Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

This was written in response to a person on a website in Kokomo.

1) I did not use a debate tactic to muddy any waters. A reasonable inference as to people who claim originalism as a jurisprudential philosophy is those people can state, with precision sufficient to guide us, what the Framers of the Constitution intended. A first, and I would think necessary, step is to say who the Framers were. The Convention itself was muddied. Compromises were reached, especially as to slavery, only to get a majority vote on the final package. Delegates themselves, afterward, disagreed about various provisions. That is why, as I pointed out in my last post, Madison said "the debates and incidental decisions of the Convention can have no authoritative character."

2) Your "sky is blue" point is not accurate. As an example, look at the centralized government created by the Constitution. Remember, the Convention was authorized only to make corrections to the Articles of Confederation, not to scrap the Articles and write something new. So the Convention acted outside its charter. Washington, Hamilton, Madison, and others saw the need for a strong central government. They could not foresee the developments in international communications and international trade that would evolve over the next 230 years, but did see a vast continent before them and the need for a means of harnessing resources to make money. As I said in my last post, provisions in the Constitution were left vague for a reason. At least 35 of the delegates were lawyers or had legal training.

3) You wrote "Our Christian heritage must be encouraged by our political leaders!" If one were to travel back in time to 1787, to whom would we look for guidance on religion and the law? Remember, if you look only to the people who wrote, or were eligible to vote on adoption of, the Constitution, you eliminate women, African slaves, and the people who lived here when Europeans first arrived on the continent. Most, if not all, of the African slaves came from cultures that did not adopt Judeo-Christianity. Those whom we came to call Indians had various forms of worship. If one looks to original intent of the Founders, we must include all of those who were involved in the founding of the country. The Framers of the Constitution were the ones who sat down and framed a government—built it in Philadelphia in 1787.

4) In your post of August 5 you asked if there was a certain principle I would like to discuss. At the end of your last post you said "the federal government should make no law regarding (respecting) religion." Actually, the parenthesis is not needed. That is the word used in the First Amendment. So—let’s talk about school vouchers.

5) There should be no government funds expended toward religion. Your view—and I am sure you will correct me if I misinterpret you—is that funds can be advanced by a state. If the Framers’ perceived comfort with government support of religion controls us today, what happens if an Islamic group wants to fund a madrassa through vouchers here in Indiana? For this discussion, presume the group has filled out all the paperwork correctly and filed it on time. Do you think your tax dollars should support that group? I do not believe any of the justices on the Roberts Court—and remember, five were nominated by Reagan, Bush I or Bush II—would agree that a state’s law can discriminate against, or advance the interests of, a specific religion. Please tell me how "original intent" works on this principle.

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Comment by Mark Small on August 10, 2011 at 6:05am

Paul,

I agree we should look at the Indiana Cnstitution for greater protection. However, my point on the United States Constitution is that people have changed. Our socirety has changed. The views on religion of people over 200 years ago should not lock us in now. But if we are to look at the intent of the Founders, as opposed to the Framers, we need to consider many non-Judeo-Christian beliefs. That is a problem with originalism. Do we confine ourselves to all the people at the time, or only those few who either were at the Convention, at a state ratification convention, or able to vote for delegates? If we exclude African Slaves and indigenous peoples, in particular, we exclude many non-Judeo-Christian beliefs. 

Comment by Paul K. Ogden on August 9, 2011 at 10:49am

Mark, surely you don't think the orginal intent of those people behind the First Amendment's Establishment Clause was to prohibit any religion mixing in government as that Clause has come to be interpreted since Everson.   First, they used the word "establish," a clear reference to ESTABLISHING a national church like merry old England had. 

 

Second, the federal First Amendment didn't even apply to the states until Everson decision in the 1950s.  In fact the entire Bill of Rights didn't apply to states at all until the 14th Amendment. Several states had official state religions long after the First Amendment was adopted.

Third, the history is filled with religion intermixing with politics in that era.  They started off each day of the Constitutional Convention with a prayer.  The delegates quoted from scripture during debates.  The First Congress that passed the Bill of Rights and the state legislatures that ratified them started their days off with prayer. 

It is pretty clear to me that they intended the the Establishment Clause to apply to the establishment of a national religion.  They were trying to prevent fighting among the various religous sects that dominated the country at the time.  The far flung interpretation of Everson which prohibits government from being seen as "endorsing or promoting" religion doesn't follow from the history.

Does Everson reflect good policy?   I think it probably does.  I don't think it's a good idea for our public schools to be innundated with religiosity.  But it's not up to our courts to adopt policies for us that they think is good, cloaking that improper legislative function as some pretend requirement "found" in our constitution or its history.

 

Really, Indiana's constitutional version of the establishment clause is the one you should look at. That's clearly more restrictive than the federal one.  But if you allow people to use taxpayer funded scholarships at private, religious universities, I don't see how you bar them from using them at the K-12 level.   (FYI, isn't your Depauw University affiliated with the Methodist Church?)  It's the same thing.

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