Without use of the word "totally" I understand the meaning of "prohibiting" as meaning totally. I do not find a different definition of what "prohibiting" means in Webster's. I do find a difference between the meaning of "abridging" and "prohibiting." The two words are not the same and do not have the same meaning. I use the word "totally" merely as a means of emphasizing the difference in meaning to readers who do not seem to recognize that difference. The 1789 joint Senate-House committee which created the final draft of the First Amendment used a different word in respect to the exercise of religion than to speech, press, peaceable assembly, and petition. Hopefully, the precise definition of terms is helpful to understanding.
Allow me to add, within two years time, James Madison personally helped write all three of the Constitution's specific religion commandments, and they are not in conflict in terms of understanding. Of course, there have always been unionists and accommodationists who reject the constitutional principle of "separation between religion and government" (James Madison, "Detached Memoranda"). In two February 1811 messages, President Madison vetoed bills passed by Congress and had to explain to Congress the meaning of the no "establishment of religion" commandment by pointing out that "governments are limited by the essential distinction between civil and religious functions" and cannot make laws respecting an establishment of "religion." Too bad Madison did not leave specific commentary as to the significance of the use of the different words "prohibiting" and "abridging" in the same First Amendment. I guess he figured most Americans would understand the meaning of the words used or would use Webster's. The fact is the word "abridging" (which means reducing) is not the word used in regard to the free exercise of religion, but it is the word which accommodationists prefer and promote as if there is no difference in meaning between "prohibiting" and "abridging." I welcome your input as to a definition of "prohibiting" having a meaning different from totally.
Gene Garman
Steven Jamar wrote:
On Nov 21, 2005, at 11:45 AM, Douglas Laycock wrote:
If "prohibiting" so clearly meant "totally," Gene would not have to insert "totally" into the sentence everytime he quotes it and tries to explain it.Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705512-232-1341 (phone)512-471-6988 (fax)
Steve,
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Gene Garman
Sent: Sunday, November 20, 2005 10:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Discrimination
Government can restrict people from putting religion or nonreligion beliefs into action. No discrimination involved. Specific religion and nonreligion actions can be prohibited or abridged by the laws of society. The question is not under what circumstances government can do so. Government can do so, under any circumstance, religion or no religion. In respect to actions, the Free Exercise Commandment does not assert any exception to the rule of law. The First Amendment merely commands that "religion" shall not be established by law and that Congress shall make no law "prohibiting" (which means totally) the free exercise of religion. The First Amendment does not say Congress shall make no law "abridging" the free exercise of religion.
Therefore, I concur with the unanimous opinion of Reynolds v. U.S. (cited below) and with the Virginia attorney, first United States Secretary of State, and President, Thomas Jefferson, who, in 1802, wrote: "the legitimate powers of government reach actions only, and not opinions."
Gene Garman
Steven Jamar wrote:
The question is not whether the government can restrict people from putting into action certain beliefs. It can. The question is under what circumstances the government can do so. Gene takes an approach that gives the government a lot of room to limit exercise of religious beliefs, as did the S Ct in Smith.
But even Smith doesn't go as far as Gene would push it.
As all lawyers on this list know, any particular rule or utterance about freedom of religion may be read narrowly or broadly and predicting just what approach will be used in any particular circumstance is difficult at best.
In the ordered liberty set up by the Constitution, as amended, neither rights of individuals nor the power of the government are unlimited, howsoever broad they each may seem to be from time to time.
Howsoever much Gene may wish his interpretation were the law, or would be found persuasive to many of us, it is neither the law of the land nor convincing to most on this list.
BTW, Gene, don't go read the 11th Amendment and its history to see how it has been contorted into something quite at odds with what it was meant to address -- you would probably find it even more vexing.
Some of us feel the same way about a variety of other provisions of the Constitution as well.
Oh, one last thing, Gene, are you with Justice Thomas on the constitutional invalidity of our entire system of administrative agencies and the welfare state? I'm just trying to see whether your cramped, literalist meaning approach extends beyond the religion clauses and comprehends a whole, unitary approach to constitutional interpretation. If so, that would help me understand your view of the religion clauses.
Steve
On Nov 20, 2005, at 5:35 PM, Gene Garman wrote:
Nevertheless, in America, the "free exercise" of religion shall not be prohibited (which means totally), nothing more and nothing less. Laws against specific exercises or actions do not a total prohibition of free exercise make. It is opinion only which is totally exempt from the law.
If I may, from a precedent setting, unanimous (9 to 0), U.S. Supreme Court decision, May 5, 1879:
"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. United States, 98 U.S. 145, 164.
"Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."
Reynolds v. United States, 98 U.S. 145, 166.
"Can a man excuse his practices ... because of his religious belief? To permit this would be to make ... religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."
Reynolds v. United States, 98 U.S. 145, 166-167.
Gene Garman
--Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 Van Ness Street NW mailto:[EMAIL PROTECTED]
"Face violence if necessary, but refuse to return violence. If we respect those who oppose us, they may achieve a new understanding of the human relations involved."
Martin Luther King, Jr.
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Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8428
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
"I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere."
Martin Luther King, Jr., (1963)
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