Tuesday, January 17, 2006

Separation of church & state?-1

Ed Darrell has responded to my “Philosophy of design” post as follows:


So much to correct, so little time . . .

It was judicial activism that led the Marshal Court to claim, contrary to all the evidence, that the Bill of Rights did not apply against the states, in 1833. Since then we fought a war to correct that misimpression, we passed the 14th Amendment, and we've finally got courts who are returning to the views of the founders at about mid-20th century.

The First Amendment prevents all governments from declaring a religion contrary to the faith of a citizen.

But that's gravy. Each and every one of the state constitutions does the same. Since 1778, Americans have granted no government any duty, right or privilege with respect to religion. Since 1778, Americans have created no formal role for any church in their government. It's unlikely they will backtrack now, and God bless those judges who preserve our religious rights. If they are activist judges, God bless activist judges.

None of the states had established churches after 1778, and only four states had even a vestige. All those vestiges were methodically eliminated. No state had an established church in 1787 when the Constitution was written, nor in 1789 when the First Amendment was written. Had the authors of the First Amendment intended that states should have the ability to establish a church, it would have had to have been explicitly included in the amendment, since such things did not exist, nor did the right. As you know, there is no clause of the First Amendment which authorizes states to establish churches.

I've heard Dembski describe his religious reasons for backing ID a couple of times, and state that they are superior to his science claims.

But we're willing and ready to take any serious science arguments for ID. As you know, under the Lemon rules, were there science behind intelligent design, religious motivation alone would not stop the teaching of ID.

Alas for ID, no one has been able to find any science to back it that will stand up to even cursory scrutiny in a federal court with fair rules of evidence.

The God of ID not being "sectarian" isn't enough to save it from the establishment clause. That clause forbids government from taking the side of a non-sectarian God, even the God of Abraham, against other beliefs and against no beliefs.

The Lemon test was created by the Supreme Court for lower courts to apply. Judges Jones' court was the trial court, and he correctly applied the Lemon test. That's the best we have until someone gets another case to appeal. That's unlikely, though, because, legally, Judge Jones' decision is very, very tight. Other courts will give it due deference. That's what the Supreme Court did with the Overton decision in the Arkansas case, too -- it was the Louisiana court which accurately applied the reasoning of the Arkansas case. A case does not need to have the approval of the Supreme Court to be valid -- it needs the disapproval of a higher court to make it invalid.

No, the case does not prohibit learning about religion. The Establishment clause prohibits teaching any one religious view as the correct one. History students may still learn about the Great Awakening.

As I noted, it's the IDists who wish to flout original intent. It is inconceivable that the founders wished religion to be taught to kids in public schools -- absolutely 180 degrees contrary to the express views of Washington, Jefferson, Madison and Franklin, among others.

It is a pipe dream to think that judicial review does not exist legally in the United States.

The public school system benefits every citizen in the nation, and that is why everybody pays property taxes to support it. If your neighbor's kid is uneducated, it affects you. You get the benefits of public education especially if you choose to take your kids out. No free rides here -- no work, no eat.

# posted by Ed Darrell : 1/16/2006 5:14 PM



By way of reply:

1. As a friend of mine who’s writing a book on the history of natural theology pointed out, Darrell’s argument fails to distinguish between natural and revealed religion. The Founding Fathers regarded civil religion as a cornerstone of public morality. Indeed, The Declaration of Independence, which is the charter document of our Republic, grounds the very idea of civil rights in religion:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights”; “the separate and equal station to which the laws of nature and of nature’s God entitle them…”

2. Regarding Marbury v. Madison, to which Darrell alludes, this is what Jefferson had to say:

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

—Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."

—Thomas Jefferson to William Johnson, 1823. ME 15:451

"But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best."

—Thomas Jefferson to John Cartwright, 1824. ME 16:47

"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

—Thomas Jefferson to Abigail Adams, 1804. ME 11:51

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

—Thomas Jefferson to Spencer Roane, 1819. ME 15:212

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."

—Thomas Jefferson to Edward Livingston, 1825. ME 16:114

"My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."

—Thomas Jefferson to Spencer Roane, 1819. ME 15:214

3. Regarding the history of the Establishment Clause, here is some of what the late Chief Justice William Rehnquist had to say in Wallace v. Jaffree:


Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947), summarized its exegesis of Establishment Clause doctrine thus:

"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.' Reynolds v. United States, [98 U.S. 145, 164, 25 L.Ed. 244 (1879)]."

This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "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 prohibiting the free exercise thereof,' thus building a wall of separation between church and State." 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861).(1)

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.

Jefferson's fellow Virginian, James Madison, with whom he was joined in the battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did play as large a part as anyone in the drafting of the Bill of Rights. He had two advantages over Jefferson in this regard: he was present in the United States, and he was a leading Member of the First Congress. But when we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the Constitution, including Madison's significant contributions thereto, we see a far different picture of its purpose than the highly simplified "wall of separation between church and State."

During the debates in the Thirteen Colonies over ratification of the Constitution, one of the arguments frequently used by opponents of ratification was that without a Bill of Rights guaranteeing individual liberty the new general Government carried with it a potential for tyranny. The typical response to this argument on the part of those who favored ratification was that the general Government established by the Constitution had only delegated powers, and that these delegated powers were so limited that the Government would have no occasion to violate individual liberties. This response satisfied some, but not others, and of the 11 Colonies which ratified the Constitution by early 1789, 5 proposed one or another amendments guaranteeing individual liberty. Three--New Hampshire, New York, and Virginia--included in one form or another a declaration of religious freedom. See 3 J. Elliot, Debates on the Federal Constitution 659 (1891); 1 id., at 328. Rhode Island and North Carolina flatly refused to ratify the Constitution in the absence of amendments in the nature of a Bill of Rights. 1 id., at 334; 4 id., at 244. Virginia and North Carolina proposed identical guarantees of religious freedom:

"[A]ll men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and . . . no particular religious sect or society ought to be favored or established, by law, in preference to others." 3 id., at 659; 4 id., at 244.(2)

On June 8, 1789, James Madison rose in the House of Representatives and "reminded the House that this was the day that he had heretofore named for bringing forward amendments to the Constitution." 1 Annals of Cong. 424. Madison's subsequent remarks in urging the House to adopt his drafts of the proposed amendments were less those of a dedicated advocate of the wisdom of such measures than those of a prudent statesman seeking the enactment of measures sought by a number of his fellow citizens which could surely do no harm and might do a great deal of good. He said, inter alia:

"It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who had been friendly to the adoption of this Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the Constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government will evince that spirit of deference and concession for which they have hitherto been distinguished." Id., at 431-432.

The language Madison proposed for what ultimately became the Religion Clauses of the First Amendment was this:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." Id., at 434.

On the same day that Madison proposed them, the amendments which formed the basis for the Bill of Rights were referred by the House to a Committee of the Whole, and after several weeks' delay were then referred to a Select Committee consisting of Madison and 10 others. The Committee revised Madison's proposal regarding the establishment of religion to read:

"[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed." Id., at 729.

The Committee's proposed revisions were debated in the House on August 15, 1789. The entire debate on the Religion Clauses is contained in two full columns of the "Annals," and does not seem particularly illuminating. See id., at 729-731. Representative Peter Sylvester of New York expressed his dislike for the revised version, because it might have a tendency "to abolish religion altogether." Representative John Vining suggested that the two parts of the sentence be transposed; Representative Elbridge Gerry thought the language should be changed to read "that no religious doctrine shall be established by law." Id., at 729. Roger Sherman of Connecticut had the traditional reason for opposing provisions of a Bill of Rights--that Congress had no delegated authority to "make religious establishments"--and therefore he opposed the adoption of the amendment. Representative Daniel Carroll of Maryland thought it desirable to adopt the words proposed, saying "[h]e would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community."

Madison then spoke, and said that "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id., at 730. He said that some of the state conventions had thought that Congress might rely on the Necessary and Proper Clause to infringe the rights of conscience or to establish a national religion, and "to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit." Ibid.

Representative Benjamin Huntington then expressed the view that the Committee's language might "be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it." Huntington, from Connecticut, was concerned that in the New England States, where state-established religions were the rule rather than the exception, the federal courts might not be able to entertain claims based upon an obligation under the bylaws of a religious organization to contribute to the support of a minister or the building of a place of worship. He hoped that "the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all." Id., at 730-731.

Madison responded that the insertion of the word "national" before the word "religion" in the Committee version should satisfy the minds of those who had criticized the language. "He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought that if the word 'national' was introduced, it would point the amendment directly to the object it was intended to prevent." Id., at 731. Representative Samuel Livermore expressed himself as dissatisfied with Madison's proposed amendment, and thought it would be better if the Committee language were altered to read that "Congress shall make no laws touching religion, or infringing the rights of conscience." Ibid.

Representative Gerry spoke in opposition to the use of the word "national" because of strong feelings expressed during the ratification debates that a federal government, not a national government, was created by the Constitution. Madison thereby withdrew his proposal but insisted that his reference to a "national religion" only referred to a national establishment and did not mean that the Government was a national one. The question was taken on Representative Livermore's motion, which passed by a vote of 31 for and 20 against. Ibid.

The following week, without any apparent debate, the House voted to alter the language of the Religion Clauses to read "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." Id., at 766. The floor debates in the Senate were secret, and therefore not reported in the Annals. The Senate on September 3, 1789, considered several different forms of the Religion Amendment, and reported this language back to the House:

"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 130 (1964).

The House refused to accept the Senate's changes in the Bill of Rights and asked for a conference; the version which emerged from the conference was that which ultimately found its way into the Constitution as a part of the First Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The House and the Senate both accepted this language on successive days, and the Amendment was proposed in this form.

On the basis of the record of these proceedings in the House of Representatives, James Madison was undoubtedly the most important architect among the Members of the House of the Amendments which became the Bill of Rights, but it was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution. During the ratification debate in the Virginia Convention, Madison had actually opposed the idea of any Bill of Rights. His sponsorship of the Amendments in the House was obviously not that of a zealous believer in the necessity of the Religion Clauses, but of one who felt it might do some good, could do no harm, and would satisfy those who had ratified the Constitution on the condition that Congress propose a Bill of Rights.(3) His original language "nor shall any national religion be established" obviously does not conform to the "wall of separation" between church and State idea which latter-day commentators have ascribed to him. His explanation on the floor of the meaning of his language--"that Congress should not establish a religion, and enforce the legal observation of it by law" is of the same ilk. When he replied to Huntington in the debate over the proposal which came from the Select Committee of the House, he urged that the language "no religion shall be established by law" should be amended by inserting the word "national" in front of the word "religion."

It seems indisputable from these glimpses of Madison's thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion. Thus the Court's opinion in Everson--while correct in bracketing Madison and Jefferson together in their exertions in their home State leading to the enactment of the Virginia Statute of Religious Liberty--is totally incorrect in suggesting that Madison carried these views onto the floor of the United States House of Representatives when he proposed the language which would ultimately become the Bill of Rights.


  1. 1. Franklin and Jefferson made a good distinction between natural law and revealed law -- they rejected the law as revealed from pulpits. That phrase you cite from the Declaration, "laws of nature and of nature’s God," was Franklin's gentle way of saying the churches generally had it wrong. Franklin thought that most of what we needed to set up good governments could be discerned from nature, without the intermediation of the church. Whether one agrees or disagrees with Franklin's views, one should not distort the words of the great man by suggesting he was on the side of the clergy and against the separation of church and state. That would be gross distortion.

    2. I never referred to the Marbury decision. I was referring to Barron v. Baltimore. The former case was 1803, the latter in 1833.

    As I said, so much error . . .

    Jefferson's views on the power of the Supreme Court are more nuanced than you suggest, and in any case, Marbury won out. It is the law of the land, regardless Jefferson's views.

    You should read Jefferson in the raw, sometime, rather than just hurling quotes. It would do you good.

    3. Rehnquist's dissent in Wallace was off the actual history; other justices did not sign on to the dissent (there is one where he goes farther afield). I suspect Rehnquist let one of his clerks have too much rein. In any case, Rehnquist's history, borrowed from the history distortionist David Barton, is incomplete and misleading. Rehnquist never went back to that path again, and with one exception, in most later decisions dealing with the First Amendment he appeared to distance himself from his own dissent. Your citation of it demonstrates nothing so much as your being unfamiliar with the history of the establishment clause, but especially unfamiliar with the views of Madison, who did indeed think and say the government needed to maintain absolute neutrality in matters of religion. For example, Madison thought Congress' employ of a chaplain to be a hard violation of the First Amendment (and of the Constitution without the First Amendment!), and he thought it should be illegal for the census to inquire about vocations, because the government, Madison thought, had no business knowing that a particular person was employed as a pastor.

    There is much other error in Rehnquist's account, but so little time . . .

    Let it suffice to say that Rehnquist's original premise is almost wholly in error. Jefferson's letter to the Danbury Baptists in 1802 was a Presidential Proclamation of what was the law of the United States of America. Jefferson's being in Paris when the Constitution was written doesn't disqualify him to speak about the law any more than Rehnquist's not being born does.

    The Danbury Baptists were not concerned about the nation establishing a church. They were Baptists in a state where the Congregational Church had not been fully disestablished (and would not be for another 17 years). They were concerned that a state's establishment of a church would infringe on their rights.

    Jefferson consulted with his attorney general, Levi Lincoln, and they determined that a proclamation in the form of a letter answering the Baptist congregation would both answer their questions and establish the legal ground to challenge any state action infringing on the religious rights of Baptists as noted in the U.S. Constitution and First Amendment.

    Jefferson's letter was official, and no accident. Citing Jefferson's later, unofficial writings and musings on the Supreme Court does not change the fact that Jefferson thought no government could infringe on any individual's right to worship as she sees fit, or not worship at all.

    I regret I did not discover your response earlier.