Wednesday, December 28, 2005


More on the Separation of Church and State

The blog below is taken from an e-mail in response to a question about the fictional wall of separation.


The original concept of federalism was to erect a governmental system that shared power between the national government and the individual states. The Bill of Rights was added to pacify the claims of the anti-Federalists that the new Constitution would trample all over the rights of the states and individuals. Thus, a proper reading of the First Amendment would show that there is no conflict on the issue of school prayer since it was not the national government that created or mandated it.

As Justice Potter Stewart wrote in his dissent in Engel v. Vitale:

"With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation." (Justice Potter Stewart)

We do know that the activist Warren Court established in Brown v. Board of Education of Topeka, KS et al. the principle that the Constitution is a living and breathing document that needs to be interpreted in context of the present times. This idea has held force in many cases since so long as the outcome is liberal. Thus the liberals would be in an odd situation of arguing that precedent holds if today's court sought to reverse Engel, (or Griswold, or Roe) even though the current court might say that the nation believes otherwise. In reality, a conservative court would go back to the original intent of the Founders and the Congress that brought in the 13th and 14th Amendments.

Liberals today like to argue that the Fourteenth Amendment extended the Bill of Rights and imposed them on the States. This is pure fabrication. The Fourteenth Amendment was designed (intent) solely to protect the recently freed slaves and their basic rights as individuals:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The sticky bit is in section 5 as it appears to give Congress sweeping powers in light of today's liberal concept of government. But when compared with the texts of the Ninth and Tenth Amendments and with the fact that the Blaine Amendment of the late 19th century (that specifically would have extended the First Amendment to include all states in that it would deny public fund support of sectarian schools and was thus part of the anti-Catholic bigotry prevalent at the time) was consistently defeated, liberals can only argue the "time and place" interpretation of the Constitution which means that there are no constants. This, of course, fits nicely with the liberal idea of moral and cultural relativism. If Congress and others thought and believed that the Fourteenth Amendment meant that the Bill of Rights now trumped any state laws in the respected areas, the Blaine Amendment would never have been proposed. But the history of the Blaine Amendment shows that Congress did not believe that the Fourteenth Amendment had imposed the Bill of Rights on to all states.

In Griswold, Justice Douglas rambled on essentially making up the right of privacy and rested his argument on his creation of said right by the Ninth Amendment. His argument is flawed since the Tenth Amendment specifically gives the States rights to regulate actions and create laws. If any state should choose to be silent on a given matter, then Douglas' argument would seem to hold, but since the state of CT legislated against contraception as it was entitled to do under the Tenth 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), Douglas made himself a Cafeteria Constitutionalist.

Unfortunately, some states, especially Western ones, added Blaine amendment type language into their charters and constitutions. These may be removed through the political process.

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