You can't duck by pointing to the Article I part of Madison's argument and
ignoring the First Amendment part. The structure of his argument was that
speech and religion were equally protected by the lack of any Article I power to
regulate them, and that the First Amendment could not be read to reduce the
equality of that protection. So his premise was equal lack of
Article I power, but his conclusion was equal treatment in the
First Amendment.
We now know the premise was wrong; exploring
the full implications of Article I powers led Congress to discover many ways to
get at speech and religion under powers that did not mention speech or religion
explicitly. But the premise was widely assumed when the First Amendment
was drafted, and the later failure of the premise does not do much to undermine
Madison's contemporary interpretation of the First Amendment.
And he did speak directly to "abridge" and "prohibit." He argued that the difference between "prohibiting" and "abridging" is entirely parallel to the difference between "abridging" and "respecting," which the Federalists claimed enabled them to make laws "respecting" freedom of speech, including the Sedition Act. He was rejecting the Federalist distinction, so his parallel plainly requires him to reject both distinctions, and the appeal of his argument at the time is precisely that he thought it would be unthinkable to much of his audience to distinguish between "prohibiting" and "abridging." Quoting just the most specific part now, without the larger argument that gives it context and inadvertently gave a means of avoiding the issue:
Douglas Laycock
University of Texas Law School
727
E. Dean Keeton St.
Austin, TX 78705
512-232-1341
(phone)
512-471-6988 (fax)
-----Original
Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]
On Behalf Of Gene Garman
Sent: Tuesday, November 22, 2005 7:59 AM
To: Law
& Religion issues for Law Academics
Subject: Re:
Discrimination
Professor Laycock,
James Madison did discuss the
establishment and free exercise clauses in his Report on the Virginia
Resolutions and explained the obvious, that is, the First Amendment was a
limitation on the power of the national government, specifically Congress.
Regardless of any wording of the First Amendment in respect to abridging or
prohibiting, the First Amendment specifically restricted the national Congress
and did not give Congress a power to legislate or regulate on the subject of
religion or the press: no power over the press and no power over the exercise
of religion.
Madison specifically argued the First Amendment was
unnecessary because the national government had only delegated or enumerated
powers. As Professor Leonard W. Levy asserted, Black magic and only that can
turn the First Amendment into a repository of government power (The
Establishment Clause, second edition, p.140). In fact, both the 1788
Constitution and the 1791 First Amendment restrict federal government power in
respect to religion. As recently as 1947 Justices of the Supreme Court (Everson
v. Board of Education) unanimously agreed on the historical question and the
constitutional restriction of governmental power over
religion.
Therefore, the question I asked of you was not about history or
the power of the federal government in respect to religion. The assertion I made
and the question I asked was:
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
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