Re: Assaults on the England language
The difference between private speech and government sponsorship is indeed
the point: The Founding Fathers separated religion and government by prohibiting
religion tests as a qualification to any office or public trust. The First
Congress separated religion and government by prohibiting Congress from establishing
religion by law. Founding Father James Madison, "Father of the Constitution"
and member of the six member Senate-House conference committee which drafted
the final version of the First Amendment's religion commandments, subsequently
wrote: "Strongly guarded ... is the separation between Religion and Government
in the Constitution of the United States ("Detached Memoranda," William
and Mary Quarterly, 3:555). If there is a primary source authority for
understanding the religion commandments of the Constitution, it is James
Madison.
Acknowledging the above is to recognize constitutional prohibition of government
sponsorship of "religion." "No religious test shall ever be required," means
no religious test shall ever be required by government. "No law respecting
an establishment of religion" means no law respecting an establishment of
religion by government. No exceptions are given, and the Supreme Court cases
you mention have no constitutional authority to give tests or make laws which
permit exceptions.
The Constitution gives no authority to any court to rewrite or add exceptions
to the words of the Constitution. Wherever the Court has
allowed "government to sponsor or prefer religious speech" it has
violated the Constitution's principle of separation between religion and
government, as established by its religion commandments, and such decisions
should be overturned.
For example, if anyone wishes to read my recent review of Van Orden v.
Perry, simply click on the following link:
http://www.sunnetworks.net/~ggarman/breyer.html
Gene Garman, M.Div.
America's Real Religion
www.americasrealreligion.org
Douglas Laycock wrote:
The difference
between the public square and government sponsorshipis the point at which
both sides in the culture warsstart cheating with their claims about the
current law. The Court has never held that private religious speech may
or must be censored because it occurs on government property. Speech is
private if the speaker is not a state actor and receives no preferential
access or promotion from anyone who is a state actor.
So private religious speech is constitutionallyprotected
in the public square. Government sponsorship of that speech is restricted
-- restricted pretty tightly but far from absolutely. For better or worse,
Zorach v. Clausen, Marsh v. Chambers, Lynch v. Donnelly, the menorah/Christmas
tree holding in Allegheny County v. ACLU, Van Orden v. Perry, and probably
(if they had reached the merits) Elk Grove Unified School District v. Newdow,
are all cases where the Court has allowed government to sponsor or prefer
religious speech. There is no such list of exceptions to the rule that
government cannot restrict private religious speech because of its religious
content.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
512-471-6988 (fax)
From: [EMAIL PROTECTED]
on behalf of [EMAIL PROTECTED]
Sent: Sun 7/24/2005 12:48 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Assaults on the England language
In a message dated 7/23/2005 10:17:08 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
Theproblem, in terms of conflict, it seems to me, arises, not
from use of thepublic square, but from the desire on the part of some
to use government spaceand property for the promotion of religion and
for direct attacks upon theconstitutional principle of "separation between
Religion and Government,"(James Madison, "Detached Memoranda," William
and Mary Quarterly,3:555).
But this is the essence of thefree speech and peaceable assembly
principles that are the underpinning of the public forum doctrine: use
of available public spaces (virtually always "government owned") for promotion
of ideas of the speaker free from exclusion based on the disapproval of
those ideas by others, whether government actors or private parties.
Jim Henderson
Senior Counsel
ACLJ
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Re: Where's the passion in the opposition to Roberts?
In a message dated 7/25/2005 12:53:10 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Does any liberal seriously think this president, with a solid Republican Senate majority, would appoint anyone we could expect more from? We Democrats and liberals should save the all-out attacks for unprincipled or unqualified nominees. As we closed in on the end of this President's first term in office, I reviewed the ABA Standing Committee's evaluations of his judicial nominations for the first term. These evaluations included successful nominations, and some that are still pending after re-submission (because of the "filibuster" problem) and withdrawn nominations (Estrada). Despite the Republican majority's previous disinclination to give special place to the evaluation of candidates by the Standing Committee, this President has shown that he has nothing to fear from such evaluations. From my review, treating the evaluations as a grading opportunity, I concluded that the President certainly deserved high marks, perhaps an A or even an A+ based on the generally overwhelming number of well-qualified unanimous evaluations and the number of well-qualified/qualified split evaluations. Jim Henderson Senior Counsel ACLJ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Assaults on the England language
In a message dated 7/25/2005 2:12:25 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: The First Congress separated religion and government by prohibiting Congress from establishing religion by law. But of course the First Congress did not do this. They proposed to the States that they do whatever it was that the Establishment Clause accomplished, by propounding amendments to the Constitution. In turn, the States prohibited Congress from doing whatever it was the EC prohibited Congress from doing. Jim Henderson Senior Counsel ACLJ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
IRS clears Falwell
Perhaps you'd be interested in this news story: "The Internal Revenue Service has ruled that the Rev. Jerry Falwell violated no regulations by mentioning his support for the re-election of President George W. Bush in a Texas speech last yearThe Federal Elections Commission dismissed a similar complaint against Falwell earlier this month." http://www.newsadvance.com/servlet/Satellite?pagename=LNA%2FMGArticle%2FLNA_BasicArticlec=MGArticlecid=1031784042920path=!news!archive Becky Dale (I read Virginia newspapers in the mornings and come across stories like this. Not sure whether you all are interested in news clipsas well as discussion.) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: IRS clears Falwell
News of the weird is always welcome here. J Joel L. Sogol Attorney at Law 811 21st Avenue Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight -- which is why we have evidence rules in U.S. courts. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, July 25, 2005 6:09 AM To: religionlaw@lists.ucla.edu Subject: IRS clears Falwell Perhaps you'd be interested in this news story: The Internal Revenue Service has ruled that the Rev. Jerry Falwell violated no regulations by mentioning his support for the re-election of President George W. Bush in a Texas speech last yearThe Federal Elections Commission dismissed a similar complaint against Falwell earlier this month. http://www.newsadvance.com/servlet/Satellite?pagename=LNA%2FMGArticle%2FLNA_BasicArticlec=MGArticlecid=1031784042920path=!news!archive Becky Dale (I read Virginia newspapers in the mornings and come across stories like this. Not sure whether you all are interested in news clipsas well as discussion.) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: IRS clears Falwell
Interesting decision. Does anyone have access to the IRS rulings in these cases so we can see the totality of what it says? I wonder if the result differs when the speaker is preaching a sermon rather than simply being an "invited speaker," or when the speaker is the pastor of her own congregation. It seems, to me, a rather easy distinction between the First Amendment rights of invited speakers at a pulpit that is open to a wide diversity of political views such as those shared in many mainstream Christian congregations (the Disciples of Christ can claim both Lyndon Johnson and Ronald Reagan, for example), and the non-political requirements of a 501(c)(3) where it is an officer of the organization either urging or ordering members to act politically. Ed Darrell Dallas[EMAIL PROTECTED] wrote: Perhaps you'd be interested in this news story: "The Internal Revenue Service has ruled that the Rev. Jerry Falwell violated no regulations by mentioning his support for the re-election of President George W. Bush in a Texas speech last yearThe Federal Elections Commission dismissed a similar complaint against Falwell earlier this month." http://www.newsadvance.com/servlet/Satellite?pagename=LNA%2FMGArticle%2FLNA_BasicArticlec=MGArticlecid=1031784042920path=!news!archive Becky Dale (I read Virginia newspapers in the mornings and come across stories like this. Not sure whether you all are interested in news clipsas well as discussion.)___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: IRS clears Falwell
Sorry. Comment went to the wrong list. Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph: 205-345-0966 fx: 205-345-0971 email: [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight -- which is why we have evidence rules in U.S. courts. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M Pardee Sent: Monday, July 25, 2005 1:05 PM To: Law Religion issues for Law Academics Subject: RE: IRS clears Falwell In regard to the story about the IRS and Jerry Falwell, Joel Sogol wrote: News of the weird is always welcome here. Just out of curiousity, what makes this fall under the heading of News of the weird? Brad ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: IRS clears Falwell
Ed Darrell wrote: Interesting decision. Does anyone have access to the IRS rulings in these cases so we can see the totality of what it says? I wonder if the result differs when the speaker is preaching a sermon rather than simply being an invited speaker, or when the speaker is the pastor of her own congregation. It seems, to me, a rather easy distinction between the First Amendment rights of invited speakers at a pulpit that is open to a wide diversity of political views such as those shared in many mainstream Christian congregations (the Disciples of Christ can claim both Lyndon Johnson and Ronald Reagan, for example), and the non-political requirements of a 501(c)(3) where it is an officer of the organization either urging or ordering members to act politically. I haven't read this particular decision, but I have written a lot about similar decisions and I think the more obvious distinction is between what someone says as a minister and what someone says in one of his many other roles. In Falwell's case, he is not only a minister, he is also the owner of more than one media outlet (for profit) and a syndicated columnist. So if he were to write in a syndicated column that he endorses a candidate, would that violate the IRS rules against ministers endorsing candidates because he's also a minister? This is a very common situation, I might add. Every lobbyist knows how the game is played, you set up one non-profit to raise money and a PAC to engage in political advocacy. I've been on record as saying that the ban on endorsing candidates should just be done away with because A) it's so easy to get around (everyone knows that churches give de facto endorsements all the time through voter information guides and the like) and B) it's so prone to abuse. I'm just not comfortable with the government having to parse the wording of sermons to determine whether an endorsement crosses the line from de facto to de jure on some arbitrary scale. Ed Brayton -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.0.338 / Virus Database: 267.9.4/57 - Release Date: 7/22/05 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
research question
Before traipsing to the library I would appreciate hearing from list members what you regard as the best sources on the Virginia religious controversy of the 1780s, i.e., on Patrick Henry's A Bill Establishing a Provision for Teachers of the Christian Religion, Madison's Memorial and Remonstrance, and the passage into law of Jefferson's Bill for Establishing Religious Freedom. Off-list replies are welcome at [EMAIL PROTECTED] Thanks. Kevin Pybas winmail.dat___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
what does the right REALLY think of Roberts?
Despite the rally-the-troops messages on websites like the ACLJ and Concerned Women for America, no one can seriously believe John Roberts makes the hearts of religious conservatives beat faster. Social conservative groups are falling into line behind Bush and going through the motions of the battle they spent years preparing for. But as everyone now knows, Roberts is a conventional, buttoned-down, Catholic Republican Boy Scout type of guy who may or may not have once been a member of the Federalist Society -- but is anything but a true-believer or ideologue (and left wing groups look silly attempting to label him as such). Most people profess not to have a clue about any actual convictions he might hold, and he has in the past disclaimed any theory of constitutional interpretation. He seems in many ways like the person that movement conservatives urged Bush *not* to nominate -- someone with a thin record who might be insufficiently committed to the right's activist jurisprudential agenda. So, who's willing to fess up? What do social and religious conservatives *really* think of John Roberts, and how long before doubts or misgivings start leaking out? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
John Lofton/Re: what does the right REALLY think of Roberts?
To try and understand what conservatives who are Christians FIRST think about John Roberts, you might want to visit, please, Peroutka2004.com, click on the first story and listen to our radio show on this subject. Thanks. And God bless you all. John Lofton, co-host The American View, syndicated by Radio America. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: IRS clears Falwell
Ed Brayton wrote: I've been on record as saying that the ban on endorsing candidates should just be done away with because A) it's so easy to get around (everyone knows that churches give de facto endorsements all the time through voter information guides and the like) and B) it's so prone to abuse. I'm just not comfortable with the government having to parse the wording of sermons to determine whether an endorsement crosses the line from de facto to de jure on some arbitrary scale. Absolutely. If churches spend money for political purposes, as in buying ads or paying workers to get out the vote, they can run that through a 501(c)(4) or a PAC like everybody else. But when the pastor simply says something, about an issue or a candidate, there is no marginal cost in dollars and no possible way to run his speech through the political affiliate. The effect of an absolute ban on endorsements is simply to censor the speech of a class of citizens. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: IRS clears Falwell
Douglas Laycock wrote: ... But when the pastor simply says something, about an issue or a candidate, there is no marginal cost in dollars and no possible way to run his speech through the political affiliate. The effect of an absolute ban on endorsements is simply to censor the speech of a class of citizens. The fact that American United For Separation Of Church And State brought such a complaint in the first place is what makes religious conservatives like myself a bit nervous and cynical. Are they working to separate the church from the state, or to separate religious citizens from the rights of citizenship? Brad___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: what does the right REALLY think of Roberts?
In a message dated 7/25/2005 4:37:41 PM Eastern Standard Time, [EMAIL PROTECTED] writes: (Since this is a religion list, what exactly does it mean to "enforce theConstitution as written" when it comes to the religion clauses?) A distinct but equally important question is this. Suppose we know what it means "to enforce the Constitution as written, rather than impose some other world view through judicial fiat" just how do we know when a judicial decision succeeds in achieving this? What features of the opinion or reasoning will be dispositive?Further, even if we were all committed to this imperative regarding the religion clauses, is there any reasonable chance that this will help us achieve consensus over their meaning? BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: what does the right REALLY think of Roberts?
Well necessary criteria would be that the decision (1) is based on the language of the Constitution itself, and the original meaning of those words, (2) does not rely on some extra-Constitutional basis, such as modern social policy or foreign law, unless that policy or law is incorporated by the Constitution, (3) is consistent, in that if it treats cases differently, it does so in a way rooted in the Constitution itself. I personally think you could have decisions which are principled according to these criteria coming down either way on the religion clauses. When I think of decisions based on judicial fiat, I tend to think more of other decisions. Sam Ventola Denver, Colorado On 7/25/05, [EMAIL PROTECTED] [EMAIL PROTECTED] wrote: In a message dated 7/25/2005 4:37:41 PM Eastern Standard Time, [EMAIL PROTECTED] writes: (Since this is a religion list, what exactly does it mean to enforce the Constitution as written when it comes to the religion clauses?) A distinct but equally important question is this. Suppose we know what it means to enforce the Constitution as written, rather than impose some other world view through judicial fiat just how do we know when a judicial decision succeeds in achieving this? What features of the opinion or reasoning will be dispositive? Further, even if we were all committed to this imperative regarding the religion clauses, is there any reasonable chance that this will help us achieve consensus over their meaning? Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: John Lofton/Personal Views
John Lofton wrote on 07/25/2005 03:36:28 PM: One thing I'd like to hear you folks who know a lot more about everything than I do discuss is this dismissal by many of personal views as irrelevant. Does anybody think it would not matter, and be relevant, if Roberts, or any such nominee, in his private, personal time, was active in a racist, sexist, anti-Semitic organization --- even though none of these private views ever, ever appeared in his public life. Incidentally, and Biblically, integrity is defined as single-mindedness, single purpose --- not being, at different times, on opposite sides, of the same issues. Indeed, this kind of behavior is what Scripture calls double- mindedness and such a man as this is said to be unstable in ALL his ways. God bless you all. John Lofton. A difference between a judge's personal views and his rulings on the bench does not constitute double-mindedness as it appears you are suggesting it does. It is the job of a legislator to determine what the law ought to be, and the job of a judge to determine what the law is. If, for instance, a judge were to personally believe that abortion is always wrong but that the law protects the right to an abortion, then it is not doublemindedness for that judge to rule that abortion is legal. If the judge were to say one day that abortion is wrong and one day that it's not, that might be doublemindedness, but to say that abortion is wrong but the law protects it nonetheless is not doubleminded. Similarly, a lawyer might argue differing positions on different cases on the same issue because he is not making his own case or stating his own beliefs. He is, rather, stating the case of his clients, which may well vary from case to case. In terms of your hypothetical case, though, there are those who would (quite wrongly, I might add) say that the Catholic Church is a racist, sexist, anti-Semitic organization. Most people correctly understand that it is not. If we were discussing a genuinely hateful organization, such as the KKK, that would certainly be an issue because of the need to assess the character of someone who would join such an organization. But that's an issue of character, not an issue of private views. Brad Pardee___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: research question
You will probably have to ILL it: Separation of Church and State in Virginia, H. J. Eckenrode. Gene Garman, M.Div. America's Real Religion www.americasrealreligion.org Pybas, Kevin M wrote: Before traipsing to the library I would appreciate hearing from list members what you regard as the best sources on the Virginia religious controversy of the 1780s, i.e., on Patrick Henry's A Bill Establishing a Provision for Teachers of the Christian Religion, Madison's Memorial and Remonstrance, and the passage into law of Jefferson's Bill for Establishing Religious Freedom. Off-list replies are welcome at [EMAIL PROTECTED] Thanks. Kevin Pybas ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: research question
Also Thomas Buckley, Church and State in Revolutionary Virginia 1776-1787 (1977). Eckenrode is a much older book -- early twentieth century I think. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gene GarmanSent: Monday, July 25, 2005 4:26 PMTo: Law Religion issues for Law AcademicsSubject: Re: research question You will probably have to ILL it: Separation of Church and State in Virginia, H. J. Eckenrode.Gene Garman, M.Div.America's Real Religionwww.americasrealreligion.orgPybas, Kevin M wrote: Before traipsing to the library I would appreciate hearing from list members what you regard as the best sources on the Virginia religious controversy of the 1780s, i.e., on Patrick Henry's A Bill Establishing a Provision for Teachers of the Christian Religion, Madison's Memorial and Remonstrance, and the passage into law of Jefferson's Bill for Establishing Religious Freedom. Off-list replies are welcome at [EMAIL PROTECTED] Thanks. Kevin Pybas ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: research question
Doug is right that Buckley is the best work of history on this subject Paul Finkelman Douglas Laycock wrote: Also Thomas Buckley, Church and State in Revolutionary Virginia 1776-1787 (1977). Eckenrode is a much older book -- early twentieth century I think. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Gene Garman Sent: Monday, July 25, 2005 4:26 PM To: Law Religion issues for Law Academics Subject: Re: research question You will probably have to ILL it: Separation of Church and State in Virginia, H. J. Eckenrode. Gene Garman, M.Div. America's Real Religion www.americasrealreligion.org Pybas, Kevin M wrote: Before traipsing to the library I would appreciate hearing from list members what you regard as the best sources on the Virginia religious controversy of the 1780s, i.e., on Patrick Henry's A Bill Establishing a Provision for Teachers of the Christian Religion, Madison's Memorial and Remonstrance, and the passage into law of Jefferson's Bill for Establishing Religious Freedom. Off-list replies are welcome at [EMAIL PROTECTED] Thanks. Kevin Pybas ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74105 918-631-3706 (voice) 918-631-2194 (fax) [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: what does the right REALLY think of Roberts?
Words mean things or the Constitution is nothing more than a blank piece of paper. The wording of the religion commandments of the Constitution are very specific: 1. "No religious test shall ever be required as a qualification to any office or public trust under the United States" (Art. 6., Sec. 3.). 2. "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof" (First Amendment). What part of "no religious test shall ever be required" or "Congress shall make no law respecting an establishment of religion" is difficult to understand? James Madison, Jr., as "Father of the Constitution" and a member of the six member Senate-House Conference committee, in the First Congress, which drafted the final version of the First Amendment, is a primary source authority as to the meaning of those words. For starters, I suggest reading his "Detached Memoranda," in which he wrote "Strongly guarded ... is the separation between Religion and Government in the Constitution of the United States," William and Mary Quarterly, 3:555. Then, read his February 21 and 28, 1811, veto messages to Congress, relating to unconstitutional religion bills passed by Congress. Madison will tell you, for example, that the religion commandments were intended to include more than just "a national religion" or a state church. Gene Garman, M.Div. America's Real Religion www.americasrealreligion.org William and Mary Quarterly, 3:555, [EMAIL PROTECTED] wrote: In a message dated 7/25/2005 4:37:41 PM Eastern Standard Time, [EMAIL PROTECTED] writes: (Sincethis is a religion list, what exactly does it mean to "enforcethe Constitution as written" when it comes to the religionclauses?) A distinct but equally important question is this. Suppose we know what it means "to enforce the Constitution as written, rather than impose some other world view through judicial fiat" just how do we know when a judicial decision succeeds in achieving this? What features of the opinion or reasoning will be dispositive?Further, even if we were all committed to this imperative regarding the religion clauses, is there any reasonable chance that this will help us achieve consensus over their meaning? Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: research question
Eckenrode's work is dated 1910 and is an invaluable resource as to documented opinions expressed on both sides of the Virginia debate relating to disestablishment of the state church in Virginia. The Writings of John Leland by L.F. Greene should also be read. Gene Garman, M.Div. America's Real Religion www.americasrealreligion.org Douglas Laycock wrote: Also Thomas Buckley, Church and State in Revolutionary Virginia 1776-1787 (1977). Eckenrode is a much older book -- early twentieth century I think. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Gene Garman Sent: Monday, July 25, 2005 4:26 PM To: Law Religion issues for Law Academics Subject: Re: research question You will probably have to ILL it: Separation of Church and State in Virginia, H. J. Eckenrode. Gene Garman, M.Div. America's Real Religion www.americasrealreligion.org Pybas, Kevin M wrote: Before traipsing to the library I would appreciate hearing from list members what you regard as the best sources on the Virginia religious controversy of the 1780s, i.e., on Patrick Henry's A Bill Establishing a Provision for Teachers of the Christian Religion, Madison's Memorial and Remonstrance, and the passage into law of Jefferson's Bill for Establishing Religious Freedom. Off-list replies are welcome at [EMAIL PROTECTED] Thanks. Kevin Pybas ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Is Roberts a Strict Constructionist?
Constitutional protections . . . should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.' As the Court remarked in the leading contract clause case of this century [Blasidell], 'where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details.' . . . . 'The great clauses of the Constitution are to be considered in the light of our whole experience, and not merely as they would be interpreted by its Framers in the conditions and with the outlook of their time.' [quoting U.S. Trust]. That's from John Roberts's Case Note, 92 Harv. L. Rev. at 91, responding to Justice Brennan's plain meaning argument in Allied Steel that the constitutional phrase Laws *impairing* the obligation of Contracts should be construed to mean . . . Laws *impairing* the obligation of contracts -- and not laws that impose additional obligations beyond those required by existing contracts. See also, e.g., most of Roberts's briefs in constitutional cases and, especially, his extended Harvard Law Review Developments section on regulatory takings. There are many things one can say about that essay -- including that it is extremely impressive for a young student, demonstrating remarkable erudition and sophistication, and that he was obviously very influenced by the writings of Michelman, Sax and Ackerman (even if Robertss pragmatic and theoretical considerations appear to push him to support a requirement of just compensation in situations where those scholars would not). But what one certainly *cannot* say about it -- or of most other Roberts constitutional writings -- is that it is the least bit textualist, or originalist, or strict constructionist. A judge adopting Roberts's understanding of how the Takings Clause should be construed would, in Sam Ventola's words, be imposing some other world view through judicial fiat -- not that there's anything! wrong with that! (unless, of course, one does not share the Roberts world view regarding of property regulation). Indeed, the writings I've seen suggest that Roberts is not any sort of a doctrinaire constitutional theorist, devoted to certain meta-principles. Instead, hes basically a pragmatist -- comfortable and facile, as all good lawyers are, with the full array of argumentative modes -- albeit one with a very definite political/jurisprudential bias. I predict that that will make him -- for better or worse, depending on one's constitutional vision -- much more influential on the Court than, say, Judge Luttig, Brown or Jones would have been. If I had to hazard one analogy, I suppose it would be that he'll be similar to, and perhaps as effective as, Justice Rehnquist. And it's not going out on very much of a limb to assume that *that's* why the President chose him -- strict construction's got nothin' to do with it. the original meaning of the copyright clause could not have included: movies records CDs videos webpages TV Radio etc. Original meaning is a something to understand, but one cannot be bound by it in a meaningful way. The world has changed. And the Constitution is a living one. This is not to say that any number of times the Court has strayed from the text of the Constitution. It has done so repeatedly with some horrible results and some good results. International law, at least in the forms of treaties and customary law are within the contemplation of the Constitution. Consistency at the edge cases and difficult cases tends to be hard to come by -- the principles one chooses to base a decision on can determine the outcome. Constitutional law is simply not so simple. Steve On Jul 25, 2005, at 5:15 PM, Samuel V wrote: Well necessary criteria would be that the decision (1) is based on the language of the Constitution itself, and the original meaning of those words, (2) does not rely on some extra-Constitutional basis, such as modern social policy or foreign law, unless that policy or law is incorporated by the Constitution, (3) is consistent, in that if it treats cases differently, it does so in a way rooted in the Constitution itself. I personally think you could have decisions which are principled according to these criteria coming down either way on the religion clauses. When I think of decisions based on judicial fiat, I tend to think more of other decisions. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives;
Re: what does the right REALLY think of Roberts?
On Jul 25, 2005, at 6:07 PM, Gene Garman wrote: Words mean things or the Constitution is nothing more than a blank piece of paper. This is a faulty dilemma. Of course words mean things. But they are not so hard-edged and clear as to be incapable of multiple meanings and there are always things that need interpretation.As to "respecting establishment" -- that is very hard -- does it mean just cannot establish a religion or does it mean that it cannot pass any law that would favor any sort of religious activity as well as many other possible meanings. These phrases have meaning that is a core meaning that we all (or nearly all) agree upon. But as one moves from that core, the reach of the terms becomes less clear.Steve The wording of the religion commandments of the Constitution are very specific: 1. "No religious test shall ever be required as a qualification to any office or public trust under the United States" (Art. 6., Sec. 3.). 2. "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof" (First Amendment). What part of "no religious test shall ever be required" or "Congress shall make no law respecting an establishment of religion" is difficult to understand? James Madison, Jr., as "Father of the Constitution" and a member of the six member Senate-House Conference committee, in the First Congress, which drafted the final version of the First Amendment, is a primary source authority as to the meaning of those words. For starters, I suggest reading his "Detached Memoranda," in which he wrote "Strongly guarded ... is the separation between Religion and Government in the Constitution of the United States," William and Mary Quarterly, 3:555. Then, read his February 21 and 28, 1811, veto messages to Congress, relating to unconstitutional religion bills passed by Congress. Madison will tell you, for example, that the religion commandments were intended to include more than just "a national religion" or a state church. Gene Garman, M.Div. America's Real Religion www.americasrealreligion.org ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Is Roberts a Strict Constructionist?
Title: Is Roberts a Strict Constructionist? Marty quotes a passage from Roberts's casenote accept the Blaisdell majority's description ofthe Contracts Clause as one of the Constitution's "general clauses, which afford a broad outline" and therefore require "construction . . . to fill in the details." Quite obviously, a central question is how Roberts, the Court, or anyone else issupposed to discertnthat the CC is "general" rather than quite particular. There's certainly noting in the language itself to suggest that "no law" doesn't mean "no law," as Hugo Black said was the case for both the First Amendment AND the CC. sandy ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
