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Why Religion and Politics Must Mix; Jaffe Memo reflections continued- part two

This morning I posted a lengthy post on the Jaffe Memo, a document provided by a vice-president of Planned Parenthood in 1969.  This memo has been making its rounds because it advocates for the encouragement of homosexuality, forced abortions, adding sterilants to the water supply, and so on and so forth.  All this, from an organization that we are told advocates for “women’s health” and “freedom.”

Of course, anyone who has studied Planned Parenthood knows that this is a crock.  It was always about population control and enriching elitists.  In the Jaffe Memo, they are uncharacteristically honest about it.  Read it yourself:  Jaffe Memo (9.2 KiB, 1,238 hits)

In my previous article, I implored people to carefully consider whether or not the positions they hold dear to their hearts might not actually be the very same positions that the Nazis, eugenicists, and communists  wanted them to adopt.    We weren’t aware that the positions had such vile roots, but does that matter?  If it has the same effects, does it matter?  You get the point.

I ended the previous post with the assertion that it was absolutely necessary for religion and politics to mix.  I wish to now expound on that statement.

There are a number of issues in play.  First of all, there is the simple moral matter:  ought not our attitudes and behaviors in political society be driven by our views about the world?  If not one’s own views, then whose?  In the second place, there is the legal matter:  to what extent does the ‘law of the land’ in the United States allow for religious expression in the political arena?  In the third place, how does the law differ from what we currently observe?

Working backwards, it is evident that the general trend is to understand ‘separation of church and state’ as meaning that the state is not to be subject to any kind of religious influence whatsoever.  This is a far cry from the original intent of the founders who meant it clean the other way around- they wanted the church free from influence by the state, not the state free from the influence by the church.

The current state of affairs on this question is as sorry as they come.  The Constitution says clearly, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

Apparently, no one knows what the word ‘Congress’ means, or what constitutes ‘law making’;  through some contorted process of implementation of the 14th amendment, this narrowly construed phrase now refers to state parks, highways, libraries, and city halls.  Through some truly mystifying ‘reasoning,’ Dan Barker’s “Freedom from Religion Foundation” believes that if a local town (Congress?) puts up a Christmas tree up constitutes a a ‘law’ that ‘establishes’ a religion.

But this abject lunacy does not compare to the way that this has continued to manifest in the popular mind.   I cannot count the number of times I’ve heard some kind of nonsense like, “You cannot advocate for X because that is imposing your views on someone else.”  Usually this person has no problem imposing his views on you, and believes he is justified in doing so.

We must give credit to those who have worked so hard to create such pronounced cognitive dissonance.  It was a remarkable victory for them.  The argument is self-evidently asinine, but they’ve managed to create a culture that embraces it.  Though the process of foisting that argument on the masses was surely complex, the ‘reasoning’ is pretty straight-forward.

Here is how it works.

Firstly, they regard your views as religious, and their views as non-religious.

Then, the actual wording of the first amendment was supplanted in the popular mind with the insistence that the Constitution calls for a  ‘separation of church and state.’   You can easily find people who believe the latter are words actually found in the Constitution, and not the former.

Finally, these two items are combined into the attitude that the only views that can be advocated and pursued in the public sphere are those held by them, where ‘them’ often refers to liberal secular humanists, but can also be the Man on the Street, which is a big part of the problem.

You can surmise from this that the net effect will be that the secularists feel that they have the right to push forward any agenda that they please because they are not ‘religious,’ but you are not allowed to oppose their agenda, because your opposition is on ‘religious grounds.’

Now, there are obviously some important questions and assumptions involved here.

For example, what makes something religious?  Or, if one side of an argument is ‘secular’, and therefore admissible in the public sphere, how is it that the other side of the argument is ‘religious,’ and therefore not admissible?  If one side of the coin is ‘heads’ and the other side of the coin is ‘tails,’ the coin is still a penny.

A great example is  gay marriage.  If you are for gay marriage, that’s ok, and you can push it all you like, because it is the product of a secular world view, but if you are against it, you must refrain from opposing gay marriage, because your opposition is ‘religious.’  But you can’t really have it both ways.   Either both groups are allowed to advocate for their positions on this issue in the public sphere, or neither are.

The fallacy here is in their thinking that their views aren’t ‘religious.’  This important question must be settled.

‘Religious’ views are simply a particular classification of one’s views about the world.  But everyone has views about the world;  therefore, everyone is religious.  The Christian has views about origins, the nature of humanity, and ethics and morality, and these views inform how they believe and act.  But atheists also has views about origins, the nature of humanity, and morality, and these also inform how they believe and act.   Enter cognitive dissonance:  the Christian’s views are ‘religious’, and therefore are not allowed to inform their views on policies, but the atheists views are not ‘religious,’ and therefore they can inform their views on policies until the cows come home.

But we’re back to the penny.  If the issue in question has  just a ‘heads’ and ‘tails’ then it must be regarded by all as a penny, and be given public currency- or no currency at all.

This next point is very important:  If the above situation not be admitted as sheer lunacy, totalitarianism is inevitable.

And in Part 3, I will explain why.

 

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    • Doug Indeap on December 24, 2011 at 3:59 pm

    Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    The constitutional separation of church and state does not prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

    Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx

    • End Bringer on December 25, 2011 at 1:23 pm

    The absence of the phrase in the Constitution actually does import some substance to the argument that the Constitution was never meant to proscribe that belief. Just as the absence of the mention of toilets means it’s not a Constitutional right for everyone to have plumbing.

    “The constitutional separation of church and state does not prevent citizens from making decisions based on principles derived from their religions.”

    You mean it doesn’t prevent it ‘as the Constitution reads NOW’. But as this ‘seperation of church and state’ proves, the Constitution is subject to reinterpretation regardless of what words are actually written.

    The plain language of the Constitution in addressing “Congress” already makes it clear that it’s restrictions were made to the (Federal) Government – not the Church, not the Banks, not McDonalds (though I suppose their absence doesn’t mean anything either). But already we see anything smacking of “religion” being removed from schools and public property in the name of “seperation” regardless of the explicit language “not prohibit free exercise”. And we do see there are indeed people who think it also means people CAN’T/SHOULDN’T make decisions based on religious principles. As it’s shown in PART 3.

    • Doug Indeap on December 25, 2011 at 3:55 pm

    It is important to distinguish between the “public square” and “government” and between “individual” and “government” speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

    So, individuals (including when acting through non-governmental entities, e.g., churches, banks, and restaurants) are free to exercise and express their religious views. Governments, though, including government schools, are constrained not to promote or oppose religion.

    • End Bringer on December 27, 2011 at 9:40 am

    “It is important to distinguish between the “public square” and “government” and between “individual” and “government” speech about religion.”

    As Part 6 of this series has shown such distinctions no longer exist.

    “The constitutional principle of separation of church and state does not purge religion from the public square–far from it.”

    According to a plain reading of the Constitution it actually doesn’t even seperate the church from the government. It seperates the government from the church (and our personal lives). But as we see the “interpretations” have become altered and twisted so that now we have the government hyper-micromanaging everything and see the exact opposite of what the Constitution was originally intended for.

    “So, individuals (including when acting through non-governmental entities, e.g., churches, banks, and restaurants) are free to exercise and express their religious views. Governments, though, including government schools, are constrained not to promote or oppose religion.”

    Seems you miss one vital point – this is all just YOUR interpretation. As we can plainly see when we look around us, this is obviously not the case with other people, and not the overall policies of the Federal Government. Their is a VERY active attempt to oppose and surpress religious views in all places and forums. At least those views that aren’t apart of the ‘secular religion’.

    • Doug Indeap on December 27, 2011 at 11:51 am

    Much as you may bemoan the expansion of government in modern times, the distinction between government and public square remains–and remains important to recognize.

    Contrary to your supposition, I did not present MY interpretation, but rather that of the courts. According to the courts, the constitutional separation of church and state does not prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect. The Wake Forest paper does a nice job of summarizing this.

    In reading your comments, I see that you also do not distinguish between separation of church and state, as that phrase is used in constitutional law, and the broader political doctrine that goes by the same name and that generally encourages political dialogue on grounds other than religion, lest we “politicize” religion and start arguing and voting on the correctness and virtues of our respective religions. In making my comments, I have focused on the former.

    The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

    • Alex on December 28, 2011 at 6:46 pm

    Your analysis is correct, Doug. That is what the courts say. The Supreme Court has the final say over what is and is not constitutional, and over the centuries it has interpreted the Constitution to exclude various forms of governmental commingling with religion that were at first permitted – notably, by ruling it unconstitutional in the early 19th century for there to be an established church in any state, and in the mid-20th century by forbidding school-sponsored prayers in public schools. The Court has been within its authority to rule in this way, and short of a revolution is unlikely to go back on either of those rulings.

    As things stand, of course, there isn’t one tangible thing that the Obama administration has done to “oppose and suppress religious views in all places and forums”. About the most it has done is to drop its support in some cases for the military organizing what were in effect Christian revival meetings, something which was utterly inappropriate for the military to have been doing. But as Doug points out, dropping its support does not suppress any religious view. All it does is to drop the government sponsorship of the religious views of participants in such events. I would be interested to know what examples End Bringer has in mind of the administration’s religiously suppressive acts, or whether he is, as I suspect, repeating without thinking accusations that he has heard from other people that conform to his prejudices without verifying whether there is any evidence to back them up.

    • End Bringer on December 29, 2011 at 11:40 am

    “Much as you may bemoan the expansion of government in modern times, the distinction between government and public square remains–and remains important to recognize.”

    Except in these modern times the distinction only seems to exist in your imagination, and not in reality.

    “Contrary to your supposition, I did not present MY interpretation, but rather that of the courts.”

    You act as if this invalidates my point. It clearly doesn’t as we’ve seen examples of split decisions that came to one Supreme Court justice, and where the minority resolve to get more of “their” people on the benches. Unless you’ve been living in a cave, it’s clear that the Constitution has come down to what people THINK it should read, rather than what it actually says. The beauty of having a “living document”.

    “According to the courts, the constitutional separation of church and state does not prevent citizens from making decisions based on principles derived from their religions.”

    And with the way the trend is going in this country, a more accurate statement would be “….seperation of church and state does [NOT YET] prevent citizens…” This is again painfully obvious when we hear about attempts by those like the Freedom from Religion group or ACLU actively striving to remove religious expressions from the public-square, and even bemoaning those in the private.

    “In reading your comments, I see that you also do not distinguish between separation of church and state, as that phrase is used in constitutional law, and the broader political doctrine that goes by the same name and that generally encourages political dialogue on grounds other than religion, lest we “politicize” religion and start arguing and voting on the correctness and virtues of our respective religions. In making my comments, I have focused on the former.”

    Except the phrase actually isn’t in the Constitution, and exists purely as one’s interpretation. Frankly that since only the Legislative Branch is explicitly mentioned in using “Congress”, one can easily infer such a policy doesn’t exist in the Executive and Judicial branches, and certainly not the local State.

    “The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others.”

    You’re contradicting yourself. One can’t have free exercise of one’s religious beliefs while simultaneously restricting them to from government areas.

    The First Amendment embodies the idea that the government simply won’t make Catholcism, Judaism, Hinduism, etc. the default religion of the land that everyone has to be a part of. If the Constitution allows truly “free expression” of one’s religious views and that everyone is supposedly involved in government processess in a democracy, then naturally the Government will endorse or promote the religious views of others. You think we should get rid of manslaughter laws based on the fact it’s an endorsement of the 5th Commandment?

    “By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.”

    Except you miss the fact that your moral proclamation of the policy being “good” is itself a religious belief. So I hate to burst your bubble, but you’ve already undercut your “secular” government, and frankly one can’t truly ever exist in the first place. You’ve just decided to “merge” it with YOUR religion.

    It

    • End Bringer on December 29, 2011 at 2:56 pm

    “As things stand, of course, there isn’t one tangible thing that the Obama administration has done to “oppose and suppress religious views in all places and forums”.”

    It’s telling to your deep-seeded idol worship of Obama that you think he and he alone constitutes the expanse of all government activity.

    • Doug Indeap on December 30, 2011 at 11:00 am

    I’ll take your points in order.

    The distinction between government and public square is too obvious to belabor. As they say, you could look it up.

    You dismissed my earlier comments as only “my” interpretation of the Constitution, and I pointed out that is incorrect and that I presented the interpretation of the courts. Now, you question whether that “invalidates [your] point.” Well, yes, it does. One step at a time: It reveals that my statements cannot be discounted, as you earlier thought, as merely the interpretation of one person, me.

    You seem to grudgingly admit that the constitutional separation of church and state does not prevent citizens from making decisions based on principles derived from their religions, and then predict that this will not long remain true–as if this somehow supports your earlier statements premised on the now admittedly false idea that the principle currently prevents citizens from making decisions based on principles derived from their religions. To spell it out is to reveal the illogic of it all.

    You dodge any substantive comment on the distinction between the constitutional separation of church and state and the broader political doctrine of the same name simply by reverting to your idea that the former simply does not exist. Perhaps it would help if you acknowledged that it does exist at least in the sense that the courts have found it and thus today it is the law of the land, and then take note of how that law differs from the political doctrine.

    You make much of the First Amendment’s reference to “Congress.” By your literal reading, are we to suppose the President could, by proclamation, establish a national religion or prohibit the free exercise of one or more religions? Nonsense. First, Congress itself cannot make any law whatsoever without the approval of the President, except in the instance of overriding a President’s veto, so to read the language as simplistically and literally as you suggest would actually do violence to the intent of the Amendment. As laws in the ordinary course are “made” by actions by both Congress and the Executive, the establishment clause is reasonably understood to constrain both branches of government. By the literal reading you suggest, it would, I suppose, only stop Congress from overriding a veto to make a law establishing a religion–a manifestly silly result. If the clause were interpreted to leave the Executive free, by proclamation or some such, to establish a religion, what really would be the point of the clause? No, such an interpretation would enable the Executive to eviscerate the purpose of the clause.

    In any event, watch what you wish for. Any such crabbed reading of the First Amendment would mess with the free exercise clause as well and leave the Executive and states free to take actions restricting the free exercise of religion.

    With respect to application of the establishment clause’s constraints to states and their political subdivisions, courts have interpreted the 14th Amendment’s guarantee of privileges and immunities of citizenship, due process, and equal protection of the laws to effectively extend the First Amendment’s guarantees vis a vis the federal government to the states and their subdivisions–hence the law does reach the city councils and public school teachers. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments, e.g., the 14th, could extend the First Amendment’s constraints to state and local governments.

    You see contradiction in the simple idea of individuals being free to exercise their religions and the government being constrained not to promote or oppose any religion apparently because you do not see the distinction between individuals and government. Surely, you jest. Your question about manslaughter appears premised on the idea that any law consistent with a religious belief is somehow disallowed by separation of church and state. It’s not, as I stated in an earlier comment and as is explained in the Wake Forest paper.

    Finally, declaring my statement that separation of church and state is “good” to be a religious belief, you seem to deny the very possibility of a “secular” government because it merges that religion with government. As secularism refers to the idea of keeping government and religion separate, it is oxymoronic to treat secularism itself as a religion. Doing so would, at least semantically, seem to render the very concept of secularism an impossibility–since keeping government and (real) religion separate would itself be deemed a religion in which the government is somehow joined. I’m picturing a dog chasing its tail. Or a collision of matter and anti-matter.

    • End Bringer on December 30, 2011 at 12:35 pm

    “You dismissed my earlier comments as only “my” interpretation of the Constitution, and I pointed out that is incorrect and that I presented the interpretation of the courts. Now, you question whether that “invalidates [your] point.” Well, yes, it does. One step at a time: It reveals that my statements cannot be discounted, as you earlier thought, as merely the interpretation of one person, me.”

    You missed the point. It wasn’t so much a “dismissal” as drawing your attention to the fact that “interpretation” is all it comes down to when dealing with a “living document”, rather than what the words actually say and mean. It’s evident many people have this view, and thus have their own interpretations of what the Constitution says, and many are decidedly different from your own. The fact that the you claim the Courts have interpreted the same means nothing. You’ve just shifted who’s making the interpretation to someone else. When enough judges have a different interpretation, then obviously they’ll be free to dismiss the current interpretation – meaning it all still comes down to the views of individuals rather than whatever the Constitution actually says.

    “You seem to grudgingly admit that the constitutional separation of church and state does not prevent citizens from making decisions based on principles derived from their religions, and then predict that this will not long remain true–as if this somehow supports your earlier statements premised on the now admittedly false idea that the principle currently prevents citizens from making decisions based on principles derived from their religions. To spell it out is to reveal the illogic of it all.”

    Uh, I don’t recall ever denying people will act on their belief regardless of what laws are passed. I’m pointing out that this won’t keep secular activists from trying to stop it. They’ll always fail of course, because there is no such thing as a truly seperated Church and State (especially when everything is a belief, and everything is politicized), but they’ll act on their beliefs and fling themselves against the wall.

    “You make much of the First Amendment’s reference to “Congress.” By your literal reading, are we to suppose the President could, by proclamation, establish a national religion or prohibit the free exercise of one or more religions?”

    You’re missing the point. Nominally yeah the President could if he had the power, but since the President isn’t the legislature, obviously he can’t establish anything. It’s clear from the language of the Consitution, however that the President is obviously not under any restrictions to be religiously neutral. He can indeed act upon his religious beliefs which should theoretically reflect the beliefs of the majority that got him into office. Meaning he can invoke a veto simply because he finds the law wrong on his religious grounds. This is a clear example in how Religion is indeed involved in Government affairs.

    More significantly since “Congress” refers to the Federal level, it means the individual States are indeed free to establish a religion if they so choosed. Constitutionally Texas is indeed free to be a Catholic state, and NY a Hindu one. The Framer intended the local communities to reflect the ideals of those immediately living in them. If anyone didn’t care to live under such beliefs, they were free to move to a State that reflected their values.

    That is how religion was intended to be involved in government, rather than seperated.

    “In any event, watch what you wish for. Any such crabbed reading of the First Amendment would mess with the free exercise clause as well and leave the Executive and states free to take actions restricting the free exercise of religion.”

    That local people can decide for themselves how to live, rather than have it dictated to them, wouldn’t bother me in the least.

    “With respect to application of the establishment clause’s constraints to states and their political subdivisions, courts have interpreted the 14th Amendment’s guarantee of privileges and immunities of citizenship, due process, and equal protection of the laws to effectively extend the First Amendment’s guarantees vis a vis the federal government to the states and their subdivisions–hence the law does reach the city councils and public school teachers.”

    And that’s why the 14th Amendment needs to be chucked out the window, as it obviously gives the Federal Government the power to nitpicking interfere with almost every aspect of our lives. Something the Framer’s were not intending with a restricted government.

    “You see contradiction in the simple idea of individuals being free to exercise their religions and the government being constrained not to promote or oppose any religion apparently because you do not see the distinction between individuals and government. Surely, you jest.”

    There is none. Mainly for the simple fact that no government can exist without individuals (whom you say are free to act on their religious beliefs), but mostly for the fact that in a democracy all individuals are involved in the Government process. Though today it’s mostly for the fact that the power of government is being handed more and more to a few individuals.

    “Your question about manslaughter appears premised on the idea that any law consistent with a religious belief is somehow disallowed by separation of church and state. It’s not, as I stated in an earlier comment and as is explained in the Wake Forest paper.”

    No, my question was premised on the idea that you could see the contradiction in saying the church is seperated from the government, yet see an instance where laws are being passed that are definitely religious in nature.

    “As secularism refers to the idea of keeping government and religion separate, it is oxymoronic to treat secularism itself as a religion.”

    Hate to burst your bubble again, but it’s true. As SJ so apptly put it if Hinduism, Judaism, etc. is heads, and A-theism, Secuarism, etc. is tails, it’s all still a penny.

    “Doing so would, at least semantically, seem to render the very concept of secularism an impossibility–since keeping government and (real) religion separate would itself be deemed a religion in which the government is somehow joined. I’m picturing a dog chasing its tail. Or a collision of matter and anti-matter.”

    No, it’s an inheret impossibility in reality, as I’ve shown you can’t really keep religion out of government no matter what you do, especially when their is no such thing as a ‘nonreligious belief’. Which is what was recognized by the Framers, and is why “seperation of church and state” is mostly little more than a made-up fantasy by atheists and secularists.

    • Anthony on December 30, 2011 at 1:38 pm
      Author

    To jump in briefly, but I want to quickly respond to Doug’s comment:

    You make much of the First Amendment’s reference to “Congress.” By your literal reading, are we to suppose the President could, by proclamation, establish a national religion or prohibit the free exercise of one or more religions?

    Your objection to the notion of the ‘literal meaning’ of the text is illustrative of all that is wrong with the liberal approach to the Constitution and the law in general. The Constitution, as a legal document, is deliberately and explicitly, precise. The writers of the Constitution were not idiots. Every word and phrase was argued over endlessly. There is a reason why they said ‘Congress.’ Now, if you have an objection to this limitation, and believe that it would give the other branches too much latitude- “nonsense” as you say- then the proper approach would be… prepare yourself to be shocked… CHANGE THE LAW. That is, amend the document, using the provisions that the document itself provides, to resolve the situation.

    Reducing a legal document to figurative or metaphorical language or stretching its intent beyond what was originally meant is not in line with the rule of law. It is, in fact, the road to lawlessness. It is the abolition of the rule of law and the establishment of an oligarchy. It means that the legal document means something different for every person, or at least every Supreme Court justice, without reference to the actual words. It essentially makes the document USELESS, and makes whatever the whims of a 5-4 majority of SCOTUS happen to be the law of the land.

    We have been driven into absurdity and lunacy on account of this approach, complicated by the (frankly stupid) applications of the 14th amendment- but then, I think the 14th amendment is poorly crafted, so perhaps the justices can be forgiven for twisting it so badly. At any rate, the right way to resolve it is not to twist the 14th amd to mean whatever happens to make me happy today (eg, incorporating the second amd FINALLY to acknowledge the obvious, that the right to bear arms doesn’t refer to each of us being permitted to mount the arms of bears in our house, but the individual right to have and possess firearms), but to actually change the 14th amd as necessary, AND to stick to the ‘literal’ meaning of the 2nd amendment, which is sufficiently clear already.

    Now, in answer to the substance of the protestation that the ‘literal’ interpretation of ‘Congress’ would mean that the President could unilaterally declare a state religion really fails to understand history and how the nation was originally structured to work.

    First of all, THE WAY IT WORKS (or was supposed to work), is that each branch gets certain duties ascribed to them by the Constitution itself which cannot be usurped by the other branches. These are enumerated powers; eg, the Constitution details ‘negative’ liberties, which President Obama lamented: http://www.youtube.com/watch?v=2jr9mLB3yKs

    This is critical. It means that each branch can only do the things described in the Constitution. For the government to do more than that would require a change of the law, or else it would be illegal and unconstitutional. The fact that only ‘Congress’ is specified in the constitution does NOT mean that this means the judiciary or the executive branch COULD do such a thing. Those branches can only do what the Constitution explicitly says that they can do, OR- and this is important- what is subsequently authorized for them to do by Congress.

    Since the president and judiciary are not explicitly given the authority to declare a ‘national religion’ AND the CONGRESS is explicitly RESTRICTED from establishing a religion, it is NOT LEGALLY POSSIBLE in this country for the president or judiciary to do so. They could only get that legal authority if it were given to them by Congress, and as I just pointed out, Congress itself is precluded from giving it out.

    Your statement shows a tremendous misunderstanding of the Constitution and the structuring of the government. The Messiah himself- that is, Obama- understood the nature of the Constitution, and didn’t like it (see the youtube audio above). However, in your defense, you can hardly be blamed for this misunderstanding, because it has been the case for many, many years that all three branches have been engaged in flatly illegal and unconstitutional activity. Congress, for example, has no problem passing unconstitutional laws, like for example Obamacare. What is it to them? They can just roll the dice with the judiciary and if ‘their team’ controls it, they can get their unconstitutional law deemed ‘constitutional.’

    Honestly, it’s all just a big mess. We are so far away from what the Constitution actually dictates that it is worthless to actually consult it. The only thing that matters today is getting Supreme Court justices that reflect your views; the president and congress and judiciary can all do as they please, provided you have the ‘right’ SCOTUS majority.

    Note: I happily include the use of the court by conservatives in this analysis.

    • Alex on December 31, 2011 at 10:49 am

    It was expected from the beginning of the republic that the courts would interpret the Constitution, and would develop a body of precedent on constitutional law. It is not possible, and the founders knew it wasn’t possible, to articulate a constitution that would deal clearly with every possible dispute over governmental powers and responsibilities that would arise. The words of the Constitution itself, and the body of constitutional precedent that has been based on it, together form the constitutional setup of this country. Cases proceed by analogy to previous cases, as the law grapples with new challenges. Even if you clear-cut the entirety of American jurisprudence going back to 1802 and started again, courts would still have to do this in order to be able to rule on cases.

    Doug describes accurately the mechanism by which the First Amendment was incorporated with respect to the states, as the Second Amendment is now being incorporated. What End Bringer is asserting is very simple: that it doesn’t matter, constitutionally, whether the free exercise rights of an individual citizen of a US state are protected or unprotected, so long as a majority of people in that state have decided on what the established religion ought to be. Before the 1830s, it’s at least arguable that that was the view the Supreme Court took of the Constitution. Since then, the Supreme Court has recognized more deeply the free exercise rights of religious minorities. On the whole, that seems to me like a good thing. I live in a majority-Catholic state, and belong to the United Church of Christ. If Catholicism were made the established church of this state, what state am I going to move to that would have a majority of United Church of Christ? The remedy of moving to another state is a clearly inadequate remedy to the limitation on free exercise rights that allowing established churches would produce, for anybody belonging to a denomination that does not form a majority in any of the fifty states. What you’re advocating, therefore, is a situation where in 17 of the 50 states, only evangelical Protestants (8 states), Catholics (8 states) and Mormons (1 state) would be permitted to freely exercise their religion. What the hell kind of religious freedom is that?

    • End Bringer on December 31, 2011 at 2:37 pm

    “It was expected from the beginning of the republic that the courts would interpret the Constitution, and would develop a body of precedent on constitutional law.’

    Except it was never mandated by the Constitution. Which seriously undermines your view of it being “expected” and more like ‘that’s how it got screwed up’.

    “What End Bringer is asserting is very simple: that it doesn’t matter, constitutionally, whether the free exercise rights of an individual citizen of a US state are protected or unprotected, so long as a majority of people in that state have decided on what the established religion ought to be.”

    No what I’m asserting is very different: That anybody can believe anything they want and can come to the table equally, but the majority is not subject to the whims of a minority. In other words – REAL freedom and democracy. If a particular State wants to say the Lord’s prayer, or a verse from the Quar’ran as they do the Pledge of Alliegance that’s fine. No one says a student has to believe the same thing. The student just has to respectively go along with it. You know? REAL tolerance.

    • Doug Indeap on December 31, 2011 at 6:43 pm

    Oh. I had no idea that you–and, it appears, Anthony–seriously entertained the utterly absurd idea that the Constitution can be implemented without “interpreting” it. This is kindergarten silliness. The Constitution is not some detailed code of law that spells out what to do in every circumstance one might imagine; rather, its sets forth a basic structure of government, generally describes the government’s powers and some limitations on those powers, and establishes various general principles, leaving it to future generations to implement those general provisions in various circumstances over the years.

    Some constitutional provisions, of course, are precise and clear. For instance, article I, section 3, clause 4 states: “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” Little room for uncertainty there; pretty cut and dry.

    Other provisions are far from precise and clear. For instance, the Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The questions leap out. What is “unreasonable” in any particular case? What is or is not “probable cause” in a particular case? The amendment says nothing about cars; does the right to be secure against unreasonable searches extend to one’s car? How about to papers placed in plain view on a front porch? Papers in a garbage can in the garage? In a garbage can on the curb awaiting the truck? If a warrant describes the place to be searched as the house at XYZ Street, does that include an attached garage? A detached garage? A car parked in the driveway? A car parked on the street in front of the house?
    Courts confront such issues every day, and they must render decisions–and can’t call for an amendment to the Constitution to clarify matters. So they interpret the words of the Constitution because they must do so in order to do their jobs. And when deciding a case of “first impression,” i.e., a question that hasn’t arisen before, a court establishes precedent, which it and other lower courts thereafter (in theory at least) follow.

    The guiding principle in interpreting a law is to determine the intent of the legislature–or, in the case of the Constitution, the intent of those who had a hand in drafting and ratifying the Constitution. The courts typically look first to the words of a legal provision. If that does not resolve the issue, they may look for other evidence of the intent of the legislature. Generally, that entails reviewing the legislative history of the provision, typically found in the reports and documents of the pertinent legislative proceedings. If that does not suffice to resolve the issue, they may look further afield for relevant evidence, like the Supreme Court did when it reviewed Jefferson’s letter to the Danbury Baptists regarding the First Amendment. If all of that still leaves the issue unresolved, the court may step back and assess the function of the legal provision and interpret it to best serve that function. While not a perfect system, it’s not bad.

    The need for interpretation of the Constitution is independent of the idea of a “living Constitution,” which so bothers some people. The critical point is that the Constitution MUST be interpreted in order to implement it. There is simply no way around it.

    • Anthony on December 31, 2011 at 10:24 pm
      Author

    “Oh. I had no idea that you–and, it appears, Anthony–seriously entertained the utterly absurd idea that the Constitution can be implemented without “interpreting” it. This is kindergarten silliness.”

    This is frankly an asinine thing to say, and I am afraid to say very typical. This discussion has devolved into areas of basic literacy. No one said that there would be no ‘interpretation.’ You said, “By your literal reading”, as if there was any other way to interpret legal documents. From this, you somehow gathered that this meant someone was saying that there would be no interpretation.

    This was not reflected in what I said and no reasonable person could have gathered that from what I said. Due to my extensive experience in debates such as these, I understand that if someone cannot comprehend the original, they are not likely to comprehend the clarification. Against my better judgement, I will try.

    1., By mocking a ‘literal’ interpretation, you necessarily imply that you believe that in some cases it would be preferable to interpret the Constitution ‘figuratively’ or ‘metaphorically.’ On this notion, one could legitimately (if you were a Supreme Court justice) interpret the ‘right to bear arms’ to refer to the arms of big hairy creatures, or, SCOTUS could say that language changes, and ‘bear arms’ may have meant something in the past, but today it could be seen as ‘bare arms’, and thus conclude that everyone has the right to wear short-sleeved shirts- but not carry guns (since you can’t have both interpretations simultaneously). Or, ‘arms’ could be taken figuratively to refer to mechanical devices, or cheesy potatos, or whatever- figures are in the eye of the beholder, of course.

    Now, if we were talking about a poem, such ruminations could very well be proper. But what genre is the Constitution? Is it a poem? No. Is it a song? No. Is it a novel? No. It is a legal document, which basically means the ‘literal’ interpretation is ALWAYS called for. SCOTUS could legitimately go on the ‘spirit of the law’ only insofar as this is consistent with the ‘letter of the law.’ If you deviate from the letter of the law, you do not have any law at all.

    Now, there is no way a sane or literate person could regard what I just said as suggesting that we should not interpret the text. Clearly what I’m pointing out is that it is stupid to take issue with a ‘literal interpretation’ of a LEGAL document.

    Now, with that in mind,

    2., On such a reading of the Constitution, there is no chance that the prohibition of Congress from making a law establishing religion COULD POSSIBLY MEAN that the Executive or Judicial branches COULD carry out such an action. According to the Constitution- interpreted at face value- all three branches are only able to execute powers that are explicitly ascribed to it. Via the Congress, other powers can be granted to the Executive and Judicial branches. However, since Congress is expressly precluded from making a law concerning the establishment of religion- or any prohibition of the free exercise of it- there is no way that these other branches could ever LEGALLY receive that power in order to implement it. Theoretically, if the other two branches were to do such a thing, their actions should be ignored and impeachment should proceed. And if Congress attempted to violate the plain reading of the Constitution in this or some other way, then theoretically the executive and judicial branches should take issue with that and condemn it.

    Of course, as I alluded to, all three branches are completely out of step with what the Constitution allows and rejects, so this is all theoretical. It is pointless today to regard anything as ‘constitutional’ or ‘unconstitutional’ because the concepts have meaning only insofar as SCOTUS rules, and as is seen over and over, SCOTUS itself believes it can decide something means whatever it means for whatever reason it believes.

    The conservative justices are better on this point, but not flawless, though this is irrelevant. If we had a majority of liberals on the bench, they could easily reverse anything that they want and make the constitution say whatever it wants, and apparently we’re all supposed to think that they’ve ‘settled it.’

    We are only one justice away from complete oligarchy. The only way that meaning can once again be imparted to the notion of ‘rule of law’ is for our judiciary to actually stick to what is written.

    And that does not mean, as you spewed, that I am saying that there is no interpretation of the text. All texts require interpretation. Duh. It is not even necessary to state it. Rejecting non-‘literal’ interpretations of legal text is not the same as saying that the text is not going to be interpreted at all.

    By the by, I advocate interpreting every text in the manner that the text demands. Legal text is interpreted according to one set of standards, poetry to another, narrative to yet one more.

    There is no sense in debating whether or not something is constitutional with someone who believes otherwise. More than that, there is no sense in debating whether or not something is constitutional when the other person is content to mindlessly lap up as ‘constitutional’ whatever SCOTUS declares, for reasons already explained. So, if you are in either or those camps, I honestly think you’re wasting your time here. We are together left merely to try to get our own justices on the court who will do whatever is necessary to justify our own values- the actual words be damned.

    Which brings us around to the point of the series, or course. You no doubt feel that you have every right to put anyone on the court that you please, but you would object if I wanted to put a Dominionist (for example) on the court. You get to further your values through the court, but I do not get to further (as you perceive them) my values. Ah, but if I did get such people on the court, and they decided that the 1st amd does not mean what you thinks it means, you’d just have to throw up your hands and say… “well, they are the final arbiters of what the constitution says, and that’s what they say, so I guess I was wrong all along, and we CAN establish a state religion!”

    Right? Isn’t that what we’d have to say on yours and Alex’s basis? Yep; if you were consistent. But that’d be hoping for a miracle.

    • Anthony on December 31, 2011 at 10:38 pm
      Author

    A thought came to me after I posted.

    On an originalist, conservative, reading of the first amendment, there could NEVER be an establishment of a state religion, for reasons already stated.

    It is only on the liberal’s approach to the constitution that the 1st amd could possibly be read to say that ‘Congress’=Executive/Judicial branches. Why not? Liberal courts have already read the 1st amd to mean a bunch of things it doesn’t mean. Heck, they could even determine that the 1st amd REALLY means the opposite of what the plain language suggests. Hence, threats to freedom of thought, religion, and conduct, are more likely to emerge from the liberal reading, and not the conservative reading. On the latter reading, only a very narrow set of interpretations are possible. On the former, any interpretation is on the table… it all reduces to whatever 5 justices happen to believe at a particular time.

    A bit of irony there.

    • Doug Indeap on January 1, 2012 at 3:44 pm

    Anthony,

    By mocking a literal interpretation, I meant to show that sometimes just reading the words literally does not, and cannot, reveal the intent of the law and that other means of determining that intent must be employed (some of which I summarized above). You now seem to say that they only other choices are to interpret the law “figuratively” or “metaphorically.” Not what I said, not what I meant. I’ll leave that digression to you.

    You also say, it seems, that a legal document always calls for literal interpretation. I’m not sure what you mean by “literal,” but as I used that term in my first comment, my point is that a “literal” interpretation is sometimes impossible or sometimes leads to absurd conclusions–and thus fails to capture the intent of the law.

    Yes, I well understand that each of the three branches of government must act within the powers granted them by the Constitution. It was that very concept that led James Madison initially to argue against a Bill of Rights, thinking that by specifying some limits on governmental power, some may assume the government can do anything not expressly limited. His concern has, in fact, come true with respect to the establishment clause. Some argue that the government can do whatever it wants with respect to religion as long as it stops short of establishing a church.

    Turning back to End Bringer’s literal interpretation leaving the Executive free to make mischief, you counter that the Constitution does not afford the Executive that power, so not to worry. I’m not so sanguine about the limits of Executive power. Imagine what the President may do with respect to religion while exercising his powers as commander in chief of the armed services, to commission officers, to hire and fire employees, and to take care that the laws be faithfully executed. To pose just one mundane example, EB’s interpretation seemingly would leave the Executive free (absent some specific prohibition by Congress) to have all federal agencies use stationery bearing phrases along the border touting the virtues of Scientology or proclaiming the falsity of Calvinism.

    Finally, in the end, you seem to despair of any fair interpretation of the law by judges and thus you reduce the matter to one of brute political power: Whoever gets their guys on the courts wins. I don’t share that view of our courts.

    • Alex on January 1, 2012 at 3:49 pm

    It was that very concept that led James Madison initially to argue against a Bill of Rights, thinking that by specifying some limits on governmental power, some may assume the government can do anything not expressly limited.

    It was that very concern that led to the inclusion of the Ninth Amendment, which observes that just because the rest of the Bill of Rights has identified and prohibited some ways that government can abuse the rights of the people, doesn’t mean that there are no other Constitutionally cognizable ways that government can do so; or, in eighteenth-century language:

    “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

    • End Bringer on January 1, 2012 at 8:05 pm

    “Turning back to End Bringer’s literal interpretation leaving the Executive free to make mischief, you counter that the Constitution does not afford the Executive that power, so not to worry. I’m not so sanguine about the limits of Executive power.”

    *snort* No, I said that according to the 1st amend. since the restrictions are EXPLICTLY directed at Congress, that would nominally mean the other Branches aren’t so seperated from religion. Unfortunately for your contention the 1st is only a single isolated amend. and the powers of the other Branches are as explictly laid out as they are for the Legislature.

    The problem of course comes down to the fact that the Government no longer cares about what is explicitly laid out in the Constitution, since we are now free to “interpret” willy-nilly. If Madison was concerned about the limits not being detailed enough, then what we have now is a government that doesn’t have any limits whatsoever.

    “Finally, in the end, you seem to despair of any fair interpretation of the law by judges and thus you reduce the matter to one of brute political power: Whoever gets their guys on the courts wins. I don’t share that view of our courts.”

    And you would be wrong, since the concept of judicial review, and no direct way to counter SC decisions, does indeed leave the whole process to whoever gets enough people into the courts.

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