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Wednesday, March 21, 2012

Comments

Beefalo

Great essay. True in every respect. With this "separation of truth and state" mantra, progressives have successfully employed the age-old strategy of repeating a falsehood so often it becomes accepted as the truth. The courts have propagated the myth, beginning with Everson v Board of Education in 1947, where Justice Black twisted Jefferson's words to stand for the proposition that the establishment clause was "intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16. This shows the importance of the law as a teacher. Once these things are adopted as precedent with the force of law that affords, it's very difficult to unravel them. They seep into the language society uses and become part of society's institutions.

Peter l

Very well written and informative as usual Carl.I am stealing this piece,i steal quite a bit from this blog.

Doug Indeap

Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We 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. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

That the phrase "separation of church and state" does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. 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 were 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.”

With respect to Jefferson's letter, the notion he meant his "wall of separation" metaphor to refer solely to the constraint against government interference with the free exercise of religion and not to the constraint against government establishment of religion is the silly one-way wall idea promoted by some. Simply reading Jefferson's letter in context, though, dispels any such notion as but wishful thinking. The very reason the Danbury Baptists wrote to Jefferson was that they feared their free exercise of religion might be compromised by Connecticut's established Congregationalism. In his reply, Jefferson (1) "contemplated with sovereign reverence that act of the whole American people which declared that their [i.e., the federal] 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" and (2), while acknowledging that he lacked any authority to change state law, expressed his support for the then growing political disestablishment movement (which ultimately succeeded in disestablishing Connecticut's religion in 1818 and all other state religions by the 1830s), saying that "[a]dhering 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 . . . ." The entire letter, thus, concerned the ills of government establishment of religion, and Jefferson spoke of the First Amendment's constraint on federal laws respecting an establishment of religion in the same breath he noted the Amendment thus built a wall of separation between church and state. Jefferson's wall cannot be relegated to the little box in which Barton would confine it.

The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

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/6nnnx

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