wjyoung <wjyoung@nospam.net> wrote:
:|buckeye-ELO@nospam.net wrote:
:|> wjyoung <wjyoung@nospam.net> wrote:
:|>
:|>
:|>> :|Bob LeChevalier wrote: :|> wjyoung <wjyoung@nospam.net> wrote:
:|>> :|> :|>>Really the 14th Amendment, in its vague objectiveness, was
:|>> the :|>>abdication of the lawmaking Power to the Judiciary. If so,
:|>> could we :|>>count on the Judiciary to right that wrong? :|> :|>
:|>> :|> That claim ignores the last sentence of the 14th, which grants
:|>> to :|> Congress the power to enforce the 14th. :| :|Well, I'm tired
:|>> of searching, though I admit I did not try that hard. :|Maybe you
:|>> can show me a US statute that explicitly prohibits the States
:|>> :|from making law respecting the establishment of religion. That
:|>> is, can :|you show me how Congress has implemented the 14th by
:|>> explicitly :|prohibiting the States from making the kinds of laws
:|>> the 1st prohibits :|for Congress?
:|>
:|>
:|> The following is your answer.
:|
:|No, what follows must be the answer to your question.
Nope, it was your question.
:|I think you have
:|been at this so long that you have come to talk to yourself.
What I come to do is address the real audience, which isn't you. What I
come to do is correct the unsubstantiated inaccurate, incorrect opinion
people like you seem to want to post.
:|
:|My question was whether there is a US statute (made by Congress) that
:|prohibits the States from making law respecting the establishment of
:|religion, or if that prohibition exists entirely as common law such as
:|that built from the cases you've quoted.
Your question, while irrelevant and displaying your own lack of
understanding how this all works, was answered.
About the only thing I could add to this that might make it clearer are
the following:
Amend. To improve. To change for the better by
removing defects or faults. To change, correct,
revise. See Amendment.
Amendment. To change or modify for the better.
To alter by modification, deletion, or addition.
SOURCE: Black's Law Dictionary, Abridged Sixth Edition Centennial Edition
(1891-1991) West Publishing (1991) p 52
Church state separation was embodied in the unamended Constitution. Your
misunderstanding begins with not understanding that.
***************************************************************************************
Study Guide: Separation of Church and State - Indepth
http://members.tripod.com/~candst/studygd0.htm
[excerpt]
The Beginning
Question:Separation of church and state, the principle, where can it be
found, or can it be found in the Constitution?
Answer: 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."
Then, indirectly the entire document (unamended constitution) as a whole.
(you will find "tons" of evidence of this in the above URLs as well as
below:
************************************************************************************
o Congressional Debates: Religious Amendments, 1789
http://members.tripod.com/~candst/1stdebat.htm
o James Madison And National Religion
http://members.tripod.com/~candst/madnational.htm
* Establishment and Free Exercise Clauses only Reinforced Separation of
Church and State.
o No Power to Congress Over Religion. The Separation Clause,
Article IV Paragraph III
http://members.tripod.com/~candst/art4piii.htm
o No Power to Congress over Religion: The "Elastic Clause" and
the 1st Amendment
http://members.tripod.com/~candst/nopower.htm
* Representative Thomas Tucker on Church and State
http://members.tripod.com/~candst/basic2a.htm
**************************************************************************
So the original principle of church state separation was embodied in the
unamended constitution.
That then was amended (see definitions for amendment above)
It was amended to this and for the reasons given:
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.
[ To close a real or imagined potential loophole-- it didn't create church
state separaiton it only reinforced it ]
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.
*******************************************************************************************
Thus one has to read with understanding of the principle of separation that
was embodied in the unamended constitution and include that understanding
when the try to interpret the religious clauses of the 1st Amendment,
especially the "disestablishment" Clause.
This sums it up nicely:
Some Thoughts on Religion and Law, Written by Susan Batte, Esq.
http://members.tripod.com/~candst/bthot-lr.htm
[excerpt]
1. The Constitution did not provide any mechanism for the establishment
of religion or for the support of religion.
2. Religious tests were the primary mechanism for perpetuating an
established church within the political structure.
3. The Constitution specifically prohibits religious tests or oaths for
office.
THEREFORE, the Constitution created the concept of Separation of Church and
State by providing nothing in the constitution that supports the idea that
Government as Government is allowed to support any religion for any reason
and by specifically prohibiting the primary political mechanism for
supporting religion.
The 1st Amendment may only be interpreted, as being consistent with the
Constitution and the views expressed in the Constitution concerning
religion because:
1. The 1st Amendment was drafted after the Constitution was ratified and
was not designated as repealing any provision in the Constitution.
2. The 1st Amendment does not provide any mechanism for establishing
religion.
3. The 1st Amendment does provide the mechanism to allow an individual
as an individual and not as government to exercise the religion of his or
her choice.
THEREFORE, the 1st Amendment cannot be interpreted to mean that some
governmental entities may support religion in some ways (i.e., vouchers,
welfare programs, etc.).
Once the 1st Amendment prohibited Congress from establishing religion by
prohibiting it from making any law respecting an establishment of religion
- Congress was thereby precluded from passing any kind of appropriation
bill to fund any religious enterprise.
In order for the above to be true, the interpretation of "establishment"
would have to be broad, and in fact the broad interpretation of
"establishment" is supported. First, the O.E.D. (Oxford English Dictionary)
sets out a 1561 definition of establishment as "a means of establishing;
something that strengthens, supports or corroborates. Into the 1700s -
1800s, "establishment" could be defined as "the establishing by law (a
church, religion, form of worship.) As an example, the O.E.D. sets out the
following: 1886 Earl Selborne De Ch. Eng. I. iv. 77 All such relations of
the Church to the State as those which are summed up in the term
'Establishment'.
Second, a broad interpretation of"establishment" is consistent with the
indefinite article that proceeds it. "An"'establishment of religion' refers
to all or any religious establishment --- not to one or some
establishments. In the absence of definiteness, the inclusion of "of one
Christian sect over another" after "Congress shall make no law respecting
an establishment" would be necessary if, as Mr. Barton argues, the 1st
Amendment was all about stamping out competing rivalries between Christian
sects.
In addition, the operative word in the Establishment Clause is RESPECTING.
Respecting an establishment of religion. Any religious institution, be it a
20 member country church or a huge multimillion member international
religion, is an establishment of religion. The government is forbidden from
making any laws, positive or negative that would pertain to an
establishment of religion.
The narrow definition of establishment is that the 1st Amendment meant only
to prevent a "State Church" from being officially sanctioned by the
Government. (In this way, some people have tried to argue that supporting
religious schools doesn't establish anything.) However, such a narrow
reading of "Establishment" would need specific language added to the
Amendment to support it since a plain language reading of the Constitution
clearly shows no bias for (or against) Christianity as opposed to any other
religion or even irreligion. And neither does the 1st Amendment.
I would be remiss if I did not point out that the 10th Amendment is not
implicated in the matter of funding religious schools. The 14th amendment
applies the establishment clause against states
****************************************************************************************
UNAMENDED CONSTITUTION
No religious tests, no religious oaths, could affirm, didn't have to swear,
breaking the traditional unions between church and state thus separating
church and state.
DISESTABLISHMENT
All of the above was amended (see definition for amend/amendment) to make
it very clear to reinforce the above by adding "Congress (now or future)
shall make no law (using the "elastic clause" respecting an establishment
of religion,. . . "
Thus we have:
No religious tests to hold office, no religious oaths, can affirm instead
of swear; Congress (now or future) shall make no law (using the "elastic
clause" respecting an establishment of religion,. . .
(Don't forget Madison had proposed one article that would limit the general
government and one that would limit the states. Both passed the House but
the one limiting the states was defeated in the Senate. So consider that
as well as you dwell on this)
*******************************************************************************
Fourteenth Amendment, Selective Incorporation
http://candst.tripod.com/14thamend.htm
[excerpt]
Ironically the First Fourteenth Amendment
On June 8, 1789 James Madison delivered his long awaited list of proposed
amendments to the House of Representatives. After several debates scattered
throughout the summer the following is a partial list of the amendments
that was passed by the House of Representative and sent on to the Senate.
Note especially Article the Fourteenth. That article, passed by the
necessary number of votes called for selective incorporation against the
state some of the other Articles. This particular article was defeated in
the Senate after secret debate and a secret vote. It must be remember at
this particular point in time in American History, the House of
Representative represented "the people." It's members were elected directly
by the people. The Senate, on the other hand, represented the states. It's
members were selected by the state legislatures.
It is ironic that this particular Article was numbered fourteen and that it
called for selective incorporation of other amendments in the "Bill of
Rights package" against the states. It is interesting that it was passed by
"the people's" representatives, but defeated by the state's
representatives. It is very ironic that another Article also numbered
fourteen was passed some 79 or so years later and that it would, in time be
used to selectively incorporate other Articles of the "Bill of Rights
package" against the states.
August 17, 1789-- First Federal Congress (Amendments)
The committee then proceeded to the fifth proposition:
Article I, Section 10 between the first and second paragraph, insert 'No
state shall infringe the equal rights of conscience, nor the freedom of
speech or of the press, nor of the right of trial by jury in criminal
cases.'
Mr. TUCKER this is offered, I presume, as an amendment to the constitution
of the United States, but it goes only to the alteration of constitutions
of particular states. It will be much better, I apprehend, to leave the
state governments to themselves, and not to interfere with them more than
we already do; and that is thought by many to be rather too much. I
therefore move, Sir, to strike out these words.
Mr. MADISON conceives this to be the most valuable amendment in the whole
list. If there were any reason to restrain the government of the United
States from infringing upon these essential rights, it was equally
necessary that they should be secured against the state governments. He
thought that if they provided against one, it was as necessary to provide
against the other, and it was satisfied that it would be equally grateful
to the people.
Mr. LIVERMORE had no great objection to the sentiment, but he thought it
not well expressed. He wished to make it an affirmative proposition; 'the
equal rights of conscience, the freedom of speech or of the press, and the
right of trial by jury in criminal cases, shall not be infringed by any
state.'
This transposition being agreed to, and MR. TUCKER'S motion being rejected,
the clause was adopted. (In the final wording of the amendments that was
sent to the Senate the transposition had not taken place. No reason for
that mistake is recorded.)
Source of Information: The Debates and Proceedings in the Congress of the
United States (Annals of Congress), Joseph Gales. Gales and Seaton,
Washington, 1834, August 17, 1789, Vol I pp 749-756.
***************************************************************************************
Now at a later date there was an additional amendment, that being the 14th
Amendment.
When applied to the "Disestablishment" Clause it alters the amendment to
say:
I said it was modified, not revoked. The 1st reads, "Congress shall
make no law ...". The 14th reads "No State shall make ... any law ..."
The 14th modifies the 1st to effectively read, "Congress and the
States shall make no law ..."
SOURCE: My thanks to Josh Rosenbluth for the above easy to understand
explanation;
***********************************************************************************
Not about the only other thing that might help you, that is provided you
really want to try and understand all this is the following:
Your "question" was
"Maybe you can show me a US statute that explicitly prohibits the States
from making law respecting the establishment of religion. That
is, can you show me how Congress has implemented the 14th by
explicitly :|prohibiting the States from making the kinds of laws
the 1st prohibits or Congress? "
To clear up your confusion and misunderstanding I offer the following:
No statute is required. We have the Constitution which is the ultimate
"statute."
We also have the fact that all branches of government "make law."
See the following if you really want to explore it
http://groups.google.com/groups?q=g:thl3746425476d&dq=&hl=en&lr=&selm=n8ulq0hjvh2oqjtkq5ldpencc0bov4nd8b%404ax.com
http://makeashorterlink.com/?J2B5512F9
or the following more direct:
Judge made law, all branches of govt make law
http://groups.google.com/groups?q=g:thl3818571407d&dq=&hl=en&lr=&selm=cr14a0hfacojqnr6fkg49b0tj7i6la5g2c%404ax.com
http://makeashorterlink.com/?J4C5212F9
and finally
The following is your answer. It covers the question, historically, legally
from several directions.
You will, of course, disagree and reject the following, but that is to be
expected.
**********************************************************************************************
Establishment Clause
http://groups.google.com/groups?q=g:thl3111921277d&dq=&hl=en&lr=&selm=5b73r0hfffbaj4f59ptgimnms6hh1fk63e%404ax.com
http://makeashorterlink.com/?U2D5122F9
.
|
