Nativity Scene Under Fire in Ohio

[Warning: this is an opinion piece! I'm venting a bit, so you won't find a lot of historic quotes to substantiate what I am saying. But you can read the rest of this blog to get some useful background.]

Malabar Farm State Park in Ohio has a tradition of displaying a Nativity scene each year. As with many locations around the country, this one is being pressured by the Freedom from Religion Foundation (from Madison, WI) to discontinue the practice. There article can be found on the Mansfield News Journal site.

This case is not unusual, and that's part of my problem with it. First, once again if we read the article about the case we see that the Nativity scene is a problem because of "separation of church and state." That phrase is not part of our Constitution, and it's vague enough that it is not terribly instructive. What is part of the Constitution (First Amendment) is "Congress shall make no law respecting an establishment of religion..." If you read the writings of our Founding Fathers, either official or unofficial, you see they used words very well. The first word, the one that defines the scope of the amendment, is "Congress." The fifth word tells us what Congress may not do: make a law respecting an establishment of religion. They did not choose to say, "No government entity shall in any way recognize any religion." In fact, earlier in the Constitution they declared that the number of days a President's has to sign a bill will not count Sundays. In that way they set into the framework the ability of Christians (or anyone else who sets aside Sunday as a holy day) to not have to work on that day. And there are countless examples quoted in this forum to show that the Founders did recognize and encourage religious activity, even to the extent of allowing Christian worship services in the U.S. Capitol buildings. It is inconceivable that the Founders would have forced a Nativity scene to be taken down from any location. But by relying on one's interpretation of the words "separation of church and state," almost anything could be justified.

The other issue is the argument many people make that it is unfair to let Christian symbols be scene on public property because that makes the Christian religion kind of a "bully" against other smaller religion. In other words, just because Christianity was an important part of our Founding, and just because it has been the strongest religious presence throughout our history, does not mean it should be predominant in displays. It's the argument that might doesn't make right. But the First Amendment does not guarantee a group won't "feel" left out. It doesn't guarantee that a group won't feel offended. It DOES guarantee that the government won't make a law enforcing a national religion or compelling you to worship in a way you do not want.

So what is the reaction when someone who is arguably in the minority wants to block a Nativity scene from being displayed? An outside group that is more powerful is often brought in to the fight. If my local City Hall wants to display a Nativity scene, they don't have the resources to fight against opposition from a group like the Freedom from Religion Foundation, so that group will win because of its power. So then we could try to bring in our own large group, like the Rutherford Institute, to fight it out with the other large group. In the end, the side that wins the fight may be the one who can muster the most power on their side. That's just a fact of life in many legal struggles, but it seems like such a waste of resources when the fight is over words like "separation of church and state." If you want to fight over something Constitutional, why do we almost never see the words of the Constitution in press releases (or sometimes even in decisions)? Why don't we look at the actions of the Founders to learn how they thought? Or if a group feels the Constitution is out of date, then why not fight to change it via the provided amendment process rather than via courts that are sympathetic to your side? The amendment process is a high wall, but that is a good thing! It is not meant to sway with the wind. The various court actions on cases like this could fairly be described as swaying with the wind.

More of those Dangerous Valentines

In my previous post I described an 8-year-old girl who passed out valentines in her Wisconsin public school with a Christian message, only to be forced by the school to take them back from the recipients. Here is a similar case.

This time a school prevented students from passing out valentines with the words "The greatest gift of love" on one side and a reference to John 3:16 on the other. I can not find details from local papers on this event - perhaps it didn't make the papers. But here is a description of the action taken by the Alliance Defense Fund

"[The ADF attorney] faxed the school district attorney 67 pages of material, including the complaint and brief from the Nyman case. In addition, she checked the school district’s religion policy – and found that they were in violation of their own guidelines by denying the students their right to distribute the Valentines! With this legal information staring him right in the face, the school district attorney quickly relented and will allow the students to pass out their Valentines."

To me the whole case is silly in a way. It never should have even come up. Prohibitting such actions by students is not a violation of any court decision that I am aware of. It is most certainly not a violation of the Constitution. I can't say whether these things happen at least sometimes because of some kind of "attitude-driven" bias from a teacher or administrator, but I am very sure that they happen most often because of common misconceptions about the First Amendment, and because of some of the cases relating to prohibition on religious activity in the last 60 years. There are very active organizations (American Civil Liberties Union, Americans United for Separation of Church and State, for example) who have promoted some of this misunderstanding. Their description of their side of the cases is not consistent with the actual meaning of the U.S. Constitution's religion clauses as stated in the First Amendment. Organizations fighting against religious expression in the public sphere often promote an understanding based more on "separation of church and state" (a metaphor not found in the Constitution) than on the wording of the amendment or the other writings/actions of the Founding Fathers.

"Knowledge is power," so get a copy of the Constitution and read it. Such copies are available for free from various organizations. (Contact your state Representative as one possible option), and naturally the entire Constitution and all its amendments can be easily found on the Internet. Or the Heritage Foundation will send you one.

8-Year-Old Girl = "Congress", Social Action = "Law"

Pet peeve time...

An article on JS Online, the website of the Milwaukee Journal Sentinel, describes a case where an 8-year-old girl is prevented from passing out her hand-made valentines on Valentine's Day. Her crime was creating cards with phrases like "Jesus loves you" or "Freely rely on God" (F.R.O.G.) on them. When the school discovered her infraction they made her take back the cards she had already passed out. If you are a parent you can imagine the effect this had on the girl. She had a history of such disruptive behavior, having previously passed out tracts to her fellow students.

In the paper's article, this sentence is found: "We think that violates the separation of church and state and would be unconstitutional and impermissible for us to do."

And there you find my pet peeve. The justification the school used is "separation of church and state." At least as far as the article goes, there is no mention of the actual words of the First Amendment. I'm pretty sure the school's attorney would not have used them either. If they had used the words of the Establishment Clause of the First Amendment, the whole thing would have sounded really silly. But a vague phrase like "separation of church and state" can be freely used to justify almost anything.

How would you stop a student from passing out religious valentine cards or religious tracts by invoking, "Congress shall make no law respecting an establishment of religion..."? It sounds really silly to me at least (not to mention the fact that the same amendment guarantees the right to free speech).

To help rectify this an outside organization had to step in (the Liberty Counsel) assisted by a lawyer working with the Alliance Defense Fund. They got an apology from the school. But I'm sure the little girl got the message intended anyway.

The school published an apology in the Milwaukee Journal-Sentinel newspaper, as follows:

"This past Valentine’s Day, Morgan Nyman sought to distribute valentines that contained religious themes during a Valentines Day exchange in her second grade classroom at the Cushing Elementary School. The school did not allow Morgan to distribute the valentines in class due to the religious nature of the valentines, but instead, redirected her to distribute them before or after school. To the extent the school’s actions may have infringed upon Morgan’s First Amendment rights to free speech, the School District of Kettle Moraine apologizes."

Does that strike anyone else as a little half hearted?

Read the whole article on the JS Online site and a summary on the ADF site.

Words Out of Context

I had planned a post for the following topic at a later time, but I have decided to post it now. If you look at comments for the previous post you will see that a disagreeing reader supplied a more complete quote than I originally used in the post. My original quote, from a Supreme Court case, was:

"If portions of the New Testament were read without explanation, they could be and…had been psychologically harmful to the child."

The reader posted a comment with a more complete version:

[Speaking of a teacher] "He cited instances in the New Testament which, assertedly, were not only sectarian in nature but tended to bring the Jews into ridicule or scorn. Dr. Grayzel gave as his expert opinion that such material from the New Testament could be explained to Jewish children in such a way as to do no harm to them. But if portions of the New Testament were read without explanation, they could be, and, in his specific experience with children, Dr. Grayzel observed, had been, psychologically harmful to the child, and had caused a divisive force within the social media of the school."

That is more complete and fills in some extra context. However, I don't think it makes the decision more correct as I stated in a responding comment. But that is not really the point I wish to make today.

I would not in the least be surprised to see only the shorter part of the quote used in a future court case, without the surrounding material. Is that thought far-fetched? Here is why I think not.

Most of this venue is devoted to what I think is the misunderstanding and misinterpretation of the First Amendment of the U.S. Constitution. I have a Google agent running that sends me alerts once a day when it finds "separation of church and state" used on the web. Lately, a great many of the alerts I get refer to sites that are discussing two issues:

1. Catholic leadership speaking out about abortion in regards to the upcoming election
2. Ministers speaking about candidates from the pulpit

After almost 150 years of Constitutional interpretation, the Supreme Court's Everson decision in 1947 used a metaphor Jefferson had used in a private letter, which brought the phrase "separation of church and state" into our legal arena. That phrase is not found in the First Amendment (or in the Constitution). But from this metaphor we have seen other decisions limiting religious practice, acknowledgment, or even accommodation in the public sphere. So even though the words used to explain and justify the 1947 opinion are not in the Constitution or any other official governing document, they were used nonetheless.

Then there is the abortion debate, which usually points back to Roe v. Wade. In Roe the Court found a Constitutional right to "privacy" that had not been discovered before. "Privacy" is a word that isn't in the Constitution. Of course, that doesn't mean the principle is not there, but I find it hard to work out how an implied right to privacy would overcome a person's right to life. If a Bishop says that Catholics must consider a candidate's stance on abortion, is that wrong? Or does it even imply an endorsement for a particular party, since there are some pro-choice Republicans and some pro-life Democrats? Some say "yes" because the IRS tax law prohibits political actions by tax-exempt churches. Now, if you consider the First Amendment's words:

"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 peaceable to assemble, and to petition the Government for a redress of grievances."

It seems clear to me that Congress DID make a law prohibiting the free exercise when the IRS tax law was passed. Or you might say that Congress passed a law abridging freedom of speech. It has probably been accepted so far because it is a law that would not throw anyone in jail; it just threatens to retract the church's tax-exempt status. However, there have been many cases where courts have found that coercion via funding is effectively stepping on one's Constitutional rights. That principle gets a little cloudy in religion cases, but it is still upheld much of the time. Certainly it is upheld in equal access cases, where a public facility can not be withheld from religious use if it is available generally for other uses.

Please do not misunderstand my words about abortion above. I'm not really out to debate abortion. What I AM intending to debate is how the Supreme Court found in the Constitution a right to have an abortion. Read the Constitution for yourself and see if you think such a right is fairly derived from its words. Or read the Constitution and see if you think it prohibits a high school graduation ceremony from starting with a prayer - the Supreme Court says it does.

I think the Founding Fathers meant for the Constitution to be a document that people could understand in their own lifetime. The Founders probably did not think that it would take decades or centuries to discover some of the hidden meaning, particularly when those new revelations more-or-less reversed the seemingly obvious wording of the document itself. They built in a process for changing or adding to the Constitution, called amending. That process presents a high wall, meaning that there has to be considerable incentive to make the change happen. This is proper. After the upcoming election the Democrats are hoping to have a 60-vote majority in the Senate so they can shut out any Republican objection to actions. Such a majority is not enough to pass an amendment, so the Founders fully intended it to be harder than that. This keeps the Constitution from being adjusted every time the political balance sways one way or the other. So the amendment process is the means by which the Constitution is intended to be changed when necessary, not via the dictates of the courts. If the Supreme Court has more liberal or more conservative members, that balance is not what should determine or redefine our founding principles. When completing the amendment process, a LOT of people of various political opinions have to buy off on the deal. This tends to make it a more permanent change (the 18th Amendment outlawing liquor being one obvious exception).

Since it was Jefferson who is quoted when "separation of church and state" is mentioned in legal documents, let me close with some of his words.

Jefferson's warning about the power of the courts:

"It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Thomas Jefferson to Charles Hammond, 1821. ME 15:331

Jefferson's advice on properly interpreting the Constitution:

The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." Found in correspondence from Thomas Jefferson to Albert Gallatin, 1808. ME 12:59

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." From a letter from Thomas Jefferson to William Johnson, 1823. ME 15:449

Are the Courts Ever Hostile to Religion? NAH!

The Supreme Court in "Abington v. Schempp" (374 U.S. 203. 1963) said:

"If portions of the New Testament were read without explanation, they could be and…had been psychologically harmful to the child."

Read the whole decision at supreme.justia.com

One Nation Under God - Ronald Reagan

At a prayer breakfast on August 23, 1984, President Ronald Reagan said,

"You know, if we look back through history to all those great civilizations, those great nations that rose up to even world dominance and then deteriorated, declined, and fell, we find they all had one thing in common. One of the significant forerunners of their fall was their turning away from their God. Without God, there is no virtue, because there's no prompting of the conscience. Without God, we're mired in the material, that flat world that tells us only what the senses perceive. Without God, there is a coarsening of the society. And without God, democracy will not and cannot long endure.

"If we ever forget that we're one nation under God, then we will be a nation gone under."

Learn more at American Rhetoric

Bishops and Ministers Speak Out - It Is Their Right

OK, let's revisit this issue. I have a Google agent that informs me of articles on the web that mention "separation of church and state." Lately the alerts I get are almost all about one of two issues:

1) Catholic Bishops saying publicly that true Catholics must consider a candidate's stance on abortion before voting, and

2) Ministers/pastors expressing their opinion about candidates and political issues from the pulpit.

In each case, Americans United for Separation of Church and State are objecting. They are even complaining to the Internal Revenue Service about this. The IRS has tax laws that say tax-exempt churches may not engage in political activity. We take this for granted as a fact of life today, I suppose, but that does not meet history's test. In our early days, church leaders would often speak out in such ways. In fact, the church drove many political reforms (including freeing slaves). In those days we didn't have the IRS and its volumes of tax laws - those came later.

Long before the IRS was born, we had a Constitution that is our rudder (or should be) to this day. Some of its writers were afraid that the rights of the people and the limits on the Federal Government were not clear enough, so they insisted on having a Bill of Rights (the first ten amendments of the Consitution). The very first of these amendments says:

"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 peaceable to assemble, and to petition the Government for a redress of grievances."

If one reads that, how can one allow the IRS to create a law saying that a pastor can not speak out about political issues? How could such a law stand up in court? The Amendment says there can be no Federal law restricting free exercise, and no law restricing free speech. Doesn't that pretty much protect the Bishops and ministers? And more importantly, doesn't it seem to guide the Congress to never pass such a law in the first place? [Note: many of the ministers speaking out this year are hoping they will end up in court in order to challenge that law.]

"How did we get where we are today?" is answered by decisions the Supreme Court made starting about 60 years ago. In some cases the Court would quote a metaphor Thomas Jefferson used in a letter: "separation of church and state." The Court built decisions on those words without quoting the actual words of the First Amendment.

Jefferson himself warned about a couple things that relate to this. First, he told us how the Constitution MUST be interpretated:

Jefferson on Interpretating the Constitution

Then he also wrote of his fear (or prediction) that the courts would gradually assume more and more power, well beyond what the founders intended. And that has happened today. Courts have become the most powerful of the three branches of government; they often overturn laws passed by a strong majority of the legislature, desired by a strong majority of the population, and signed by the executive branch. Here is what Jefferson thought about that:

churchvstate.blogspot.com/2008/04/jefferson-warns-of-judiciary.html

Various organizations will give you a copy of the Constitution, or you can find one online without spending anything. We should all have a copy and we should all have read it. Every President and member of Congress swear an oath to support and defend the Constitution against all enemies, foreign and domestic. It's time they get back to doing that!

Thomas Jefferson on Interpreting the Constitution

The name of Thomas Jefferson is found on this venue fairly often. Part of the reason for this is that his metaphor "separation of church and state" is used to often in common discussions and even in court cases, usually to limit the activities of religious individuals or groups. About 60 years ago the courts started using this metaphor as a guide to deciding cases (or a justification for opinions personally held by the judges/justices). So while the First Amendment says "Congress shall make no law respecting an establishment of religion" some court decisions choose to draw on the metaphor instead. Jefferson had advice about this in at least two different missives:

"The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." Found in correspondence from Thomas Jefferson to Albert Gallatin, 1808. ME 12:59

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." From a letter from Thomas Jefferson to William Johnson, 1823. ME 15:449

Learn more at the University of Virginia website

Theodore Roosevelt - The Choice is Christianity or Paganism

"Teddy" Roosevelt was the 26th president of the USA. He said:

"Progress has brought us both unbounded oppourtunities and unbridled difficulties. I believe that the next half century will determine if we will advance the cause of Christian civilization or revert to the horrors of brutal paganism. The thought of modern industry in the hands of Christian chariity is a dream worth dreaming. The thought of industry in the hands of paganism is a nightmare beyond imagining. The choice between the two is upon us.

"There is only one morality. All else is immorality. There is only true Christian ethics over against which stands the whole of paganism. If we are to fulfill our great destiny as a people, then we must return to the old morality, the sole morality."

Found in the book "The Courage and Character of Theodore Roosevent" by George Grant. See this passage at Google Books.

Justice Richard Storey on Christianity and Society

Richard Storey was appointed to the Supreme Court by James Madison. Storey wrote the first major commentary of our Constitution. In it he said,

"I verily believe Christianity necessary to the support of civil society. One of the beautiful boasts of our municipal jurisprudence is that Christianity is a part of the Common Law. . . There never has been a period in which the Common Law did not recognize Christianity as lying its foundations."

See extract from Google Books

James Madison - Importance of Belief in God

James Madison is often called the Father of the Constitution and is known to have been one of the greatest political theorists in history. In 1825 he said,

"The belief in a God, all powerful, wise, and good, [is] essential to the moral order of the world, and to the happiness of man."

Extracted from The New American, July 1, 2002, by Thomas R. Eddlem. See the whole article here:

bNet Business Network

Elections and the Judiciary

I was interested to see a little discussion of the upcoming election in this article:

Newsday Blogs

The President is important in shaping the judiciary, but so are the members of Congress. Unfortunately, it seems like people on both side of the political spectrum are able to consider their desire for particular political objectives when appointing and approving judges. But it is Congress' job to do that work. The courts are supposed to decide about the constitutionality of laws, not about whether laws further a particular left/right goal.

What I see too often in discussions like this is a desire to have the court decide toward a particular political side. If you are pro-choice you want justices who would uphold Roe; if you are pro-life you hope for justices who would overturn it. Or affirmative action; or...

What I see too seldom in these disussions is what the courts are supposed to do under the Constitution. I am pro-life but I don't want a President McCain appointing a justice for that reason. I believe that our labor laws must be fair, but I do not want a President Obame appointing justices who decide that a particular labor is unfair on a moral basis. I don't want them trying to make the laws better. They should just decide if the law in front of them is constitutional. I would like to see more of the high court's debate go to the writings and actions of the Founders than about what other countries do.

If I were President, I would try very hard to look at a potential justice's action according to the standards I have outlined. If I chose correctly, I could appoint a justice whose personal preference is on the pro-choice side because he/she would not let that personal preference influence decisions. Is a law under question written in a way that is consitent with rights outlined in the Constition? The decision should not go beyond that.

Many impressive figures in our history were afraid the judiciary would gradually take on too much power - Lincoln and Jefferson, for example. Learn more here:
Judiciary and the Constitution

Muzzling Catholic Opinion

I recommend this article to those who have not seen it yet:

Americans United Threatens the Tax Exemption of the U.S. Catholic Church

It seems that some Bishops have been rendering their opinion/guidance that Catholics must take into account a very morals-based issue when voting: the fact that supporting abortion is a sin in the eyes of the church. Because the I.R.S. gives churches exemption from taxes, the I.R.S. feels that can insist that churches must not become political. On the one had I agree with that. Churches should be specialists in religion and morality. But how can a church teach that something is a mortal sin and yet not mention that fact during election season? The Bishops arguable go one step further by talking about how Catholics should decide on their candidates.

But that is a long way from endorsing a specific candidate. It's relatively easy in the Presidential race to identify the position on abortion that the two major-party candidates hold (especially if you heard the Saddleback forum they participated in). But there are many, many other candidates for House and Senate races nationally, not to mention all the state and local candidates. Many of them have positions on abortion that are not nearly as clear. Their voting record may seem inconsistent, or they may have spoken on both sides of the issue. Or they may draw a line on certain types of abortion but not others.

I have a copy of the U.S. Constitution handy at home and I have read the whole thing (it's not all that long, actually). It's written in English, not translated from some other language. I cannot find where it says that the Federal Government may in any way limit the speech of churches, even by using tax law. In fact, the whole tone of the Constitution would seem to find such an idea repugnant.

In fact, the whole topic of abortion is interesting in a Constitution light. Supposedly the Supreme Court found that a woman's right to abortion is guaranteed by the Constitution because the Constitution guarantees a right to privacy. Well, not exactly. The word "privacy" is not in the Constitution. However, many principles of the Constitution imply certain types of privacy:

U.S. Constitution.net

I find it a stretch to conclude that any of the referenced text in the link above relate to abortion, particularly as a means of after-the-fact birth control. Any inferred right along those lines would seem much less well founded that the rights of the states that are spelled out in the 10th Amendment:

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.

The Constitution is intended to limit the power of the Federal Government to certain specific areas. These are mostly areas that would not be practical to implement elsewhere. A strong military cannot be maintained by families, neighborhood or states. An Interstate highway system cannot be done effectively by the states or local governments. But the states are given many rights that the Federal Government might rather possess.

When the U.S. Supreme Court overrides states' rights, or when the I.R.S. uses the power of taxation to put limits on free speech and religious expression, a line has been crossed.

Charles Carroll: Christianity and a Free Government

Charles Carroll was one of the signers of the Declaration of Independence. He was the longest lived signer of the Declaration of Independence and the Continental Congress. Consider his words:

"Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime and pure...are undermining the solid foundation of morals, the best security for the duration of free governments."

From a letter to James McHenry on November 4, 1800. See Google Books for Quotes of the Founders

John Witherspoon on Religion and Civil Liberty

John Witherspoon was a signer of the Declaration of Indepence and president of Princeton College.

Witherspoon said,

"He is the best friend of American liberty who is most sincere and active in promoting true and undefiled religion and who sets Himself with the greatest firmness to bear down profanity and immorality of every kind...God grant that in America true religion and civil liberty may be inseparable and that the unjust attempts to destroy the one, may in the issue tend to the support and establishment of both."

See Google Books, Lend Me Your Ears, Great Speeches in History

Samuel Adams on the Bible

The following is a quote from Samuel Adams, made in a speech at the State House in Phiadelphia, Aug. 1, 1776:

"He who made all men hath made the truths necessary to human happiness obvious to all… Our forefathers opened the Bible to all.”

See The Life and Public Services of Samuel Adams

Elias Boudinot - on Religion and Public Office

Elias Boudinot was a member of the Continental Congress and later a member of the first, second and third congresses. He was President of the Continental Congress from November 1782 to November 1783. He said:

"Be religiously careful in our choice of all public officers... and judge of the tree by its fruits."

and

"Good government generally begins in the family, and if the moral character of a people once degenerate, their political character must soon follow."

Learn more at Wikipedia

John Quincy Adams on the Ten Commandments

President Adams (our 6th president) said the following about the importance of the Ten Commandments to American law and government:

The law given from Sinai was a civil and municipal as well as a moral and religious code; it contained many statutes . . . of universal application-laws essential to the existence of men in society, and most of which have been enacted by every nation which ever professed any code of laws.

John Quincy Adams, Letters of John Quincy Adams, to His Son, on the Bible and Its Teachings (Auburn: James M. Alden, 1850), p. 61.

See Google Books

The McGuffey Readers - God and the Ten Commandments

Starting in 1836, a common text in our public schools was the McGuffey Reader. It sold 120 million copies between then and 1961. Keeping mind that this was initially accepted into our schools by people who were alive when the First Amendment was ratified, consider this quote from the Reader's foreward:

"The Christian religion is the religion of our country. From it are derived our prevalent notions of the character of God, the great moral governor of the universe. On its doctrines are founded the peculiarities of our free institutions.
...
"The Ten Commandments and the teachings of Jesus Christ are not only basic, but plenary..."

(Google Books example...)

According to Dictionary.com, "plenary" means:
full; complete; entire; absolute; unqualified

Principles of Christianity Embedded in Our Founding

On June 28, 1813, John Adams wrote this to Thomas Jefferson:

The general principles on which the fathers achieved independence were. . . . the general principles of Christianity. . . . I will avow that I then believed, and now believe, that those general principles of Christianity are as eternal and immutable as the existence and attributes of God; and that those principles of liberty are asunalterable as human nature.

From: The Writings of Thomas Jefferson (Washington D. C.: The Thomas Jefferson Memorial Association, 1904), Vol. XIII, p. 292-294.

Or see Google Books

Declaration of Independence - Does It Have Legal Status?

The Declaration of Independence is one of our most famous and important documents. It is a movie star in movies such as 1776 and National Treasure. Some of us memorized all or parts of it in school. The cliche "put your 'John Hancock' here" comes from the Declaration, where John Hancock's appears larger and bolder than any other. But the Declaration is not mentioned in our Constitution, which is the document that actually empowers (AND limits) the Federal Government.

Professor A. Scott Loveless makes a good argument in the linked article below that the document has legal significance. This is important to remember, because it was the Declaration that stated the concept that our rights come from God, not from government.

Notice my previous post about the Preamble of the Constitution. I compare the strength of the several verbs that are used in it. In the Declaration it says that live is a right granted by God. It says that liberty is a right granted by God. But it does not say that happiness is a right granted by God; instead it says "the pursuit of happiness" is our right. We have a right to pursue it, but government can not (and should not try to) guarantee it.

And the fact that this important founding document establishes our rights as coming from God is central to the point of all my posts in this venue.

The Forgotten Founding Document on Townhall.com

Constitution? More of a "Guideline" Really

The title of this post is loosely taken from Pirates of the Caribbean: The Curse of the Black Pearl:
"...the code is more what you'd call 'guidelines' than actual rules"

Readers of my posts here will know that I think the courts often get very far from the original intent of our Founding Fathers when they wrote the U.S. Constitution. There is a process for changing the Constitution (i.e. amendments), and that power is not supposed to be just in the hands of a handful of justices or a single judge, nor is it supposed to be in the hands of the legislature along.

The new "Bail-Out Bill" that just passed is a good example of losing sight of the basic theory of the Constitution. The bill authorizes the Secretary of the Treasury to "ensure the economic well-being of Americans." Well, I certainly with for all Americans to have economic well being, but the Federal Government was not originally empowered to do that so directly.

The Preamble of the Constitution says (boldface added by me):
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Looking at definitions of those bold-face words at dictionary.com, we see the following:

establish: to found, institute, build, or bring into being on a firm or stable basis

insure: to guarantee against loss or harm

provide: to make available; furnish

promote: to help or encourage to exist or flourish; further

secure: to get hold or possession of; procure; obtain

Of all those words, the weakest is "promote" because it does not offer assurance of a result; it simply encourages the result. So the Federal Government must assure us of several things, but should promote the general welfare. It should not try to guarantee the general welfare; it can not promise our general welfare; it will help and encourage our welfare (as many would say to the government, "Just get out of our way and let us do it").

But this bill tells the Secretary to "ensure the economic well-being of Americans." Dictionary.com says this means, "to secure or guarantee." Again, that's a nice idea, but such power is not given by the Constitution (if it is even possible).

Let's not forget the 10th Amendment, the last of the Bill of Rights, which 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."

Examples like this are why I am trying to show a more "originalist" side of the Constitution. My specialty is the First Amendment's religion clauses, but this Bail-Out Bill shows how our government so often goes beyond their given power in other area and in general. The Framers wrote this often-copied document to keep the central government from grabbing more and more power. But by ignoring inconvenient parts of the Constitution, and by our general lack of education about and knowledge of the Constitution, lawmakers and judges are able to claim more power than they are entitled to.

Read more on U.S. Consitution.net and U.S. History.org

Asking Candadates About Their Religion

The Arizona Daily Star publishes profiles of the candidates for office in the state. One caught my eye. It was for Libertarian Mark Phelps. Part of the standard list of questions asks the candidates religion. Mr. Phelps answered, "Since the Constitution clearly states a separation of church and state, I believe this is an inappropriate question when running for elected office." Most people, when referencing "separation of church and state," are talking about the religion clauses of the First Amendment. Certainly Mr. Phelps is within his rights to not answer such a question, but this is not a First Amendment issue. The clause in question states that "Congress shall make no law respecting an establishment of religion..." Mr. Phelps is probably thinking of Article 6 of the Constitution, which says that "...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

But this is not a "test" in the sense the Constitution meant. That "religious test" phrase comes immediately after the section requiring government members to state support for the Constitution:

"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."

So no religious oath will be required. But asking a candidate his religious preference is not requiring an oath. Nor is the candidate required to answer the question. Voters can use that as a measure of his qualifications or not as they choose.

Most of all I wish Mr. Phelps and other candidates for office knew enough about the Constitution to not misrepresent what it requires and what privileges is allows.

See also Article VI of the U.S. Constitution

No Religious Club Announcements at School

Deer Valley Unified School District officials in Arizona's Mountain Ridge High School have been preventing one particular club from making announcements over its public address system, even though other clubs have the right to do so. What's so radical about this one club? They are Christian. The school argued that such announcement violate the First Amendment's Establishment Clause: "Congress shall make no law respecting an establishment of religion..."

The Alliance Defense Fund (ADF) is representing the club and has obtained a settlement granting the club the right to take part in the same way other clubs do.

Learn more on the Alliance Defense Fund website...

ACLU and School Prayer - Pennsylvania

In May, 2005, the ACLU filed a (successful) lawsuit against the Keystone School District in Clarion County, PA, to force them to stop using prayer to open school board meetings and at graduation ceremonies. According to the ACLU's Website:

"When public schools reserve time at a graduation ceremony for prayers, they put the power, prestige and endorsement of the state behind whatever prayer is offered," said ACLU of Pennsylvania Legal Director Witold Walczak, who is representing families who have asked to remain anonymous because of fears for their physical safety. "Officially sponsored prayers make students and invited guests who subscribe to different beliefs and recite different prayers, or no prayers at all, feel like outcasts or second-class citizens."

If this were an argument by a citizen appealing to the common sense of the school board, it is logical. But when you take it to court based on the First Amendment, it is stretching a point. The First Amendment says "Congress shall make no law respecting an establishment of religion..." Then the 14th Amendment carried people's rights from the Constitution to the states as well. But in PA this was not a law establishing a religion. It was a practice or a tradition. This is a long way from a state law establishing religion. The Constitution certainly does not guarantee that public actions shall not make someone feel like an outcast or second-class citizen. Otherwise, it could be argued in court that it is unconstitutional to elect a president or any other office holder without unanimous consent.

As I have said before in this venue, the Constitution was very carefully worded by literate men. If they wanted to prohibit a practice that involved religion they would have said so. But the second part of the quoted First Amendment clause above is "...[Congress shall make no law] prohibiting the the free exercise thereof;" If this case involves the First Amendment at all, then it seems to me that stopping the school board in court seems much more like a violation of the second clause than an enforcement of the first.

Rules Applied Equally?

Public schools often react in strange ways (it seems to me) about various forms of religious expression and accommodation during school or after hours on school property. They may be reacting to many of the cases that have been brought against schools because of the so-called "separation of church and state" (a metaphor used to describe an aspect of the First Amendment to the U.S. Constitution). That metaphor works well enough if you understand the Constitution, as Thomas Jefferson surely did when he penned the phrase in a letter. But without proper historic background, the same metaphor could lead one down the wrong path.

In any case, I would hope that schools would apply their rules and actions fairly and not just in one direction. But I ran across an interesting post on Townhall.com. It starts this way:

"Suppose your child's school announces a Christmas celebration - and your child, while subscribing to your atheistic beliefs, decides to participate. So he goes, dressed as Santa Claus.

"Uh-uh, say school officials. This is Christmas. Take off the red suit, and come back when you can wear something shepherd-y.

"Care to guess how fast the American Civil Liberties Union could whip up a lawsuit on that one?"

In the made-up example above, the author (Michael Johnson) tries to describe a case close to one that is in process, but in the opposite direction. He tells of a 10-year-old student at Willow Hill Elementary School in Philadelphia, PA. This youngster, who is Christian, had some conflicts in common with many other Christians about the school's Halloween recognition. During this day's activities he needed to come dressed in an appropriate Halloween costume or be isolated from the rest of the student body. Most kids would not want that, so he came dressed as Jesus.

Seems like a good idea? Not to the school officials, who said this violated their (unwritten) "religion policy." Yet the officials allowed costumes that imply other types of religious implication, such as devils and witches.

The article is written by a conservative columnist and covers more than I have summarized here.

Read more here: Taking God Out Of School Leaves A Vacuum Something Will Replace, by Michael Johnson