United Liberty
The Separation of Church and State
Mon, 06/28/2010 - 1:12pm | posted by Tom Knighton
It’s entirely possible that there’s no bone of contention between many conservatives and most libertarians as the idea of separation of church and state. Libertarians argue that the First Amendment prevents any display of religious preference, while conservatives argue that the phrase “separation of church and state” appears nowhere in the Constitution.
In truth, they’re both right.
The conservative argument, that separation of church and state as a phrase appears nowhere in the Constitution is dead right. However, the meaning of that is overstated. You see, there are a lot of things that are part of American life that aren’t in the Constitution. According to the text itself, there is no reasonable right to privacy, or a lot of other thing. That doesn’t mean they don’t exist though.
Many opponents of “separation of church and state” point out that the phrase itself comes not from the Constitution but from a letter Thomas Jefferson wrote. The text:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.
[Emphasis added]
It’s pretty clear that in using that famous phrase, Jefferson is talking about the effect of the First Amendment. Where things get dicey is in the application of that Amendment. However, Jefferson was right to express it as such, since the effect he described is dead on.
Let’s imagine, for a minute, a world where Christianity has been replaced as the faith of the majority. Let’s use Islam, a faith that scares the hell out of a lot of us for our new dominant faith. However, let’s also imagine a Court system dedicated to the Constitution as written. Now, let’s imagine that these Islamic folks elect Islamic representatives and senators to Congress who want to shape this nation into an Islamic one.
The first Islamic congress seeks to remove a woman’s right to vote. As it is clearly in the Constitution, and therefore difficult to circumvent, they have to be subtle about it. They set requirements as onerous as possible, making it so few women can vote. Laws begin to be passed that outlaw homosexuality (not exactly abhorrent to some conservatives). They begin to outlaw all things abhorrent to Allah.
But they hit a snag.
A handful of Christians, as well as people from other faiths, oppose the new law. The issue goes to the courts. Judges look at rules, as they appear before them, and strip the Sharia laws from the US Legal System. Their justification? The First Amendment, that “separation of church and state” that so many conservatives despise, is used to thwart the attempted takeover of the United States.
Now, I’ll be the first to agree that perhaps it is taken a bit to far. Students praying at school during free time shouldn’t be stopped unless their actions are truly a disruption. Gathering around a flagpole before classes start don’t qualify. I don’t have a problem with a moment of silent reflection as a compromise between no prayer and prayer in school.
However, it’s important to understand that there is a reason that the Establishment Clause was put into place. While it’s a bother for many Christians, it’s also a protection for Christians. It’s what keeps the government from, at some point in the future, destroying their right to practice their faith.
That wall, that many Christians prefer not to acknowledge, is a wall built partially for their protection. Could it have been unknowingly? Could the Founding Fathers have built it without thinking that Christians would need protection? Absolutely. Does it matter though? All Americans are protected equally by it, as is only right.
Those that wish to legislate against sin should bear in mind that sin isn’t universal. For many, eating pork is a sin. For others, barbeque is a way of life. For some, it’s a religious requirement for children to be circumsized. For others, it’s a parent’s choice alone. In each case though, there are some who may want to force their own definition of sin into our own legal system and force us all to adhere to their religious laws. That wall some argue doesn’t really exist is the one Constitutional protection that keeps them from ever getting their way.
Some wish the wall was ignored. I say be careful what you wish for…you just may get it.
Any time I’ve seen this line of reasoning brought up to Christian conservatives they wave it away claiming it can’t happen because Christianity is inherently better than Islam.
I need a better comparison to Islam, and a clear distinction between Christian Extremists and Muslim Extremists. I haven’t yet found a comparison that I think fairly represents both in their comparison.
Christian terrorism is people blowing up abortion clinics, which is wrong. (I won’t say invading Iraq/Afghanistan is Christian terrorism, though you could argue it, let’s exclude that for now.)
Islamic terrorism is suicide bombers and Sharia Law.
(be sure to note one sign: “Freedom can go to hell”)
How do we defend our rights from both and protect the individual within the rule of law? Sharia law will come to the United States, but not for some time, there aren’t enough Muslims here yet.
Look at how Muslims in Sweden requested separate laws for themselves:
http://www.thelocal.se/3674/20060428/
“In this free nation we do not choose to be ruled, we elect to be governed.”
— Barry Goldwater
Christianity and Islam manifest in very, very similar social doctrines. The reason why Christians don’t enforce the sort of psychotic laws here that Muslims do it in Islamic countries is because of a secular, constitutional wall against it that has bred a culture of private religious belief.
And for the sake of fairness, both the anti-government terrorists of the McVeigh ilk and anti-abortion Christian terrorists do not compare in scale to the sort of Islamic terrorists that are rampant throughout the world. Before we say that it’s simply our presence there that inflames it, it’s worth noting that the majority killed by Islamic fascists are Muslims.
“Philosophy, despite the best obfuscatory intentions of philosophers, occasionally seeps out of the ivory towers and informs our lives.”
“Now, I’ll be the first to agree that perhaps it is taken a bit to far. Students praying at school during free time shouldn’t be stopped unless their actions are truly a disruption. ”
They aren’t. Even the teachers and administration are allowed to pray during their free time. What is prohibited is teachers and/or administration leading or promoting prayers for students. Any other interpretation is just a red herring.
And yet, when groups of students decide to pray around the flagpole, administrators in many places break it up. Individual teachers have been admonished for reading the Bible during allotted reading time even though they’ve made no mention of what book their actually reading. This has happened. Often, the administrators in question have been reprimanded, but it has happened when it shouldn’t have.
You’re wrong. The 4th amendment provides a right to privacy.
Jefferson wrote this letter to the Danbury Baptist Association as a redress of their grievances over the state church in Connecticut at the time. Yes there were state churches. Jefferson knew that to get involved in state matters, particularly state religions would be to overstep the boundaries of his and the federal government’s authority.
State governments aren’t Congress and the 1st amendment is very clear as to its meaning.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
So libertarians and conservatives are not both right if in fact libertarians think praying aloud is establishing a law.
To think otherwise is tantamount to what judicial activists do which is legislate from the bench.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” - Fourth amendment
Now, please explain exactly where in this there is an explicit right to privacy. There isn’t. However, the amendment protects privacy without enumerating the right.
With regard to the First Amendment, you’re correct in it’s wording. However, the 14th Amendment says in part:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”
In essence, it extended the rights enumerated in the Constitution to all levels of government.
As for the “judicial activism” comment, that’s a subject for a post all on it’s own.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That’s about as explicit as you can get. The word privacy isn’t mentioned but being secure in your person, house, papers, and effects is just as effective.
You’re making the same argument as judicial activists in that the 14th amendment nullified the 10th amendment. The “Incorporation Doctrine” is a government trump card as is the “Commerce Clause” and The 14th amendment has been used in all kinds of usurpation and is used as the abortion excuse. Do you agree?
The “privileges and immunities” clause of the 14th amendment refers to Article IV, section II which states, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
Article IV could not refer to the protections of the Bill Of Rights since it was:
a) written well before the Bill Of Rights was drafted
b) the article’s purpose was to accord certain privileges to citizens of a sister state (which was not the intention of The Bill Of Rights, and was designed to protect certain rights against the federal government)
c) throughout their debates, the First Congress showed no inclination to relate the Bill Of Rights to the “privileges and immunities” language of Article IV
d) early court decisions such as Corfield v. Coryell (1832) made reference to the “privileges and immunities” which the language of Article IV referred
Throughout the 19th century this was the view of the federal courts and the ruling by Chief Justice John Marshall in Barron v. Baltimore shows it in it’s clarity. Barron argued his 5th amendment right protected him against the city of Baltimore from unjustly silting up his private harbor by a public works project undertaken by the city of Baltimore. Justice Marshall stated “Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection for the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”
First, you repeat exactly what I did in regard to the Fourth Amendment. It doesn’t explicitly enumerate a “right to privacy”, though the effect is essentially the same. You don’t seem to disagree with this fact since you simply repeated what I had said.
Now, as for your argument that the First Amendment only holds the Congress in check and not the rights of individuals in the several states, let me ask you this: Do the states have the right to squash free speech? Freedom of the press?
Despite your protestation of “activist judges”, the fact remains that the courts have determined incorporation of these rights apply to all strata of government. While I was hoping to avoid this, it’s worth noting that the cries of “judicial activism” is routinely trotted out as a rallying cry when the decision reached isn’t what one would like.
As for “Privileges and Immunities”, the court has routinely sidestepped the issue so as to not overturn the Slaughterhouse ruling, instead incorporating under the due process clause. Are you arguing that due process is the result of judicial activism?
The Fourteenth Amendment was put in place as a protection against laws that effectively discriminate, which any law establishing a state religion would do. While you may not like the way it’s turned out, it is what it is.
The fact still remains the Constitution provides for the right to privacy as I clearly demonstrated. Getting off on a semantic tangent doesn’t disprove that. I don’t have to have the specific language of “right to privacy”. All I need is for the Federal Government to follow the 4th amendment.
Praying aloud does not create law period. I can’t help it if you don’t like the specific language. It appears as though you think it better to take liberties with the language.
“Judicial activism” is trotted out when judges clearly take liberties with the language of the Constitution which is what started to happen in the latter 19th century and has been a judicial staple until today.
And we can quit the dancing around when you show me that praying aloud creates a law.
And you didn’t refute a thing I said with regard to privacy. Can’t you get that? I never said the right doesn’t exist, only that the phrase doesn’t appear within the Constitution just as “separation of church and state” doesn’t.
Frankly, I don’t see where you get the whole “praying aloud does not create law.” Where did I ever say it did? In fact, look at the post for Pete’s sake. I CLEARLY said that there are times when people go overboard with regard to separation of church and state.
We can quit dancing around whenever. You argue against whatever it is you want to, and I’ll keep defending what I actually wrote. Maybe someday, they’ll be the same thing.
You said, “According to the text itself, there is no reasonable right to privacy, or a lot of other thing.”
In the 1st amendment text there is no “reasonable” right to privacy but in the 4th amendment text there is. The context of your statement is what I refute.
A “reasonable” person would understand although the language never says “right to privacy” it does in fact guarantee that protection.
You said, “Students praying at school during free time shouldn’t be stopped unless their actions are truly a disruption.”
I guess this all depends on what you would call a disruption. Lately in society, any prayer aloud at all during school events has been enough for the ACLU to sue. And because judicial activism has become such a thread of society now it is just taken for granted “separation of church and state” is part of the Constitution. The amendment has been turned on its head because all too frequently the part “or prohibiting the free exercise thereof” is completely ignored. That’s just one part of the bastardization of the amendment. Praying aloud even at school events such as football games doesn’t create law. Putting the 10 commandments on display in government buildings does not create a law. So the “separation of church and state” has been substituted for “Congress shall make no law respecting an establishment of religion”.
So you see it’s not that people trot out “judicial activism” as a rallying cry for events to their disliking, it’s used to describe a blatant attempt by judges to ignore the written language.
First, the text “right to privacy” does not appear, and that was the point. A point you are apparently incapable of understanding.
Next, what you interpret I meant as a true disruption isn’t a true disruption. I do not advocate for the ACLU or any other group actively seeking to prevent prayer on school grounds when it does not truly - and I mean truly - interfere with the work of educating children.
As for the Ten Commandments, let me ask you this: as display isn’t law, then would you be fine with a display advocating Sharia law?
And yes, judicial activism is trotted out by people when they don’t like the judgement. Your position on this only proves my point. Not that it matters. You’ll just keep parroting the same points, as if repeating them makes them more valid. I’m through.
“First, the text “right to privacy” does not appear, and that was the point. A point you are apparently incapable of understanding.”
First, you need to get some reading comprehension because I said the same thing twice. In fact I went out of my way to say it didn’t exist in the 1st amendment but the consequences of the 4th result in the same thing.
Second you still can’t skirt around your other statement, ““According to the text itself, there is no reasonable right to privacy, or a lot of other thing.”
There are rules in schools to prevent disruption of learning and I agree with those rules. But to forbid a child from praying aloud over his lunch or preventing school administrators from praying aloud before a football game is well, “judicial activism” and contradictory to the specific language of the 1st amendment.
I guess this would beg the question what text are you referring to? Only the text in the 1st amendment and excluding the 4th or are you referring the Constitution as a whole?
A “reasonable” person would read the entire Constitution and get the understanding the Federal Government is in fact supposed to protect my privacy rights according to the 4th amendment. The entire Constitution does not rest on the 1st amendment.
I understand where you’re going with the Sharia law matter. I’m not in favor of a theocracy but I understand this country was without a doubt founded upon Christian principles. It is our heritage no matter how you might want to run from it.
I’m in favor of states rights. If a state has the popular vote to display sharia then that’s the way it goes. If the people of the state don’t like it then they can vote for something else. That’s the way a republic is supposed to work. So really and truly, who is in favor of judicial activism? My views of government are based on states rights. Yours are viewed as a matter of convenience reflected by your favor of the “incorporation doctrine”.
First, you need to get some reading comprehension because I said the same thing twice. In fact I went out of my way to say it didn’t exist in the 1st amendment but the consequences of the 4th result in the same thing.
And yet you keep repeating the same thing as I had said originally. The obvious conclusion is that you were unable to grasp the concept that there was no point of contention here.
Second you still can’t skirt around your other statement, ““According to the text itself, there is no reasonable right to privacy, or a lot of other thing.”
I’ll take the hit there. Really bad wording on my part. I’ll own that one.
There are rules in schools to prevent disruption of learning and I agree with those rules. But to forbid a child from praying aloud over his lunch or preventing school administrators from praying aloud before a football game is well, “judicial activism” and contradictory to the specific language of the 1st amendment.
Yes and no. I agree with you on rules forbiding a child from praying aloud over his meal, unless the rule is actually no speaking during lunch and the rule is applied evenly. It’s idiotic, but the aloud prayer could be argued as a disruption.
As for administrators however, they are free to pray in their capacity as an individual. But when acting as an administrator, they are taking on the mantle of government. As such, their actions are deemed as being on behalf of the government. Right or wrong, that’s how it is.
I know…you disagree right?
guess this would beg the question what text are you referring to? Only the text in the 1st amendment and excluding the 4th or are you referring the Constitution as a whole?
A “reasonable” person would read the entire Constitution and get the understanding the Federal Government is in fact supposed to protect my privacy rights according to the 4th amendment. The entire Constitution does not rest on the 1st amendment.
Somehow, you seem to have gotten the idea that I don’t believe in the right to privacy. I never said that, only that the specific phrase doesn’t exist within the Constitution. The phrase doesn’t exist. Not the right. Big difference.
I understand where you’re going with the Sharia law matter. I’m not in favor of a theocracy but I understand this country was without a doubt founded upon Christian principles. It is our heritage no matter how you might want to run from it.
Christian principles doesn’t equal Christianity though, and the two are related but can operate independently. The ideals that make someone a good Christian, are also typically the traits that make someone a good person (though faith in God isn’t necessary for the latter), and there in lies the difference.
I’m in favor of states rights. If a state has the popular vote to display sharia then that’s the way it goes. If the people of the state don’t like it then they can vote for something else. That’s the way a republic is supposed to work. So really and truly, who is in favor of judicial activism? My views of government are based on states rights. Yours are viewed as a matter of convenience reflected by your favor of the “incorporation doctrine”.
You believe in state’s rights, but I believe in individual rights. My view of government is that it exists to protect the rights of the individual, and oppose any force that tries to take those away regardless of whether it is state, local, or federal government.
And there in lies the brunt of the disagreement. Since you won’t change my mind about that, I’m not going to try and change yours.
I agree with your statement completely:
“So libertarians and conservatives are not both right if in fact libertarians think praying aloud is establishing a law.”
It seems to me that alot of libertarians fear the “G” word. Why?
Our Declaration of Independence is BATHED in God. Without God we have no “natural law”, and certainly no “natural rights”.
Without God our rights flow from THE GOVERNMENT. This is exactly the view the Progressive’s want. They want people to think rights COME FROM GOVERNMENT.
The truth is in the founder’s actions and words. All of them were God fearing men. They prayed when they met in the halls of Congress before passing laws.
They prayed when departing. Even Jefferson and Franklin prayed daily.
So what do we take from Jefferson’s PRIVATE letters?
That the federal government cannot establish a _national_ religion. All of the founding father’s believed that religion was important, but also a PERSONAL choice. If you wanted to be Amish and pray openly, THEY WERE OKAY with that.
It seems to me we’ve already gotten so far away from the original intent of the first amendment that we have forgotten it’s true intention. To ALLOW the free expression of religion ANYWHERE.
Congress shall make NO LAW, that includes in the PUBLIC spaces. If a teacher wants to read the bible THAT IS THEIR RIGHT.
It’s your right to be PRIVATELY offended.
What happened to being open minded?
Does someone praying in the public square diminish your rights of non-religion?
If you invited said person into your house, and it made you uncomfortable, then you have the right to tell him. He’s on your property.
BUT PUBLIC property is a mind share, and we should be more tolerant of other beliefs.
IMO, we violated the first amendment several times. When we told the mormons they couldn’t join the union unless they gave up plural marriage.
What constitutional mandate granted the federal government the power to do that?
“As for administrators however, they are free to pray in their capacity as an individual. But when acting as an administrator, they are taking on the mantle of government. As such, their actions are deemed as being on behalf of the government. Right or wrong, that’s how it is.”
Taking on the mantel of government? Who says? A judicial activist? There is nothing in the Constitution that says an administrator takes on any mantel of the government. That may be they way it is but it’s baloney and that’s what’s wrong with this country. Even if they did take on the mantel which nothing in the law says they do, it DOESN’T CREATE LAW.
“You believe in state’s rights, but I believe in individual rights. My view of government is that it exists to protect the rights of the individual, and oppose any force that tries to take those away regardless of whether it is state, local, or federal government.”
Well since we’re going to whittle it down to the lowest common denominator, I believe in my God given unalienable rights and it is the federal government’s responsibility to protect those rights not infringe upon them. The incorporation doctrine does just that. It prohibits governing from the bottom up or republicanism as it may, which was the intent of the founding fathers.
“And there in lies the brunt of the disagreement. Since you won’t change my mind about that, I’m not going to try and change yours.”
I merely go by the Constitution. That’s what influences my political decisions. I read the text as it is written and don’t try to “infer” anything. I don’t believe the Constitution to be a living breathing document. The founding fathers gave us the necessary tools for US citizens to govern themselves with whole purpose of having a SMALL federal government. Powers were designed to reside mostly with the states but the federal government trump cards of judicial activism have turned that notion on its head.
I had a longer post, but figured “why bother?” So I deleted it all. You’re just going to repeat yourself about state’s rights and judicial activism, and frankly I’m getting tired of it. You won’t be content until everyone bows down and accepts your way as right, despite any argument to the contrary.
Guess what? I’m damn glad you’re not on the Supreme Court. I might change my mind about judicial activism then.
You had a longer post but realized that what you’ve promoted all along is judicial activism and your position is hypocritical.
You’d rather a judge “infer” the law instead of taking it verbatim as in the example of a public administrator somehow creating law because they are a “mantel” of government.
You are a supporter of substituting the explicit text of the 1st amendment with the activist garbage of “separation of church and state”.
I think it’s ironic you would write an article on a libertarian website but tout the virtues of legislating from the bench when it fits your purpose.
Neither the 1st nor the 14th in it’s explicit text forbid school children, nor public administrators, nor state representatives from praying aloud or displaying the 10 commandments or any religious symbol on public land.
It’s simple. IT DOESN’T CREATE LAW except maybe in some twisted defacto state of mind.
Do you agree? Yes or no? If you don’t then you are no different than a judicial activist.
Guess what? You could be on the Supreme Court. You would fit right in there with Elena Kagan.
You had a longer post but realized that what you’ve promoted all along is judicial activism and your position is hypocritical.
No you silly man, I had a longer post but realized that I would be wasting my time in discussing anything with someone who refuses to accept that people can disagree.
But I am going to address one thing you said:
I think it’s ironic you would write an article on a libertarian website but tout the virtues of legislating from the bench when it fits your purpose.
When “my purposes” in individual freedom, that you would so gladly destroy, then your bet your sweet butt I do.
Reply away to your hearts content and call me whatever you will. I said before I’m finished, but was trying to be a sport about it. Frankly, I have nothing left to argue. My point as been made, and you just choose to not accept it. That’s fine, because I think yours is ridiculous too. But I’m not getting worked up over it.
I’m not getting worked up because I have the explicit language on my side.
How does NOT “inferring” language take away your individual freedoms?
The individual freedoms that you speak of are an illusion if you depend on the “inferred” meanings of judicial activists.
We can get to the bottom of this though.
“Congress shall make no LAW respecting an establishment of religion”
“No State shall make or enforce any LAW which shall abridge the privileges or immunities of citizens of the United States”
What LAW has been established when a child prays aloud, a school administrator leads a prayer, or a religious symbol is placed on public property? Don’t dance around the question and talk about your virtue. Just answer the question.