"The Separation of Church and State." Probably no phrase has had more
impact on American history in the last fifty years than this one. Where
did it come from? Who coined it? And, what does it mean? Distinguished
law professor, John Eastman, has some surprising answers.
Disrupting the Narrative of the New Left, its allies in Academia, Hollywood and the Establishment Media, and examining with honesty the goals of cultural Marxism and the dangers of reactionary and abusive political correctness.
THE NARRATIVE AND POLITICAL CORRECTNESS
“Threats to freedom of speech, writing and action, though often trivial in isolation, are cumulative in their effect and, unless checked, lead to a general disrespect for the rights of the citizen.” -George Orwell
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Eastman offers but a compact collection of common canards.
ReplyDeleteSeparation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.
That the phrase "separation of church and state" does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name 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.
To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. 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 were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, and only after concluding its analysis did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion.
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.”
After you took the time to type in all those words, I almost hate to point out what should be quite obvious, especially to someone who is trying so desperately to sound like an expert on the subject. The founding fathers, who knew their history, were clearly interested in preventing two interrelated problems. First, to prohibit the government from establishing a state religion, such as existed in England (Church of England) where the head of state (the monarch) was also the head of that religion. Second, by prohibiting the establishment of a state religion the founders sought to prevent discriminatory laws such as the English Act of Supremacy (1558) and the Act of Uniformity (1558). Look them up. In Elizabethan England it became an act of treason, punishable by death, to be a practicing Roman Catholic. In the reign of her successor, James I (VII) non-conformists fled the country, going to Holland and later to America because they were being persecuted. That was the kind of thing that the founders were aware of and wanted to prevent in the United States. Left-wing groups such as the ACLU have subverted the intent of the founders in order to violate the First Amendment. An activist SCOTUS facilitated that as mentioned in the video. The argument you put forward is largely moot, since nobody, certainly not Eastman, is ADVOCATING for a state-established religion, nor the persecution of anyone for practicing a certain form of religion. And to further neuter the bogus arguments of groups like the ACLU I'd like to point out that citizens on all levels of society swear (or affirm) oaths on a Bible, up to and including the POTUS and YET...and yet we still don't have a state-established religion in this country. Imagine that! Could it be because the one has nothing to do with the other? So the idea, for instance, that having a memorial in the shape of a cross in a park somehow violates anybody's Constitutional rights is absurd.
ReplyDeleteYou call the points that Eastman made "canards." In fact, the real canard is the idea that the "separation of church and state" is a legitimate reason for banishing all mention or depiction of religion from the public forum. Certainly if the founders shared the views of the ACLU then they would have come out with a laundry list of things NOT to do, starting with the use of the Bible in the oath of office. They didn't, because that was not their intent.
While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. In keeping with the Amendment’s terms and other evidence, courts have wisely interpreted it to restrict government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a national church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.
ReplyDeleteIt is important, as well, to distinguish between "public forum" and "government" and between "individual" and "government" speech about religion. The constitutional principle of separation of church and state does not banish religion from the public forum as you seem to suppose--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 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, 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 in any particular circumstance may sometimes be difficult, making the distinction is critical. Wake Forest University has 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. http://tiny.cc/6nnnx
Confusion understandably arises because the constitutional principle is sometimes equated with a widely supported political doctrine that goes by the same name and generally calls for political dialogue to be conducted on grounds other than religion. The underlying reasons for that political doctrine are many, but three primary ones are that (1) it facilitates discussion amongst people of all beliefs by predicating discussion on grounds accessible to all and (2) it avoids, in some measure at least, putting our respective religious beliefs directly “in play” in the political arena, so we’re not put in the position of directly disputing or criticizing each other’s religious beliefs in order to address a political issue and (3) since the government cannot make laws or decisions with the predominant purpose or primary effect of advancing religion, it makes little sense to urge the government to do just that. This political doctrine, of course, is not “law” (unlike the constitutional separation of church and state, which is), but rather is a societal norm concerning how we can best conduct political dialogue in a religiously diverse society. Reasonable people can disagree about whether the doctrine is a good idea or not and whether or how it should influence us in particular circumstances.
The controversy arises between liberals and Conservatives because liberals see religion as being problematic and so they rely on activist judges to legislate from the bench in order to stop the government from supposedly "establishing" religion. But the authors of the Constitution meant that word to be taken literally, not as a euphemism for acknowledging religion. Conservatives understand, as the Founding Fathers did, that the real danger is that of an overly intrusive, abusive and yes, possibly tyrannical, government. The First Amendment was intended to keep religious freedom safe from the government, not vice versa. Conservatives rely on the First Amendment to protect religious freedom from a government that seeks to live in the space once occupied by religion, family, etc.
ReplyDeleteThe "separation of church and state" does not appear anywhere in the Constitution. The video is factually correct on that. Furthermore, it is clear from the writings of Founding Fathers and, as you point out, the creation of separate branches of government, that their fear was of tyrannical government, not tyrannical religion. Jefferson's hope was that a byproduct of the First Amendment would be the "separation of church and state" as a protection of religion freedom, not government freedom. The intent was to create a protective wall, not a wall of detention to stick religion behind. They were not seeking to wall off religion and marginalize it, as liberals have been trying to do since the FDR era. Liberals have not been interested in upholding the explicit content of the free exercise clause ("the free exercise thereof") but have instead been deliberately misinterpreting the establishment clause, abusing the due process clause of the 14th Amendment and using Jefferson's line about "separation of church and state" to mask their attacks on religious freedom. The Everson v. Board of Education ruling in 1947 was the first time that the establishment clause was applied to the states. That is not what the Founders intended.