"Brian Mason" <bma<rem>son@itassociates.com> wrote:
:|> >:|Where is it in the document itself?
:|>
:|> Nice default.
:|
:|Thanks.
:|> Where is religious freedom,
:|first amendment
Nope. You want words not principles.
Separation of church and state is a constitutional principle embodied in
the unamended constitution and further reinforced by the religious clauses
of the BORs.
Religious freedom is a constitutional principle but the actual words are
not there.
:|> separation of powers,
:|clearly specified powers for each ofthe three branches
Constitutional principle but the actual words are not there.
:|>Air Force,
:|Congress responsible for defense
The words to create and maintain an Air force is not there.
:|> fair trial,
:|due process clause
Once more the words are not there. there are principles that are there that
one can deduct gives such powers or that one can infer gives such powers
but the actual wording is not there.
You get the picture yet. You can't have it both ways
If you want exact words there are a number of things that are not
specifically stated in those 4440 words that make up the Constitution, so
therefore we have to do away with all of them. That would include some
things I would be willing to bet you would not want done away with.
If on the other hand, you have began to grasp the ida of constitutional and
or legal principles well you would have no problems understanding the
various levels of govt and their involvement in education and why.
Your answer is below:
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 pore 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.
Introduction to paralegalism, Perspectives, Problems, and Skills, 4th
edition, William Statsky, West Publishing Co. St. Paul, Minn (1992) p 601
----------------------------------------------------------------------------------
(2) We are talking about a legal principle, do you happen to have any idea
what a legal principle is?
A legal principle has all the characteristics of a rule of law (an
authoritative legal standard of general application requiring action or
forbearance used by courts and administrative tribunals as a norm in
deciding the legal significance of the particular facts presented in
individual cases), and, in addition, a principle: has a more fundamental
status in law then a rule, has a broader or more inclusive scope of reach
than a rule, may be used as a basis for creating rules and is sometimes
used by a judge to select which one of the two or more arguably applicable
rules should be applied in a particular case.
In out system of law, SOME fundamental principles are explicitly specified
in the Constitution of the United States, including:
The principle of due process
the principle of equal protection of the law
the principles of freedom of speech, press, assembly,
Other federal constitutional principles are derived from those which are
explicitly specified, etc
Other federal constitutional principles are derived from those which are
explicitly specified and then embodied in the case law of the U.S. Supreme
Court, including:
-- the principle that each person has a right of privacy, derived from the
first, fourth and other amendments
-- the principle that vague criminal statutes are a violation of due
process
Learning Legal Reasoning, Briefing, Analysis and Theory, Professor John
Delany, 9th Printing John Delany Publications, (August 1993) p 8-9
------------------------------------------------------------------------------------
Such things as Freedom of religion or religious freedom i. e. separation of
church and state, spearation of powers, checks and balances are examples of
legal principles that were embodied in the U S Constitution. when it was
framed.
*********************************************
Short General History of The Federal Government and Education
http://members.tripod.com/~candst/educ.htm
*****************************************
NORTHWEST ORDINANCE
#1
From:
Newsgroups:
misc.education,alt.religion.christian,alt.society.conservatism,alt.atheism
Subject: edu.govt.taxes, Northwest Ordinance
Date: Tue, 20 Mar 2001 14:44:26 -0500
http://groups.google.com/groups?selm=nocfbtcbrfo9aaecg0pdf6r4ie3a4df6ul%404ax.com&output=gplain
#2
http://groups.google.com/groups?selm=socfbtk6h334p28lm2aii0jt24tt3chta0%404ax.com&output=gplain
#3
http://groups.google.com/groups?selm=3vcfbtsljmeek2qcm383kke4j8vj7se94j%404ax.com&output=gplain
#4
http://groups.google.com/groups?selm=frhhbt42tqjjdo4sv20ei6urjij5lpis2s%404ax.com&output=gplain
#5
http://groups.google.com/groups?selm=7mhhbtc0l7hck7g66g745cnbsl368r96qr%404ax.com&output=gplain
#6
http://groups.google.com/groups?selm=5hhhbt0fujrmop7mh730ilddh8131dd1s6%404ax.com&output=gplain
#7
http://groups.google.com/groups?selm=9shhbto5pf9pcpbi6bu5v1243605nqiiab%404ax.com&output=gplain
#8
http://groups.google.com/groups?selm=2qhhbt4iguic35ar3oklais4aqb0c5q1hu%404ax.com&output=gplain
#9
http://groups.google.com/groups?selm=felhbt85trl40j1ih8u3pr8lgb0n3o926c%404ax.com&output=gplain
*****************************************
For those wishing to do independent study on their own, the following is a
good beginning:
------------------------------------------------------------------------------
The Land Ordinance itself:
Excerpt from the Land Ordinance of 1785:
------------------------------------------------------------------------------
Item #1
May 20, 1785
There shall be reserved for the United States out of every
township, the four lots, being numbered 8, 11, 28, 29, and out of every
fractional part of a township, so many lots of the same numbers as shall be
found thereon, for future sale. THERE SHALL BE RESERVED THE LOT
N 16, OF EVERY TOWNSHIP, FOR THE MAINTENANCE OF PUBLIC
SCHOOLS, WITHIN SAID TOWNSHIP (Emphasis mine); also one third part of all
gold, silver, lead and copper mines, to be sold, or otherwise disposed of
as Congress shall hereafter direct.
----------------------------------------------------------------------------------------
Person # 1
Slavery and Bondage in the "Empire of Liberty" Paul Finkelman Northwest
Ordinance, Essays on its formulation, provisions and Legacy, Edited by
Frederick D. Williams, Michigan State University Press. (1988) p 75
-------------------------------------------------------------------------------------
Persons #2
(Education for a Republic: Federal Influence on Public Schooling in the
Nations First Century, David Tyack and Thomas James.This Constitution Our
Enduring Legacy. American Political Science Association, American
Historical Association. Congressional Quarterly, Inc. (1986) p 148-155)
------------------------------------------------------------------------------------
Persons #3
D. Stickney and Lawrence R. Marcus, THE GREAT EDUCATION DEBATE: WASHINGTON
AND THE SCHOOLS, Springfield, ill. CC Thomas, 1984 page 6)
-------------------------------------------------------------------------------------------
Person #4
"Public Education in the United States, From Revolution
to Reform, by R. Freeman Butts, Holt, Rinehart and Winston, (1978)
------------------------------------------------------------------------------------------
Person #5
The American Tradition in Religion and Education, by R. Freeman Butts.
Greenwood Press Publishers (1974)
-------------------------------------------------------------------------------------------
Person #6
The Development of Public Universities in the Old Northwest, by Jurgen
Herbst, pp 97. Northwest Ordinance, Essays on its formulation, Provisions
and Legacy, edited by Fredick D. Williams Michigan State University press.
(1988)
---------------------------------------------------------------------------------------
Persons #7
Education for a Republic: Federal Influence on Public Schooling in the
Nations First Century, David Tyack and Thomas James.This Constitution Our
Enduring Legacy. American Political Science Association, American
Historical Association. Congressional Quarterly, Inc. (1986)
------------------------------------------------------------------------------------------
Persons #8 & #9
Paul Mort, Federal Support for Public Education_, 1936; he's quoting from a
article titled "Federal Financing of Education," by William Russell,
published in "School and Society," August 19, 1933):
-------------------------------------------------------------------------------------------
Person #10
Political Inquires to which is Added A Plan for the Establishment of
Schools Throughout the United States, Robert Coram, (1791). American
Political Writing During the Founding Era, 1760- 1805, Volume II, Charles
S. Hyneman, Donald S. Lutz, Liberty Press, Indianapolis, (1983) p. 784
-----------------------------------------------------------------------------------------
Person #11
American Presidents and Education, Maurice R. Berube,
---------------------------------------------------------------------------------------
Person #12
The Northwest Ordinance as a Constitutional Document, Denis P. Duffey.
Columbia Law Review, Vol 95, May 1995, No.4, p 938)
====================================================
SUPPORTING DOCUMENTATION:
-------- --------- ------------ -------
#1
See James A. Curry et al., Constitutional Government: The American
Experience 81 (1989); see also Carter, supra note 4,. at 22 (noting that
the pattern applied to the Northwest Territory also applied largely to the
Southwest Territory and to the territories of Mississippi. Orleans.
Louisiani-Missouri, Alabama, Arkansas, and Florida); Eblen. supra note 5,
at 241 ("[I)ts provisions were to lay the foundation for the government of
the thirty-one public Lands states and Hawaii."). For the Southwest
Ordinance and other legislative progeny of the Northwest Ordinance, see
Frederick E. Hosen. Unfolding Westward in Treaty and Law: Land Documents in
United States History from the Appalachians to the Pacific, 1785-1934, a 45
(Southwest Ordinance) 59-80 (Mississippi Territorial Act), 84-.89 (Missouri
Territorial Act), 188-97 (Oregon Territorial Act), 197-203 (Minnesota
Territorial Act) (1988).
-----------------------------------------------------------------------------
#2
REPORT ON MANUFACTURES, Henry Cabot Lodge, ed, THE WORKS OF ALEXANDER
HAMILTON, Vol 4, New York: GP Putnam & Sons, 1904, pp 151-52)
------------------------------------------------------------------------------------------
#3
Negotiating the Constitution, The Earliest Debates over Original Intent,
Joseph M. Lynch Cornell University Press (1999)
----------------------------------------------------------------------------
#4
Journals of the Continental Congress, Vol. 28, pp
291-296
-----------------------------------------------------------------------------
#5
The Writings of James Madison, Edited by Gaillard
Hunt, Volume II, 1783-178,7 G P Putnam/s Sons, New York London 1901, pp
143- 145)
--------------------------------------------------------------------------------
#6
The Debates and Proceedings in the Congress of the United States (Annals of
Congress) August 15, 1789, Vol. I, Joseph Gales, published by Gales and
Seaton, Washington, 1834
--------------------------------------------------------------------------------
#7
THE PHILOSOPHY OF THE AMERICAN CONSTITUTION, A
Reinterpretation of the Intentions of the Founding Fathers, by Paul
Eidelberg, 1986, University Press of America,
---------------------------------------------------------------------------
#8
PROCESSES OF CONSTITUTIONAL DECISION MAKING, Cases
and Materials, Second Edition, Paul & Sanford Levinson, Little, Brown and
Company, Boston-Toronto, 1983, pp 9-10.)
--------------------------------------------------------------------------------------
#9
James Madison, JOURNAL OF THE FEDERAL CONVENTION, Freeport NY Books
for Libraries Press 1970
-----------------------------------------------------------------------------------------
#10
Bicentennial Edition NOTES OF THE DEBATES IN THE FEDERAL CONVENTION OF
1787, Reported by James Madison, W.W. Norton & Company New York-London
1987, pp 27- 34
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