Criticizing the Current Interpretation of Disestablishment Clause


Fisher Ames Framer 1st Amendment

Fisher Ames

 

John R. Houk

© June 16, 2012

 

On my AC2C blog I posted this title: “Keep Govt. OUT of Church – NOT Church out Govt.” The main focus of the post was a Youtube video of excerpts of President Ronald Reagan speeches with a definite portrayal of Christianity on the U.S. government.

 

I wrote this as a little introduction to the Ronald Reagan excerpts:

 

The disestablishment clause of the First Amendment is a one-way action as far as Separation of Church and State is concerned. That one-way is that government must be separate and out of the religion business AND NOT that the Church be separate from the government.

 

Here are the limited comments on my AC2C blog pertaining to my introduction to the Reagan video:

 

Comment by CJ on Wednesday:

 

If they want to keep their tax exemptions they can’t preach it at the pulpit.  So, what? … they [can] go out in the political world. the church can interfere, influence government but government can’t interfere with the church…???????

 

I do believe the Founders wanted “religion” out of politics and politics out of ‘religion”.

 

Let’s just agree to disagree John.

 

Comment by John on Wednesday

 

I respectfully disagree CJ. The Church in various denominations can and should be an influence on government and the government should never interfere with the Church in its various denominations. Both sides of that coin can work and did in America until the 1960s.

 

Comment by CJ on Monday

 

[N]ot sure about this….can’t have it both ways…if you want government out of the church then let the church stay out of the government….

 

Now just for clarity’s sake I am not criticizing CJ. We are friends on AC2C. Indeed, at AC2C CJ is a big fish and I am just a little mackerel. I am thrilled when CJ reads my posts and comments on them. We are both Conservatives. You should also know Conservatives do not agree on all issues. On the Church/State issue I am all about the government needs to mind its business relating to the Church and the Church needs to be a moral foundation for the rule of law in America and thus the U.S. government.

 

As the moral foundation, I am not advocating that Christianity itself be the law of the land. I am advocating that Christian morality and principles be the measuring stick for the rule of law in Congress enacting laws and the Executive Branch enforcing those laws or appending rules in conjunction to Congressional enacted laws to define enforcement. Neither the President nor the Judiciary Branch should enact laws according to the U.S. Constitution that are outside the scope of duly enacted Constitutional Congressional laws. The Executive enforces or manages the rule of law and the Judicial Branch merely interprets the enacted law or the enforcement of an enacted law according to the U.S. Constitution and the duly State ratified Amendments.

 

As far as the Church, the State and the Constitution are related I like this statement on a Jeremiah Project article:

 

While the concept of separation of church and state might be implied by the First Amendment which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”, it says nothing about the “separation of church and state.” And, even if you accept the principle of the separation of church and state being implied by the First Amendment, it’s implication is not there to protect Americans from religion, it is there to protect religious Americans from the government.

In their desire to promote their secular humanist philosophy using the power of government, many liberals today want to alter America’s Christian heritage and replace it with the 10 Planks of Communism. They want to remove religion from our history and replace it with the Soviet doctrine of the separation of Church and State. They don’t want to safeguard denominational neutrality by the state as the Founders intended, rather they want to eradicate every vestige of religion from our public institutions. (The bold emphasis is mine. America’s Godly Heritage; Jeremiah Project)

 

For me the First Amendment in its Original Intent means that which I placed in bold print above: “it’s implication is not there to protect Americans from religion, it is there to protect religious Americans from the government.

 

This is what I meant by Church and State separation is a one-way street. This is why I disagree with CJ. In CJ’s reasoning there is no two-ways about it; i.e. if government cannot be involved Church then Church cannot be involved in government. There is one I can agree with CJ’s reasoning. That agreement is the Church cannot be a Branch of the government say like Islam is a part of the Iranian government making Iran a theocracy. In this line of thinking CJ is absolutely correct in keeping religion/Church separate from government.

 

The USA is a democratically representative Republic by the people and for the people. There is nothing theocratic about America. In promoting Christian principles in government Americans are doing that which keeps America great. The more God that is prohibited in American government the less America is great. So on government property whether it is Federal, State or local government the emblems of America’s heritage should remain to remind the government what the basis for the rule of law comes from. Part of that heritage is also Judeo-Greco-Roman influence. There is no shame for a secular government to emblemize reminders of our heritage following the Judeo-Christian-Greco-Roman line.

 

This is the one-way street: no government meddling in religion; however religious influence on government is needful for good government for the people and by the people.

 

The thing is most Democrats disagree with the one-way street paradigm I briefly stated because of the Living Constitution doctrine has allowed Left oriented activist Judges to begin slowly aligning the nation away from the Original Intent of the Founding Fathers to utilize Christian morality and love to be the foundation of the rule of law.

 

Here are some remarks that disfavor the Living Constitution doctrine from deceased Chief Justice William Rehnquist:

 

At least three serious difficulties flaw the brief writer’s version of the living Constitution. First, it misconceives the nature of the Constitution, which was designed to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times. Second, the brief writer’s version ignores the Supreme Court’s disastrous experiences when in the past it embraced contemporary, fashionable notions of what a living Constitution should contain. Third, however socially desirable the goals sought to be advanced by the brief writer’s version, advancing them through a freewheeling, nonelected judiciary is quite unacceptable in a democratic society.

 

 

The brief writer’s version of the living Constitution, in the last analysis, is a formula for an end run around popular government. To the extent that it makes possible an individual’s persuading one or more appointed federal judges to impose on other individuals a rule of conduct that the popularly elected branches of government would not have enacted and the voters have not and would not have embodied in the Constitution, the brief writer’s version of the living Constitution is genuinely corrosive of the fundamental values of our democratic society. (The Notion of a Living Constitution; by William H. Renquist – Read Entire PDF Document)

 

Here are some thoughts from Justice Antonin Scalia:

 

 

In a 35-minute speech Monday [2005], Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. …

 

“If you think aficionados of a living Constitution want to bring you flexibility, think again,” Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”

 

“Why in the world would you have it interpreted by nine lawyers?” he said.

 

 

Citing the example of abortion, he said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process.

 

“Abortion is off the democratic stage. Prohibiting it is unconstitutional, now and forever, coast to coast, until I guess we amend the Constitution,” said Scalia … (Scalia Slams ‘Living Constitution’ Theory; by AP on Fox News; 3/14/05 – Read Entirety)

 

Here is excerpted definition of Original Intent from The Free Dictionary:

 

The theory of interpretation by which judges attempt to ascertain the meaning of a particular provision of a state or federal constitution by determining how the provision was understood at the time it was drafted and ratified.

 

Sometimes called original understanding, originalism, or intentionalism, the theory of original intent is applied by judges when they are asked to exercise the power of Judicial Review during a legal proceeding. (The power of judicial review is the power of state and federal courts to review and invalidate laws that have been passed by the legislative and executive branches of government but violate a constitutional principle.)

 

… Judges who do attempt to apply this judicial philosophy generally agree that only through its application may courts be bound by the law and not their own views of what is desirable. They also generally agree that courts must apply original intent in order to preserve the representative democracy created by the federal Constitution.

 

 

… They argue that the interpretation of most written documents, legal or otherwise, involves a form of “communication” in which “the writer seeks to communicate with the reader”, Constitutional interpretation is no different, originalists say, because it involves the attempt of judges, as readers, to understand the meaning of a constitutional provision as conveyed by the Framers and ratifiers who authored it. Originalists believe that judges who fail to employ this method of interpretation transform courts into naked power organs.

 

Originalists contend that judges who deviate from the original understanding of a constitutional provision are forced to replace that understanding with their own subjective sympathies, social preferences, and notions of reasonableness. When judges substitute their own value choices for those actually written in the Constitution, federal courts become super-legislatures that make decisions based on the personal will of judges and not the law of the land (Day-Brite Lighting v. Missouri, 342 U.S. 421, 72 S. Ct. 405, 96 L. Ed. 469 [1952]).

 

Originalists assert that judges who legislate from the bench violate the separation of powers by making law rather than interpreting and applying it. These judges also violate the principles of federalism, the second essential feature of U.S. constitutional democracy identified by originalists. Under these principles, courts must strike an appropriate balance between the sovereignties of state and federal governments, not allowing the smaller state governments to be wholly consumed by the ubiquitous federal government. Originalists contend that this balance impermissibly tips in favor of the federal government when federal courts invent new constitutional rights that state governments are then required to enforce.

 

 

Respect for principles of federalism, then, is intimately connected with the third essential feature of U.S. Constitutional democracy identified by originalists, the Bill of Rights. The Bill of Rights protects certain freedoms from the popular will no matter how democratically the majority attempts to trample them. In all other areas, originalists assert, state and federal majorities are entitled to rule for no better reason than that they are majorities. Originalists explain that majority tyranny occurs if legislation invades areas properly left to individual freedom, and minority tyranny occurs if the majority is prevented from ruling where its power is legitimate.

 

Originalists argue that the judiciary facilitates minority tyranny by improperly interpreting the Bill of Rights to guarantee liberties not contemplated by the language and intent of the Framers. To avoid this pitfall, originalists believe, judges must safeguard only the liberties that can be clearly derived from the Constitution. Originalists cite a series of cases in which the Supreme Court recognized a right to privacy as the antithesis of proper constitutional interpretation.

 

… (Read Entire Definition)

 

That is stage I have attempted to refute on the so-called Separation of Church and State theory the courts have maintained since the mid-20th century to stop America’s Christian Heritage on or in anything that is supported by any kind of taxpayer money.

 

In 1947 a five to four decision in the Supreme Court ex nihilo added Thomas Jefferson’s letter to the Danbury Baptist Church assuring them that the Federal Government would not establish a National Church thus that Church would not have worry about its parishioners paying taxes to a State Church as the British citizens had to do to support the Church of England (Anglican Church – Episcopalian in USA). In that letter Thomas Jefferson promised a “Wall of Separation” between the Church and the State.  Justice Hugo Black wrote the opinion for the five Justices that egregiously added to the Constitution via a misinterpretation of Jefferson’s intent in his letter to the Danbury Baptist Church. (Dissenting Opinions of Everson v. Board of Education: Jackson and Rutledge)

 

Here is a great rendition of Original Intent pertaining to the First Amendment and the Disestablishment Clause.

 

JRH 6/16/12 (Thanks to CJ for inspiring me to ponder)

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Author: oneway2day

I am a Neoconservative Christian Right blogger. I also spend a significant amount of time of exposing theopolitical Islam.

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