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09 Nov 2003 07:58:03 AM |
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Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth |
PART #6
[REHNQUIST]
Thomas Cooley's eminence as a legal authority rivaled that of Story.
[REBUTTAL]
But, does Story who wrote his Commentaries on the Constitution in 1833 or
Thomas M. Cooley who wrote his The General Principles of Constitutional Law
in the United States of America in 1880 rival James Madison?
*********************************
"Your 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, 41 S,Ct. 506, 507, 65 L.Ed. 963 (1923) (Holmes, J.)
*********************************
Interesting enough, SIX men are responsible for the wording of the
Religious clauses of the BORs. wording. SIX men, gathered together in
unrecorded committee meetings. No notes were taken, since it was a joint
House/Senate committee, of any debates or any votes. From the House we
had Madison, Sherman, Vining, from the Senate we had Ellsworth, Carroll,
Paterson.
Madison headed up the House group and Ellsworth headed up the Senate group
The wording that the House had previously agreed upon but which had been
rejected by the Senate was:
"Congress shall make no law establishing religion or prohibiting the free
exercise thereof, nor shall the rights of Conscience be infringed."
The wording that the Senate had previously agreed upon but which had been
rejected by the House was:
"Congress shall make no law establishing articles of faith, or a mode of
worship, or prohibiting the free exercise of religion,"
The SIX men, in secret committee framed the following:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; "
As far as history records. only one of those six men ever wrote anything
with regards to what those first ten words meant or was intended to mean.
That man was James Madison. In one of his very earliest explanations he had
this to say with regards to its meaning:
Madison's vetoes: Some of The First Official Meanings Assigned to The
Establishment Clause
http://members.tripod.com/~candst/madvetos.htm
*******************************
The following states the opposing points of view between the strict
separationist, James Madison and the accommodanionst Joseph Story.
Two Views: James Madison's and Joseph Story's
http://members.tripod.com/~candst/joestor2.htm
*******************************
Further clarification of Madison's position.
James Madison on Separation of Church and State Direct references to
separation to be found in the writings of James Madison
http://members.tripod.com/~candst/tnppage/qmadison.htm
"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)
********************************
"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)
*******************************
"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.
********************************
"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)
*****************************
"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. )
********************************
Excerpts from James Madison's Autobiography
http://candst.tripod.com/madauto.html
*********************************
In Virginia, on the other hand where the Anglican establishment bad been
less generous to dissenters than the Congregationalists of New England, it
was rather the radical separationist view which triumphed under the
leadership of Madison and Jefferson. And this Virginia struggle was the
immediate background of the drafting of the First Amendment.
(SOURCE OF INFORMATION: John Witherspoon on Church and State, by James
Hastings Nichols. JOURNAL OF PRESBYTERIAN HISTORY, 42, (1964) pp 171-73)
********************************
It is interesting that Rehnquist and or his clerk doesn't mention any of
the above.
[REHNQUIST]
Cooley stated in his treatise entitled Constitutional Limitations that aid
to a particular religious sect was prohibited by the United States
Constitution, but he went on to say:
"But while thus careful to establish, protect, and defend religious
freedom and equality, the American constitutions contain no provisions
which prohibit the authorities from such solemn recognition of a
superintending Providence in public transactions and exercises as the
general religious sentiment of mankind inspires, and as seems meet and
proper in finite and dependent beings. Whatever may be the shades of
religious belief, all must acknowledge
[REBUTTAL]
All must acknowledge? All? Really?
[REHNQUIST]
the fitness of recognizing in important human affairs the
superintending care and control of the Great Governor of the Universe, and
of acknowledging with thanksgiving his boundless favors, or bowing in
contrition when visited with the penalties of his broken laws. No principle
of constitutional law is violated when thanksgiving or fast days are
appointed; when chaplains are designated for the army and navy; when
legislative sessions are opened with prayer or the reading of the
Scriptures, or when religious teaching is encouraged by a general exemption
of the houses of religious worship from taxation for the support of State
government. Undoubtedly the spirit of the Constitution will require, in all
these cases, that care be taken to avoid discrimination [472 U.S. 38, 106]
in favor of or against any one religious denomination or sect; but the
power to do any of these things does not become unconstitutional simply
because of its susceptibility to abuse. . . ." Id., at *470-*471.
Cooley added that
"[t]his public recognition of religious worship, however, is not
based entirely, perhaps not even mainly, upon a sense of what is due to the
Supreme Being himself as the author of all good and of all law; but the
same reasons of state policy which induce the government to aid
institutions of charity and seminaries of instruction will incline it also
to foster religious worship and religious institutions, as conservators of
the public morals and valuable, if not indispensable, assistants to the
preservation of the public order." Id., at *470.
[REBUTTAL]
Unfortunately, Mr. Cooley wasn't aware of the following. It wasn‘t
rediscovered until the 1940s. However, Rehnquist was aware of it.
Excerpts from James Madison's Detached Memoranda (written after 1817)
http://members.tripod.com/~candst/detach.htm
Background on Madison's "Detached Memoranda"
"What is significant with respect to the date of its writing is that
Madison's "Detached Memoranda' interprets the Constitution and the Bill of
Rights and, unlike the Declaration of Independence, does not rest
exclusively on the laws of nature or nature's God, on Madison's own
"Memorial and Remonstrance, or on Jefferson's Virginia Statute for
Religious Freedom, although all are reported, confirmed, and defended. It
would seem, therefore that the "Detached Memoranda" would be the best
source for determining the intended meaning of the "religion" clauses of
the First Amendment (and the provision of article VI of the Constitution
forbidding religious test for public office) at least by the primary
draughtsman of both the Constitution and First Amendment.
The "Detached Memoranda" considers eight issues relating to religion
that have reached the Supreme Court in one way or another since the
Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation
of churches; (3) grants of public land to churches; (4) tax exemption of
religious entities; (5) the Deity in government documents; (6)
congressional chaplaincies; (7) military chaplaincies; and (8)
religiousproclamations by the government."
SOURCE OF INFORMATION: Pfeffer, Leo, "Madison's ‘Detached Memoranda': Then
and Now." The Virginia Statue for Religious Freedom, Its Evolution and
Consequences in American History, Edited by Merrill D. Peterson and Robert
C. Vaughan, Cambridge University Press (1988) pp 286, 87.
******************************
Mr. Cooley never sat on the U S Supreme Court. He was a scholar and
deserves all the respect that a scholar should receive. At the time of his
writings on the Constitution, there had been few, if any, Establishment
Clause cases brought before the USSC.
Even scholars frequently use previous treatments that have been given
constitutional clauses, principles and concepts by the courts to help them
come to understand and form opinions and conclusions.
As far as I know, no courts used Cooley's opinions in reaching their
decisions with regards to the religious clauses of the BORs
One thing the modern day conservatives will not like about Cooley is he
stated that he felt the wording of the 14th Amendment was such that it
could allow it to be applied against the states in matters of religion.
*******************************
1898
THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES
SECTION L-- Religious Liberty
The Constitution -- The Constitution as originally adopted declared
that "no religious test shall ever be required as a qualification to any
office or public trust under tile United States." By amendment it was
further provided that "Congress shall make no law respecting an
Establishment of religion, or prohibiting the free exercise thereof," Both
these provisions, it; will be seen are limitations upon the powers of
Congress only. Neither' the original Constitution nor any of the early
amendments undertook to protect the religions. liberty of the people of
the States against the action of their respective state governments. ***The
fourteenth- amendment is perhaps; broad enough to give some securities if
they should be needful.***(emphasis added)
[SNIP]
(SOURCE OF INFORMATION: THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE
UNITED STATES OF AMERICA, By Thomas M. Cooley, LL.D., Third Edition
By Andrew C. McLaughlin, A.M., L.L B. [Professor of American History,
University of Michigan] Little, Brown, and Company 1898, pp 224-227)
*******************************
[REHNQUIST]
It would seem from this evidence that the Establishment Clause of the First
Amendment had acquired a well-accepted meaning:
[REBUTTAL]
Really? How about this:
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) Some had done so from their earliest foundations; some
arrived at that stance after the American Revolution. The Maryland
constitution permitted a general assessment to support religion, but
Marylanders firmly rejected a proposal to enact one. Of the ratifying
states, only Vermont and New Hampshire adhered to the view that states
could or should provide for tax-supported religion. On a whole range of
other applications, however, Americans inherited traditions of government
interference in religious matters.
(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)
*******************************
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 established church.
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)
***********************************
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