Tuesday, October 28, 2008

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


CrypticLife said...

I had thought the first of the "right to privacy" Constitutional cases was Griswold v. Connecticut, on contraception. Supposedly it comes from the fourth amendment freedom from search and seizure creating a "penumbra" of rights and the ninth amendment giving unnamed rights to the people.

As I'm sure you do, I find this to be somewhat sketchy reasoning. Even though I think the law in Griswold was a terrible one (I think it was a blanket prohibition on contraception, even in marriage), I'm unconvinced of the general right of privacy in the Constitution. In Douglas' (who wrote the SC opinion in that case) defense, he supports it in a way that's not unreasonable. His opinion at least deserves to be read before being deemed judicial activism. Perhaps the legislative process should have been used to overturn it rather than the judicial. The unfortunate aspect of the legislative process is that a law can be ridiculous but still remain on the books if it doesn't affect sufficient numbers of people (i.e., votes). And in the meantime, people can suffer under it.

History Matters said...


I freely confess that Roe and Griswold are a little out of my sphere. But your comment triggers my memory enough to convince me that you are correct. Thanks for adding that!

And I agree there are both bad judgments and bad laws out there. It's not a perfect system, but overall it's pretty darned good considering that it is being managed by human beings with all our foibles. I just hope we can gradually return to looking at what was meant by the Constitution rather than the more creative interpretations we often see.