tag:blogger.com,1999:blog-1237087217187172116.post7627064805750072516..comments2024-03-28T10:44:30.518-06:00Comments on American Creation: Time to Move Forward?Brad Harthttp://www.blogger.com/profile/17669677047039491864noreply@blogger.comBlogger92125tag:blogger.com,1999:blog-1237087217187172116.post-25774738593876226592009-12-11T16:27:25.573-07:002009-12-11T16:27:25.573-07:00Zzzzzzzz. Same ol' same ol'. Claiming th...Zzzzzzzz. Same ol' same ol'. Claiming the side of the angels, and the other side gets Satan.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-91743152222360751122009-12-11T16:15:38.436-07:002009-12-11T16:15:38.436-07:00Loving again?Loving again?King of Irelandhttps://www.blogger.com/profile/11793825722325763371noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-89090992630372558192009-12-11T15:33:30.103-07:002009-12-11T15:33:30.103-07:00Actually, I don't have much of a problem with ...Actually, I don't have much of a problem with that reading of the 14th per individual rights. What I meant was the timeframe between the Founding and the 14th.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-23170561901853277842009-12-11T13:34:51.844-07:002009-12-11T13:34:51.844-07:00The problem here is timeframe. Until the adoption ...<i>The problem here is timeframe. Until the adoption of the 14th Amendment in 1868, all these things were quite constitutional.</i><br /><br />Or we could say that states continued to violate the 14th Amendment for years after it was ratified. Treating atheists as second class citizens violates their right to equal protection of the laws, on religious grounds -- their privilege or immunity of running for public office. If what went down in Loving really did violate the 14th, then states could continue "practice" that violates an constitutional amendment 100 years on!Jonathan Rowehttps://www.blogger.com/profile/04079637406589278386noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-46906468887766232622009-12-11T12:38:38.743-07:002009-12-11T12:38:38.743-07:00States cannot pass laws or adopt constitutions tha...<i>States cannot pass laws or adopt constitutions that require a religious test - and an oath asserting a belief in God establishes a discriminatory test and acts as an establishment of a specific religious belief.</i><br /><br />The problem here is timeframe. Until the adoption of the 14th Amendment in 1868, all these things were quite constitutional.<br /><br />TORCASO v. WATKINS is from 1961, which proves this point.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-83241126297147752252009-12-11T06:33:31.941-07:002009-12-11T06:33:31.941-07:00TVD - I don't even think religion per Article ...TVD - <i>I don't even think religion per Article VI or the First Amendment even need be applicable in the case you cite.</i><br /><br />Tom, it hardly matters what you or I think, although I see the applicability, since it/they is/are relevant as held by the USSC and beyond. States cannot pass laws or adopt constitutions that require a religious test - and an oath asserting a belief in God establishes a discriminatory test and acts as an establishment of a specific religious belief.<br /><br />Some footnotes from TORCASO v. WATKINS:<br /><br /><i>[ Footnote 9 ] In one of his famous letters of "a Landholder," published in December 1787, Oliver Ellsworth, a member of the Federal Constitutional Convention and later Chief Justice of this Court, included among his strong arguments against religious test oaths the following statement: <br />"In short, test-laws are utterly ineffectual: they are no security at all; because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. . . ." Quoted in Ford, Essays on the Constitution of the United States, 170. See also 4 Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution, 193. <br /><br />[ Footnote 10 ] In discussing Article VI in the debate of the North Carolina Convention on the adoption of the Federal Constitution, James Iredell, later a Justice of this Court, said: <br />". . . [I]t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?" <br />And another delegate pointed out that Article VI "leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and no kind of oppression can take place." 4 Elliot, op. cit., supra, at 194, 200. <br /><br />[ Footnote 11 ] Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47.</i><br /><br />I'd recommend following the links and at a minimum reading the case.jimmiraybobnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-12841457021796933812009-12-10T15:41:38.908-07:002009-12-10T15:41:38.908-07:00JRB, after the 14th Amendment's adoption in 18...JRB, after the 14th Amendment's adoption in 1868, that opened up a lot of equal protection and privileges and immunities questions.<br /><br />However, not applicable to the Founding.<br /><br />I don't even think religion per Article VI or the First Amendment even need be applicable in the case you cite. A state law could demand a belief that the sky is blue. I still don't see how that gets past the 14th.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-14228411304605349042009-12-10T15:18:46.883-07:002009-12-10T15:18:46.883-07:00A general comment:
Jefferson might be an OK sourc...A general comment:<br /><br />Jefferson might be an OK source for general opinions concerning religion and government, but he's not the most reliable source concerning the meaning of the First Amendment, specifically (Hugo Black notwithstanding).<br /><br />Let's remember that Jefferson had nothing to do with writing or ratifying it. He was in Europe. <br /><br />Madison and those who wrote it are better sources concerning the establishment clause, its language, and its meaning.Gregg Frazerhttps://www.blogger.com/profile/16883853316391723287noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-49201858716256115712009-12-10T15:11:23.925-07:002009-12-10T15:11:23.925-07:00Mr. Kalivas,
You are quite right that the languag...Mr. Kalivas,<br /><br />You are quite right that the language of the Constitution was not an abstraction -- but quite wrong regarding what the words actually SAY. It does NOT say that the STATE GOVERNMENTS cannot make any law respecting establishment of religion (or even that "governments" shall not) -- it says that CONGRESS shall make no such law. It places no limit whatsoever on the state legislatures! You are right that your statement is not an opinion -- it is a factually incorrect statement.<br /><br />As for trying to explain away the establishments which remained in 3 states on the basis of a pre-existing condition, the courts have had no reticence to eliminate a host of pre-existing situations and practices in the name of the establishment clause. Perhaps you can cite for us someone -- anyone -- from that period who argued that the existing state establishments actually violated the establishment clause, but that they shouldn't be changed because they already existed?<br /><br />Certainly not Jefferson in his Danbury Baptist letter. There he stipulates that the "whole American people" declared that "their legislature" should make no such law. The only legislature of the "whole American people," of course, is the Congress.<br /><br />On another matter: no one contributing here (of which I'm aware) claims that "none of the principal founders were influenced by deism or other such Enlightenment thinking" -- certainly not me. I believe that the most important of them were INFLUENCED by the natural religion at the root of deism and by Enlightenment thinking -- but few of them actually WERE deists (a critical distinction). I agree with you that to deny any influence from the Enlightenment or natural religion would "take them out of their time" -- but a claim that those were the ONLY influences on them would commit the same error and would fly in the face of the abundant evidence.Gregg Frazerhttps://www.blogger.com/profile/16883853316391723287noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-47710409502788862712009-12-10T14:40:30.550-07:002009-12-10T14:40:30.550-07:00David join the conversation on the main page Gregg...David join the conversation on the main page Gregg Frazer already commented.King of Irelandhttps://www.blogger.com/profile/11793825722325763371noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-60727777585637635252009-12-10T14:00:43.235-07:002009-12-10T14:00:43.235-07:00I agree with you KOI, what the constitution provid...I agree with you KOI, what the constitution provides for and what it was used for given the context of the times were not always the same and that was as true for the early period when the founders lived as it has been ever since. It was also a very conscious move not to engage issues deemed potentially divisive,such as slavery, for the sake of the union -- at least for a time. <br /><br />I also agree on the main issue you conclude your post, but instead of "Godless Constitution" wasn't it more akin to ignoring religion as a force, or major influence in the formulation of government policies at the national and state levels and thereby leaving religion up to individuals to decide what to and how to worship based on their own beliefs? This is how I've always understood the nature of the founding of the US as a secular, not religious republic. <br /><br />This is certainly more exciting than grading some of these essays sitting on my desk, but alas, I must return to this essential work -- some of them are even interesting to read, thank God. Oh, but by thanking and mentioning God, it does not make this a religious document. Just trying to inject a little lightness here ... :-)<br /><br />Look forward to reading more comments.David Kalivashttps://www.blogger.com/profile/12671970119437480665noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-63525454623214679982009-12-10T13:12:35.495-07:002009-12-10T13:12:35.495-07:00David,
I bumped this up to the main page. I thin...David,<br /><br />I bumped this up to the main page. I think one might be able to make an argument that the National government had a duty to protect the individual right to freedom of religion. But, to say that that was the thought that carried the day back then is false.<br /><br />The same could be said about slavery. Were the state governments violating individual rights? Hell yea they were. Was the National government going to do anything about it? Hell no! The national government only had power of the things that the Constitution gave it power over. <br /><br />The real point in all this is brought out in my new post:<br /><br />Whether the states should have had the ability to establish is not really relevant so much as it is a real good explanation for the "Godless Constitution" argument. One that most never think of. Let's finish this on the front page.King of Irelandhttps://www.blogger.com/profile/11793825722325763371noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-47269345361553620872009-12-10T13:04:27.786-07:002009-12-10T13:04:27.786-07:00Daniel,
It helps proof read before posting, the B...Daniel, <br />It helps proof read before posting, the Bill of Rights applies to the states, but did not do so originally, not until the 14th Amendment with "due process" did the Bill of Rights apply to the states across the board. Thanks.David Kalivashttps://www.blogger.com/profile/12671970119437480665noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-22358791752049810722009-12-10T12:48:44.570-07:002009-12-10T12:48:44.570-07:00I only have time for a quick response. First, yes ...I only have time for a quick response. First, yes Daniel, the Bill of Rights applies to the nation as a whole, which does include all the states. <br /><br />Second, Joe, I did not write that Jefferson wanted the Federal government to override the states on matters of Religion. I did write that Jefferson believed religion should be left up to individuals and their freedom to decide their own beliefs. I also indicated that the US Constitution provides, which is the reason I quoted it, for protection against the establishment of a state religion and guarantees unfettered religious expression by individuals. However let's not get too far afield here, Jefferson was an anti-Federalist, perhaps until he was president, but that's another story, and believed that individuals and states should have great latitude over the national government. However, the postulation that it was up to the states to decide on religion and not up to individuals unfettered by state interference is just not in keeping with the language of Article VI, the First and Tenth Amendments. The Bill of Rights is part of the national constitution and does take precedence over the states. As I stated earlier, it also took time for the nation to conform to the new framework, but that does not mean that such a framework did not exist in the document itself. <br /><br />Wish I had more time, but have to get back to work ... until later.David Kalivashttps://www.blogger.com/profile/12671970119437480665noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-66959830630125012512009-12-10T10:18:05.588-07:002009-12-10T10:18:05.588-07:00I think that when DK cites Article IV of the Const...<i>I think that when DK cites Article IV of the Constitution...</i><br /><br />I of course meant Article VI. I blame my occasional dislexia on society and the general lack of recognition of my constitutional right* to have someone fix me coffee as I'm waking up when I'm too lazy to fire up the machine myself.<br /><br />*yes, not enumerated but not denied eitherjimmiraybobnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-18813338640559277162009-12-10T09:20:21.349-07:002009-12-10T09:20:21.349-07:00.
I know this was true in the early years of the r....<br />I know <i>this</i> was true in the early years of the republic and it, most certainly is today. Whatever the law states regarding a person's qualifications for elected office (and many other points for sure), what counts is the popular flow of poltical expediency.<br />.<br />Too bad; but, that's the way it is. For example, that the congress opens its sessions with prayer, etc.<br />.<br />And, that opens another issue about the law.<br />.Phil Johnsonhttps://www.blogger.com/profile/06756814849309388483noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-29166670219143079082009-12-10T09:02:21.541-07:002009-12-10T09:02:21.541-07:00I think that when DK cites Article IV of the Const...I think that when DK cites Article IV of the Constitution he’s on firm ground. There’s a current <a href="http://www.citizen-times.com/article/20091208/NEWS01/912080327" rel="nofollow">question</a> of whether “politicians who deny the existence of God [can be] barred from holding office” based on North Carolina’s constitution – “Article 6, section 8 of the state constitution says: ‘The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.’” <br /><br />The Citizen-Times article that I link to above attributes to Bob Orr, a former state Supreme Court justice and executive director of the N.C. Institute for Constitutional Law, the observation that “Rights enshrined in the U.S. Constitution trump the restriction in the state constitution.” The article quotes Orr, “I think there's any number of federal cases that would view this as an imposition of a religious qualification and violate separation of church and state” who then cites <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=367&invol=488" rel="nofollow">TORCASO v. WATKINS, 367 U.S. 488 (1961)</a>, in which the U.S. Supreme Court (unanimous) ruled that Maryland's requirement for officials to declare belief in God violated the freedom of religion guaranteed by the 1st and protected by the 14th Amendments. From the case summary:<br /><br /><i>"Appellant was appointed by the Governor of Maryland to the office of Notary Public; but he was denied a commission because he would not declare his belief in God, as required by the Maryland Constitution. Claiming that this requirement violated his rights under the First and Fourteenth Amendments, he sued in a state court to compel issuance of his commission; but relief was denied. The State Court of Appeals affirmed, holding that the state constitutional provision is self-executing without need for implementing legislation and requires declaration of a belief in God as a qualification for office. Held: This Maryland test for public office cannot be enforced against appellant, because it unconstitutionally invades his freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States. Pp. 489-496."</i><br /><br />The Citizen-Times article also cites, "Article VI of the U.S. Constitution [that] says: ‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.'"<br /><br />Article VI (US Constitution) is also cited in TORCASO v. WATKINS.<br /><br />The last 2 (of 3) paragraphs of <a href="http://www.usconstitution.net/xconst_A6.html" rel="nofollow">Article VI</a>:<br /><br /><i>"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.</i><br /><br /><i>"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."</i><br /><br />I think that it’s abundantly clear that the founding spirit is about the rights of individual conscience, especially when applied to religious freedom. The Constitution may have left religion to the states in the sense that the peoples of any of the several states could establish the religions and religious practices of their choosing but as a political matter governments could not dictate religious belief or custom. <br /><br />On a side note, is there a block quote feature available for comments?jimmiraybobnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-56522263596339190692009-12-10T08:44:20.394-07:002009-12-10T08:44:20.394-07:00David,
That way my error. But my question still ...David,<br /><br />That way my error. But my question still stands:<br /><br />Are you arguing that the Bill of Rights applies to the States as incorporated through Article VI? And wouldn't that also imply that all requirements regarding the authority and structure of the national government also apply to the State governments?Danielhttps://www.blogger.com/profile/12165084874363214919noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-47888057852151236402009-12-10T07:34:12.442-07:002009-12-10T07:34:12.442-07:00last comment was King of Ireland I was signed in o...last comment was King of Ireland I was signed in on my real estate blogKing of Irelandhttps://www.blogger.com/profile/11793825722325763371noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-83878736311166603872009-12-10T07:31:30.488-07:002009-12-10T07:31:30.488-07:00David,
Show one quote where Jefferson wanted to u...David,<br /><br />Show one quote where Jefferson wanted to use the Federal government to override the state on matters of religion? Jefferson also as governor called for fasts that he would not as President. Was it politics? Maybe but it was also consistent with his feelings about federalism and religion. Tom's quote is right on and yours is a poor reply. <br /><br />Daniel Dreishbach wrote a good book called "Thomas Jefferson and the Wall of Separation Between Church and State" I have not finished it yet but it gives some real insight into the quote your cited from Jefferson and exactly what it means. <br /><br />You are wrong on this one. I know many strict secularists that at least admit that the Founders intended to leave religion to the states.Anonymoushttps://www.blogger.com/profile/13525858551867530960noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-43941382851786974272009-12-10T05:39:15.718-07:002009-12-10T05:39:15.718-07:00Daniel,
I was referencing Article Six of the Cons...Daniel,<br /><br />I was referencing Article Six of the Constitution, not the Sixth Amendment.David Kalivashttps://www.blogger.com/profile/12671970119437480665noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-33852059172911810772009-12-10T05:36:59.793-07:002009-12-10T05:36:59.793-07:00The language of the national constitution, which i...The language of the national constitution, which is a key primary source for understanding the framework of the republic (presented in my previous comment) was not an abstraction, it was the words of the founding document itself and there was, nor is, any ambiguity that the law of the land, which was and is supreme, prohibits the establishment of a state religion and brooks no interference of the government in the exercise of religious beliefs. This is not opinion, except from those who continue to allow their views to cloud an understanding of the past.<br /><br />On the burden of proof regarding the continuation of state churches into the early 1800s in a few states. One has to remember that the early Federal government was not willing, nor able, to tackle several tough problems as the new nation was finding its way dealing with a host of pressing issues. Nonetheless, beginning in the first decade of the 1800s into the 1830s those few state churches that existed were amended out of those few state constitutions that were carry-overs from the pre-Federal era. It is that historical context that should not be overlooked, yet which some have chosen to ignore.<br /><br />The notion that none of the principal founders were influenced by deism or other such Enlightenment thinking takes these men out of their time in favor of present day biases. This is also true when it comes to the topic of Jefferson, the role of government, and religion as evidenced by the words of the Constitution, and the words of Jefferson on the matter of church and state where he references the individual, not the state:<br /><br />"Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and 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 and State. <br /><br />--Thomas Jefferson, letter to Danbury Baptist Association, CT., Jan. 1, 1802David Kalivashttps://www.blogger.com/profile/12671970119437480665noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-86336689273465764432009-12-09T19:05:41.580-07:002009-12-09T19:05:41.580-07:00Hey Phil,
I'm flattered that when you're ...Hey Phil,<br /><br />I'm flattered that when you're preparing to post something controversial, <i>I'm the one who gets a <b>shout-out</b></i> :-)<br /><br />Looking for ward to it!bpabbotthttps://www.blogger.com/profile/17047791198702983998noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-9221044564849393772009-12-09T17:03:16.584-07:002009-12-09T17:03:16.584-07:00.
Hey, Abbott, I'm about to rush in with somet....<br />Hey, <b>Abbott</b>, I'm about to rush in with something here in the next day or so.<br />.<br />I've been working on Part IV regarding my readings of Gordon S. Wood. It may be quite controversial. <br />.Phil Johnsonhttps://www.blogger.com/profile/06756814849309388483noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-14165592523002636512009-12-09T14:59:32.557-07:002009-12-09T14:59:32.557-07:00Mr. Kalivas, to link your abstract assertion to re...Mr. Kalivas, to link your abstract assertion to reality and to elevate it above mere opinion, you have a burden of proof to show where the US government inserted itself into a state religious matter. You also must account for the established churches in Connecticut, New Hampshire, and Massachusetts, as well as the religious tests for state office that persisted well into the 1800s, which you haven't done so far.<br /><br />Whether or not your strict parsing of the language of the law is "correct," it must meet the test of history per America's understanding of the Supremacy Clause and the First Amendment.<br /><br />In counterargument, I present two relevant quotes:<br /><br />“I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the General government. It must then rest with the States.”<br />---Jefferson<br /><br />"…the whole power over the subject of religion is left exclusively to the State governments to be acted upon according to their own sense of justice and the State constitutions.”<br />---Justice Joseph Story in <i>Commentaries on the Constitution</i><br /><br />I love disagreement, as it's the doorway to knowledge, but you need some support for your positions. To go EH Carr one better, opinions are even emptier than facts.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.com