Thursday, October 28, 2010

Brass Oldies: Part III - Seperation of Church and State

Brass Oldies: Part III
By Thomas Sowell

Politics is not the only place where some pretty brassy statements have been made and repeated so often that some people have accepted these brassy statements as being as good as gold.

One of the brassiest of the brass oldies in the law is the notion that the Constitution creates a "wall of separation" between church and state. This false notion has been so widely accepted that people who tell the truth get laughed at and mocked.

A recent New York Times piece said that it was "a flub of the first order" when Christine O'Donnell, Republican candidate for senator in Delaware, asked a law school audience "Where in the Constitution is the separation of church and state?" According to the New York Times, ?The question draw gasps and laughter" from this audience of professors and law students who are elites-in-waiting.

The New York Times writer joined in the mocking response to Ms. O'Donnell's question, though admitting in passing that "in the strictest sense" the "actual words 'separation of church and state' do not appear in the text of the Constitution." Either the separation of church and state is there or it is not there. It is not a question of some "strictest" technicality.

The First Amendment to the Constitution of the United States begins, "Congress shall make no law respecting an establishment of religion." There is absolutely nothing in the Constitution about a "wall of separation" between church and state, either directly or indirectly.

That phrase was used by Thomas Jefferson, who was not even in the country when the Constitution was written. It was a phrase seized upon many years later, by people who wanted to restrict religious symbols and has been cited by judges who share that wish.

There was no mystery about what "an establishment of religion" meant when that phrase was put into the Constitution. It was not an open ended invitation to judges to decide what role religion should play in American society or in American government.

The Church of England was an "established church." That is, it was not only financed by the government, its members had privileges denied to members of other religions.

The people who wrote the Constitution of the United States had been British subjects most of their lives, and knew exactly what an "established church." meant. They wanted no such thing in the United States of America. End of story-- or so it should have been.

For more than a century, no one thought that the First Amendment meant that religious symbols were forbidden on government property. Prayers were offered in Congress and in the Supreme Court. Chaplains served in the military and presidents took their oath of office on the Bible.

But, in our own times, judges have latched onto Jefferson's phrase and run with it. It has been repeated so often in their decisions that it has become one of the brassiest of the brass oldies that get confused with golden oldies.

As fundamentally important as the First Amendment is, what is even more important is the question whether judges are to take it upon themselves to "interpret" the law to mean whatever they want it to mean, rather than what it plainly says.

This is part of a larger question, as to whether this country is to be a self-governing nation, controlled by "we the people," as the Constitution put it, or whether arrogant elites shall take it upon themselves to find ways to impose what they want on the rest of us, by circumventing the Constitution.

Congress is already doing that by passing laws before anyone has time to read them and the White House is likewise circumventing the Constitution by appointing "czars" who have as much power as Cabinet members, without having to go through the confirmation process prescribed for Cabinet members by the Constitution.

Judges circumvent the Constitution by reading their own meaning into its words, regardless of how plain and unequivocal the words there are.

The Constitution cannot protect us and our freedoms as a self-governing people unless we protect the Constitution. That means zero tolerance at election time for people who circumvent the letter and the spirit of the Constitution. Freedom is too precious to give it up in exchange for brassy words from arrogant elites.

To read part 2 of this article, click here.


Brett said...

I don't know how many people I've had arguments with about this - a lot, mostly co-workers and even family members. So many people think there isn't supposed to be anything to do with religion in our government - they are to be kept seperate. Wrong! Wrong! Wrong! I remind them of what our Constitution actually says and they still think they are right because they think what they are saying is implied. Um, No! It just means what Thomas says - they didn't want anymore state-run religions, period. End of Story. As a result we have freedom of religion in this country and we can belong to whatever religion we want. We can even have freedom from religion, but freedom from religion is not meant to be imposed on everyone. This is what the ACLU and many liberals in our government are trying to do with a lot of success - but like most things they are wrong yet again.

Doug Indeap said...

Sowell Celebrates Semantic Sophistry

Displaying a stunning lack of understanding of law, language, and logic, Sowell makes much of the absence of the words "separation of church and state" in the Constitution because, in his view, it is as simple as "[e]ither [it] is there or it is not there." Brassy. Oh, wait . . . that's his accusation of others.

The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they've discovered the smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

Note, too, that as President he vetoed two bills, neither of which would form a national church, on the ground that they were contrary to the establishment clause.

The First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you.

Brett said...

Doug, it's you that has a stunning lack of knowledge of law, language, and especially logic. Obviously you are an athiest, and fortunately your opinion is still in the minority. I'm afraid I'm going to have to agree with Thomas.

Have a nice day!