Ramblings.
.
.
.
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.
I am familiar with Rehnquist's dissent in Wallace v. Jaffree. In support of his claims regarding the intended scope of the First Amendment, Rehnquist recites various revisions of the precursors of the First Amendment and the debates on those and then simply asserts that "[i]t seems indisputable from these glimpses of Madison's thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects." Rehnquist's conclusions, though, hardly follow from the evidence he recites. Indeed, the opposite conclusion is more logical. Madison initially doubted the need for any amendment on the subject because he considered the matter beyond the government's power anyway; since others insisted on it, though, he was persuaded to introduce a proposed amendment. During the discussion in the First Congress, some expressed a desire to focus the amendment on establishment of a national religion by law. Madison was generally comfortable with much of what others proposed, including that, and he actually made a motion to add the term "national" to a precursor of what later became the First Amendment. As it turns out, though, those versions of the proposal were rejected. The term "national" was omitted and broader phrasing was employed in the First Amendment as ultimately adopted. The explicit consideration and rejection of language focusing the amendment on establishment of a national religion suggests that the ultimately adopted version is not so focused.
Not only does Rehnquist's conclusion not logically follow from the evidence he offers, but Madison, the very founder whose intent he purports to champion, repudiates Rehnquist's views in other documents Rehnquist simply ignores. In his Detached Memoranda (~1820), Madison confirmed that he understood the Constitution and First Amendment to "[s]trongly guard[] . . . the separation between Religion and Government." 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."
In any event, it bears noting that Rehnquist's is a dissenting opinion of a single justice who failed to persuade even one of his colleagues to join him. Note too that in the sixty-plus years since the Everson decision, Rehnquist is the only justice to voice such views. The irony is that by offering such a full throated, yet obviously weak argument for the just-no-national-religion claim, Rehnquist effectively undercut it by making so plain the relative strength of the evidence and argument favoring the contrary view.
The point is that ultra liberal environmentalist lawyers such as yourself have propigated the idea that the first amendment was intended to keep any hint of religion out of the public eye and especially the government. This is just simply not the case.
The framers had no intention of keeping religion out of government, and in fact Jefferson's letter to the Danbury Baptists, where he coined the phrase 'separation of church and state' is clearly stating that it's intent was to keep government out of religion. They would be appalled at this story: http://www.foxnews.com/us/2010/07/15/students-ordered-stop-praying-outside-supreme-court-building. The framers insisted upon prayer preceding the continental congress and all congressional sessions since. Only the most unreasonable people, when reading this prayer http://chaplain.house.gov/archive/continental.html, can construe that the founding fathers intended for religion and government to be exclusive. The wall of separation of church and state, as Jefferson stated, was a one way wall, intended to keep government out of religion, not to supress religion.
"...we beseech Thee, on these our American States, who have fled to Thee from the rod of the oppressor and thrown themselves on Thy gracious protection, desiring to be henceforth dependent only on Thee."
"Be Thou present, O God of wisdom, and direct the councils of this honorable assembly..."
Only a fool would think that these men intended to exclude religion from government proceedings when in fact they begged the Almighty for guidance from the beginning.
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 and 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 and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and 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, & 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 & 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 & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.
3 comments:
I am familiar with Rehnquist's dissent in Wallace v. Jaffree. In support of his claims regarding the intended scope of the First Amendment, Rehnquist recites various revisions of the precursors of the First Amendment and the debates on those and then simply asserts that "[i]t seems indisputable from these glimpses of Madison's thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects." Rehnquist's conclusions, though, hardly follow from the evidence he recites. Indeed, the opposite conclusion is more logical. Madison initially doubted the need for any amendment on the subject because he considered the matter beyond the government's power anyway; since others insisted on it, though, he was persuaded to introduce a proposed amendment. During the discussion in the First Congress, some expressed a desire to focus the amendment on establishment of a national religion by law. Madison was generally comfortable with much of what others proposed, including that, and he actually made a motion to add the term "national" to a precursor of what later became the First Amendment. As it turns out, though, those versions of the proposal were rejected. The term "national" was omitted and broader phrasing was employed in the First Amendment as ultimately adopted. The explicit consideration and rejection of language focusing the amendment on establishment of a national religion suggests that the ultimately adopted version is not so focused.
Not only does Rehnquist's conclusion not logically follow from the evidence he offers, but Madison, the very founder whose intent he purports to champion, repudiates Rehnquist's views in other documents Rehnquist simply ignores. In his Detached Memoranda (~1820), Madison confirmed that he understood the Constitution and First Amendment to "[s]trongly guard[] . . . the separation between Religion and Government." 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."
In any event, it bears noting that Rehnquist's is a dissenting opinion of a single justice who failed to persuade even one of his colleagues to join him. Note too that in the sixty-plus years since the Everson decision, Rehnquist is the only justice to voice such views. The irony is that by offering such a full throated, yet obviously weak argument for the just-no-national-religion claim, Rehnquist effectively undercut it by making so plain the relative strength of the evidence and argument favoring the contrary view.
The point is that ultra liberal environmentalist lawyers such as yourself have propigated the idea that the first amendment was intended to keep any hint of religion out of the public eye and especially the government. This is just simply not the case.
The framers had no intention of keeping religion out of government, and in fact Jefferson's letter to the Danbury Baptists, where he coined the phrase 'separation of church and state' is clearly stating that it's intent was to keep government out of religion. They would be appalled at this story: http://www.foxnews.com/us/2010/07/15/students-ordered-stop-praying-outside-supreme-court-building. The framers insisted upon prayer preceding the continental congress and all congressional sessions since. Only the most unreasonable people, when reading this prayer http://chaplain.house.gov/archive/continental.html, can construe that the founding fathers intended for religion and government to be exclusive. The wall of separation of church and state, as Jefferson stated, was a one way wall, intended to keep government out of religion, not to supress religion.
"...we beseech Thee, on these our American States, who have fled to Thee from the rod of the oppressor and thrown themselves on Thy gracious protection, desiring to be henceforth dependent only on Thee."
"Be Thou present, O God of wisdom, and direct the councils of this honorable assembly..."
Only a fool would think that these men intended to exclude religion from government proceedings when in fact they begged the Almighty for guidance from the beginning.
The aforementioned letter:
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 and 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 and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and 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, & 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 & 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 & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.
Th Jefferson
Jan. 1. 1802.
Library of congress
Post a Comment