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Topic:	Religions > Atheism
User:	""
Date:	23 Jan 2005 07:11:17 PM
Object:	How important are Newdow's lawsuits

PART 3
Reactions to Newdow's New Pledge Lawsuit
http://atheism.about.com/b/a/138709.htm?nl=1
is very much like who this guy wrote about:
Monday, January 17, 2005
'S factor' still relevant in election
NEAL STARKMAN
GUEST COLUMNIST
http://seattlepi.nwsource.com/opinion/207960_firstpersonsfactor.html
They do not understand one simple little fact of life.
The theocrats have a goal and they work slowly and carefully (most of
the time) stealth like oftentimes towards achieving that goal. For
them to achieve that goal certain things have to happen, especially in
the courts.
They have to achieve certain things that forms a stepladder for them
to achieve more: Marsh v Chambers is an important step in that
ladder as is any and all forms of ceremonial deism.
That last thing on earth they want is for any ceremonial deism item to
be found unconstitutional That would threaten all the others and be a
major setback.
This sums it up half decently:
Dangers
The implications of ceremonial deism are far-reaching because
courts frequently employ this amorphous concept as a springboard from
which to hold that other challenged practices do not violate the
Establishment Clause. After all, the argument typically goes, if
practices such as the Pledge of Allegiance, to a nation "under God,"
legislative prayer, the invocation to God prior to court proceedings,
and the Christmas holiday are permissible notwithstanding the
Establishment Clause, then surely the practice at hand (be it a
nativity scene, commencement invocation, or some other governmental
practice)-which does not advance religion "any more than" these
accepted practices-must also pass muster under the Establishment
Clause: . . .
This syllogistic reasoning has been aptly named the "any more
than" test.14 Its central flaw is that no court has ever squarely and
faithfully probed the validity of the major premise under the Supreme
Court's long-standing Establishment Clause jurisprudence. If the major
premise is invalid, a court may not properly conclude that a
challenged practice is permissible merely because it advances religion
no more than the long-standing practices embraced by that premise.
Not surprisingly, the "any more than" approach has yielded an ever
expanding sphere of activities courts have found to be permissible
forms of ceremonial deism. Each step in the process is valuable
ammunition for the next . . .
Despite its increasing significance in Establishment Clause
litigation, the concept of ceremonial deism has received only scant
scholarly attention. Like the courts, most scholars have assumed that
the majority of practices constituting ceremonial deism are innocuous
and inconsequential in the grand constitutional scheme.2s No
commentator has systematically analyzed the constitutionality of the
various practices constituting ceremonial deism to determine whether
the major premise to the syllogism authorizing an expanding universe
of governmental religious activity is valid or flawed.
Source of Information:
Rethinking the Constitutionality of Ceremonial Deism, Steven B.
Epstein, 96 Colum L. Rev. 2087-89 (1996).
**************************************************
For more see
Thoughts on Power, Ceremonial Deism & Public Religion
From a Variety of Sources
http://members.tripod.com/~candst/c-deism.htm
.

User: "Egbert Sousè"
Title: Re: How important are Newdow's lawsuits	23 Jan 2005 11:50:03 PM

On Sun, 23 Jan 2005 14:11:17 -0500,

wrote:

PART 3

Reactions to Newdow's New Pledge Lawsuit
http://atheism.about.com/b/a/138709.htm?nl=1

is very much like who this guy wrote about:
Monday, January 17, 2005

'S factor' still relevant in election

NEAL STARKMAN
GUEST COLUMNIST
http://seattlepi.nwsource.com/opinion/207960_firstpersonsfactor.html

They do not understand one simple little fact of life.
The theocrats have a goal and they work slowly and carefully (most of
the time) stealth like oftentimes towards achieving that goal. For
them to achieve that goal certain things have to happen, especially in
the courts.

They have to achieve certain things that forms a stepladder for them
to achieve more: Marsh v Chambers is an important step in that
ladder as is any and all forms of ceremonial deism.

That last thing on earth they want is for any ceremonial deism item to
be found unconstitutional That would threaten all the others and be a
major setback.

This sums it up half decently:

Dangers

The implications of ceremonial deism are far-reaching because
courts frequently employ this amorphous concept as a springboard from
which to hold that other challenged practices do not violate the
Establishment Clause. After all, the argument typically goes, if
practices such as the Pledge of Allegiance, to a nation "under God,"
legislative prayer, the invocation to God prior to court proceedings,
and the Christmas holiday are permissible notwithstanding the
Establishment Clause, then surely the practice at hand (be it a
nativity scene, commencement invocation, or some other governmental
practice)-which does not advance religion "any more than" these
accepted practices-must also pass muster under the Establishment
Clause: . . .

This syllogistic reasoning has been aptly named the "any more
than" test.14 Its central flaw is that no court has ever squarely and
faithfully probed the validity of the major premise under the Supreme
Court's long-standing Establishment Clause jurisprudence. If the major
premise is invalid, a court may not properly conclude that a
challenged practice is permissible merely because it advances religion
no more than the long-standing practices embraced by that premise.

Not surprisingly, the "any more than" approach has yielded an ever
expanding sphere of activities courts have found to be permissible
forms of ceremonial deism. Each step in the process is valuable
ammunition for the next . . .

Despite its increasing significance in Establishment Clause
litigation, the concept of ceremonial deism has received only scant
scholarly attention. Like the courts, most scholars have assumed that
the majority of practices constituting ceremonial deism are innocuous
and inconsequential in the grand constitutional scheme.2s No
commentator has systematically analyzed the constitutionality of the
various practices constituting ceremonial deism to determine whether
the major premise to the syllogism authorizing an expanding universe
of governmental religious activity is valid or flawed.

Source of Information:

Rethinking the Constitutionality of Ceremonial Deism, Steven B.
Epstein, 96 Colum L. Rev. 2087-89 (1996).
**************************************************
For more see
Thoughts on Power, Ceremonial Deism & Public Religion
From a Variety of Sources
http://members.tripod.com/~candst/c-deism.htm

Didja' ever notice that opponents of the 1st Amend. never quote it
when they agrue against it? If they do; it shoots their argument
down.
They don't even like to refer to it as the 1st Amend. They always use
the term 'establishment clause'.
.

User: ""
Title: Re: How important are Newdow's lawsuits	26 Jan 2005 08:32:52 PM

Egbert Sousè <egbertsouse@WCF.com> wrote:

:|On Sun, 23 Jan 2005 14:11:17 -0500,

wrote:
:|
:|>PART 3
:|>
:|>Reactions to Newdow's New Pledge Lawsuit
:|>http://atheism.about.com/b/a/138709.htm?nl=1
:|>
:|>is very much like who this guy wrote about:
:|>Monday, January 17, 2005
:|>
:|>'S factor' still relevant in election
:|>
:|>NEAL STARKMAN
:|>GUEST COLUMNIST
:|>http://seattlepi.nwsource.com/opinion/207960_firstpersonsfactor.html
:|>
:|>
:|>They do not understand one simple little fact of life.
:|>The theocrats have a goal and they work slowly and carefully (most of
:|>the time) stealth like oftentimes towards achieving that goal. For
:|>them to achieve that goal certain things have to happen, especially in
:|>the courts.
:|>
:|>They have to achieve certain things that forms a stepladder for them
:|>to achieve more: Marsh v Chambers is an important step in that
:|>ladder as is any and all forms of ceremonial deism.
:|>
:|>That last thing on earth they want is for any ceremonial deism item to
:|>be found unconstitutional That would threaten all the others and be a
:|>major setback.
:|>
:|>This sums it up half decently:
:|>
:|>Dangers
:|>
:|>The implications of ceremonial deism are far-reaching because
:|>courts frequently employ this amorphous concept as a springboard from
:|>which to hold that other challenged practices do not violate the
:|>Establishment Clause. After all, the argument typically goes, if
:|>practices such as the Pledge of Allegiance, to a nation "under God,"
:|>legislative prayer, the invocation to God prior to court proceedings,
:|>and the Christmas holiday are permissible notwithstanding the
:|>Establishment Clause, then surely the practice at hand (be it a
:|>nativity scene, commencement invocation, or some other governmental
:|>practice)-which does not advance religion "any more than" these
:|>accepted practices-must also pass muster under the Establishment
:|>Clause: . . .
:|>
:|>This syllogistic reasoning has been aptly named the "any more
:|>than" test.14 Its central flaw is that no court has ever squarely and
:|>faithfully probed the validity of the major premise under the Supreme
:|>Court's long-standing Establishment Clause jurisprudence. If the major
:|>premise is invalid, a court may not properly conclude that a
:|>challenged practice is permissible merely because it advances religion
:|>no more than the long-standing practices embraced by that premise.
:|>
:|>Not surprisingly, the "any more than" approach has yielded an ever
:|>expanding sphere of activities courts have found to be permissible
:|>forms of ceremonial deism. Each step in the process is valuable
:|>ammunition for the next . . .
:|>
:|>Despite its increasing significance in Establishment Clause
:|>litigation, the concept of ceremonial deism has received only scant
:|>scholarly attention. Like the courts, most scholars have assumed that
:|>the majority of practices constituting ceremonial deism are innocuous
:|>and inconsequential in the grand constitutional scheme.2s No
:|>commentator has systematically analyzed the constitutionality of the
:|>various practices constituting ceremonial deism to determine whether
:|>the major premise to the syllogism authorizing an expanding universe
:|>of governmental religious activity is valid or flawed.
:|>
:|>Source of Information:
:|>
:|>Rethinking the Constitutionality of Ceremonial Deism, Steven B.
:|>Epstein, 96 Colum L. Rev. 2087-89 (1996).
:|>**************************************************
:|>For more see
:|>Thoughts on Power, Ceremonial Deism & Public Religion
:|>From a Variety of Sources
:|>http://members.tripod.com/~candst/c-deism.htm
:|
:|Didja' ever notice that opponents of the 1st Amend. never quote it
:|when they agrue against it? If they do; it shoots their argument
:|down.
:|They don't even like to refer to it as the 1st Amend. They always use
:|the term 'establishment clause'.

Didja ever notice how many times radical religioius rigth types don't
address anything that was posted in the post they are replying to but
rather try to steer the discussion in another way hoping to distract people
from their inability to address what had been posted?
Well here, I will quote it and not only that but will explain in via
documentation
How is that?
"Congress shall mae no law respecting an establishment of religion . . "
"Congress (which now means any level of government) shall make no law
RESPECTING (touching, helping, supporting touching upon, touching, aiding,
hindering, applying to, have to do with, etc) an ESTABLISHMENT
(institution) of RELIGION (any religious sect, society, denomination,
religion), . . . "
The use of public monies, the taxing of individuals to support religion was
considered a form of religious establishment at the time of the founding of
this nation.
**********************************************************************************
" . . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349 (1921) (Holmes, J.). . . . "
SOURCE: Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir.
1992)
*******************************************************************************************
Some of The First Official Meanings Assigned to The Establishment Clause
http://candst.tripod.com/madvetos.htm
While James Madison was president of the United States (1809-1817 He vetoed
three bills sent to him by Congress to sign into law. President Madison
vetoed the bills because, in his opinion, they violated the Establishment
clause.
********************************************************************************************
ESTABLISHMENT
http://members.tripod.com/~candst/est01.html
http://members.tripod.com/~candst/est02.html
http://members.tripod.com/~candst/est03.html
http://members.tripod.com/~candst/est04.html
http://members.tripod.com/~candst/est05.html
*********************************************************************************************
1771
In 1771 Thomas B. Chandler, an Anglican minister in New Jersey
involved in a heated dispute with Boston Congregationalist minister Charles
Chauncy, wrote that if Chauncy were going to continue to change the meaning
of the word "establishment," he ought to "publish a Glossary, wherein the
singularities of his Phraseology are carefully explained."' Given the usage
of the word in colonial America, Chandler's suggestion was eminently
practical. The ambiguities of "establishment" in the colonies stemmed from
such peculiarly American situations as that in New York, where the minority
Anglicans claimed to be the establishment, or in New England, where
Congregationalists -- Dissenters within the Empire -- in fact constituted
the establishedchurch.
SOURCE OF INFORMATION: The First Freedoms, Church and State in America to
the Passage of the First Amendment. Thomas J. Curry. Oxford University
Press. (1986) pp 105 - 107)
***************************************************************************************************
The use of the word "establishment" in the First Amendment is
unique to constitutions of this period. No state constitution used this
particular term, preferring to make specific provisions which prohibited
tax monies for churches, discrimination against minority sects, and other
measures which might establish a church. The use of the vague term in the
Bill of Rights indicates the belief that the national government had no
power in these specific areas, so that a general prohibition towards
matters of religion was sufficient.
(SOURCE OF INFORMATION: Religion Under State Constitutions, John K. Wilson.
Journal Of Church and State, Volume 32, Autumn 1990, Number 4, pp 753-773.)
==========================================================
A. Uses of "Establishment"
The root term "establish" appears seven times in the Constitution prior to
the EstablishmentClause. In each case its use suggests creating,
instituting. rendering permanent, or setting up.
The term was itself commonly used in the Constitutional Convention in
Philadelphia long before the Establishment Clause was drafted. The word
was used synonymously with "to set up,' "to create,' or "to institutes
Despite its frequent use during the Constitutional Convention, the Records
do not link the term to "religion." Sources used contemporaneously with the
founding of the Constitution employ the word in a similar way. The
Federalist referred to "the establishmentof a navy," "the establishment of
civil power," " the establishment of a fixed rule," "establishment of the
militia," "the establishment of a government,"" "the establishment of the
Constitution," "a military establishment," "establishment of the union,"
"establishment of courts," "establishment of new States," "establishment of
tyranny," and "establishment of the writ of habeas corpus. "Military
establishments were referenced more than twenty times in the Federalist.
Religious establishments were never mentioned.
(SOURCE OF INFORMATION: A Standard for repair, The Establishment Clause,
Equality, and Natural Rights. By T. Jeremy Gunn. Garland Publishing, Inc.
N. Y. (1992) p. 71-73)
----------------------------------------------------------------------------------------
To Establish : to make stable, firm and sure. To fix or settle.
Establishment : Settlement upon a foundation
An Universal Etymological English Dictionary, by N. Bailey. 1780.
-----------------------------------------------------------------------------------------
Alexander Hamilton defined establishment of religion as the government
support and protection
of religion.
"Remarks on the Quebec Bill," in Hamilton Papers, 1:169-70.
---------------------------------------------------------------------
''[F]or the men who wrote the Religion Clauses of the First Amendment the
'establishment' of a religion connoted sponsorship, financial support, and
active involvement of the sovereign in religious activity."
http://supreme.lp.findlaw.com/constitution/amendment01/02.html#1
----------------------------------------------------------------------------
Of the eleven states that ratified the First Amendment, nine
(counting Maryland) adhered to the viewpoint that support of religion and
churches should be voluntary, that any government financial assistance to
religion constituted an establishment of religion and violated its free
exercise.(78)
The meaning of free exercise of religion and establishment of
religion in 1789 must be examined within the historical matrix that
produced these concepts. just as Puritan demands for religious liberty take
on a different hue when seen against the pattern of Puritan belief, and
just as the sweeping proclamations of anti-subscriptionists of the
seventeenth century were not at all what they seemed on their face, so the
meaning of the First Amendment must arise out of its historical context
rather than from a literalist reading. It meant at least this: that each
citizen had a right to the free exercise of his or her religion as long as
it did not "break out into overt acts against peace and order." Further,
the people of almost every state that ratified the First Amendment believed
that religion should be maintained and supported voluntarily. They saw
government attempts to organize and regulate such support as a usurpation
of power, as a violation of liberty of conscience and free exercise of
religion, and as falling within the scope of what they termed an
establishment of religion.
(SOURCE OF INFORMATION: The First Freedoms, Church and State in America to
the Passage of the First Amendment. Thomas J. Curry. Oxford University
Press. (1986) pp 202 - 222)
===========================================================
" The First Amendment bans laws respecting an establishment of
religion. Most of the framers of that amendment very probably meant that
government should not promote, sponsor, or subsidize religion because it is
best left to private voluntary support for the sake of religion itself as
well as for government, and above all for the sake of the individual. Some
of the framers undoubtedly believed that government should maintain a close
relationship with religion, that is, with Protestantism, and that people
should support taxes for the benefit of their own churches and ministers.
The framers who came from Massachusetts and Connecticut certainly believed
this, as did the representatives of New Hampshire, but New Hampshire was
the only one of these New England states that ratified the First Amendment.
Of the eleven states that ratified the First Amendment, New Hampshire and
Vermont were probably the only ones in which a majority of the people
believed that the government should support religion. In all the other
ratifying states, a majority very probably opposed such support. But
whether those who framed and ratified the First Amendment believed in
government aid to religion or in its private voluntary support, the fact is
that no framer believed that the United States had or should have power to
legislate on the subject of religion, and no state supported that power
either."
(The Establishment Clause, Religion and the First Amendment, By Leonard W
Levy, page 146-147)
==========================================================
One could say that the following words were designed to prevent that very
thing:
"Congress shall make no law respecting an establishment of religion,..."
That the above words would prevent any supporting, be it financial or
non-financial, and protection of any religion, sect, religious society,
denomination, etc. It would not hinder religion but would not aid it
either.
=============================================================

Jan 25, 3:05 am
Newsgroups:
alt.politics,alt.rush-limbaugh,courts.usa,milw.general,misc.legal,alt.education,alt.politics.usa.constitution,alt.atheism
From:

- Find messages by this author
Date: Tue, 25 Jan 2005 06:05:10 -0500
Local: Tues, Jan 25 2005 3:05 am
Subject: Re: THE PLEDGE Round #2
"krp" <web24...@verizon.net> wrote:

:| I think it needs to be refined as opposed to being blindly
:|(thoughtlessly applied). The "Establishment clause" had a specific meaning
:|when the 1st Amendment was written.

Oh? Where will we find that specific meaning in your opinion?
You are right, but not in the way you think you are
The specific meaning was to reinforce the church state separation that was
embodied in the unamended constitution.
How do we know that? Madison tells us that.
See
Study Guide: Separation of Church and State - Indepth
http://members.tripod.com/~candst/studygd0.htm
[excerpt]
The Legislative History of the Establishment Clause:
Congressional Debates: Religious Amendments, 1789
http://members.tripod.com/~candst/1stdebat.htm
From The House of Representatives
"The civil rights of none shall be abridged on account of religious
beliefs, nor shall any national religion be established, nor shall the full
and equal rights of conscience in any manner or in any respect be
infringed."
(Civil rights, establishment, rights of conscience, broad word
establishment used )
Not accepted
"No religion shall be established by law, nor shall the equal rights of
conscience be infringed."
(Establishment and conscience, broad word establishment used)
Not accepted
"Congress shall make no laws touching religion , or infringing the
rights of conscience."
(Establishment and conscience, broad word establishment used)
Not accepted
"Congress shall make no law establishing religion, or to prevent the
free exercise thereof, or to infringe the rights of conscience."
(Establishment, free exercise, conscience, broad word establishment
used)
Not accepted
Submitted to the Senate:
"Congress shall make no law establishing religion, or prohibiting the
free exercise thereof, nor shall the rights of conscience be infringed."
(Establishment, free exercise, conscience, broad word establishment
used)
Not accepted
"Congress shall make no law establishing one religious sect or society
in preference to others, nor shall the rights of conscience be infringed"
(Establishment of a preference, conscience, narrow non preference use
of establishment)
Not accepted
"Congress shall not make any law, infringing the rights of conscience,
or establishing any religious sect or society."
(establishment of a preference, conscience, narrow non preference use
of establishment)
Not accepted
"Congress shall make no law establishing any particular denomination of
religion in preference to another, or prohibiting free exercise thereof,
nor shall the rights of conscience be infringed."
(preference establishment, free exercise, conscience, narrow use of non
preference reference to establishment)
Not accepted
"Congress shall make no law establishing religion, or prohibiting the
free exercise thereof."
(Establishment, free exercise, back to broad use of establishment)
Not accepted
Submitted Back to the House:
"Congress shall make no law establishing articles of faith or a mode of
worship, or prohibiting the free exercise of religion."
(establishing preference, free exercise, back to narrow non preference
use of the word establishment)
Not accepted
Joint House/senate Language:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof."
(establishment, free exercise, back to broad)
Accepted.
What can be said with any degree of certainty?
We do know for sure that it was to prevent the later use of the
"necessary and proper" wording from being used as a doorway to make laws
regarding religion. We know that because Madison mentions that.
We do know that it was to prevent a sects, denominations, religions
from combining and establishing religions, forcing others to go along with
the program. We know that again because Madison mentions it.
We know the obvious, that is it was meant to prevent the government
from establishing religion, a religion, a sect, a denomination as the
"official" religion of the nation.
We also know that Congress was prevented from making an law RESPECTING
an establishment of religion. We know that because those words were
eventually chosen to be used.
We know that several non preferential proposals were made and all lost
out to the more broad, less defined word establishment, but even that word
did have meaning that applied in this country.
"Of the eleven states that ratified the 1st Amendment, nine (counting
Maryland) adhered to the viewpoint that support of religion and churches
should be voluntary, that any government financial assistance to religion
constituted an establishment of religion."
Source of Information: The First Freedoms, Church and State in America to
the Passage of the First Amendment, by Thomas Curry, page 220.
*****************************************************************************************
Establishment Clause:
"Congress shall make no law RESPECTING an establishment of religion . . . "
It doesn't say
"Congress shall not establish a religion. . . "
"Congress shall make no law establishing religion. . ."
THUS:
(7) The still more important fact is that the type of article used in the
establishment clause makes no difference. The First Amendment does not say
that Congress shall not establish a religion or create an establishment of
religion. It says Congress shall make no law RESPECTING an establishment of
religion. Whether "respecting" connotes honoring or concerning, the clause
means that Congress shall make no law on that subject The ban is not just
on establishments of religion but on laws respecting them, a fact that
allows a law to fall short of creating an establishment yet still be
unconstitutional.
The Establishment Clause, Religion and the First Amendment, Leonard W.
Levy, Second Edition, Revised, The University of North Carolina Press,
(1994) p. 118
******************************************************************************************
(8) . . . it is clear that the amendment does not say, "Congress shall
make no law establishing religion," but does say "no law respecting an
establishment of religion." It t herefore cannot be construed as
authorizing Congress to support Religious institutions. {or religion, any
kind of religion.]
Religious Liberty and the Secular State, The Constitutional Context. John
M. Smomley.Prometheus Books, (1987) p. 49
****************************************************************************************
(9) James Madison And National Religion
http://members.tripod.com/~candst/madnational.htm
****************************************************************************************
* Madison's vetoes: Some of The First Official Meanings Assigned to The
Establishment Clause (1811)
http://candst.tripod.com/madvetos.htm
ESTABLISHMENT CLAUSE: [This is based on Madison's view]
In spite of all that Rehnquist and his buddies have done this remains the
definition for the Establishment Clause: (The no aid portion has been
battered, to be sure, but as Locke v Davey shows, it still has some bite
left in it. Nyquist also remains good law)
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.
Everson v. Bd of Ed, 330 U.S. 1 (1947)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&...
***********************************************************************************************
.

User: "Maverick"
Title: Re: How important are Newdow's lawsuits	26 Jan 2005 09:47:03 PM

> wrote in message
news:cjvfv09v43e23ntg5buakl24k9ihopmgd0@4ax.com...

Egbert Sousè <egbertsouse@WCF.com> wrote:

:|On Sun, 23 Jan 2005 14:11:17 -0500,

More times than not, the Supreme Court rules on the basis of the definitions
prevelant at the time of the Constitutional convention and meanings put
forth in the Federalist Papers and related writings. Attempts to omit the
"free exercise thereof" part have fallen on deaf ears in the court. Nowhere
in the literature can there be found any restrictions on where the "free
exercise thereof" may take place. Eventually, all of these issues will wind
their way back to the original intent and settle themselves for another 200
years or so. They just need a little impetus from time to time.
The Supreme Court, in giving validity to "tradition" in a recent ruling is a
very ominous sign for those that wish to tear down long held traditions.
There is soon to begin working its way through the judicial process a case
in which a Ten Commandments monument was removed from a public place. A
private citizen then leased the space from the county and re-positioned the
monument. Thus far, the decisions have fallen in favor of the monument
remaining in place. Giving more credence to the admonition "There's more
than one way to skin a cat".
--
I come here not to argue, persuade nor respond
to displays of immaturity, but only to inform from
the annals of history.
Maverick
http://www.independent.org/
.

User: ""
Title: Re: How important are Newdow's lawsuits	27 Jan 2005 12:07:20 PM

"Maverick" <justgopublic@nomail.com> wrote:

:|
:|<buckeye-ELO@nospam.net> wrote in message
:|> "Congress (which now means any level of government) shall make no law
:|> RESPECTING (touching, helping, supporting touching upon, touching, aiding,
:|> hindering, applying to, have to do with, etc) an ESTABLISHMENT
:|> (institution) of RELIGION (any religious sect, society, denomination,
:|> religion), . . . "
:|
:|
:|More times than not, the Supreme Court rules on the basis of the definitions
:|prevelant at the time of the Constitutional convention and meanings put
:|forth in the Federalist Papers and related writings.

The USSC defined the Establishment Clause in Everson v. Bd of Ed and here
is what they used to define it:
ESTABLISHMENT CLAUSE: [This is based on Madison's view]
In spite of all that Rehnquist and his buddies have done this remains the
definition for the Establishment Clause: (The no aid portion has been
battered, to be sure, but as Locke v Davey shows, it still has some bite
left in it. Nyquist also remains good law)
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.
Everson v. Bd of Ed, 330 U.S. 1 (1947)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&...
It can be added the all 9 justices were in agreement on this definition.
It also cited, considered and provided in full the following in
Appendixes: James Madison's MEMORIAL AND REMONSTRANCE
AGAINST RELIGIOUS ASSESSMENTS
AND The bill sponsored and supported by Patrick Henry A BILL
ESTABLISHING A PROVISION FOR TEACHERS OF THE
CHRISTIAN RELIGION which Madison got defeated in the Virginia General
Assembly and passed in it's place Jefferson's Bill for religious freedom.
Thus, the rationale they used didn't just rely on Jefferson's letter
containing the metaphor.
EVERSON v. BOARD OF EDUCATION OF EWING TP., 330 U.S. 1 (1947)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&...
You read both the majority opinion and the dissent.
After you have done that you check out the citations that were given
Here are some of the essential Footnotes to the decision:
4. See Reynolds v. United States, 98 U.S. 145, 162; cf. Knowlton v. Moore,
178 U.S. 41, 89, 106.
5. See, e.g., Macaulay, History of England (1849) I, cc. 2, 4; The
Cambridge Modern History (1908) V, cc. V, IX, XI; Beard, Rise of American
Civilization (1933) I, 60; Cobb, Rise of Religious Liberty in America
(1902) c. II; Sweet, The Story of Religion in America (1939) c. II; Sweet,
Religion in Colonial America (1942) 320-322.
6. See e.g., the charter of the colony of Carolina, which gave the grantees
the right of patronage and advowsons of all the churches and chapels . . .
together with licence and power to build and found churches, chapels and
oratories . . . and to cause them to be dedicated and consecrated according
to the ecclesiastical laws of our kingdom of England.
Poore, Constitutions (1878) II, 1390, 1391. That of Maryland gave to the
grantee Lord Baltimore the Patronages, and Advowsons of all Churches which
.. . . shall happen to be built, together
with Licence and Faculty of erecting and founding Churches, Chapels, and
Places of Worship . . . and of causing the same to be dedicated and
consecrated according to the Ecclesiastical Laws of our Kingdom of England,
with all, and singular such, and as ample lights, Jurisdictions,
Privileges, . . . as any Bishop . . . in our Kingdom of England, ever . . .
hath had. . . . MacDonald, Documentary Source Book of American History
(1934) 31, 33. The Commission of
New Hampshire of 1680, Poore, supra, II, 1277, stated:
And above all things We do by these presents will, require and comand our
said Councill to take all possible care for ye discountenancing of vice and
encouraging of virtue and good living, and that, by such examples ye
infidle may be invited and desire to partake of ye Christian Religion, and
for ye greater ease and satisfaction of ye sd loving subjects in matters of
religion, We do hereby require and comand yt liberty of conscience shall be
allowed unto all protestants; yt such especially as shall be conformable to
ye rites of ye Church of Engd shall be particularly countenanced and
encouraged.
See also Pawlet v. Clark, 9 Cranch 292.
7. See, e.g., Semple, Baptists in Virginia (1894); Sweet, Religion in
Colonial America, supra, at
131-152, 322-339.
8. Almost every colony exacted some kind of tax for church support. See
e.g. Cobb, op. cit. supra, note 5, 110 (Virginia); 131 (North Carolina);
169 (Massachusetts); 270 (Connecticut); 304, 310, 339 (New York); 386
(Maryland); 295 (New Hampshire).
9. Madison wrote to a friend in 1774:
That diabolical, hell-conceived principle of persecution rages among some.
.. . . This vexes me the worst of anything whatever. There are at this time
in the adjacent country not less than five or six well meaning men in close
jail for publishing their religious sentiments, which in the main
are very orthodox. I have neither patience to hear, talk, or think of
anything relative to this matter; for I have squabbled and scolded, abused
and ridiculed, so long about it to little purpose, that I am without common
patience. So I must beg you to pity me, and pray for liberty of conscience
to all.
I Writings of James Madison (1900) 18, 21.
10. Virginia's resistance to taxation for church support was crystallized
in the famous "Parsons' Cause" argued by Patrick Henry in 1763. For an
account, see Cobb, op. cit. supra, note 5,
108-111.
11. II Writings of James Madison, 183.
12. In a recently discovered collection of Madison's papers, Madison
recollected that his Remonstrance met with the approbation of the Baptists,
the Presbyterians, the Quakers, and the few Roman Catholics, universally;
of the Methodists in part, and even of not a few of the Sect formerly
established by law.
Madison, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments,
in Fleet, Madison's "Detached Memorandum," 3 William and Mary Q. (1946)
534, 551, 555.
13. For accounts of background and evolution of the Virginia Bill for
Religious Liberty see, e.g., James, The Struggle for Religious Liberty in
Virginia (1900); Thom, The Struggle for Religious Freedom in Virginia: The
Baptists (1900); Cobb, op. cit. supra, note 5, 74-115; Madison,
Monopolies, Perpetuities Corporations, Ecclesiastical Endowments, op. cit.
supra, note 12, 554, 556.
14. 12 Hening, Statutes of Virginia (1823) 84; Commager, Documents of
American History (1944) 125.
15. Permoli v. New Orleans, 3 How. 589. Cf. Barron v. Baltimore, 7 Peters
243 .
16. For a collection of state constitutional provisions on freedom of
religion see Gabel, Public Funds for Church and Private Schools (1937)
148-149. See also 2 Cooley, Constitutional Limitations (1927) 960-985.
17. Test provisions forbade officeholders to "deny . . . the truth of the
Protestant religion," e.g., Constitution of North Carolina (1776) § 330II,
II Poore, supra, 1413. Maryland permitted taxation for support of the
Christian religion and limited civil office to Christians until 1818, id.
I, 819, 820, 832.
18. See Note 50 Yale L.J. (1941) 917; see also cases collected 14 L.R.A.
418; 5 A.L.R. 8, 9; 141 A.L.R. 1148.
19. See cases collected 14 L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148.
20. Ibid. See also Cooley, op. cit. supra, note 16.
21. Terrett v. Taylor, 9 Cranch 43; Watson v. Jones, 13 Wall. 679; Davis v.
Beason, 133 U.S. 333; cf. Reynolds v. United States, supra, 162; Reuben
Quick Bear v. Leupp, 210 U.S. 50.
22. Cantwell v. Connecticut, 310 U.S. 296 ; Jamison v. Texas, 318 U.S. 413;
Largent v. Texas, 318 U.S. 418; Murdock v. Pennsylvania, supra; West
Virginia State Board of Education v. Barnette, 319 U.S. 624 ; Follett v.
McCormick, 321 U.S. 573; Marsh v. Alabama, 326 U.S. 501 .
Cf. Bradfield v. Roberts, 175 U.S. 291.
In addition to the above the court included the entire text of Madison's
MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS
in an Appendix and SUPPLEMENTAL APPENDIX A BILL ESTABLISHING A PROVISION
FOR TEACHERS OF THE CHRISTIAN RELIGION Which was defeated, partly as a
result of Madison M&R and which allowed Madison to get jefferson's Statute
for Religious Freedom passed into law in Virginia.
*********************************************
The Dissenting opinion added these footnotes:
1. "A Bill for Establishing Religious Freedom," enacted by the General
Assembly of Virginia, January 19, 1786. See 1 Randall, The Life of Thomas
Jefferson (1858) 219-220; XII Hening's Statutes of Virginia (1823) 84.
2. Schneider v. State, 308 U.S. 147; Cantwell v. Connecticut, 310 U.S. 296
; Murdock v. Pennsylvania, 319 U.S. 105; Prince v. Massachusetts, 321 U.S.
158; Thomas v. Collins, 323 U.S. 516, 530.
8. IX Writings of James Madison (ed. by Hunt, 1910) 288; Padover, Jefferson
(1942) 74. Madison's characterization related to Jefferson's entire
revision of the Virginia Code, of which the Bill for Establishing Religious
Freedom was part. See note 15.
9. See Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S.
333; Mormon Church v. United States, 136 U.S. 1; Jacobson v. Massachusetts,
197 U.S. 11; Prince v. Massachusetts, 321 U.S. 158; also Cleveland v.
United States, 329 U.S. 14.
Possibly the first official declaration of the "clear and present danger"
doctrine was Jefferson's declaration in the Virginia Statute for
Establishing Religious Freedom:
That it is time enough for the rightful purposes of civil government for
its officers to interfere when principles break out into overt acts against
peace and good order.
1 Randall, The Life of Thomas Jefferson (1858) 220; Padover, Jefferson
(1942) 81. For Madison's view to the same effect, see note 28 infra.
10. Murdock v. Pennsylvania, 319 U.S. 105, 109; Martin v. Struthers, 319
U.S. 141; Jamison v. Texas, 318 U.S. 413; Marsh v. Alabama, 326 U.S. 501 ;
Tucker v. Texas, 326 U.S. 517.
11. Conflicts in other states, and earlier in the colonies, contributed
much to generation of the Amendment, but none so directly as that in
Virginia or with such formative influence on the Amendment's content and
wording. See Cobb, Rise of Religious Liberty in America (1902);
Sweet, The Story of Religion in America (1939). The Charter of Rhode Island
of 1663, II Poore, Constitutions (1878) 1595, was the first colonial
charter to provide for religious freedom.
The climactic period of the Virginia struggle covers the decade 1776-1786,
from adoption of the Declaration of Rights to enactment of the Statute for
Religious Freedom. For short accounts, see Padover, Jefferson (1942) c. V;
Brant, James Madison, The Virginia Revolutionist (1941) cc. XII, XV; James,
The Struggle for Religious Liberty in Virginia (1900) cc. X, XI; Eckenrode,
Separation of Church and State in Virginia (1910). These works and Randall,
see note 1, will be cited in this opinion by the names of their authors.
Citations to "Jefferson" refer to The Works of Thomas Jefferson (ed. by
Ford, 1904-1905); to "Madison," to The Writings of James Madison (ed. by
Hunt, 1901-1910).
12. Brant, cc. XII, XV; James, cc. X, XI; Eckenrode.
13. See Brant, c. XII, particularly at 243. Cf. Madison's Remonstrance,
Appendix to this opinion. Jefferson, of course, held the same view. See
note 15.
"Madison looked upon . . . religious freedom, to judge from the
concentrated attention he gave it, as the fundamental freedom." Brant, 243,
and see Remonstrance, Par. 1, 4, 15, Appendix.
14. See Brant, 245-246. Madison quoted liberally from the Declaration in
his Remonstrance, and the use made of the quotations indicates that he
considered the Declaration to have outlawed the prevailing establishment in
principle, if not technically.
15. Jefferson was chairman of the revising committee and chief draftsman.
Co-revisers were Wythe, Pendleton, Mason and Lee. The first enacted portion
of the revision, which became known as Jefferson's Code, was the statute
barring entailments. Primogeniture soon followed. Much longer the author
was to wait for enactment of the Bill for Religious Freedom, and not
until after his death was the corollary bill to be accepted in principle
which he considered most important of all, namely, to provide for common
education at public expense. See V Jefferson, 153. However, he linked this
with disestablishment as corollary prime parts in a system of basic
freedoms. I Jefferson, 78.
Jefferson, and Madison by his sponsorship, sought to give the Bill for
Establishing Religious Freedom as nearly constitutional status as they
could at the time. Acknowledging that one legislature could not "restrain
the acts of succeeding Assemblies . . . and that, therefore, to
declare this act irrevocable would be of no effect in law," the Bill's
concluding provision, as enacted, nevertheless asserted:
Yet we are free to declare, and do declare, that the rights hereby asserted
are of the natural rights of mankind, and that, if any act shall be
hereafter passed to repeal the present or to narrow its operation, such act
will be an infringement of natural right.
1 Randall, 220.
16. See I Jefferson, 70-71; XII Jefferson, 447; Padover, 80.
17. Madison regarded this action as desertion. See his letter to Monroe of
April 12, 175; II Madison, 129, 131-132; James, cc. X, XI. But see
Eckenrode, 91, suggesting it was surrender to the inevitable.
The bill provided:
That for every sum so paid, the Sheriff or Collector shall give a receipt,
expressing therein to what society of Christians the person from whom he
may receive the same shall direct the money to be paid. . . .
See also notes 1, 43 infra.
A copy of the Assessment Bill is to be found among the Washington
manuscripts in the Library of Congress. Papers of George Washington, Vol.
231. Because of its crucial role in the Virginia struggle and bearing upon
the First Amendment's meaning, the text of the Bill is set forth in the
Supplemental Appendix to this opinion.
18. Eckenrode, 99, 100.
19. Id., 100; II Madison, 113. The bill directed the sheriff to pay
all sums which . . . may not he appropriated by the person paying the same
.. . . into the public Treasury, to be disposed of under the direction of
the General Assembly, for the encouragement of seminaries of learning
within the Counties whence such sums shall arise, and to no other use or
purpose whatsoever.
Supplemental Appendix.
20. See generally Eckenrode, c. V; Brant, James, and other authorities
cited in note 11 above.
21. II Madison, 183; and the Appendix to this opinion. Eckenrode, 100 ff.
See also Fleet, Madison's "Detached Memoranda" (1946) III William & Mary Q.
(3rd Series) 534, 554-562.
22. The major causes assigned for its defeat include the elevation of
Patrick Henry to the governorship in November of 1784; the blunder of the
proponents in allowing the Bill for Incorporations to come to the floor and
incur defeat before the Assessment Bill was acted on; Madison's astute
leadership, taking advantage of every "break" to convert his initial
minority into a majority, including the deferment of action on the third
reading to the fall; the Remonstrance, bringing a flood of protesting
petitions, and the general poverty of the time. See Eckenrode, c. V, for an
excellent short, detailed account.
23. See James, Brant, op. cit. supra, note 11.
24. V Madison, 176. Cf. notes 33, 37.
25. V Madison, 132.
26. Brant, 250. The assurance made first to his constituents was
responsible for Madison's becoming a member of the Virginia Convention
which ratified the Constitution. See James, 154-158.
27. The amendment with respect to religious liberties read, as Madison
introduced it:
The civil rights of none shall be abridged on account of religious belief
or worship, nor shall any national religion be established, nor shall the
full and equal rights of conscience be in any manner, or on any pretext,
infringed.
1 Annals of Congress 434. In the process of debate, this was modified to
its present form. See especially 1 Annals of Congress 729-731, 765; also
note 34.
28. See text of the Remonstrance, Appendix; also notes 13, 15, 24, 25
supra, and text.
Madison's one exception concerning restraint was for "preserving public
order." This he declared in a private letter, IX Madison, 484, 487, written
after the First Amendment was adopted:
The tendency to a usurpation on one side or the other, or to a corrupting
coalition or alliance between them, will be best guarded agst. by an entire
abstinance of the Govt. from interference in any way whatever, beyond the
necessity of preserving public order & protecting each sect agst.
trespasses on its legal rights by others.
Cf. note 9.
29. The third ground of remonstrance, see the Appendix, bears repetition
for emphasis here:
Because it is proper to take alarm at the first experiment on our liberties
.. . . , [t]he freemen of America did not wait till usurped power had
strengthened itself by exercise, and entangled the question in precedents.
They saw all the consequences in the principle, and they avoided the
consequences by denying the principle. We revere this lesson too much soon
to forget it. Who does not see that . . . the same authority which can
force a citizen to contribute three pence only of his property for the
support of any one establishment may force him to conform to any
other establishment in all cases whatsoever?
(Emphasis added.) II Madison 183, 185-186.
30. Eckenrode, 105, in summary of the Remonstrance.
31. Because the bill implies either that the Civil Magistrate is a
competent Judge of Religious truth or that he may employ Religion as an
engine of Civil policy. The first is an arrogant pretention falsified by
the contradictory opinions of Rulers in all ages, and throughout the world;
the second an unhallowed perversion of the means of salvation.
Remonstrance, Appendix, Par. 5; II Madison 183, 187.
32. As is pointed out above, note 3, and in Part IV, infra, Cochran v.
Board of Education, 281 U.S. 370, was not such a case.
33. See text supra at notes 24, 25. Madison, of course, was but one of many
holding such views, but nevertheless agreeing to the common understanding
for adoption of a Bill of Rights in order to remove all doubt engendered by
the absence of explicit guaranties in the original Constitution.
By 1791, the great fight over establishments had ended, although some
vestiges remained then and later, even in Virginia. The glebes, for
example, were not sold there until 1802. Cf. Eckenrode, 147. Fixing an
exact date for "disestablishment" is almost impossible, since the
process was piecemeal. Although Madison failed in having the Virginia Bill
of Rights declare explicitly against establishment in 1776, cf. note 14 and
text supra, in 1777, the levy for support of the Anglican clergy was
suspended. It was never resumed. Eckenrode states:
This act, in effect, destroyed the establishment. Many dates have been
given for its end, but it really came on January 1, 1777, when the act
suspending the payment of tithes became effective. This was not seen at the
time. . . . But, in freeing almost half of the taxpayers from the burden of
the state religion, the state religion was at an end. Nobody could be
forced to support it, and an attempt to levy tithes upon Anglicans alone
would be to recruit the ranks of dissent.
P. 53. See also pp. 61, 64. The question of assessment however was revived
"with far more strength than ever, in the summer of 1784." Id. at 64. It
would seem more factual, therefore, to fix the time of disestablishment as
of December, 1785-January, 1786, when the issue in large was finally
settled.
34. At one point, the wording was proposed: "No religion shall be
established by law, nor shall the equal rights of conscience be infringed."
1 Annals of Congress 729. Cf. note 27. Representative Huntington of
Connecticut feared this might be construed to prevent judicial
enforcement of private pledges. He stated that he feared . . . that the
words might be taken in such latitude as to be extremely hurtful to the
cause of religion. He understood the amendment to mean what had been
expressed by the gentleman from Virginia, but others might find it
convenient to put another construction upon it. The ministers of their
congregations to the Eastward were maintained by the contributions of
those who belonged to their society; the expense of building meeting-houses
was contributed in the same manner. These things were regulated by by laws.
If an action was brought before a Federal Court on any of these cases, the
person who had neglected to perform his engagements could not be compelled
to do it, for a support of ministers or building of places of worship might
be construed into a religious establishment.
1 Annals of Congress 730.
To avoid any such possibility, Madison suggested inserting the word
"national" before "religion," thereby not only again disclaiming intent to
bring about the result Huntington
feared, but also showing unmistakably that "establishment" meant public
"support" of religion in the financial sense. 1 Annals of Congress 731. See
also IX Madison, 484-487.
35. The decision most closely touching the question, where it as squarely
raised, is Quick Bear v. Leupp, 210 U.S. 50. The Court distinguished
sharply between appropriations from public funds for the support of
religious education and appropriations from funds held in trust by the
Government essentially as trustee for private individuals, Indian wards, as
beneficial owners. The ruling was that the latter could be disbursed to
private, religious schools at the designation of those patrons for paying
the cost of their education. But it was stated also that such a use of
public moneys would violate both the First Amendment and the specific
statutory declaration involved, namely, that it is hereby declared to be
the settled policy of the Government to hereafter make no
appropriation whatever for education in any sectarian school.
210 U.S. at 79. Cf. Ponce v. Roman Catholic Apostolic Church, 210 U.S. 296,
322. And see Bradfield v. Roberts, 175 U.S. 291, an instance of highly
artificial grounding to support a decision sustaining an appropriation for
the care of indigent patients pursuant to a contract with a private
hospital. Cf. also the authorities cited in note 9.
36. See text at note 1.
37. " . . . but no religious Test shall ever be required as a Qualification
to any Office or public Trust under the United States." Const., Art. VI, §
3. See also the two forms prescribed for the President's Oath or
Affirmation. Const., Art. II, § 1. Cf. Ex parte Garland, 4 Wall. 333 ;
Cummings v. Missouri, 4 Wall. 277; United States v. Lovett, 328 U.S. 303 .
38. In the words of the Virginia statute, following the portion of the
preamble quoted at the beginning of this opinion:
.. . . even the forcing him to support this or that teacher of his own
religious persuasion is depriving him of the comfortable liberty of giving
his contributions to the particular pastor whose morals he would make his
pattern and whose powers he feels most persuasive to righteousness, and is
withdrawing from the ministry those temporary rewards which, ceeding
from an approbation of their personal conduct, are an additional incitement
to earnest and unremitting labours for the instruction of mankind. . . .
39. See note 38.
40. See Bower, Church and State in Education (1944) 58:
.. . . the fundamental division of the education of the whole self into the
secular and the religious could not be justified on the grounds of either a
sound educational philosophy or a modern functional concept of the relation
of religion to personal and social experience.
See also Vere, The Elementary School, in Essays on Catholic Education in
the United States (1942) 110-111; Gabel, Public Funds for Church and
Private Schools (1937) 737-739
41. It would seem a strange ruling that a "reasonable," that is, presumably
a small, license fee cannot be placed upon the exercise of the right of
religious instruction, yet that, under the correlative constitutional
guaranty against "an establishment," taxes may be levied and used to
aid and promote religious instruction, if only the amounts so used are
small. See notes 30-31 supra, and text.
Madison's objection to "three pence" contributions and his stress upon
"denying the principle" without waiting until "usurped power had . . .
entangled the question in precedents," note 29, were reinforced by his
further characterization of the Assessment Bill:
Distant as it may be, in its present form, from the Inquisition, it differs
from it only in degree. The one is the first step, the other the last, in
the career of intolerance.
Remonstrance, Par. 9; II Madison 183, 188.
42. If it is part of the state's function to supply to religious schools or
their patrons the smaller items of educational expense, because the
legislature may say they perform a public function, it is hard to see why
the larger ones also my not he paid. Indeed, it would seem even more proper
and necessary for the state to do this. For if one class of expenditures is
justified on the ground that it supports the general cause of education or
benefits the individual, or can he made to do so by legislative
declaration, so even more certainly would he the other. To sustain payment
for transportation to school, for textbooks, for other essential materials,
or perhaps for school lunches, and not for what makes all these things
effective for their intended end, would be to make a public function of the
smaller items and their cumulative effect, but to make wholly private in
character the larger things without which the smaller could have no meaning
or use.
43. Whereas the general diffusion of Christian knowledge hath a natural
tendency to correct the morals of men, restrain their vices, and preserve
the peace of society, which cannot be effected without a competent
provision for learned teachers, who may be thereby enabled to devote
their time and attention to the duty of instructing such citizens, as, from
their circumstances and want of education, cannot otherwise attain such
knowledge, and it is judged that such provision may be made by the
Legislature, without counteracting the liberal principle heretofore
adopted and intended to be preserved by abolishing all distinctions of
preeminence amongst the different societies of communities of Christians; .
.. . .
Supplemental Appendix; Foote, Sketches of Virginia (1850) 340.
44. Because the establishment proposed by the Bill is not requisite for
the support of the Christian Religion. To say that it is is a contradiction
to the Christian Religion itself, for every page of it disavows a
dependence on the powers of this world. . . . Because the establishment in
question is not necessary for the support of Civil Government. . . . What
influence, in fact, have ecclesiastical establishments had on Civil
Society? . . . [I]n no instance have they been seen the guardians of the
liberties of the people.
II Madison 183, 187, 188.
45. Because experience witnesseth that ecclesiastical establishments,
instead of maintaining the purity and efficacy of Religion, have had a
contrary operation.
II Madison 183, 187.
46. At least let warning be taken at the first fruits of the threatened
innovation. The very appearance of the Bill has transformed that "Christian
forbearance, love and charity" which, of late, mutually prevailed into
animosities and jealousies which may not soon be appeased.
II Madison 183, 189.
53. See also note 46 supra, and Remonstrance, Par. 3.
55. See text at notes 17-19 supra, and authorities cited; also Foote,
Sketches of Virginia (1850) c. XV. Madison's entire thesis, as reflected
throughout the Remonstrance and in his other writings, as well as in his
opposition to the final form of the Assessment Bill, see note 43, was
altogether incompatible with acceptance of general and "nondiscriminatory"
support. See Brant, c. XII.
56.
It is a matter not frequently recalled that President Grant opposed tax
exemption of religious property as leading to a violation of the principle
of separation of church and state. See President Grant's Seventh Annual
Message to Congress, December 7, 1875, in IX Messages and Papers of the
Presidents (1897) 4288-4289. Garfield, in a letter accepting the nomination
for the presidency, said:
.. . . it would be unjust to our people, and dangerous to our institutions,
to apply any portion of the revenues of the nation, or of the States, to
the support of sectarian schools. The separation of the Church and the
State in everything relating to taxation should be absolute.
II The Works of James Abram Garfield (ed. by Hinsdale, 1883) 783.
******************************************

:|Attempts to omit the
:|"free exercise thereof" part have fallen on deaf ears in the court. Nowhere
:|in the literature can there be found any restrictions on where the "free
:|exercise thereof" may take place.

Free exercise has never I repeat, has never been carte blanc. It wasn't in
1750 in any colony, it wasn't in 1787 in any state nor was it in 1789 or
1791 or 1800 or today
Ever think about the wrd prohibit?
Ever realize that one can limit, one can restrict while not actually
prohibiting something
I recommend you check out some of the original state constitutions, those
that mention free exercise and you will find limitatiosn on that. As long
as added to those clauses.

:|Eventually, all of these issues will wind
:|their way back to the original intent

ORIGINAL INTENT? (GRIN)
Here, let me educate you some on original intent:
Explain this:
With regards to words, here:
********************************************
SEPTEMBER 13, 1789 (Amendments)
Your letter of the 8th Ulto. has lain long unanswered because I have been
absorbed about the Amendments to the Constitution. They have at length
passed the Senate, with difficulty, after being much mutilated and
enfeebled---
Source: Richard Henry Lee to Francis Lightfoot Lee, 13 September 1789,
Morristown National Historical Park, New Jersey.
______________________________________________________
SEPTEMBER 15, 1789 (Amendments)
The Amendments too have been amended by the Senate, & many In our house,
Mr. Madison, in particular, thinks, that they have lost much of their
sedative Virtue by the alteration. A contest on this subject between the
two houses would be very disagreeable.
Source: Fisher Ames to Caleb Strong, 15 September 1789, Thompson Autograph
Collection, Hartford Seminary Foundation.
______________________________________________________
SEPTEMBER 27, 1789 (Amendments)
My third letter to you on the 14th. inst. will satisfy you how little is to
be expected from Congress that shall be any ways satisfactory on the
subject of Amendments.. . . The English language has been carefully culled
to find words feeble in their Nature or doubtful in their meaning!
Source: Richard Henry Lee to Patrick Henry, 27 September 1789,
Miscellaneous Manuscripts, DLC.
______________________________________________________
SEPTEMBER 29, 1789 (Amendments)
With respect to amendments matters have turned out exactly as I apprehended
from the extraordy doctrine of playing the after game: the lower house sent
up amendments which held out a safeguard to personal liberty in a great
many instances, but this disgusted the Senate, and though we made every
exertion to save them, they are so mutilated & gutted that in fact they are
good for nothing, & I believe as many others do, that they will do more
harm than benefit:
Source: William Grayson to Patrick Henry, 29 September 1789, Patrick Henry
Papers, DLC.
_______________________________________________________
OCTOBER 2, 1789 (Amendments)
You will find our Amendments to the Constitution calculated merely to
amuse, or rather to deceive.
Source: Thomas Tudor Tucker to St. George Tucker, 2 October 1789, Roberts
Autograph Collection, Haverford College, Haverford, Pennsylvania
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++
FINALLY:
4. Constitutions are written in very broad terms. There are, of course,
exceptions to this, particularly with respect to the constitutions of local
governments. In the main, however, a common characteristic of
constitutional provisions is their broad language. How would you interpret
the following section?
Congress shall make no laws respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or of the right of the people to assemble, and to petition
the Government for a redress of grievances.
How many words in this provision do you not understand? What is an
"establishment?" If the school board requires a "moment of silence" at the
beginning of each day, is the school board establishing a religion? What
does "abridging" mean? If a government official leaks secret documents to
the press, and the government tries to sue the press to prevent the
publication of the documents, has the "freedom" of the press been abridged?
If the people have a right to "assemble," could the government pass a law
prohibiting all gatherings of three or more people at any place within one
thousand yards of the White House gates? The questions arising from the
interpretation of constitutional law are endless; tens of thousands of
court opinions exist on questions such as these. The broader the language,
the more ambiguous it is, and therefore the greater the need for
interpretation.
***********************************************************************************
AND THIS:
http://groups.google.com/groups?hl=en&lr=&selm=smvmb09srmckoc260g3vh1...
[EXCERPT]
Joseph Story v. James Madison from the grave
It can be said that the majority court in Marsh as well as the modern ultra
conservatives, some moderate conservatives, religious right,
accommodationmists and non-preferentialist speak the Joseph Story position
while the dissenting opinions in Marsh as well as some moderates and
moderate conservatives, liberals and strict separationists of all walks
speak the Madison position.
________________
While all of the opinions in Marsh are deficient to some degree as
a matter of historical analysis, it is clear in a policy sense that the
differences between the majority and the dissenters is but a revival of
the old debate between the Storyites and the Madisonians. . . .
**********************************************************************************
[another had said]

:|We should not only look
:|at where Madison stood on the issue,

I sympathize with you. To look to Madison spells bad new for your position.

:|but also where the other framers also
:|stood.

Ok,. People can read what those other framers said just as soon as you find
something that the people actually involved with the framing of the
religious clauses of the BORs and provide it for us to consider.
HINT: You won't find anything because the only person to write on the
subject and actually take action on the subject that was actually there was
Madison.
**********************************************************************************
* Original Intent:
o Introduction: What intent, whose intent?
http://members.tripod.com/~candst/origntro.htm
o Original Intent? Part II Excerpts from correspondence of
members of the First Federal Congress -- January 2, 1789 to June 30, 1789
http://members.tripod.com/~candst/origp2.htm
o Original Intent? Part III Excerpts from correspondence of
members of the First Federal Congress -- July 5, 1789 to August 18, 1789
http://members.tripod.com/~candst/origp3.htm
o Original Intent? Part IV Excerpts from correspondence of
members of the First Federal Congress -- August 19, 1789 to October 2, 1789
http://members.tripod.com/~candst/origp4.htm

:|and settle themselves for another 200
:|years or so. They just need a little impetus from time to time.
:|
:|The Supreme Court, in giving validity to "tradition" in a recent ruling is a
:|very ominous sign for those that wish to tear down long held traditions.

Traditions
What traditions. 1400 + years prior to 1787? The framers of the unamended
constituion broke with those traditions whn they placed these words in that
document.
THE ACTUAL HONEST TO GOODNESS SEPARATION CLUSE OF THE US CONSTITUTION:
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:
====================================================================
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.
-------------------------------------------------------------------------
and
ARGUMENT ONE: The phrase "separation of church and state" is not found in
the Constitution
http://members.tripod.com/~candst/tnppage/arg1.htm
Representative Thomas Tucker on Church and State, September 1789
http://members.tripod.com/~candst/basic2a.htm
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; "
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
Madison's vetoes: Some of The First Official Meanings Assigned to The
Establishment Clause
http://members.tripod.com/~candst/madvetos.htm
************************************************************
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)
---------------------------------------------------
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. )
*********************************************************************
followed by
Some Thoughts on Religion and Law
http://members.tripod.com/~candst/bthot-lr.htm"
.

User: "Maverick"
Title: Re: How important are Newdow's lawsuits	27 Jan 2005 01:36:48 PM

<buckeye-ELO@nospam.net> wrote in message
news:ilkhv0549cbagvh4qbe0922nooudeunoec@4ax.com...

"Maverick" <justgopublic@nomail.com> wrote:

:|<buckeye-ELO@nospam.net> wrote in message
:|> "Congress (which now means any level of government) shall make no law
:|> RESPECTING (touching, helping, supporting touching upon, touching,
aiding,
:|> hindering, applying to, have to do with, etc) an ESTABLISHMENT
:|> (institution) of RELIGION (any religious sect, society, denomination,
:|> religion), . . . "
:|
:|
:|More times than not, the Supreme Court rules on the basis of the
definitions
:|prevelant at the time of the Constitutional convention and meanings put
:|forth in the Federalist Papers and related writings.