Re: Teenagers &The Spirit of Liberty
I think that the denigration of Rick and his original post has gone a bit overboard. As I understand the facts (and I could be wrong), the students voted on a graduation speaker and that speaker planned on including a prayer as part of her speech. In an injunction based on a suit filed only days before, the judge prohibited the student from praying. Apparently prayers were a traditional part of the ceremony, but it's not clear how they took place. But taking the facts as known, I am not at all convinced that the Court's establishment clause jurisprudence forbids all prayers by invited private speakers (including students) at school events. Could she have been held in contempt if she declared "God have mercy on the souls of those killed in Iraq"? It seems to me that when the government opens a space for private speech, forbiding private speakers from engaging in "religion talk" raises serious First Amendment issues. It begs the question to assert "tyranny of the majority." As I tell my students, the only thing worse than a tyranical majority is a tyrannical minority--or a single tyrant. The issue is whether a supermajority of the people, at a moment in time, enshrined a principle in our constitution which justifies the injunction in this case. Unless I am wrong about the facts, I am not at all convinced that it does. The students' action/protest not only accepted (for the moment) the court's ruling (no lynch mob here), I thougt its symbolism was quite potent: "The courts cannot silence our private religious speech." They may have acted from a religious/majoritarian impulse, but the constitutional principle involved protects both the majority and minority from unwarranted government censorship--whether by courts or by school boards, and whether the speech is secular or religious. Kurt Lash Loyola Law School (L.A.) PS: There is, of course, a serious issue regarding the degree to which members of an an audience may prevent a speaker from speaking, or a ceremony from taking place, through their disruptive protests--whether religious or secular based. This issue, however, has nothing to do with the establishment issues raised by those responding to Rick's post. Content-type: multipart/alternative; boundary="Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg)" Content-transfer-encoding: 8BIT --Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg) Content-type: text/plain; charset=iso-8859-1 Content-transfer-encoding: 8BIT I see from earlier news stories that the student first asked the principal to not schedule prayers at the graduation, and the principal refused. The prayers objected to originally were clearly out of line under current case law. School authorities shouldn't be in the business of telling kids when to pray -- and is that not exactly what scheduling prayers is? Rick, is there any reason this group shouldn't be compared to the lynch mob that goes after a suspected horse thief? The fellow may be guilty, and a court can determine that later -- but lynching is illegal, and shouldn't we trust to the courts to arrive at a near-just conclusion? I graduated from a high school where I was one of 2 students -- about 1% of the graduating class -- not of the predominant religion. I understand exactly what the plaintiff in the case complained about. It's scary that a ruling from a federal court is not enough to preserve religious rights against a mob. I'm deeply troubled by that. Ed Darrell Dallas Rick Duncan <[EMAIL PROTECTED]> wrote: Here is the way I look at it. "One poor kid" tried to censor his classmates with the help of a powerful legal ally, the ACLU. His classmates did not like being silenced by the "poor kid." So they made a stand--not to ostracize the poor kid, but to stand up for their liberty of religious expression at their own commencement. They did not violate the spirit of the EC. The spirit of the EC deals with government coercion and religion. The true spirit of the Religion Clause is on the side of the students who would not be cowed and silenced by the ACLU and the unelected judiciary. I am proud of these kids. I hope their spirit spreads to many other schools and impacts many other commencements. There is no need to ask school officials to sponsor prayer. All students need to do is pray: without asking for endorsement or permission from government authorities. Cheers, Rick Duncan [EMAIL PROTECTED] wrote: Some info from the involved ACLU affiliate is at this link: http://www.aclu-ky.org/news.html#Grad%20Prayer That info includes the following paragraph: "School-sponsored prayer constitutes a symbolic and tangible âpreference⦠given by lawâ to a religious sect by exalting it over contrary religious beliefs deemed less worthy
Re: God in the Constitution
Robert Lipkin wrote: "but surely the preamble would be an ideal place to express hortatory language about the ultimate foundations of republican political life even if nothing mandatory followed from it" The preamble itself became an issue for the antifederalists--for its invocation of "the people" could be read to imply a consolidation of the several sovereign peoples of the states into a unitary mass. In other words, even preambles were touchy matters. And, as the antifederalists foresaw, Congress was not above asserting "inherent" as well as enumerated powers--see the Alien and Sedition Acts (justified on the ground of inherent federal power to enforce the common law offense of seditious libel). It is true that some antifederalists wanted an acknowledgement of God in the Const. But, if the majority of the framers wished to avoid a realistic risk of suggesting implied federal power over religion--and especially if they wished to keep such matters under local control-- they were wise to keep God in the state constitutions, and not in the federal. Kurt Lash Loyola Law School, L.A. Content-Type: multipart/alternative; boundary="-1107112933" ---1107112933 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit In a message dated 1/30/2005 1:44:54 PM Eastern Standard Time, [EMAIL PROTECTED] writes: think the most likely explanation is federalism. Any recognition of God in the federal Constitution could be read to imply a certain degree of federal responsibility over a matters religious. Everyone agreed that the federal government was to have no power to regulate religion, so, following the Madisonian approach, the subject of God was not addressed--it was not a federal matter. I think this is helpful. And while I do not pretend to have insight into the founding generation's weltenshaung, it seems odd that a deeply religious people would not want to acknowledge its dependence on divine authority. I'm not suggesting that such a people need include regulatory language in the Constitution, but surely the preamble would be an ideal place to express hortatory language about the ultimate foundations of republican political life even if nothing mandatory followed from it. And surely, a member of the founding generation could have suggested such language and that its inclusion would be perfectly compatible with federalism and the federalism incapacity to regulate religion. Did anyone do so? Was the issue even raised? Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ---1107112933 Content-Type: text/html; charset="US-ASCII" Content-Transfer-Encoding: quoted-printable In a message dated 1/30/2005 1:44:54 PM Eastern Standard Time,=20 [EMAIL PROTECTED] writes: <= FONT=20 style=3D"BACKGROUND-COLOR: transparent" face=3DArial color=3D#00 size= =3D2>think=20 the most likely explanation is federalism. Any recognition of Go= d in=20 the federal Constitution could be read to imply a certain degree of=20 federal responsibility over a matters religious. Everyone agreed= =20 that the federal government was to have no power to regulate religion,= so,=20 following the Madisonian approach, the subject of God was not=20 addressed--it was not a federal matter. I think this is=20 helpful. And while I do not pretend to have insight into the founding=20 generation's weltenshaung, it seems odd that a deeply religious people would= not=20 want to acknowledge its dependence on divine authority. I'm not sugges= ting=20 that such a people need include regulatory language in the Constitution, but= =20 surely the preamble would be an ideal place to express hortatory language ab= out=20 the ultimate foundations of republican political life even if nothing mandat= ory=20 followed from it. And surely, a member of= the=20 founding generation could have suggested such language and that its inclusio= n=20 would be perfectly compatible with federalism and the federalism incapacity=20= to=20 regulate religion. Did anyone do so? Was the issue even=20 raised? Bobby Robert Justin=20 LipkinProfessor of LawWidener University School of=20 LawDelaware ---1107112933-- ___ 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 t
Re: God in the Constitution
Robert Justin Lipkin wrote: "Nevertheless, it seems odd (that is, worthy of explanation if not necessary) that the Constitution of a deeply devout population would simply be silent on the issue of God. If so, some explanation seems desirable, if not absolutely necessary." I think the most likely explanation is federalism. Any recognition of God in the federal Constitution could be read to imply a certain degree of federal responsibility over a matters religious. Everyone agreed that the federal government was to have no power to regulate religion, so, following the Madisonian approach, the subject of God was not addressed--it was not a federal matter. The people of each state had their own different approaches, from the establishment of Mass. to the disestablishment of Va.--and this independent approach was positively protected under the First and Tenth Amendments. . . at least until the adoption of the Fourteenth Amendment. Kurt Lash Loyola Law School, L.A. Content-Type: multipart/alternative; boundary="-1107107937" ---1107107937 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit In a message dated 1/30/2005 12:39:18 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Some New England antifederalists complained that the Constitution did not establish religion. Although perhaps difficult to draw, in every case, I think there's a distinction between establishing religion in the sense of recognizing only one official church and expressing that church's religious values into law and simply wanting to express that the new republic acknowledges its dependence (in several different senses of course) on God. In other words, three distinct proposals seem possible. First, the new republic will establish religion (and religious law) as the law of the republic. Second, the new republic recognizes the role of God in human morality and politics, especially, as the argument goes, democratic politics without requiring from the start the expression of God's role into law. And finally, the new republic rejects any relation necessary (or formally required) relationship between religion and government. Of course, a fourth possibility exists, namely, the Constitution of the new republic is simply silent on the relationship between religion and government, neither embracing it or rejecting it. The Constitution's silence can be understood as embracing the fourth possibility, not the third. Nevertheless, it seems odd (that is, worthy of explanation if not necessary) that the Constitution of a deeply devout population would simply be silent on the issue of God. If so, some explanation seems desirable, if not absolutely necessary. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ---1107107937 Content-Type: text/html; charset="US-ASCII" Content-Transfer-Encoding: quoted-printable In a message dated 1/30/2005 12:39:18 PM Eastern Standard Time,=20 [EMAIL PROTECTED] writes: <= FONT=20 style=3D"BACKGROUND-COLOR: transparent" face=3DArial color=3D#00 size= =3D2>Some New=20 England antifederalists complained that the Constitution did not=20 establish religion. Although perhaps=20 difficult to draw, in every case, I think there's a distinction between=20 establishing religion in the sense of recognizing only one official church a= nd=20 expressing that church's religious values into law and simply wanting to exp= ress=20 that the new republic acknowledges its dependence (in several different sens= es=20 of course) on God. In other words, three distinct proposals seem possib= le.=20 First, the new republic will establish religion (and religious law) as the l= aw=20 of the republic. Second, the new republic recognizes the role of God i= n=20 human morality and politics, especially, as the argument goes, democratic=20 politics without requiring from the start the expression of God's role into=20= law.=20 And finally, the new republic rejects any relation necessary (or formally=20 required) relationship between religion and government. Of course, a fourth=20 possibility exists, namely, the Constitution of the new republic is simply=20 silent on the relationship between religion and government, neither embracin= g it=20 or rejecting it. The Constitution's silence can be understood as embrac= ing=20 the fourth possibility, not the third. Nevertheless, it seems odd (that is,=20 worthy of explanation if not necessary) that the Constitution of a dee= ply=20 devout population would simply be silent on the issue of God. If so, some=20 explanation seems desirable, if not absolutely necessary. Bobby Robert Justin=20 LipkinProfessor of LawWidener University School of=20 LawDelaware
Re: RE: Are the Ten Commandments the foundation of the Anglo-American legal system?
Actually, the establishment clause (and the Tenth Amendment) left to the states the decision whether to adopt common law doctrines relating to religious freedom. Early on, state courts regularly applied common law doctrines like religious blasphemy and the "Pearson Rule" which decided church property disputes by deciding which group adhered most closely to the original faith of the church. By the mid-1800s, however, most state courts had begun to disentangle religious propositions and the state's common law. The relationship of the common law to religious belief takes on increased importance if one reads the 14th Amendment's privileges or immunities clause as having constitutionalilzed Reconstruction-era understanding of certain fundamental common law rights. If there was a constitutional "break" from the religious doctrines of english common law, it would have happened in 1868, not 1791. If anyone is interested (aren't we all avoiding exam grading?), I discuss some of this in "The Second Adoption of the Establishment Clause: The Rise of the Ninestablishment Principle," 27 Ariz. St. L.J. 1085 (1995). Kurt Lash Loyola Law School, L.A. - Original Message - From: "Scarberry, Mark" <[EMAIL PROTECTED]> Date: Friday, December 17, 2004 3:38 pm Subject: RE: Are the Ten Commandments the foundation of the Anglo- American legal system? > Yet it is also undoubtedly true -- is it not? -- that most of our > Americanlaw was carried over or adopted from British law. We did > not have a "clean > slate" revolution; if I understand the matter correctly, most > state law had > continuity from the pre-revolutionary time to the post- > revolutionary time. I > think members of this list, who of course focus on federal > constitutionallaw -- all of which was new -- may need to think a > second time about the > general continuity both of common law and (I believe) statutory law. > > Mark S. Scarberry > Pepperdine University School of Law > > > -Original Message- > From: A.E. Brownstein [mailto:[EMAIL PROTECTED] > Sent: Friday, December 17, 2004 3:14 PM > To: Law & Religion issues for Law Academics > Subject: Re: Are the Ten Commandments the foundation of the Anglo- > Americanlegal system? > > This is really a critical part of the issue. Are we talking about > distinctly American law or more generic "Anglo-American" law. I > have no > doubt that the American Tories, the British soldiers who shot down > the > Minutemen at Lexington, the Hessian mercenaries, and King George > III > himself all believed in the Ten Commandments as much Washington > and the > drafters of the Declaration of Independence and the Constitution. > If the > question is whether belief in the Ten Commandments predisposes you > to > accept the American experiment in self-government, obviously it > did not > have that effect on a lot of believers. > > Alan Brownstein > UC Davis > > > At 04:51 PM 12/17/2004 -0500, you wrote: > >Speaking for myself, none of this discussion has been about Anglo- > American > >law, it's been about American law. The Constitution was obviously > a > >radical break from English law on many levels. It established an > entirely > >different basis upon which legitimate lawmaking was based, and > upon which > >a legitimate lawmaker might rule. The notion of a government > instituted > >solely to protect the rights that each individual is endowed with > from > >birth was monumentally different than the notion of a nation > ruled by the > >divine right of the king, to whom one must plead for whatever > recognition > >he chooses to give our claims of liberty. The distinction is as > basic as > >the one Madison draws so vividly, with the European governments > that > >preceeded ours being charters of freedom granted by power, while > ours was > >a charter of power granted by a free people. Hence, the notion of > >combining Anglo- and American together for the purposes of this > discussion > >seems entirely unwarranted to me. Under the English law prior to > our > >constitution, the King could have declared any of the Ten > Commandments to > >be legally in force and prescribe whatever punishment he chose > upon it; in > >our system after the Constitution, most of the commandments could > not be > >legitimately made into laws without violating it. I can't think > of a more > >obvious reason not to combine the two as one. > > > >Ed Brayton > > > >Ross S. Heckmann wrote: > >>This list has recently discussed the issue of
Re: Justice Thomas in Newdow
Alan, In regard to your question--and Rick's and Doug's posts (I apologize in advance for the length of this post, but I'm trying to tie together a number of important thoughts that list members have raised). You raise an important point about the original conception of free exercise. State protection of the rights of conscience was common in 1789, but non-establishment provisions were rare. This makes sense when one considers that religious freedom in 1789 generally was a form of religious toleration (as my "Power" article discusses). At the time of the Founding, most state governments believed they had a duty to promote and protect the exercise of true religion. That protection diminished as one moved away from the norms of Protestant Christianity. Given the function of free exercise clauses in state constitutions, the addition of a federal free exercise clause could have been read to suggest that the federal government shared this same duty to promote and protect religion. Adding the Establishment Clause prevented this and ensured that religion, as a subject, was left to the states. But this founding history makes the issue of Fourteenth Amendment "incorporation" extremely complicated. Even if, by 1868, the country broadly embraced non-establishment as an individual right, this does not necessarily suggest an intent to "incorporate" the original federal non-establishment principle against the states. The original federal principle was fueled (at the very least in part) by federalism concerns. What emegerged was a system that completely banned federal establishments (I think Doug is correct about the broad nature of the inhibition), but protected state government support for religion. If by 1868 federalism concerns had receded, so too had at least some of the reasons for the original broad inhibition on "anything like" a federal establishment of religion. The upshot is that, as a matter of historical understanding, even if the framers of the Fourteenth Amendment understood the P or I Clause to embrace a principle of non-establishment, it is not likely that they would have intended to nationalize the same broad prohibition against the states which had bound the federal government. The reasons for that original prohibition no longer existed. This is why I disagree with Doug's attempt to identify and "incorporate" a Founding era-principle of non-establishment. The very term "incorporate" is misleading and does not describe what happened in 1868 (the term "incorporation" did not even emerge until the New Deal). For constitutional historians, the issue involves identifying public understanding of the principles of religious freedom in 1868 and determining whether these principles were understood as a privileges or immunities of US citizens. Whatever our conclusions, public understanding of the principle of non- establishment in 1868 is likely quite different than any particular understanding of the federal establishment clause in 1789. Any "pro- incorporation" theory must take this into account. Put another way, We the People of 1868 had the right to alter (or abolish) the original federal arrangement, and enshrine, for the first time, a national principle of religious freedom. Under this approach, there was no incorporation. There was something altogether new. Kurt Lash Loyola Law School, Los Angeles - Original Message - From: "A.E. Brownstein" <[EMAIL PROTECTED]> Date: Friday, June 18, 2004 4:51 pm Subject: Re: Justice Thomas in Newdow > Kurt, > > Would it be fair to say that while that the principle of non- > establishment > was still at issue in 1789 at the state level, the principle of > generally > applicable free exercise rights (free exercise rights for everyone > -- not > just Protestants.) was equally at issue at the state level. Your > own, very > fine article, Power and the Subject of Religion, states that in > 1789 > "almost without exception, the extent of one's religious freedom > depended > upon how closely one embraced orthodox Protestant Christianity." > > If history determines what the religion clauses mean, then we have > at least > three choices. 1. Interpret both according to state understandings > and live > with the very truncated understanding of both clauses. 2. Accept > that > contemporary understandings at the time the 14th Amendment was > ratified > should control -- providing us a stronger, substantive > understanding of > both clauses -- your view I think), or 3. Recognize that there was > a > substantive/individual rights dimension to both clauses at the > federal > level that differed from what the state's were doing -- Doug > Laycock
Re: Justice Thomas in Newdow
I think Ed cites important evidence, though I don't think it cuts in the same direction he does. Let's consider just the evidence Ed cites himself (using his characterizations): 1) the colonies had "mostly disestablished" by 1778, 2) two years before the constitution was adopted, a "modest re- establishment" was proposed in Va. and failed, 3) by 1787 four states had "vestiges of establishments," 4) by 1816 these had been phased out --except for one state, 5) Mass. phased out its establishment in 1833. This evidence alone (there is more, including religious restrictions to office holding) is enough to establish that the country as a whole had not embraced non-establishment as an individual right as of 1791. Remember, the issue is whether the Establishment Clause would have been read as an expression of federalism or individual right. As a counter example, consider the free exercise clause. The protection of the rights of conscience was ubiquitious in state constitutions ca. 1789 (including those states with free exercise clauses in the state constitution), and the free exercise clause would have been read to embrace the same principle at a federal level. Non- establishment clauses, on the other hand, were rare in 1789, while regulation of religion was quite common (religious blasphemy laws, state enforcement of religious orthodoxy through the control of church property, taxes in support of clergy, etc). Non-establishment was an idea that was growing. Again, I believe the principle was broadly embraced as a national right by 1868. At the time of the Founding, however, Ed's own evidence suggests that the framers knew the principle of non-establishment was rejected by a number of states, and subject to reconsideration in all. Kurt Lash Content-Type: multipart/alternative; boundary="part1_1d6.242776bb.2e03f245_boundary" --part1_1d6.242776bb.2e03f245_boundary Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit In a message dated 6/17/2004 8:20:09 PM Central Standard Time, [EMAIL PROTECTED] writes: > Whatever Madison's reasons for doing so, I believe that most scholars > would agree that, in 1791, there was deep disagreement about the value > of state religious establishments. It is quite likely that many > founders simultaneously believed that federal establishments were bad > but state establishments were very important. I don't think any > historian working on this period would disagree. > Deep divisions? All thirteen colonies had disestablished, at least mostly, by 1778. No colony, or state, ever backtracked on that decision. By 1787, only four states had vestiges of establishment left, which were not punitive and were phased out everywhere but Massachusetts by 1816 -- and in Massachusetts in 1833. When Patrick Henry proposed a more modest re-establishment in 1785 for Virginia, thousands of Virginians signed petitions in opposition, and the Virginia assembly instead passed into law Jefferson's Statute for Religious Freedom, which expressly states that it is a right of humans to be free from such bondage forever. Other than odd, usually out-of-context quotes from stray "founders," what evidence is there of any significant support for an established church after 1778 -- outside the Mormon movement? Ed Darrell Dallas --part1_1d6.242776bb.2e03f245_boundary Content-Type: text/html; charset="US-ASCII" Content-Transfer-Encoding: quoted-printable In a me= ssage dated 6/17/2004 8:20:09 PM Central Standard Time, [EMAIL PROTECTED] wr= ites: Whatever Madison's reasons for=20= doing so, I believe that most scholars would agree that, in 1791, there was deep disagreement about the value of state religious establishments. It is quite likely that many founders simultaneously believed that federal establishments were bad but state establishments were very important. I don't think any historian working on this period would disagree. Deep divisions? All thirteen colonies had disestablished, at least mos= tly, by 1778. No colony, or state, ever backtracked on that decision.&= nbsp; By 1787, only four states had vestiges of establishment left, which we= re not punitive and were phased out everywhere but Massachusetts by 1816 --=20= and in Massachusetts in 1833. When Patrick Henry proposed a more modes= t re-establishment in 1785 for Virginia, thousands of Virginians signed peti= tions in opposition, and the Virginia assembly instead passed into law Jeffe= rson's Statute for Religious Freedom, which expressly states that it is a ri= ght of humans to be free from such bondage forever. Other than odd, usually out-of-context quotes from stray "founders," what ev= idence is there of any significant support for an established church after 1= 778 -- outside the
Re: RE: Justice Thomas in Newdow
Doug Laycock is right to suggest that the federalism case for the establishment clause is at least as strong in regard to other rights listed in the Bill. For example, when Congress passed the alien and sedition acts, Madison argued that the acts, among other things, violated the rights of the states. His point was a simple one of linking the first and tenth amendments--the powers not delegated to the federal government (like the power to regulate speech) nor prohibited to the states, are reserved to the states respectively or to the people. And, in fact, he cited the Tenth Amendment in his Report on the Acts. But the Establishment Clause nevertheless remains unique even among the rest of the Bill of Rights. When Madison (unsuccessfully) proposed an amendment that would apply important first amendment rights against the states, he included a version of the free exercise clause, but he left out the establishment clause. Apparently Madison believed there was a difference between the two clauses and he sought to apply only one--the free exercise clause--against the states. Whatever Madison's reasons for doing so, I believe that most scholars would agree that, in 1791, there was deep disagreement about the value of state religious establishments. It is quite likely that many founders simultaneously believed that federal establishments were bad but state establishments were very important. I don't think any historian working on this period would disagree. But unlike John, I believe that a broad majority of the country came to embrace the principle of non-establishment in the period between 1791 and 1868. I agree with Doug that, by Reconstruction, privileges or immunities of US citizens were understood to include the right to non-establishment. John raises the issue of the Blaine amendment, and he and I have discussed that Amendment in other forums. Suffice to say that I think the Blaine Amendment is evidence which SUPPORTS the idea the P or I's included the principle of non-establishment. But my and John's disagreement is wholly irrelevant to the Supreme Court. The Court has steadfastly refused to consider Reconstruction understandings in its interpretation of the Bill of Rights in general and the religion clauses in particular. Instead, there has been a continuous, and hopeless, debate over the "original" meaning of the establishment clause. One can hardly fault Justice Thomas for joining the debate on the Court's own terms. Unfortunately, as Steve Smith might say, this debate is doomed to failure, for it seeks an answer that the people themselves were not prepared to give in 1791. Kurt Lash Loyola Law School, Los Angeles ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
