| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
11 Aug 2005 01:10:59 PM |
| Object: |
complete separation of church and state |
RELIGION, GOVERNMENT AND THE CONSTITUTION:FROM
THE FOUNDERS TO THE REHNQUIST COURT AND BEYOND
CHAPTER TWO
THE ORIGINS OF THE RELIGIOUS CLAUSES
21
The religious atmosphere of the country was the first thing
that struck me on arrival in the United States. America was
the place where the Christian religion has kept the greatest
power over men’s souls. While the law allows the people
to do everything, there are many things which religion
prevents them from imagining and forbids them to even
dare. The support given by the Christian religion to
virtuous standards of human behavior is indispensable for
the preservation of personal liberty. They all thought that
the main reason for the quiet sway of religion over their
country was the complete separation of church and state. I
have no hesitation in stating that throughout my stay I met
nobody, lay or cleric, who did not agree about that.
Alexis de Tocqueville, Democracy In America (1848)
http://www.lcsc.edu/gtstraughan/Religious%20Freedom.pdf
************************************************************************
U.S. Supreme Court
MARSH v. CHAMBERS, 463 U.S. 783 (1983)
http://laws.findlaw.com/us/463/783.html
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=463&page=792
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
IV
The argument is made occasionally that a strict separation of religion and
state robs the Nation of its spiritual identity. I believe quite the
contrary. It may be true that individuals cannot be "neutral" on the
question of religion. 53 But the judgment of the Establishment Clause is
that neutrality by the organs of government on questions of religion is
both possible and imperative. Alexis de Tocqueville wrote the following
concerning his travels through this land in the early 1830's:
"The religious atmosphere of the country was the first thing that
struck me on arrival in the United States. . . .
"In France I had seen the spirits of religion and of freedom almost
always marching in opposite directions. In America I found them intimately
linked together in joint reign over the same land. [463 U.S. 783, 822]
"My longing to understand the reason for this phenomenon increased
daily.
"To find this out, I questioned the faithful of all communions; I
particularly sought the society of clergymen, who are the depositaries of
the various creeds and have a personal interest in their survival. . . . I
expressed my astonishment and revealed my doubts to each of them; I found
that they all agreed with each other except about details; all thought that
the main reason for the quiet sway of religion over their country was the
complete separation of church and state. I have no hesitation in stating
that throughout my stay in America I met nobody, lay or cleric, who did not
agree about that." Democracy in America 295 (G. Lawrence trans., J. Mayer
ed., 1969).
More recent history has only confirmed De Tocqueville's observations. 54
If the Court had struck down legislative prayer today, it would likely have
stimulated a furious reaction. But it would also, I am convinced, have
invigorated both the "spirit of religion" and the "spirit of freedom."
I respectfully dissent.
[ Footnote 53 ] See W. James, The Will to Believe 1-31 (1st ed. 1897).
[ Footnote 54 ] See generally J. Murray, We Hold These Truths 73-74 (1960)
(American religion "has benefited . . . by the maintenance, even in
exaggerated form, of the distinction between church and state"); Martin,
Revived Dogma and New Cult, 111 Daedalus 53, 54-55 (1982) (The "icy
thinness of religion in the cold airs of Northwest Europe and in the vapors
of Protestant England is highly significant, because it represents a
fundamental difference in the Protestant world between North America and
the original exporting countries. In all those countries with stable
monarchies and Protestant state churches, [religious] institutional
vitality is low. In North America, lacking either monarchy or state church,
it is high" (footnote omitted)).
.
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| User: "fred" |
|
| Title: Re: complete separation of church and state |
11 Aug 2005 01:32:18 PM |
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wrote:
RELIGION, GOVERNMENT AND THE CONSTITUTION:FROM
THE FOUNDERS TO THE REHNQUIST COURT AND BEYOND
CHAPTER TWO
THE ORIGINS OF THE RELIGIOUS CLAUSES
21
The religious atmosphere of the country was the first thing
that struck me on arrival in the United States. America was
the place where the Christian religion has kept the greatest
power over men's souls. While the law allows the people
to do everything, there are many things which religion
prevents them from imagining and forbids them to even
dare. The support given by the Christian religion to
virtuous standards of human behavior is indispensable for
the preservation of personal liberty. They all thought that
the main reason for the quiet sway of religion over their
country was the complete separation of church and state. I
have no hesitation in stating that throughout my stay I met
nobody, lay or cleric, who did not agree about that.
Alexis de Tocqueville, Democracy In America (1848)
http://www.lcsc.edu/gtstraughan/Religious%20Freedom.pdf
The above document fails to recognized that the Founding Fathers had
decided that the federal and state governments should not only have
different responsibilities, but unique powers to fulfill those
responsibilities. This is reflected in the following extract:
"Our citizens have wisely formed themselves into one nation as to
others and several States as among themselves. To the united nation
belong our external and mutual relations; to each State, severally, the
care of our persons, our property, our reputation and religious
freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262
************************************************************************
U.S. Supreme Court
MARSH v. CHAMBERS, 463 U.S. 783 (1983)
http://laws.findlaw.com/us/463/783.html
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=463&page=792
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
IV
The argument is made occasionally that a strict separation of religion and
state robs the Nation of its spiritual identity. I believe quite the
contrary. It may be true that individuals cannot be "neutral" on the
<snipped for brevity>
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| User: "" |
|
| Title: Re: complete separation of church and state |
13 Aug 2005 09:00:02 AM |
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"fred" <clarma1@gmail.com> wrote:
:|buckeye-ELO@nospam.net wrote:
:|> RELIGION, GOVERNMENT AND THE CONSTITUTION:FROM
:|> THE FOUNDERS TO THE REHNQUIST COURT AND BEYOND
:|>
:|> CHAPTER TWO
:|> THE ORIGINS OF THE RELIGIOUS CLAUSES
:|>
:|> 21
:|> The religious atmosphere of the country was the first thing
:|> that struck me on arrival in the United States. America was
:|> the place where the Christian religion has kept the greatest
:|> power over men's souls. While the law allows the people
:|> to do everything, there are many things which religion
:|> prevents them from imagining and forbids them to even
:|> dare. The support given by the Christian religion to
:|> virtuous standards of human behavior is indispensable for
:|> the preservation of personal liberty. They all thought that
:|> the main reason for the quiet sway of religion over their
:|> country was the complete separation of church and state. I
:|> have no hesitation in stating that throughout my stay I met
:|> nobody, lay or cleric, who did not agree about that.
:|> Alexis de Tocqueville, Democracy In America (1848)
:|> http://www.lcsc.edu/gtstraughan/Religious%20Freedom.pdf
:|
:|The above document fails to recognized that the Founding Fathers had
:|decided that the federal and state governments should not only have
:|different responsibilities, but unique powers to fulfill those
:|responsibilities. This is reflected in the following extract:
This poster along with Alan Keyes fails fails to recognize the following:
***************************************************************************
1787-1789
Article VI, Section III: The No Religious Test Ban Clause (Separation
clause)
Part I: Introduction
http://members.tripod.com/~candst/testban1.htm
Part II: The Constitutional Convention
http://members.tripod.com/~candst/testban2.htm
Part III: The Pennsylvania State Ratifying Convention
http://members.tripod.com/~candst/testban3.htm
Part IV: The Connecticut State Ratifying Convention and The Massachusetts
State Ratifying Convention
http://members.tripod.com/~candst/testban4.htm
Part V: The Virginia State Ratifying Convention
http://members.tripod.com/~candst/testban5.htm
Part VI: The North Carolina State Ratifying Convention
http://members.tripod.com/~candst/testban6.htm
**************************************************************************
"They divided power among the three branches of the Federal
Government, through Federal state separation of power, through Church state
separation of power, a division which is recognized in the Constitution
even before the First Amendment in the Religious Test Oath Clause."
Excerpt from The federalist Society For Law and Public Policy Studies.
Charitable Choice, Remarks of Professor Marci Hamilton
***************************************************************************************
Establishment and Free Exercise Clauses only Reinforced Separation of
Church and State.
No Power to Congress over Religion: The "Elastic Clause" and the 1st
Amendment
http://members.tripod.com/~candst/nopower.htm
Congressional Debates: Religious Amendments, 1789
http://members.tripod.com/~candst/1stdebat.htm
and
Original Intent? Introduction
http://members.tripod.com/~candst/origntro.htm"
Original Intent? Part II
http://members.tripod.com/~candst/origp2.htm"
Original Intent? Part III
http://members.tripod.com/~candst/origp3.htm"
Original Intent? Part IV
http://members.tripod.com/~candst/origp4.htm"
Representative Thomas Tucker on Church and State, September 1789
http://members.tripod.com/~candst/basic2a.htm
***************************************************************************
1791
In the amended constitution we have what is mentioned above, reinforced
with Amendment I (1791)
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; "
********************************************************************************
1790
As it is not the province of civil government to establish forms of
religion, and force a maintenance for the preachers, so it does not belong
to that power to establish fixed holy days for divine worship. That the
Jewish seventh-day Sabbath was of divine appointment, is unquestionable;
but that the Christian first-day Sabbath is of equal injunction, is more
doubtful. If Jesus appointed the day to be observed, he did it as the head
of the church, and not as the king of nations ; or if the apostles enjoined
it, they did it in the capacity of Christian teachers, and not as human
legislators. As the appointment of such days is no part of human
legislation, so the breach of the Sabbath (so called) is no part of civil
jurisdiction. I am not an enemy to holy days, (the duties of religion
cannot well be performed without fixed times,) but these times should be
fixed by the mutual agreement of religious societies, according to the word
of God, and not by civil authority. I see no clause in the federal
constitution, or the constitution of Virginia, to empower either the
federal or Virginia legislature to make any Sabbathical laws.
The federal government is free in this point: to have one branch of the
legislature composed of clergymen, as is the case in some European powers,
is not seemly-to have them entitled to seats of legislation, on account of
their ecclesiastical dignity, like the bishops in England, is absurd. But
to declare them ineligible, when their neighbors prefer th em to any
others, is depriving them of the liberty of free citizens, and those who
prefer them, the freedom of choice.
Source of Information: Excerpts from "The Virginia Chronicle," by John
Leland, 1790. The Writings of John Leland, Edited by L.F. Greene, Arno
Press & The New York Times N Y (1969) pp.91-124) Originally published as:
The Writings Of The Late Elder John Leland Including Some Events In His
Life, Written By Himself, With Additional Sketches &c. By Miss L.F. Greene,
Lanesboro, Mass. New York Printed By G.W. Wood, 29 Gold Street, 1845.
****************************************************
April 14, 1800
The Gazette
Philadelphia
Monday Evening, April 14.
The condition of Church and State in America is such as to fill every
considerate mind with the most unhappy sensations. In spite of that vanity
and fastidiousness which led the Federal Convention, in founding their
government, to preclude any connection, it will appear in the end, even by
our own deplorable example, that a strict and indissoluble alliance of
religion to government has been ordained in the nature of things. Though
formally sundered by Constitution and laws; together they decline and
together (it would seem) they are likely to perish.
Source of Information: The Gazette of the United States, April 14,
1800.Jan 1, 1800 TO Dec.31, 1800 MFILM N.S. 10953 AP2.05
*******************************************************************************
James Madison on Separation of Church and State
Direct references to separation to be found in the writings of James
Madison
----------------------------------------
OCTOBER 1, 1803
Notes for annual message, Oct. 17, 1803: alterations and additions, etc [1]
(3) after "assure"-are proposed "in due season, and under prudent
arrangements, important aids to our Treasury, as well as," an ample etc.
Quere: if the two or three succeeding paragraphs be not more
adapted to the separate and subsequent communication, if adopted as above
suggested.
(4) For the first sentence, may be substituted "In the territory between
the Mississippi and the Ohio another valuable acquisition has been made by
a treaty etc."[3.] As it stands, it does not sufficiently distinguish the
nature of the one acquisition from that of the other, and seems to imply
that the acquisition from France was wholly on the other side of the
Mississippi
May it not be as well to omit the detail of the stipulated
considerations, and particularly that of the Roman Catholic Pastor. The
jealousy of some may see in it a principle, not according with the
exemption of Religion from Civil power. In the Indian Treaty it will be
less noticed than in a President's speech.[4.]
FOOTNOTES:
[1.] For TJ's third annual message to Congress, Oct. 17, 1803, see Ford,
VIII, pp. 266-7)
[3.] TI's message announced the acquisition of territory by treaty from the
Kaskaskia Indians; see
Ford, VIII, pp. 269-70.
[4.] TJ accepted JM's suggestion to omit any discussion of Indian treaty
requirements to maintain a Roman Catholic priest, leaving the stipulations
in the treaty to "the competence of both
houses.... as soon as the senate shall have advised its ratification"; see
ibid.
(SOURCE OF INFORMATION: James Madison to Thomas Jefferson, Washington, Oct.
1, 1803, Notes for annual message, Oct. 17, 1803: alterations and
additions, etc.[1.],
The Republic of Letters, the Correspondence between Thomas Jefferson and
James Madison, 1776-1826, Edited by James Morton Smith, Vol. II, 1790
-1804, W. W. Norton & Company, New York, London, (1995) pp 1297-98)
***************************************
1811
Madison's vetoes: Some of The First Official Meanings Assigned to The
Establishment Clause
http://members.tripod.com/~candst/madvetos.htm
******************************************************************
JUNE 3, 1811
"To the Baptist Churches on Neal's Greek on Black Creek, North Carolina I
have received, fellow-citizens, your address, approving my objection to the
Bill containing a grant of public land to the Baptist Church at Salem
Meeting House, Mississippi Territory. Having always regarded the practical
distinction between Religion and Civil Government as essential to the
purity of both, and as guaranteed by the Constitution of the United States,
I could not have other wise discharged my duty on the
occasion which presented itself"
(SOURCE OF INFORMATION: Letter to Baptist Churches in North Carolina, June
3, 1811. Letters And Other Writings of James Madison Fourth President Of
The United States In Four Volumes Published By the Order Of Congress,
Vol..II, J. B. Lippincott & Co., Philadelphia, (1865) pp 511-512)
-----------------------------------------------------------
MARCH 2, 1819
"The civil Government, though bereft of everything like an associated
hierarchy, possesses the requisite stability, and performs its functions
with complete success, whilst the number, the industry, and the morality of
the priesthood, and the devotion of the people, have been manifestly
increased by the total separation of the church from the State."
(SOURCE OF INFORMATION: Excert of a letter to Robert Walsh from James
Madison. MARCH 2, 1819 Letters and Other writings of James Madison, in
Four Volumes, Published by Order of Congress. VOL. III, J. B. Lippincott &
Co. Philadelphia, (1865), pp 121-126. James Madison on Religious Liberty,
Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83)
----------------------------------------------------------
1817-1833
"Strongly guarded as is the separation between religion and Gov't in the
Constitution of the United States the danger of encroachment by
Ecclesiastical Bodies, may be illustrated by precedents' already furnished
in their short history"
(SOURCE OF INFORMATION: Excerpt from Madison's Detached Memoranda. This
document was discovered in 1946 among the papers of William Cabell Rives, a
biographer of Madison. Scholars date these observations in Madison's hand
sometime between 1817 and 1832. The entire document was published by
Elizabeth Fleet in the William and Mary Quarterly of October 1946.
--------------------------------------------------------------------
JULY 10, 1822
"Every new and successful example, therefore, of a perfect separation
between the ecclesiastical and civil matters, is of importance; and I have
no doubt that every new example will succeed, as every past one has done,
in showing that religion and Government will both exist in greater purity
the less they are mixed together"
(SOURCE OF INFORMATION: Excerpt of letter to Edward Livingston from James
Madison, July 10, 1822. Letters and Other writings of James Madison, in
Four Volumes, Published by Order of Congress. VOL. III, J. B. Lippincott &
Co. Philadelphia, (1865), pp 273-276. James Madison on Religious Liberty,
Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83)
--------------------------------------------------------------
SEPTEMBER 1833
"I must admit moreover that it may not be easy, in every possible case, to
trace the line of separation between the rights of religion and the civil
authority with such distinctness as to avoid collisions and doubts on
unessential points. The tendency to a usurpation on one side or the other
or to a corrupting coalition or alliance between them will be best guarded
against by entire abstinence of the government from interference in any way
whatever, beyond the necessity of preserving public order and protecting
each sect against trespasses on its legal rights by others".
(SOURCE OF INFORMATION: Letter written by James Madison to Rev. Jasper
Adams, September, 1833.Writings of James Madison, edited by Gaillard Hunt,
[not sure what the volume number is but have enough information presented
here to locate the letter] microform Z1236.L53, pp 484-488. )
*********************************************************************
Separation of church and state, the principle, where can it be found, or
can it be found in the Constitution?
One might consider the following:
1833
Directly, the unamended constitution, Article VI, Section III
" but no religious test shall ever be required as a qualification to any
office or public trust under the United States."
-----------------------------
"The remaining part of the clause declares, that 'no religious test shall
ever be required, as a qualification to any office or public trust, under
the United States.' This clause is not introduced merely for the purpose
of satisfying the scruples of many respectable persons, who feel an
invincible repugnance to any test or affirmation. It had a higher object;
to cut off for ever every pretence of any alliance between church and
state in the national government. The framers of the constitution were
fully sensible of the dangers from this source, marked out in history of
other ages and countries; and not wholly unknown to our own. They knew,
that bigotry was unceasingly vigilant in its own stratagems, to secure to
itself an exclusive ascendancy over the human mind; and that intolerance
was ever ready to arm itself with all the terrors of civil power to
exterminate those, who doubted its dogmas, or resisted its infallibility."
(COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, by Supreme Court
Justice Joseph Story, Vol III, (1833) pg 705)
------------------------------------------------------
Then, indirectly the entire document (unamended constitution) as a whole.
-------------------------------------------------------------------------
*******************************************************************************
1848
The religious atmosphere of the country was the first thing
that struck me on arrival in the United States. America was
the place where the Christian religion has kept the greatest
power over men's souls. While the law allows the people
to do everything, there are many things which religion
prevents them from imagining and forbids them to even
dare. The support given by the Christian religion to
virtuous standards of human behavior is indispensable for
the preservation of personal liberty. They all thought that
the main reason for the quiet sway of religion over their
country was the complete separation of church and state. I
have no hesitation in stating that throughout my stay I met
nobody, lay or cleric, who did not agree about that.
Alexis de Tocqueville, Democracy In America (1848)
http://www.lcsc.edu/gtstraughan/Religious%20Freedom.pdf
**************************************************************************
1898
The General Principles of Constitutional Law in The United States
SECTION L-- Religious Liberty
The Constitution -- The Constitution as originally adopted declared
that "no religious test shall ever be required as a qualification to any
office or public trust under tile United States." By amendment it was
further provided that "Congress shall make no law respecting an
Establishment of religion, or prohibiting the free exercise thereof," Both
these provisions, it; will be seen are limitations upon the powers of
Congress only. Neither' the original Constitution nor any of the early
amendments undertook to protect the religions. liberty of the people of the
States against the action of their respective state governments. ****The
fourteenth- amendment is perhaps; broad enough to give some securities if
they should be needful **** .[emphasis **** added]
Source of Information: The General Principles of Constitutional Law in the
United States of America, By Thomas M. Cooley, LL.D., Third Edition, Andrew
C. McLaughlin, A.M., L.L B. [Professor of American History, University of
Michigan] Little, Brown, and Company 1898, pp 224-227)
*********************************************************************************
Some Thoughts on Religion and Law
http://members.tripod.com/~candst/bthot-lr.htm"
Study Guide: Separation of Church and State - Indepth
http://members.tripod.com/~candst/studygd0.htm
A Study Guide for the Words/Concept: "Separation of Church and State"
http://members.tripod.com/~candst/studygd3.htm
14th Amendment
http://candst.tripod.com/14thamend.htm
Study Guide: What is "Establishment?"
Establishment, Part I
http://members.tripod.com/~can dst/est01.html
Establishment, Part II
http://members.tripod.com/~can dst/est02.html
Establishment, Part III
http://members.tripod.com/~can dst/est03.html
Establishment, Part IV
http://members.tripod.com/~can dst/est04.html
Establishment, Part V
http://members.tripod.com/~can dst/est05.html
***********************************************************************************
The Establishment Clause as defined by the USSC in Everson v. Bd of Ed,
1947
The "establishment of religion" clause of the First Amendment means at
least this:
(1) neither a state nor the Federal Government can set up a church.
(2) Neither can pass laws which aid one religion,
(2a) aid all religions,
(2b) or prefer one religion over another.
(3) Neither can force
(3a) nor influence a person to go to
(3b) or to remain away from church against his will
(3c) or force him to profess a belief
(3d) or disbelief in any religion.
(4) No person can be punished for entertaining [p*16]
(4a) or professing religious beliefs
(4b) or disbeliefs,
(4c) for church attendance
(4d) or non-attendance.
(5) No tax in any amount,
(5a) large or small, can be levied to support any religious activities
(5b) or institutions, whatever they may be called,
(5c) or whatever form they may adopt to teach
(5d) or practice religion.
(6) Neither a state
(6a) nor the Federal Government can, openly or secretly, participate in the
(6b) affairs of any religious organizations
(6c) or groups,
(6d) and vice versa.
************************************
EVEN IF YOU DO AWAY WITH #5 WHICH is what Rehnquist
has been working to accomplish for 30 years, you still all the other
elements which would be and are still good law.
************************************
The wording does not say:
Congress shall make no law making a state religion
Congress shall make no law establishing religion
Congress shall make no law establishing a state religion
Congress shall make no law establishing a national religion
What it does say is:
Congress shall make no law RESPECTING an establishment of religion, . . .
That is far broader.
*************************************************************
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