| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
09 Nov 2003 07:55:38 AM |
| Object: |
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth |
PART #3
[REHNQUIST]
Representative Peter Sylvester of New York expressed his dislike for the
revised version, because it might have a tendency "to abolish religion
altogether." Representative John Vining suggested that the two parts of the
sentence be transposed; Representative Elbridge Gerry thought the language
should be changed to read "that no religious doctrine shall be established
by law." Id., at 729. Roger Sherman of Connecticut had the traditional
reason for opposing provisions of a Bill of Rights - that Congress had no
delegated authority to "make religious establishments" - and therefore he
opposed the adoption of the amendment. Representative Daniel Carroll of
Maryland thought it desirable to adopt the words proposed, saying "[h]e
would not contend with gentlemen about the phraseology, his object was to
secure the substance in such a manner as to satisfy the wishes of the
honest part of the community."
Madison then spoke, and said that "he apprehended the meaning of the words
to be, that Congress should not establish a religion, and enforce the legal
observation of it by law, nor compel men to worship God in any manner
contrary to their conscience." Id., at 730. He said that some of the state
conventions had thought that Congress might rely on [472 U.S. 38, 96] the
Necessary and Proper Clause to infringe the rights of conscience or to
establish a nationalreligion, and "to prevent these effects he presumed the
amendment was intended, and he thought it as well expressed as the nature
of the language would admit." Ibid.
Representative Benjamin Huntington then expressed the view that the
Committee's language 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." Huntington, from
Connecticut, was concerned that in the New England States, where
state-established religions were the rule rather than the exception, the
federal courts might not be able to entertain claims based upon an
obligation under the bylaws of a religious organization to contribute to
the support of a minister or the building of a place of worship. He hoped
that "the amendment would be made in such a way as to secure the rights of
conscience, and a free exercise of the rights of religion, but not to
patronise those who professed no religion at all." Id., at 730-731.
Madison responded that the insertion of the word "national" before the word
"religion" in the Committee version should satisfy the minds of those who
had criticized the language. "He believed that the people feared one sect
might obtain a pre-eminence, or two combine together, and establish a
religion to which they would compel others to conform. He thought that if
the word `national' was introduced, it would point the amendment directly
to the object it was intended to prevent." Id., at 731. Representative
Samuel Livermore expressed himself as dissatisfied with Madison's proposed
amendment, and thought it would be better if the Committee language were
altered to read that "Congress shall make no laws touching religion, or
infringing the rights of conscience." Ibid.
Representative Gerry spoke in opposition to the use of the word "national"
because of strong feelings expressed during [472 U.S. 38, 97] the
ratification debates that a federal government, not a national government,
was created by the Constitution. Madison thereby withdrew his proposal but
insisted that his reference to a "national religion" only referred to a
nationalestablishment and did not mean that the Government was a national
one. The question was taken on Representative Livermore's motion, which
passed by a vote of 31 for and 20 against. Ibid.
The following week, without any apparent debate, the House voted to alter
the language of the Religion Clauses to read "Congress shall make no law
establishing religion, or to prevent the free exercise thereof, or to
infringe the rights of conscience." Id., at 766. The floor debates in the
Senate were secret, and therefore not reported in the Annals. The Senate on
September 3, 1789, considered several different forms of the Religion
Amendment, and reported this language 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." C. Antieau,
A. Downey, & E. Roberts, Freedom From Federal Establishment 130 (1964).
The House refused to accept the Senate's changes in the Bill of Rights and
asked for a conference; the version which emerged from the conference was
that which ultimately found its way into the Constitution as a part of the
First Amendment.
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof."
The House and the Senate both accepted this language on successive days,
and the Amendment was proposed in this form.
On the basis of the record of these proceedings in the House of
Representatives, James Madison was undoubtedly the most important architect
among the Members of the [472 U.S. 38, 98] House of the Amendments which
became the Bill of Rights, but it was James Madison speaking as an advocate
of sensible legislative compromise, not as an advocate of incorporating the
Virginia Statute of Religious Liberty into the United States Constitution.
During the ratification debate in the Virginia Convention, Madison had
actually opposed the idea of any Bill of Rights. His sponsorship of the
Amendments in the House was obviously not that of a zealous believer in the
necessity of the Religion Clauses, but of one who felt it might do some
good, could do no harm, and would satisfy those who had ratified the
Constitution on the condition that Congress propose a Bill of Rights. 3 His
original language "nor shall any national religion be established"
obviously does not conform to the "wall of separation" between church and
State idea which latter-day commentators have ascribed to him. His
explanation on the floor of the meaning of his language - "that Congress
should not establish a religion, and enforce the legal observation of it by
law" is of the same ilk. When he replied to Huntington in the debate over
the proposal which came from the Select Committee of the House, he urged
that the language "no religion shall be established by law" should be
amended by inserting the word "national" in front of the word "religion."
It seems indisputable from these glimpses of Madison's thinking, as
reflected by actions on the floor of the House in 1789, that he saw the
Amendment as designed to prohibit the establishment of a national religion,
and perhaps to prevent discrimination among sects.
[REBUTTAL]
Seems indisputable? A bit wishy washy. Indisputable to who besides
Rehnquist?
See the article below (URL below) with regards to James Madison and his
thought and feelings about what constitutes a national religion. As usual,
Rehnquist is incorrect in his assessment or understanding or what Madison
meant or was referring to.
James Madison And "national religion"
http://members.tripod.com/~candst/madnational.htm
He did not see it as requiring neutrality on the part of government between
religion and irreligion.
********************************
[ William Lee Miller, who has made a special study of the role of religion
in the nation's founding, summarized the conclusion of that study in these
striking words:
Did "religious freedom" for Jefferson and Madison extend to atheists?
Yes. To agnostics, unbelievers, and pagans? Yes. To heretics and
blasphemers and the sacrilegious? Yes. To "the Jew and the Gentile, the
Christian and the Mohametan, the Hindoo, and infidel of every
denomination?" Yes. To Papists? Yes. To "irreligion"? Yes. To people who
want freedom from religion? Yes. To people who want freedom against
religion? Yes.(9)
(9) William Lee Miller, "The Ghost of freedoms Past," in The Washington
Post National Weekly Edition (13 October 1886), p. 23. ]
********************************
James Madison's Memorial and Remonstrance (June, 1785)
http://members.tripod.com/~candst/memorial.htm
Excerpts from James Madison's Detached Memoranda (written after 1817)
http://members.tripod.com/~candst/detach.htm
***********************************
[REHNQUIST]
Thus the Court's opinion in Everson - while correct in bracketing Madison
and Jefferson together in their exertions in their home State leading to
the enactment of the [472 U.S. 38, 99] Virginia Statute of Religious
Liberty - is totally incorrect in suggesting that Madison carried these
views onto the floor of the United States House of Representatives when he
proposed the language which would ultimately become the Bill of Rights.
[REBUTTAL]
Where is the proof that the court was totally incorrect.
[REHNQUIST]
The repetition of this error in the Court's opinion in Illinois ex rel.
McCollum v. Board of Education, 333 U.S. 203 (1948), and, inter alia, Engel
v. Vitale, 370 U.S. 421 (1962), does not make it any sounder historically.
Finally, in Abington School District v. Schempp, 374 U.S. 203, 214 (1963),
the Court made the truly remarkable statement that "the views of Madison
and Jefferson, preceded by Roger Williams, came to be incorporated not only
in the Federal Constitution but likewise in those of most of our States"
(footnote omitted). On the basis of what evidence we have, this statement
is demonstrably incorrect as a matter of history. 4 And its repetition in
varying forms in succeeding opinions of the Court can give it no more
authority than it possesses as a matter of fact; stare decisis may bind
courts as to matters of law, but it cannot bind them as to matters of
history.
None of the other Members of Congress who spoke during the August 15th
debate expressed the slightest indication that they thought the language
before them from the Select Committee, or the evil to be aimed at, would
require that the Government be absolutely neutral as between religion and
irreligion. The evil to be aimed at, so far as those who spoke were
concerned, appears to have been the establishment of a national church, and
perhaps the preference of one religious sect over another; but it was
definitely not concerned about whether the Government might aid all
religions evenhandedly. If one were to follow the advice of JUSTICE
BRENNAN, concurring in Abington School District v. Schempp, supra, at 236,
and construe the Amendment in the light of what particular [472 U.S. 38,
100] "practices . . . challenged threaten those consequences which the
Framers deeply feared; whether, in short, they tend to promote that type of
interdependence between religion and state which the First Amendment was
designed to prevent," one would have to say that the First Amendment
Establishment Clause should be read no more broadly than to prevent the
establishment of a national religion or the governmental preference of one
religious sect over another.
[REBUTTAL]
One has to wonder exactly how the following was preventing "the
establishment of a national
religion or the governmental preference of one religious sect over
another."
Madison's vetoes: Some of The First Official Meanings Assigned to The
Establishment Clause
http://members.tripod.com/~candst/madvetos.htm
Excerpts from James Madison's Detached Memoranda (written after 1817)
http://members.tripod.com/~candst/detach.htm
and how the following fits if it was just to prevent the establishment of a
national religion, etc.
Madison pointed out that one intent was to prevent the use of the
"necessary and proper" wording to make laws regarding religion, something
you have suggested be done. He also pointed out that people feared one or
more religions combining and then forcing others to go along with the
program so to speak. What is interesting about that is, it shows that any
interpretation of the word establishment that requires the government to be
involved is too narrow. Religions, religious sects, religious denominations
can create establishments of religion.
FROM THE HOUSE OF REPs
"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
FROM THE SENATE
[Stylistic change in 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
"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
FROM THE JOINT HOUSE-SENATE COMMITTEE
"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. However, that might be less obvious if it is taken
into account that Congress was made up of members from all the states (well
maybe not all N C and R I had not ratified the Constitution yet, and while
they did eventually do so and did eventually send people to Congress I
think that during the first session of the first congress neither of those
states had people in congress). There was a mixture of religious beliefs
which would have made it very difficult for any one sect, denomination etc
to gain enough support to allow for the passage of laws making it the
"official" religion. So that is just one factor to take into account.
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)
******************************************************
As has been shown, the historical record of those debates in Congress is
incomplete
.
|
|
|
Related Articles |
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth
Rehnguist,Wallace v. Jaffree: A Rebuttal -indepth
| From Progressive Europe: Only 1 In 8 Britons Know Christmas Story InDepth
Indepth Hein v. Freedom from Religion Foundation
Rehnquist's dissent, Jaffree v Wallace
Rehnquist's dissent, Wallace v Jaffree
A. Searle, D Wallace, Positiveathiesm.org
OT - The Ghost of Vice President Wallace Warns: "It Can Happen Here"
The "trial" rebuttal Pt.3
|
|
|
