Constitution Day

Actually the phrase "separation of church and state" doesn't occur in the Constitution or the Bill of Rights.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."


Separation of church and state was in letters by both Jefferson and Madison, was quoted by Grant, and came into vogue when it was quoted by the Supreme Court in 1949, I think. Making it slightly more ambiguous than the article above would indicate.

What they decided was that in order to achieve the goals set out in the preamble they needed to form a government not a federation. PLUS the Bill of rights came later, at the insistence of some of the parties for their willingness to ratify.

The oroceedings of the Constitutional Congress are in print and should be read.

Thanks for this discussion. I have wondered why the founders didn't flesh out the "no law about religion" clause. But then it would be their views and not ours. I just am in awe of their wisdom and the conciseness of their creation, and at the fact that the Constitution is still alive and depended on for so much by a free people.

The First Amendment's religion clauses state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…." The Establishment Clause forbids more than the establishment of a national religion; it also forbids laws or actions respecting an establishment of religion. As James Madison, Father of the Constitution, put it "The Constitution of the U.S. forbids everything like an establishment of a national religion." In a January 1, 1802 letter, President Thomas Jefferson wrote of the intended relationship between religion and government: "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibit the free exercise thereof, thus building a wall of separation between church and state."

The Establishment Clause sets up a line of demarcation between religion and government in our society, and the Supreme Court determines where the line is drawn to accommodate liberties in our ever-changing society. Although the exact language is absent, the Supreme Court has repeatedly determined that the Constitution does indeed call for separation between church and state.

Jefferson's "wall of separation between church and state" was first noted by the Supreme Court in an 1878 opinion by Chief Justice Morrison Waite. Justice Hugo Black later reaffirmed the wall's significance in the landmark case Everson v. Board of Education (1947). Black wrote "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'" The wall forbids government to actually or effectively favor one religion over another, favor religion over non-religion and vice-versa. Requiring neutrality removes the authority of government from religious practice and protects each citizen's right to express his or her personal beliefs.

I'd like to reply with a kind of tone poem.

If war1slaughter
separtion
learn to spell and bombs
the shells of the dark mortar hordes cry
FALLOW!
now we are in the vice times

Ok I have to agree with First Freedom First because he's the only idiot on the page who seems to know something about the Engluish rules of the Nuological Grammata that I dictated into the wafting moon rays of the dark Hawaiian Cove.

I think what is tricky with this is that how much do we take the personal letters and opinions of the folks that wrote the constitution into account when interpreting the original document? Do we pluck from secondary sources the quotes that best support our argument? The hermenutic process is very tough with the constitution; many issues today were unimaginable to the framers. If we buy Madison's argument about separation of church and state are we also obligated to agree with his opinions about all topics? Jefferson's? I'm not sure we would want to be bound by that. So we are left with the document itself, which doesn't erect a wall between church and state, but only forbids the establishment of a state religion. That is the issue that should be focused on, I think. Does having the ten commandments outside or inside a courtroom imply a state religion, most likely. Does funding alcohol programs that have a religious component? That seems less sure to me. It's really interesting to think about.

While the document itself is the guide, the framers knew, I think, that change is inevitable, and that is why we have the court system. The court does, at times, look at intent on a number of issues. The concept of precedent has been long established, so that through court cases, indefinite concepts from the constitution and bill of rights are clarified by the courts. So in a sense, the constitution is a living, breathing and changing document, that has helped us through the changes of our country over the past 200 some years, and will help us into the future.

Not everyone believes that. Scalia for example:

[Criticizing those who believe the Constitution should be flexible and adapted to modern times, Associate Supreme Court Justice Antonin Scalia said Thursday during a speech at Texas A&M University that there is no such thing "as the living Constitution."
Scalia was speaking as part of the Twanna M. Powell Lecture at the George Bush Presidential Conference Center.
"I'm what you call an 'originalist,' one who believes the Constitution should be interpreted exactly as it was adopted," Scalia added.
"It should be interpreted as it was written – nothing more, nothing less. Rights do not grow smaller or larger. Some legal experts say you have to interpret the Constitution broadly, but that's not true under any circumstance."
Scalia, who was appointed to the Supreme Court in 1986 by President Ronald Reagan, added, "You hear the phrase 'the living Constitution' and that it's a 'living' document. I'm a believer in the dead Constitution. Maybe we should better phrase it 'the enduring Constitution.
"The Constitution is not a living document. It's a legal document, and legal documents do not change."
"But we must apply the words as they were originally written and we must be bound by their original meaning. We must think of what the words are and what the words meant when the people adopted them.
"The Constitution doesn't 'morph' to be what we want it to be." ] from: http://www.tamu.edu/aggiedaily/news/stories/05/050505-10.html

That is what makes it tricky. There are different ways to interpret an old document.

Well, If our country had never changed from the end of the seventeen hundreds, I might agree, and I know there are those like Scalia that wish that were true. Conservative vs. Liberal all over again. It's a constant battle. The very word conservative means allergic to change, unless it's to change something back. Once again, it is neccessary to mention the fact that the framers of our constitution were the most radical liberals of their day. They overthrew a conservative government and cast off those chains. To say they shared Scalias or any neocon view is preposterous.

Ron, I think the conservative position is particularly interesting when issues like gun control come up. A "orginalist" position, like one that Scalia adopts (and cons generally lay claim to) would mean that we have the right to bear...muskets?

John, I think we have to look at this within the context of history. First, there are original documents (not second-hand newspaper reports) written by the founders that clarify their thinking on this. And the Courts have ruled that a wall of separation does exist.

If you visit the Americans United web site at , you will find text from some of the original documents.

Regarding your question about public funding for AA programs, there is question about whether or not that is Constitutional. I think the ACLU is handling a case for an individual who was ordered by the court to either enter an AA program or go to jail. The AA program in his community was a religiously-based program, the fellow is an atheist and therefore did not want to attend. There was no secular option available, so he had no option other than to go to jail.

And again, while it is true that the literal phrase "separation of church and state" does not appear in the Constitution, that does not mean the concept isn't there.

As the late eminent church-state scholar Leo Pfeffer notes in his book, "Church, State and Freedom":

It is true, of course, that the phrase "separation of church and state" does not appear in the Constitution. But it was inevitable that some convenient term should come into existence to verbalize a principle so clearly and widely held by the American people. . . . [T]he right to a fair trial is generally accepted to be a constitutional principle; yet the term "fair trial" is not found in the Constitution. To bring the point even closer home, who would deny that "religious liberty" is a constitutional principle? Yet that phrase too is not in the Constitution. The universal acceptance which all these terms, including "separation of church and state," have received in America would seem to confirm rather than disparage their reality as basic American democratic principles.

I'm not disagreeing, with anyone; just posing the questions and arguments that I have heard, read, etc. When I said that it was less clear for me, I meant just that, not that I was sure that it wasn't an issue in that case.

With regard to actual texts, I understand their use in history, and think that it is valuable. These folks had opinions about lots of things that might relate to the constitution; I'm sure we wouldn't agree with all of them.

Again, I'm not a scholar on these issues, just a knowledge seeker; your initial article seemed a good way to put some of these questions out there. Thanks for your clarifications and feedback.

Thanks for taking part in the discussion. If you haven't yet done so, please visit www.firstfreedomfirst.org and sign the petition. We need everyone who cares about church-state separation to sign, so please share with your friends!

Thanks,
BAC

John M.,
Yes, that is a quandry for them, I suspect that the right to bear arms could argueably be invalidated, unless you belong to a militia, but I find it easier to defer to Scalia more and more on this, as the level of hysterical political activism grows under the Bush administration. The absolute hate of some political and religious partisans lately make me glad I have a few guns. If you live in a red state and you are a liberal, a bumper sticker alone can get you, shall we say,.... unwanted attention.