the 1830s or so, without recorded debate, but what about other than that?
That's an excellent question. I don't know. Is there anything in common law that addresses this question? I would be very surprised if there was not.
Read twice, and referred to the Committee on Finance. An Act To amend the twenty-eight section of the act of Congress approved the thirtieth of August, eighteen hundred and forty-two, entitled ''An act to provide revenue from imports and to change and modify existing laws imposing duties on imports, and for other purposes''--prohibiting the importation of obscene and indecent articles, so as more effectually to accomplish the purposes for which that provision was enacted."
The Senate passed it without amendment February 28, 1857, and sent it to the President March 2, 1857.
It also appears that Congress passed something similar in 1842:
House Journal, August 17, 1842, p. 1341.
Laws are often passed only after a problem becomes large enough (or well enough publicized) to hit the radar screens of the government. For example, LSD was legal for a rather long time after it became popular as a hallucinogen.
I would also look into the possibility that the invention of the photograph might have played a part in the 1857 law's passage. There have always been obscene writings. "Erotic art" has been around a long time as well; Queen Victoria and Prince Albert gave each other paintings that were definitely the adult movies of their time. Within a couple of years of the invention of the photograph, however, there was a rapidly growing supply of pornographic pictures. No surprise: obscene writing requires literacy, while obscene photographs only require you to be able to see.
Public Lands: Volume 2, p. 220, document 187: As late as 1833, you find Congressional bills that make reference to this, such as HR 653, 22nd Cong., 2nd sess. This seems to be the bill that created this, from Journal of the Senate of the United States of America, 1789-1873, December 30, 1801: Any notion of neutrality between religion and nonreligion is contradicted by the actions of Congress.
Another plausible defense of Zywicki's argument is that while Jefferson did posit a "separation of church and state," he did not do so in the way the Supreme Court invokes it today. Specifically, Jefferson didn't support judicial review, thinking it was tyrannical for the Supreme Court to slap down popular legislation.
This is important because what's bothersome about the separation doctrine is not when it's invoked as an ideal, but when it's invoked as law to be enforced by the courts. That's a crucial difference given the nature of the current debate. I don't know of any founder who both supported judicial review and held to such a strict view of the establishment clause.
And on one other note... It's probably worth saying that in his actions, Jefferson was not the abosolutist vis-a-vis separation that his words would indicate. He attended mass in the capitol building too. Perhaps his "wall" wasn't quite as thick as the one invoked by the Supreme Court today.
Thus the belief that there was no need to guarantee jury trial and other constitutional rights in the Louisiana territory, Letter from Thomas Jefferson to Albert Gallatin (Nov. 9, 1803), in 10 The Works of Thomas Jefferson, supra note 104, at 46.
Of course, the Supreme Court would later disagree, Dred Scott v. Sanford, 60 U.S. 393, 450 (1856). I have more on this back in New Haven, but not on hand.
Anyway, there is some quite confused stuff on all sides of the debate, e.g. the Senate debate in the 1820s and 30s about shutting down the Sunday mails and Madison's church-charter veto. I don't know of any historical investigation to rival McConnell's, so I'll stick with that.
These are both fair points. I am certainly not going to use this space to argue that Hugo Black's or the New York Times's view of the Establishment Clause tracks the original history. But however porous Jefferson's Wall was, and however unlikely that it represents the actual original meaning of the clause, he does seem to have come up with the idea of a wall.
I think the most enlightening original debate on the establishment clause is in David Currie, The Sunday Mails in the Green Bag, reprinted in the third colume of the Const. in Congress.
The big problem here is that Jefferson's Wall was written with respect to a situation that everyone (well, I think everyone) agrees is a legitimate meaning of the establishment clause: the federal government, and because of 14th Amendment incorporation, the state governments, may not grant any privileges or powers to a particular religious body or organization that are not available to others as well.
I think you can make a case that the Founders assumed that the dominant religion of America would be something at least vaguely Christian. (Even the various Deist and Unitarian movements of the era were a lot closer to Christianity than they later became.) I think just about all of the Founders would have been startled how many other religions are now well-represented in America. However, the establishment clause does not explicitly grant Christian denominations any special favor over other religions. It does seem clear from the actions taken by Congress that there was no obligation or expectation of neutrality between "religion and nonreligion."
I just saw your post which links to this one. The phrase "Wall of Separation" arguably does have an origin dating back over a hundred years before Jefferson.
Roger Williams, in I think 1644, spoke of "a wall of Separation between the Garden of the Church and the Wilderness of the World."
However, there is some real doubt as to whether Jefferson or the other Founders read or were influenced by Williams; rather they were more likely influenced by Locke and the Enlightenment arguments for religious freedom (that's where the concept of "rights" or "unalienable rights" derives).
Williams is sort of "the Founder" of the "dissident Protestant" movement for religious liberty and for government that is in principle, secular.
Philip Hamburger in his book on Separation argues that Williams wasn't really concerned with protecting the persecuted but was rather motivated by a fanatical desire to keep religion pure (Williams was no "liberal Protestant," but rather as much of a fanatical fundamentalist as one gets).
I don't know how relevant that is however; Williams did state:
"Sixthly. It is the will and command of God that, since the coming of his Son the Lord Jesus, a permission of the most Paganish, Jewish, Turkish, or anti-christian consciences and worships be granted to all men in all nations and countries: and they are only to be fought against with that sword which is only, in soul matters, able to conquer: to wit, the sword of God's Spirit, the word of God."
It was this type of sentiment which allowed for religious pluralism to emerge in the US and the West. But it was quite a novel interpretation of the Bible at the time. He was essentially arguing against his fellow fundamentalists -- John Winthrop and the Puritans of Mass. -- who attempted to incorporate the entire Bible in the Civil Code and had laws on the books demanding execution of those who worshipped false Gods or "any other God but the Lord God." What a disaster that was. Their view was dominant and they banished Williams to found Rhode Island. But Williams's view would become more dominant, or at least more common later on because so many sects were persecuted and could benefit from his arguments.
Madison, even though he wasn't religious in an orthodox sense (like Williams) certainly played up on sentiments to which Williams gave birth when making his arguments.
Jim Lindgren
Could you give me a source for that? I don't find it implausible--although if so, Madison lost the struggle on that, did he not? The First Congress did hire a chaplain, I believe.
Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.
That's a LOT closer to Jeffersonian "separation", FWIW.
Here is a long passage, but not the whole thing:
"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: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds &consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics &Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.
"If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expence. How small a contribution from each member of Congs wd suffice for the purpose? How just wd it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt
"Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal Ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality?
"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: or to class it cum "maculis quas aut incuria fudit, aut humana parum cavit natura."
"Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right pinciple, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one. Look thro' the armies &navies of the world, and say whether in the appointment of their ministers of religion, the spiritual interest of the flocks or the temporal interest of the Shepherds, be most in view: whether here, as elsewhere the political care of religion is not a nominal more than a real aid. If the spirit of armies be devout, the spirit out of the armies will never be less so; and a failure of religious instruction &exhortation from a voluntary source within or without, will rarely happen: and if such be not the spirit of armies, the official services of their Teachers are not likely to produce it. It is more likely to flow from the labours of a spontaneous zeal. The armies of the Puritans had their appointed Chaplains; but without these there would have been no lack of public devotion in that devout age."
As an example, in the North Carolina ratification debates much discussion occurred over the role of the Federal government in religion. The proponents of the constitution took the position that the Federal government had NO POWER to pass legislation bearing on religion. In other words, AS TO THE FEDERAL GOVERNMENT, there was a wall of separation. This point was forcefully made by Richard Dobbs Spaight, a framer, during the North Carolina ratification debates.
The, leading proponent for adoption of the Constitution in North Carolina was noted Federalist James Iredell, who would later serve on the Supreme Court after being appointed by Washington. Mr. Iredell made some of the most eloquent arguments in favor of its adoption. It was Mr. Iredell's comments which Mr. Spaight referenced in the excerpt above during the debate over the "no religious test clause" of the Constitution. Mr. Iredell's comments are noteworthy, and I beg your forgiveness for including some context:
Of course, it is also worth noting the comments of an opponent of ratification.
John Kennedy proved Mr. Lancaster's fears right. But Lancaster was on the wrong side of the debate. Those who voted for the ratification of the Constitution did so believing that Congress had no power to interfere or promote religion. A wall of separation existed in their minds.
Sure the Founders and Framers thought that AS TO THE STATES the establishment of religion was ok. BUT, incorporation was a doctrine that arose long after the Founders and Framers of the original Constitution and the Bill of Rights were dead -- so their beliefs on that point carry no weight.
As shown by Will Baude (and is generally known to those who study the constitution), the "wall" statement has its origins with Thomas Jefferson, undoubtedly one of the "founders of this country. Zywicki was wrong. It is unfortunate that he cannot post a retraction, or even admit it in the comments. This is a pattern with Todd's posts -- he puts forward his personal interpretation of the constitution or law -- an interpretation that no doubt is well supported in text, history and reason -- but he then states with little citation that any other interpration is not serious. There have been several instances of this, and people have noticed it. Todd, you need to retract what you said, or clarify, because frankly your post as written is wrong. Dead wrong.
"Strongly guarded as is the separation between Religion &Govt in the Constitution of the United States" — James Madison, the Detached Memoranda
"And I have no doubt that every new example will succeed, as every past one has done, in shewing that religion &Govt will both exist in greater purity, the less they are mixed together" ... "Every new &successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance." — James Madison July 10, 1822
"It was the Universal opinion of the Century preceding the last, that Civil Government could not stand without the prop of a Religious establishment, and that the Christian religion itself, would perish if not supported by a legal provision for its Clergy. The experience of Virginia conspicuously corroborates the disproof of both opinions. The Civil Government, tho' 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." — James Madison 1819
As for "Freedom From Religion", YES that is explicitly a part of civil freesom against government. "Whilst we assert for ourselves a freedom to embrace, to profess and observe the Religion which we believe to be of divine origin, we cannot deny equal freedom to those whose minds have not yet yielded to the evidence which has convinced us [meaning atheists]. If this freedom be abused, it is an offense against God, not against man: To God, therefore, not to man, must an account of it be rendered." — James Madison June 20, 1785
"I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency of a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded by an entire abstinence of the Government from interference in any way whatever, beyond the necessity of preserving public order, and protecting each sect against trespass on its legal rights by others." — James Madison, 1932
There is of course absolutely no dispute as to Thomas Jefferson's view on Separation Of Church And State, and if you want to read quotes from George Washington and Benjamin Franklin and Thomas Paine and John Adams and others then here is a good referrence.
Separation Of Church And State is the very means of ensuring religious freedom. Separation Of Church And State means that students have the right to pray in school, but that school officials - as official agents of the government itself - are forbidden to abuse their governmental powers to either promote or supress student prayer. Separation Of Church And State means that you have a right to engage in private religious speech and displays and practices on government land, but that the government is forbidden from establishing or commissioning or endorsing or prohibiting such acts and displays. Separation Of Church And State means that Congress can no more change the Pledge of Alligiance to add a refference to God than they can have the pledge to say there is no God. An official establishment endorsing monotheistic belief is just as much a violation against polytheistic Native Americans as it is a violation against atheists.
Separation Of Church And State is the very guarantee of individual religious freedom. The government is denied any religious freedom. The government is denied any religious position. The government is denied any religious power. The government is denied any religious influence. You have every right to religion in public... so long as no one attempts to hijack the power of government to accomplish it or to endorse it. The government can neither act to promote nor suppress prayer. The government can neither act to promote nor supress atheism. Government is required to remain neutral on religious beliefs.