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SENTRY JOURNAL » 1st amendment, 2nd amendment, aclu, coburn, ct, elana kagan, new haven, seperation of church and state, Supreme Court, US Constitution » Just Paper – Just Words

Just Paper – Just Words

by RightHandMan

Last week New Haven, CT, leading the way in all constitutional matters, had a school that removed the words “in the year of our Lord” from the high school graduation diplomas. The superintendent of the school said, “It’s a religious thing…I’m surprised it took this long for someone to notice it. We certainly don’t want to offend anyone.” The city spokeswoman Jessica Myorga stated that the Mayor John DeStefano Jr. requested a change in the policy because it was “based on the fact that it was really unnecessary descriptor for a public document being that none of our other public documents have such a descriptor.”

Well, I’m offended. I’m offended that there is such a lack of understanding in regards to our rights. I’m offended that teachers and public officials have such a lack of understanding regarding the U.S. Constitution. Offended, but not surprised. This kind of numbing reaction comes from a philosophy that regards the Constitution as a living and breathing document and then runs rampant with personal interpretation. The interpretation of this specific case, in an attempt to comply with the law of the land is quite contrary to it.

The only mention of the government’s interaction with “religious thing(s)” in the U.S. Constitution is in the 1st Amendment which states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…”

The school surely has the right to remove the language from their diplomas, but for what purpose? The mayor’s spokeswoman states that it is unnecessary and that no other public documents have such a descriptor. Really? Surely the founders found it offensive and contrary to the 1st Amendment when they wrote in Article VII, paragraph 2 the following:

“Done in Convention by the Unanimous Consent of the States present the Seventeenth day of September in the Year of our Lord one thousand seven hundred and eighty seven and the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names…”

There is a deeper issue here. It is that we’ve now accepted the constitutional philosophy that anything aligned with religion, no matter how vague, cannot be found in any government or public belongings. This philosophy is what granted the ACLU a win in court when they challenged that schools couldn’t hold graduations in churches. How is doing so or having a 2000 year old phrasing that stems from the Latin “Anno Domini” a congressional establishment of religion? What exactly has been established?

The 1st Amendment isn’t where the ACLU and their ilk get their leverage. They win in court by using a phrase that doesn’t exist in the U.S. Constitution – “separation of church and state”. Though this phrase doesn’t exist in constitutional law, it has become a legal precedent for all church/state matters – no matter how far the imaginative stretch. It doesn’t matter that this isn’t in the law, it has become an accepted understanding.

How can we expect our city, state, and other public officials to know this if our own Supreme Court Justices do not adhere to the U.S. Constitution? In the recent case by the Supreme Court regarding gun ownership, Justices Stevens, Breyer, Ginsburg and Sotomayor argued, in essence, that the 2nd Amendment is contrary to a democracy if “the people” wish to have gun laws. Breyer stated, “Determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions.” The 2nd Amendment states, “…the right of the people to keep and bear arms shall not be infringed.”

Once again we’ve become a victim of the progressive thought regarding the ever evolving meaning of our founding document. We are a constitutional democracy, not a pure democracy. This means that Chicago cannot, because of its complex issues or any other reason, vote and pass something in direct violation of the United States Constitution. The court has ruled (5-4) that Chicago did just this by banning firearms. How do four of the highest justices in the land, whose sole purpose is to make rulings according to the Constitution find room to dissent?

It is worse; Stevens argued that guns have a “fundamentally ambivalent relationship to liberty”. How is it even possible to such a conclusion when the previous words in the 2nd Amendment are “being necessary to the security of a free State”? The ownership of firearms, according to our founders, is absolutely necessary for liberty.

What has this court become? Three of the four liberal justices (and now to include Elana Kagan) believe that Supreme Court should look to international law when making certain constitutional decisions. How does referring to international law help in deeming something either legal or illegal under the U.S. Constitution? Where does the SCOTUS get any such authority to do so?

Our new, soon to be “qualified” Supreme Court justice Elana Kagan, is a subscriber to what is known as “legal progressivism” or “legal realism”. This is an evolved stance from the generic “living breathing document” idea that doesn’t believe in any fixed legal principles and leaves room for judicial legislation in order to take part in social/legal “progress”. Article III of the Constitution leaves no room for such power, and those that should know this best are the ones abusing it.

It is because of this “legal realism” that Elana Kagan declines to answer when asked by Senator Coburn if Congress is within their constitutional perimeters to pass a law stating that Americans must eat their fruits and vegetables every day. Her elaborate Harvard view on the subject is that the law “is dumb”. Indeed, but do they have the power to do so? Mrs. Kagan danced around, but neglected to say that Congress didn’t have the constitutional power to make such a law. When pressed whether the Commerce Clause allowed for such legislation she declined a direct response but added that Congress is only limited to “non-economic” activities – an obvious endorsement of Obamacare.

Kagan may be outside of mainstream America, but she unfortunately fits right in with other SCOTUS members –which is why she will be confirmed. The Supreme Court, to the left, has become the centerpiece for government expansion… and to whom shall we appeal?

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Filed under: 1st amendment, 2nd amendment, aclu, coburn, ct, elana kagan, new haven, seperation of church and state, Supreme Court, US Constitution

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Comments
  • Anonymous July 1, 2010 at 9:10 PM

    THANK The FSM that church numbers are falling.

  • Ron Russell July 1, 2010 at 9:53 PM

    It seems that case law is over riding constitutional law at every turn. The ACLU's progressive interpretation of the Constitution will leave but a useless scrap of parchment that they will wipe their ass with. Sorry to be so blunt but its the truth!

  • Doug Indeap July 1, 2010 at 11:44 PM

    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 later learned they were mistaken. 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."

    When discussing separation of church and state, it is critical to distinguish between the "public square" and "government." The principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. Wake Forest University recently published a short, objective Q&A primer summarizing the current law of separation of church and state–as it is actually applied by the courts, which contrast with how it is sometimes portrayed in the media and blogosphere. http://tiny.cc/6nnnx

    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.

  • Right Hand Man July 2, 2010 at 7:46 AM

    Doug,

    Thanks for the response. I actually agree with much of what you say, but perhaps distance myself from the conclusion as one of those (I hope) "reasonable people". I agree that the principle of separation of church and state is both real and necessary for a free state, but I don't believe that the new interpretation of this can be taken as literally and hard lined as it has been in recent years. We have taken those principles and endorsed a more godless view of government – one that cannot even mention the mere existence of a deity – hence "The year of our Lord" being considered illegal and offensive. Madison was perhaps correct in his arguments against fasting and prayer, but how are these two examples even close to equivalent? One is an obvious endorsement of religious practice while another is nothing of the sort.

  • Doug Indeap July 3, 2010 at 1:01 PM

    RightHandMan,

    The "hard lined" principle of separation of church and state as portrayed in the media and blogosphere often differs from the reality of the principle as applied by the courts. Notwithstanding sometimes lofty rhetoric about an insurmountable wall, courts and commentators recognize various limitations and exceptions (more even, I suspect, than Madison would countenance). Again, I commend the Wake Forest paper to you. You may find the so-called wall, as maintained by the courts, is lower and leakier than you realized and thus perhaps more to your liking.

  • Right Hand Man July 3, 2010 at 2:26 PM

    Perhaps, but the courts will, no doubt, follow the will of the people – however long it takes to lag. In time that which isn't accepted by the court today will take on the stance that has become common in the public's view. Then the courts will uphold such nonsense as to take "God" off of coins, "year of our Lord" off of diplomas, and drop the deity line from our American pledge. Obviously this wasn't the intent as such things were present in almost all founding documents to include the Constitution. If we stick to the "living/breathing" philosophy, the intent of the writers will be dropped for the so called evolved understanding of today's pols and populous.

  • Doug Indeap July 3, 2010 at 3:57 PM

    The government's inscription of the phrase "In God we trust" on coins and currency, as well as its addition of the words "under God" to the pledge of allegiance in 1954 and adoption of the phrase "In God we trust" as a national motto in 1956, were mistakes, which should be corrected. Under our Constitution, the government has no business proclaiming that "we trust" "In God." Some of us do, and some of us don't; each of us enjoys the freedom to make that choice; the government does not and should not purport to speak for us in this regard. Nor does the government have any business calling on its citizens to voice affirmation of a god in any circumstances, let alone in the very pledge the government prescribes for affirming allegiance to the country. The unnecessary insertion of an affirmation of a god in the pledge puts atheists and other nonbelievers in a Catch 22: Either recite the pledge with rank hypocrisy or accept exclusion from one of the basic rituals of citizenship enjoyed by all other citizens. The government has no business forcing citizens to this choice on religious grounds, and it certainly has no business assembling citizens' children in public schools and prescribing their recitation of the pledge–affirmation of a god and all–as a daily routine.

    But that's just me talking. The courts, on the other hand, generally are inclined to find ways to excuse such things, sometimes with the explanation that they are more about tradition than religion per se. Draining nominally religious statements or actions of religious meaning (or at least purporting to do so) and discounting them as non-religious ritual–sometimes dubbed "ceremonial deism"–is one way court's find them not to conflict with the First Amendment. As you can imagine, those more interested in championing their religion than the constitutional principle of separation of church and state sometimes seek to exploit and expand such "exceptions" even if it requires they fake interest only in tradition.

  • Right Hand Man July 3, 2010 at 4:35 PM

    Thanks for continuing in the discussion.

    I'm not buying the separation of church and state to the extent that you promote it. Have 2 of our 3 branches of government been unconstitutional in action by secluding atheists' beliefs or singling them out by opening with prayer?

    The law has become too sympathetic to those who wish to not practice than to those who do. Perhaps the courts have weakly subscribed to the ceremonial deism, but was it ceremony that the signers of the U.S. Constitution practiced when they set aside March 17th as a day of fasting and prayer? Did they not understand their own intent then better than we do today?

    I think there is a heightened bit of sensitivity on the side of those who hold strong to the "separation of church and state" theory. Should I be offended if a President decides to swear in on the Koran , Torah, or Cat in the Hat rather than the Bible? I have the right, but so does he/she. Is it unconstitutional to have such a ceremonial practice? According to your stance, yes.

    Freedom means that you have the freedom to either do it or not do it. I don’t think the intent of the 1st Amendment was to keep you from being offended. How can the state control the precedence set out by individuals in government? When John Jay swore Washington in with his hand on a Bible and Washington added the line, "so help me G-d", the precedent was set and every POTUS since has done it. You would call this unconstitutional.

    How did it become unconstitutional? Could they have stopped Washington from making such a statement? No! That would have denied him the freedom of his religious practice. Since then, all have followed which created a tradition of sorts – sometimes heart felt and perhaps sometimes not. At what point, however, does it become offensive to the person caught up in your catch 22? Ditto on the pledge. At what point did that become so offensive to the atheist? Would you argue that removing it would be less offensive to most Americans? If it were changed to a completely secular pledge and school children stood up said it in class, would those who added the dropped phrase be outside of the boundaries of law?

    What is more frightening – a government that allows for government to practice ANY form of religion or one that stands to undermine any religious practice within the public sector – especially with an ever expanding public sector?

    To me the later is more alarming. I believe that the founders would agree.

  • Doug Indeap July 3, 2010 at 5:06 PM

    It is important to distinguish “individual” from "government" speech on religion. The First Amendment protects the right of individuals to exercise their religions–publicly and privately–and constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government may sometimes be difficult, making the distinction is critical.

    With respect to the President taking the oath of office, I agree with you that each individual about to assume that office has the freedom to say "so help me God" after uttering the constitutionally prescribed oath. It is only if the government added those words and required a President-elect to recite them that there would be a First Amendment problem.

    You are right to observe that there is no constitutional right not to be offended. We’re not talking, though, about the freedom of individuals to say or do something others find offensive; individuals plainly have that freedom. We’re talking about the government's actions to promote religion. Under our Constitution, our government has no business doing that–regardless of whether anyone is offended. While the First Amendment thus constrains government from promoting religion without regard to whether anyone is offended, a court may address the issue only in a suit by someone with "standing" (sufficient personal stake in a matter) to bring suit; in order to show such standing, a litigant may allege he is offended or otherwise harmed by the government's failure to follow the law; the question whether someone has standing to sue is entirely separate from the question whether the government has violated the Constitution.

    You note too that removal of governmental statements about God from money and the pledge and such might offend some. As it happens, now retired Justice Stevens addressed just that type of concern in the recent case concerning the Mojave Desert cross. At the outset of his opinion, he stated: "I certainly agree that the Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message." Later in his opinion, he discussed the understandable concern that removal of the cross might offend some. Noting that Justice Alito spoke of “avoiding the disturbing symbolism associated with the destruction of the historic monument,” he stated: "But we surely all can agree that once the government has violated the Establishment Clause, as has been adjudged in this case and is now beyond question, a plaintiff must be afforded a complete remedy. That remedy may sometimes require removing a religious symbol, and regrettably some number of people may perceive the remedy as evidence that the government “is bent on eliminating from all public places and symbols any trace of our country’s religious heritage,” [Alito's opinion, p. 4]. But it does not follow that the government can decline to cure an Establishment Clause violation in order to avoid offense."

  • Right Hand Man July 3, 2010 at 10:56 PM

    Steven's opinion of the Establishment Clause is the exact purpose of my post. It is a misinterpretation which is evident by the founders in principle, thought, expression, and action. Stevens assumes he understands the clause better than those who signed the document it originates from. Once again, the same men created the now unconstitutional day of fasting and prayer.

    While I appreciate you pointing out the difference between an individual act and a government sponsorship you have not properly answered my question. At what point does an individual, but precedent setting act that continues to be repeated within a government setting become illegal? When you get offended?
    Has not every President since Washington been read the words "so help me G-d" by the Chief Justice only to repeat them? Congress opening in prayer is not a single act, but an act of many government officials in a government setting, yet the SCOTUS found it in compliance with the Establishment Clause in 1983.

    Why can't you admit that these petty complaints and redundant utterances of "separation of church and state" are nothing more than an attempt to redefine the Establishment Clause via ignoring the original intent?

  • Doug Indeap July 4, 2010 at 2:18 PM

    I thought I addressed your main point at the outset. The Supreme Court's interpretation of the establishment clause in Everson (and subsequent cases) to embody the principle of separation of church and state was based on evidence of the founders' intent. The nine justices, moreover, were unanimous in finding this was the founders' intent. They differed only on the application of the principle to the facts of the case–with the majority of five, led by Black, deciding it did not prevent the state from funding transportation to religious schools. (The decision had nothing whatever to do with the concept of a living Constitution being interpreted differently as circumstances change over time. That concept pertains, if at all, to those provisions, e.g., due process of law, that are so broadly worded that courts have no choice but to decide what they mean in individual cases.)

    As a small sample of the evidence of the founders' intent, I offered Madison's statement because it is so straightforward and to the point. As it happens, he not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question you pose: what to make of the government's actions doing just that–appointing chaplains, issuing proclamations, and the like. Ever practical, he answered not with a demand these actions be undone, but rather with an explanation to circumscribe their ill effect: "Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature]." Basically, he recognized that because too many people, perhaps like yourself, would be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

    In its jurisprudence, the Supreme Court has, in effect, followed Madison's advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to some governmental statements or actions as ceremonial deism or some such.

  • Right Hand Man July 4, 2010 at 3:16 PM

    Isn't Madison well known for his misquoting of the Establishment Clause? He consistently said that the Constitution prohibited Congress from making laws respecting a religious establishment. But that's not what the Constitution says. The Constitution clearly says that Congress shall make no law establishing a religion.

    It seems that all of your eggs are in Madison's basket on this issue. I tend to agree with Madison on most of his Establishment stances – I don't think tax dollars should be used to pay for clergy or chaplains, I do not think that public land should be given to churches, etc. However, I do not agree with his premise or interpretation which requires him to misquote the clause time and again. I do not hold to such an obtuse and sweeping definition of separation….Surely not one that would prohibit the use of the line "in the year of our Lord".

  • Doug Indeap July 5, 2010 at 10:32 AM

    Well, Madison is well known for being the Father of the Constitution and the founder with perhaps the biggest hand in drafting and adopting both the Constitution and the Bill of Rights. While I'm not sure about the misquoting you mention, I am sure your recollection of the wording of the First Amendment is backwards. It does not say "Congress shall make no law establishing a religion." Indeed, just such a proposal was considered and rejected by the First Congress in favor of the broader wording we now see in the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."

    There is, of course, much evidence on the founders' intent in this regard other than Madison's statements. Jefferson's letter to the Danbury Baptists is the most well known. I commend to you the Supreme Court's Everson decision, which offers a summary of more.