Buy My Book Here

Fox News Ticker

Please check out my new books, "Bullied to Death: Chris Mackney's Kafkaesque Divorce and Sandra Grazzini-Rucki and the World's Last Custody Trial"

Thursday, September 4, 2008

Some Context on the Separation of Church and State

One of the most misunderstood and abused concept is the so called concept of the separation of church and state. In fact this phrase, "the separation of church and state" comes from letter from Thomas Jefferson letter to the Danbury Baptists.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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 & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

In fact, though, the portion of the Constitution that Jefferson referred to is this...

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.

So, while Jefferson may have interpreted as a separation of religious and political forces, that is in no way what it says. In fact, this doesn't even prohibit the government from establishing religion, but rather strictly for the Congress to do so. In fact, its original purpose was dually to make sure that Congress didn't recognize a national religion and also so that Congress didn't interfere with each individual state as they each set up their own religious policy.

The establishment clause morphed into the separation of church and state in a couple of revolutionary Supreme Court rulings. One significant ruling was Everson Vs. the Board of Education of Ewing Township. In this case, the state of New Jersey was challenged in their support for parochial schools. In this decision, Chief Justice Hugo Black first used the concept of the separation of church and state.

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor
the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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

In so doing, he also created an interpretation of the establishment clause that wasn't found in the Constitution. The words of Thomas Jefferson are of course not in the Constitution, and he didn't even contribute to its craftsmanship. Furthermore, prior to this ruling, the establishment clause was very a much a state's rights issue. By extending it to the states, Black turned the establishment clause from a state's rights issue into an issue that separates religion and politics.

The second case was Engel Vs. Vitale. In this case, the court tackled the issue of school prayer. By using Everson as a precedent, the court ruled that a prayer that included the phrase "Almighty God" was unconstitutional because it was performed in a public school.

These two decisions set off a chain of events that have made the term "separation of church and state" a part of case law. Because of the concept of precedent, this concept now has to be considered whenever any issues relating to it are considered. These two cases are why folks like me so insistent that Supreme Court justices must be strict constructionists. The ruling of Justice Black and subsequent rulings used language that wasn't found in the Constitution.

Of course, the issue has since continued to revolutionize. Groups lead by the ACLU have used the concept of "separation of church and state" to attempt to remove all expressions of faith and religion from being allowed in any public square including schools, public buildings, and other government apparatus. In many ways the issue becomes an absurd layer of contradictions. While any mention of God is removed from any public square, it can be found all over our money. The greatest irony is that the establishment clause was meant originally to curb the power of the central government and give states and municipalities the power over their own spheres, and now it has morphed to be used by the federal government to tell the states and municpalities how to run their spheres.

The founding fathers were acutely aware of a central government that had too much power. That's the essential principle that they fought the Revolutionary War over. That's why they added the establishment clause to the first amendment. They wanted to make sure that the central legislature, the Congress, didn't tell states how they should approach religion. Yet, it was another centralized institution, the Supreme Court, that used this very establishment clause to consolidate even more power in the very central government it was meant to take it away from.


Anonymous said...

I have to respectfully disagree with your premise. The "Establishment Clause" in the Constitution was based on Jefferson's "Statute of Religious Freedom" in the Virginia State Constitution. Since Mr. Jefferson was defining his own work to the Danbury Baptists, I would think that he knew what he was talking about. Jefferson and his friend Madison both believed in a strict separation of church and state.

mike volpe said...

I have to respectfully disagree with you. Jefferson wasn't even there when the Constitution was drafted, and neither were you. You don't know what it was based on. Mr. Jefferson was in no position to act as the sole arbitor. Each of the amendments to the constitution were carefully crafted by many, many of the founding fathers, and he is not the sole authority on the matter.

Your entire argument doesn't pass the sniff test since Jefferson was in France while the Constitution was drafted.

Anonymous said...

As I said Jefferson and Madison were close friends and the Virginia Statute was written BEFORE Jefferson went to France. In addition Jefferson and Madison communicated often by mail while Jefferson was in France. No, I wasn't there, but I have read Jefferson and Madison's writings on this topic and have come away convinced that these men, as well as many others, advocated a strict separation of church/state. Obviously we will never agree on this topic [smile], so it is probably pointless to argue. However, it appears to me, IMHO, that you are one of those religious right-wingers that is bound and determined to re-write history. Why would anyone want to merge church and state? It simply causes problems for both.

mike volpe said...

I am certain that Jefferson and many of the people that helped craft the Constitution were friends. I don't see your point. He wasn't there when the Constitution was crafted so looking to him as the arbitor of what it meant is peculiar. Thousands of folks helped craft the Constitution and yet you insist on the interpretation of someone who wasn't even there.

Calling me some sort of religious freak is rather ironic. I am really not altogether religious.

What I have found interesting in everyone's debate on this issue (I have put it elsewhere) is that no one says anything about what the Constitution actually says. Rather than pointing out what it says, you say that we should take what it means because of what Thomas Jefferson said about it in a letter.

I don't need a letter. Here is what it says.

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

It says CONGRESS, not the government, not the individual states, but CONGRESS. you can make all the allusions you want, but to me this is pretty simple. The establishment clause prohibits CONGRESS from making any law to the establishment of religion. Plain and simple.

Anonymous said...

I would like to offer an apology for assuming that you were one of the evangelical christian right-wingers. Assumptions can get one in trouble [big smile]. With that said, we will have to agree to disagree concerning separation of church and state. The Constitution to me is the law of the land, Congress makes laws, and we as states and individuals have to abide by what is lawful, whether these laws are made by CONGRESS or the already written laws of the CONSTITUTION. Many of our founding fathers came here in the first place to escape the tyranny of the Anglican Church, thus they were very concerned about the separation of church/state. Being a self-admitted atheist, I also am very concerned about this issue. Our country is becoming more and more diverse all the time. In fact, the advocacy group "Americans United for Separation of Church and State," of which I am a member, estimates that there are approx. 1000 different religions in the US, yet the Christian religion seems to own the Republican Party. In my view, this amounts to the tyranny of the majority over the minority - which is plain un-American. I resent my tax dollars going to "Faith-Based" programs that inevitably end up proselytizing to the very people they are trying to help. Once again, I am sorry for my assumption. Peace to you and yours from a secular, leftist, unrepentant old hippie named Louis.

mike volpe said...

First of all, you should have made your disclosure evident initially. Second of all, you have a perverted vision of the Constitution. Here is what the tenth amendment says.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Nowhere in the Constitution does it prohibit each individual state from setting religious policy. NOWHERE. It's only prohibited for the Congress to do it. You apparently have no idea that what the founding fathers were most afraid of was an all too powerful central government.

The founding fathers believed most of all, that the citizens of New York knew best how to govern New York, and the same for every state in the Union. Period.

They weren't afraid of religion mixing with politics. Most of their sessions were begun with prayer. It is in fact folks like you that attempt to pervert the Constitution and the original intent of the founding fathers in order to satisfy your agenda.

The founding fathers had absolutely no problem giving New York whatever power it needed to set religious policy in New York. If they had, they would have outlawed it in the Constitution. They didn't. In fact, the only body they outlawed it for is the U.S. Congress and that is not by accident. They didn't want the central government deciding for the states how to set religious policy. It was never their intention to outlaw religion and faith in the public square, and yet folks like pervert their intent, pervert the meaning of the constitution, in order to satisfy your secular progressive agenda.

Anonymous said...

Wow Mike,

I have attempted to be courteous to you despite our differences but I don't feel as if I have been treated with the same courtesy.

You said: "First of all, you should have made your disclosure evident initially."

I never realized that there was such a rule requiring me to state my world view when responding to a blog post.

You said: ... "in order to satisfy your secular progressive agenda."

The so-called "secular progressive agenda" as well as the so-called "gay agenda" are nothing but meaningless buzzwords used in a derogatory fashion to describe liberals. If what you mean is - do I support progressive values (READ PROGRESS), why yes, of course I do and I can't imagine why, in the 21st century, that most people wouldn't. Conservatives seem to have their heads stuck in the Beaver Cleaver days of the 1950s where you have the stay at home Moms, the Dad is the breadwinner, and the sentiment is "my country right or wrong." I just don't buy that line of reasoning. The earth is not flat and it doesn't revolve around the sun. Europe figured that out a long time ago. It's a damn shame that our country has to be so backward compared to the rest of the western industrialized world. However, we have freedoms in this country, so you are entitled to your opinion and I am entitled to mine. So you go right on and support the McCain/Palin ticket as a statement of your conservative values. But keep in mind that unless you are independently wealthy, you are voting against your own economic interests. I have watched the rich get richer and the middle and working class get poorer over the last eight years. I have watched the ridiculous boondoggle in Iraq, spending 10 billion dollars a month when that money could be put to much better use in our own country. Iraq was no threat to us and Bush and his crooked cronies lied their way into this idiotic war. Now we find Al Queada (sp?) and the Taliban there simply because we are. I do; however, support the conflict in Aghanistan and think we should nail Bin Laden, but we seemed to have forgotten about him (thanks to our Moron-in-Chief).

If you reply to this posting at least try to be civil. There is room in this country for more than one point of view.

mike volpe said...

Of course, there is no hard rule that you present your biases, however you presented yourself as someone worried about the Constitution, when really you simply have an agenda. You owe to others to let them know your biases.

As for your rant, don't think I didn't notice that your rant didn't address the topic at hand. If you want to attack John McCain's tax plan, there are plenty of other posts that I have written about the topic. If you want to attack Sarah Palin, I have written plenty about her as well.

This post has to do with the history of the establishment clause. You made the misleading point that Congress makes the laws of the land. Congress only has, or at least it originally had, jurisdiction over certain issues and those issues are spelled out in the Constitution. All else is left to the states and the tenth amendment spells that out.

You've never challenged what the establishment clause actually says. You've never challenged that what actually does is prohibit Congress from setting policy on religion. You never challenged anything I said.

All you did was change topics. That is weak and cheap. Stick to the topic at hand.

Anonymous said...

I don't know about madsonian's claims.

Seems to me that Jefferson's Danbury letter was intended only to clarify the position of the federal government, including himself as president.
The letter as we know was amended and these words

"confining myself therefore to the duties of my station, which are merely temporal, be assured that your religious rights shall never be infringed by any act of mine and that."

were omitted. I therefore tend to doubt if he had any biases he was allowing them to effect his reply to the Danbury Bapt.

Your point about nobody referring what the Constitution actually states when this topic is debated is generally quite accurate. In fact you can effectually end the debate by forcing the focus to be only on what the Constitution states.
Laws have been made which prohibit the free practice of religion, and those who want to justify the direction taken by the Supreme Court and the federal govt do not want to acknowledge this. It proves that the "wall of separation" has in practice been turned into a one-way mirror with the religious folks sitting inside the mirrored room with the anti-religious peering in looking at how they can control their "free practice"