Patrick Vallely <patrick.vallely@gmail.com> wrote:
:|But then what does the Establishment Clause do? It doesn't make any
:|sense to say that it merely removes from Congress the power to address
:|religion, because for Congress to have had that power to begin with, it
:|must have been granted such power in the text of the Constitution.
It reinforced the separation of church and state that was embodied in the
unamended constitution:
EVIDENCE (supporting church state were separated with unamended
constitution)
Representative Thomas Tucker on Church and State
http://members.tripod.com/~candst/basic2a.htm
[When readign the above bear in mind that the Artilces (BORs) had not been
presented to the states yet. Thomas Tucker was pointing out that they had
no rights in religious matters since church (Religion) and state (govt)
were separated by the exisatign Constitution.]
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April 14, 1800
The Gazette
Philadelphia
Monday Evening, April 14.
The condition of Church and State in America is such as to fill every
considerate mind with the most unhappy sensations. In spite of that vanity
and fastidiousness which led the Federal Convention, in founding their
government, to preclude any connection, it will appear in the end, even by
our own deplorable example, that a strict and indissoluble alliance of
religion to government has been ordained in the nature of things. Though
formally sundered by Constitution and laws; together they decline and
together (it would seem) they are likely to perish.
Source of Information: The Gazette of the United States, April 14,
1800.Jan 1, 1800 TO Dec.31, 1800 MFILM N.S. 10953 AP2.05
January 1833
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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. ."
(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.
-------------------------------------------------------------------------
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"They divided power among the three branches of the Federal
Government, through Federal state separation of power, through Church state
separation of power, a division which is recognized in the Constitution
even before the First Amendment in the Religious Test Oath Clause."
Excerpt from The federalist Society For Law and Public Policy Studies.
Charitable Choice, Remarks of Professor Marci Hamilton
http://www.fed-soc.org/Publications/practicegroupnewsletters/PG%20Links/charchoicemh.htm
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Establishment and Free Exercise Clauses Only Reinforced Separation of
Church and State:
* No Power to Congress Over Religion. The Separation Clause, Article IV
Paragraph III
http://members.tripod.com/~candst/art4piii.htm
* No Power to Congress over Religion: The "Elastic Clause" and the 1st
Amendment
http://members.tripod.com/~candst/nopower.htm
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April 14, 1800
The Gazette
Philadelphia
Monday Evening, April 14.
The condition of Church and State in America is such as to fill every
considerate mind with the most unhappy sensations. In spite of that vanity
and fastidiousness which led the Federal Convention, in founding their
government, to preclude any connection, it will appear in the end, even by
our own deplorable example, that a strict and indissoluble alliance of
religion to government has been ordained in the nature of things. Though
formally sundered by Constitution and laws; together they decline and
together (it would seem) they are likely to perish.
Source of Information: The Gazette of the United States, April 14,
1800.Jan 1, 1800 TO Dec.31, 1800 MFILM N.S. 10953 AP2.05
January 1833
******************************************************************************
ADDTIONAL INFO (unamended constitution and religious clauses of BORs)
Some Thoughts on Religion and Law
http://members.tripod.com/~candst/bthot-lr.htm
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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.
*****************************************************************************
On September 23. Madison made the Conference Report to the House. It
provided that the House would accept all the Senate amendments, and
provided for three further changes. The first was a minor alteration in the
amendment on representation. The third gave the final form to the Sixth
Amendment and reincluded in it the right to a jury trial of the locality
(though not restricted to the vicinage) which the Senate had omitted. The
second change made by the Conference Committee was of great importance--to
replace the weakened Senate version of the religious freedom guarantee by
the simple yet strict prohibitions of what are now the Establishment and
Free Exercise Clauses of the First Amendment. Without a doubt, this final
version of the first guarantee of the First Amendment was written by
Madison; it repeats his earlier House version which the Senate had diluted.
As Irving Brant puts it, "Of all the versions of the religious guarantee,
this most directly covered the thing he was aiming at--absolute separation
of church and state and total exclusion of government aid to religion."
Madison's success in having the Conference Committee adopt his version of
the religious freedom guarantee marked a fitting culmination of his role in
the Bill of Rights debate.
On September 24, the House voted 37 to 14 to agree to the Conference
Report. On the same day, Ellsworth made the Conference Report to the
Senate. The next day, the Senate concurred in the amendments as voted by
the House and acquiesced in a House resolution requesting the President to
transmit copies of the amendments to the states. September 25 (the day on
which the congressional approval was completed) is celebrated as the
anniversary of the Bill of Rights. The form in which the amendments finally
passed Congress appears (infra p. 1164). Apart from the first two Articles
(which failed of state ratification), these amendments (renumbered to
reflect the non-ratification of the first two) now constitute the federal
Bill of Rights.
Source of Information: The Bill Of Rights: A Documentary History, Vol.
II, Bernard Schwartz, Chelsea House Publishers, in association with McGraw
Hill Book Company, N.Y. Toronto, London, Sydney (1971) pp 1159.
:|Therefore, the Establishment Clause must, as its framers understood it,
:|create personal rights, such as the right against compelled support of
:|the religion of another, a practice which both Jefferson and Madison
:|abhorred. If interpreted as merely a removal of power from the federal
:|government, the Establishment Clause serves no purpose, because the
:|absene of such a grant of power already precluded such power.
Differentiating the Free Exercise and Establishment Clauses
CARL, H. ESBECK
The purpose of the Establishment Clause is not to safeguard
individual religious rights That is the role of the Free Exercise Clause,
indeed its singular role. The purpose of the Establishment Clause, rather,
is as a structural restraint on governmental power. Because of its
structural character, the task of the Establishment Clause is to limit
government from legislating or otherwise acting on any matter "respecting
an establishment of religion."(1) The powers that fall within the scope of
the foregoing clause (denied to government, hence within the sole province
of religion) and the powers outside this clause (hence, authority vested in
civil government) await elaboration below.
RIGHTS AND RESTRAINTS
The United States Constitution consists of individual rights and
institutional structure. People (including organized groups of people) have
rights. Governments do not have rights.(2) Rather, governments have powers
and duties. The powers of the federal government are enumerated and
limited, an original understanding later made explicit in the Tenth
Amendment. Federal powers are delegated to one of three branches, shared by
specified branches, denied to all three, or shared with the several states.
These delegations and denials of power constitute the institutional
structure or architecture of the federal government.
The difference between rights and structure within the overall
Constitution is commonplace.(3) For government to avoid violating an
individual right is a matter of constitutional duty owed to each person
within its jurisdiction. This duty is personal, running in favor of each
rights holder. On the other hand, for government to avoid exceeding a
structural restraint is a matter of confining legislation and the actions
of its officials to the scope of its delegated powers. These restraints are
impersonal, running in favor of the entire body politic.(4) Although
individual rights can be waived because they are personal, institutional
structure cannot.(5) The difference between rights and structure manifests
itself in additional but often subtle ways that can prove definitive.(6)
A structural clause, to be sure, often has a laudable effect on
individual liberty by compelling various branches of the government
(legislative, executive, and judicial) to stay within their authority. (7)
Nevertheless, the immediate object of constitutional structure is the
management of power: a dividing, dispersing, and balancing of the various
prerogatives of sovereignty. "Separation of powers" and "federalism" are
mere shorthand for f:amiliar forms of constitutional structure running
horizontally and vertically, respectively, within tile three-branch federal
government and the multilayered system of national, state, and local
governments. Structural clauses are helpfully thought of as power
conferring and power limiting, so long as it is understood that many such
clauses serve both functions.(8)
A "NEGATIVE" ON THE GOVERNMENT'S POWER
The Bill of Rights did not confer new powers on Congress.(9) The
fears of the Anti-federalists, who were prominent in the First Congress.
drove them to just the opposite objective. to deny ("negative") power to
interfere with liberties that might otherwise be implied from the more
open-ended delegations in the original Constitution. (10) The Federalists
gave little resistance to this enterprise because their position all along
had been that the new central government had never been delegated such
powers.(11) Indeed, James Madison, a Federalist and principal drafter of
the Constitution proper, led the cause for a Bill of Rights. So Congress
settled on the exact text of the proposed articles of amendment in late
September 1789 with relative ease.(12) Twelve articles were submitted to
the states, but only ten were ratified.(13) The ratified amendments were
thought to change little, but they did calm the fears of citizens while
serving as a useful hedge against possible future encroachments. Moreover,
the Bill of Rights as a "negative" on congressional power was not altered
when the Fourteenth Amendment was ratified in 1868.(14) Nor was this
"negative" on power turned into a grant of new power by the Supreme Court's
incorporation of selected provisions of the Bill of Rights through the
Fourteenth Amendment's Due Process Clause.(15)
A STRUCTURALIST ESTABLISHMENT CLAUSE
In the hands of the U.S. Supreme Court the Establishment Clause has
not been regarded as a personal right, one that protects against coercion
of religiously informed conscience. Even in archetypal no establishment
eases such as those concerning religion in public schools, for example
Engel v. Vitale (16) and McCollum v. Board of Education. (17) the Court
applied the Establishment Clause not to relieve individual students of`
religious coercion or harm. but to keep two centers of'
authority--government and religion--in their proper relationship.(18) This
is why in popular discourse it is said that the Establishment Clause is
about "church-state relations" or the "separation of church and state." It
is in this structuralist role--when invoked to keep civil government in the
right relationship with religion--that the Establishment Clause broke with
older European patterns (19) and made its most unique and celebrated
contribution to the American constitutional settlement. (20)
The Establishment Clause can be a means of redress for individual
harms, but only when the injury is other than religious in nature, such as
economic harm or loss of' property,(21) constraints on academic inquiry by
teachers and students," or restraints on free-thinking atheists.(23) Even
in these situations, however, the no-establishment principle is not
transformed into an individual-rights clause with the assigned task of
protecting, respectively, property, academic freedom, and freedom from
religion. Rather, these injuries are remedied only consequentially to the
operation of the Establishment Clause: as it fulfills its structuralist
role.(24) In such a paradigm the no-establishment principle orders, even in
the absence of individual harm, the respective competencies of government
and religion. Legal historian Mark DeWolfe Howe concludes:
"The First Amendment . . . would impose a disability upon the national
government to adopt laws with respect to establishments whether or not
their consequence would be to infringe individual rights of conscience.
" To find this .. . purpose in the First Amendment involves, necessarily I
think, the admission that the amendment is something more than a charter of
individual liberties."(25)
From time to time religious claimants have sought to enlist the
Establishment Clause into serving as a rights-protecting clause, but the
Supreme Court has rarely followed that course. In Larson v. Valente, (26)
the Court did apply the no-establishment principle to entertain a claim
involving discrimination among religious groups and thus to redressed
allegations of religious harm." But this was highly unusual(28) and
probably wrongheaded, for Larson could just as easily--and more
sensibly-have been grounded in the Free Exercise Clause.(29) Unlike the
Establishment Clause, the Free Exercise Clause protects against personal
religious harm and thus safeguards individual religious rights.
(SOURCE OF INFORMATION: Differentiating the free Exercise and Establishment
Clauses, by Carl H. Esbeck. Journal of Church and State, Volume 42, Number
2, Spring 2000, pp 311-334.
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