I have made no mention of the Fourteenth Amendment and the Court's application of the Establishment Clause to the states, which does not mean I am unaware of the distinction.
Nonetheless, all of the states which had state establishments of religion (not all of them had state churches), on their own, significantly disestablished religion laws by 1833. After the Fourteenth Amendment many states added specific provisions separating religion and government into their Constitutions, but that fact has no bearing on the intent of the Establishment Clause, about which we have been discussing. The Constitution established a principle of separation between religion and government which has gained approval throughout the states, regardless of historical hangovers to the contrary.
Indeed, I stand on an understanding documented by the Father of the Constitution. I do consider myself a "strict constructionist." If that be heresy, so be it. I do attempt to discuss one thing at a time, the subject line. If you wish my review of current religion law, for example, Justice Stephen Breyer's concurring opinion in Van Orden v. Perry will give you a clue: http://www.sunnetworks.net/~ggarman/breyer.html .
Gene Garman, M.Div.
America's Real Religion
www.americasrealreligion.org
Steven Jamar wrote:
There is, of course, one basic problem with Gene Garman's argument to the extent it is premised on the First Amendment before the Civil War Amendments. It says "Congress shall make no law respecting an establishment of religion . . . ." By its terms it did not limit what states can or cannot do. On this point even Jim Henderson would agree with me, I think.
The Civil War Amendments rewrote the Constitution and rebalanced the powers and through the incorporation of most of the Bill of Rights through the 14th Amendment guarantees of liberty and the incidents of citizenship, states also became limited by the establishment restriction.
But, until then, the state restrictions were within state constitutions and statutes. Congress, of course, had power over the territories (hence the Reynolds case).
Madison may have been consistent about not wanting government at the state, federal, or local level to impose religion and wanted a clean separation -- but that is not what the 1st amendment of his time did other than at the federal level.
That said, Madison's comments are relevant. But they are not determinative. And just looking to them to explain the meaning of "respecting establishment" indicates my point that the words are not so clear as to be self defining except as to a certain core meaning (e.g., no national church). If the words were themselves so clear, why the appeal to an interpretive aid like Madison's writings?
No single method of interpretation is sufficient for this complex area. Fortunately the Court has recognized this. Whatever else it has done and will do with EC and FE, we can expect that it will not go the way of simplistic even naive reading of the Constitution. Witness the continuing witless use of the 11th Amendment . . . .
Steve
On Jul 27, 2005, at 10:44 AM, Gene Garman wrote:
The suggestion that the position of James Madison was inconsistent in respect to religion and government is simply not sustainable. In Madison's 1785 draft of his "Memorial and Remonstrance" against religion assessments (taxes), that is, against the "Bill establishing a provision [tax money) for Teachers of the Christian Religion," Madison uses "establishment" seven times. His First Amendment understanding of "an establishment of religion" is documented again when as President he vetoed two religion bills passed by Congress (neither of which was overturned) and declared them unconstitutional violations of the Establishment Clause.[snip]
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
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