Good news friend Georgie, it appears that you can have your cake and eat it too! Fortunately, you can maintain your deep respect for Rehnquist and Scalia (which, we might add, we share as well) while simultaneously siding with Jefferson and Madison (two of our personal heroes), because at least on this issue, they all agree. Well, sort of.
Your Wikipedia article suggests that Rehnquist was the first to posit the notion that the “establishment clause was intended to protect local establishments of religion from federal interference.” Actually, he stole that idea from Jefferson.
We figured that if this discussion went far enough along, the Danbury Baptist exchange would likely raise its head – this is really getting to the heart of the disagreement over usage of the “wall of separation.” Even though we wrote a short research paper on this in college, we had to go back and reread the letters again last night. The full text is here, if you want to check it out: http://www.gainesvillehumanists.org/baptist.htm
To put it briefly, the Danbury’s were concerned that their state’s constitution, in granting religious privileges, made those privileges a creation of the state, rather than an inalienable right recognized by government (such as those inalienable rights of life, liberty, pursuit of happiness). Connecticut’s state church was the Congregationalists, and Baptists were frankly afraid that at some point, if the Congregationalists had enough power, they would force the Baptists to conform their religious beliefs, i.e., the state would encroach on the Baptist’s free exercise.
Note that in Jefferson’s reply, he sort of sidesteps some of the issues. He never really discusses the Connecticut constitution, and he never really acknowledges the Danbury’s request that he assist them in their state battle with the Congregationalists. Instead he refers strictly to the Federal Constitution, and reminds the Baptists that as far as American goes, the legislature has declared that Congress will make no national law respecting the establishment of religion, or prohibiting its free exercise.
To us, this is more a discussion over the once common idea that each state could regulate religion as it saw fit, rather than any national debate over the role of religion in government. Frankly, we find it odd that any single group in modern America would build its entire First Amendment jurisprudence and political/legal doctrine on a few words in a private letter between Jefferson and a bunch of Baptists (after all, it's the Presbyterians who've got it going on, right?) What's more, while Jefferson was no doubt an influential founder, he wasn’t even in the country when the Constitution was drafted. Funny that he is the Con Law expert.
As your Wikipedia article mentions, the phrase has been used in multiple modern Supreme Court opinions, but it was never even mentioned once for nearly the first 100 years of our judicial system (once in 1878), and then not again until Everson (1947). Since then, the courts generally cite Everson as the precedent for this notion of church state separation. And as an aside, you will not once find the notion of separation of church and state in any of the congressional debates that took place when the Bill of Rights were adopted.
Interestingly enough, while Jefferson was a huge proponent of the Bill of Rights, and was initially perturbed that the Constitution did not include one, Madison was in fact opposed to such a Bill of Rights. Madison, like the Danbury Baptists, feared that a Bill of Rights might one day be misconstrued to allow the state to remove religious freedom, since (under the bill of rights) the State had “created” that freedom.
When Madison finally caved to the pressures of the states (many of which were refusing to ratify the Constitution unless it contained a Bill of Rights), he proposed this language for the First Amendment: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.”
It appears to us that he too was concerned mostly with the establishment of a national religion, namely a certain sect within Christianity (i.e. Congregationalist, Baptist, Episcopalian, etc.).
As we read from a lecture on this topic a few weeks ago, Madison was a member of a committee in Congress which chose and paid for Congressional chaplains, and he signed a law as president that gave federal monies to aid a Bible Society in its goal of the mass distribution of the Bible (particularly to the Indians). Our guess is that government action like that today would get struck down by the “separation” clause.
As for the The Virginia Act For Establishing Religious Freedom, we'll have to get to that in another post. Stephen is calling for us to come help him with the cabinets in the baby's room.
To us, the discussion all comes back to our original point – the “separation” phrase is misunderstood, and even more importantly, misused. The Founders created a system that allows us the freedom of exercising whatever religion we choose. You are certainly entitled to argue for a removal of all religion from the public sphere of civil government, and as we mentioned before, we think you have some strong arguments in your favor. But that removal certainly wasn’t the way the system worked initially, nor did the Founders intend it to be designed that way. Further, if our society has evolved into a post-Christian culture (as some historians argue), whether through increasing religious plurality or a larger number of people who are just not religious at all, we are free to change the system. But the point is that WE change it, not a group of nine dudes in black robes. And we change it based on legislative initiative, not through those same nine dudes proof-texting their political preferences from private letters and super-legislating from the Bench.
If the Supreme Court assumes that the Constitution has a wall of separation between church and state, and then says that a certain law is violating the Constitution's separation of church and state, they are simply begging the question.
And that’s a phrase we’ll choose to avoid.
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8 comments:
once again, i'm very, very impressed by the extent of your knowledge on this subject, and it's hard for me to even counter any of your arguments b/c i just don't have the depth or breadth of evidence to support my case. but, of course, i can't just take the easy way out and say that i've learned a ton even though i remain somewhat of a skeptic!
2 of your arguments from this post that i take issue with are:
1) your assertion that "any single group in modern America would build its entire First Amendment jurisprudence and political/legal doctrine on a few words in a private letter between Jefferson and a bunch of Baptists." that sure smells simplistic (and dare i say condescending) to me to think that those words of jefferson's are the ONLY evidence to the premise that our founders did have an intention to have a strict separation of church and state.
2) the notion (as i understand your last 2 paragraphs) that legislators (who can be held accountable) are the only branch of government who should decide if such a wall of separation should or ever did exist. after spending a few weeks studying the differences between english and american law in maymester, it seems a-propos to point out one of the biggest differences between the two systems: the english courts really only do interpret law and refuse to make law (and will never even overturn precedent, even if they acknowledge that it's bad law). it seems to me that in this country, on the issues we each care about the most, we all are guilty of overextending the argument that "well, that's the role of the legislature, not the courts, to decide." and of course, there are certain clear areas where this is the case where the court cannot intervene. but in others, the area is gray, and courts can and should intervene. at the end of the day, american courts, unlike their english counterparts, really do make law. a lot of this stems from the fact that we have a written constitution (unlike the english) and have LESS trust in our elected officials to get it right than do the english. my basic point in bringing up these comparisons (which you probably already knew anways) is that the supreme court may very well have a logical (and legal) justification for concluding that it IS the better branch of government to deal with this gray issue of legal and historical interpretation. and at this point, your interpretation wins out on the SCOTUS. but that may not always be the case, and i guess i'm arguing that that would be fine for the court to MAKE law in such a manner.
I read the last few posts and comments with interest (this is a comment on part of the discussion, not necessarily on this particular post). As one who holds a degree in finance with a minor in chemistry while rarely traversing the objectivism of Wikipedia, I'm not much of a historian. But, with a background in finance and education policy, I always find it interesting when views surrounding public education enter into discussions of the First Amendment.
Saying that parents have the choice to either have their child educated by the state or send their child to a religious/private/home school is a little misleading. On the one hand, you can pay your taxes and have your child educated at your expense. On the other, you can pay your taxes to educate other people’s children and then pay, in addition, tuition to educate your own child. That really does not sound like much of a choice to me. In SC, bottom of the nation in public education (sometimes 49th out of 50), the people spend over $9000.00 per student per year (k-12) to give children a “free” education. The average cost of a year’s worth of private school tuition (grades 1-12) in SC is a little over $3000.00. Some of the best private high schools in the state do not reach the nine grand per year mark of the state system that less than half of the students graduate from on time (SC’s graduation rate is less than 50%).
What’s my point? Ultimately, the state is financially coercing its citizens to attend an anti-religious institution (not religiously neutral) until compulsory attendance is satisfied. The First Amendment is often boiled down to preventing the government from interfering with the freedom of choice: to choose your church and its denomination, to choose to exercise your religion, to choose what you want to say, etc.
“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.”
The time and resources expended during the compulsory attendance of a pupil belong primarily to the pupil and her family, not the state. Anything short of that begins to turn the child into a product and resource of the state. Allowing for external religious instruction during a time period that belongs to the pupil and her family seeks to restore some of the choice that the First Amendment intends to protect.
Married Man's Minivan:
while i am very interested in and even sympathetic to the notion that the state is wasting our money in areas of education (both my parents are in the education profession in the state of south carolina, so i might have some perspective on this), but can you please cite some examples where "the state is financially coercing its citizens to attend an anti-religious institution (not religiously neutral)" my father teaches at one of the largest high schools in the state, and he sure doesn't feel like the school is even religiously-neutral. his feeling is that the school is pro-religious, specifically pro-protestant. my father is a protestant but is very uncomfortable with some of the religiosity at his school. personally, i think the public high school i went to in south carolina (not the same as my father's) did a good job of being pretty religious-neutral, although we did have one of these programs that i've been criticizing where you could leave school grounds on a daily or weekly basis and go to the baptist church right around the corner and get religious instruction. as i've stated, i'm personally opposed to such a program, mainly from a public policy standpoint, although i think a good 1st amendment case can be made as well (although luther has much more knowledge and background on this issue and could make me look pretty foolish in countering that argument).
where i'm confused in your statements, however, is how schools are being "anti-religious," if i'm understanding you correctly, if they adopt my position of disallowing religious instruction during school hours.
why is that not religious-neutral? i just have a hard time understanding why parents can't have their kids get this religious instruction on their own time. i feel like i may be overstating your point, so please correct me if i misinterpreted what you were saying...
A few remarks on Zorach:
1. Neither the majority nor the dissent makes clear whether the students who are released for religious instruction are exempt from a portion of the state-mandated curriculum the other students are attend. As both groups presumably receive the same secular education, the idea that some students are "getting off easy" is untenable.
2. The both the majority and dissent make much of the "coercive" qualities of the school's action. Whether attending religious classes somehow involves coercion from private individuals within the community is irrelevant to the question of whether that State's action involves coercion. The State of NY has nothing whatever to do with the power of "what will the neighbors think?". Like the majority intimates, the State does not actively encourage students to attend religious instruction, it merely accommodates the requests of parents who are so inclined. Passive acquiescence does not approach coercion.
3. I am puzzled as to why we suppose school is exclusively intended to educate our children's minds. The dissent believes the State's action is coercive because such action forces the children to do what they would rather not, given the choice. That a child would rather play cops-and-robbers than listen to a clumsily dressed man talk about kindness and honesty goes without saying. Many children would choose to do anything before electing to practice their arithmetic or grammar. Nonetheless, we do not allow our children to learn these subjects at the leisure. "Lets not teach them algebra until they're older; perhaps they'll pick it up when they understand why it is necessary." What good is educating a child's mind if you do not also educate his heart?
Georgie,
Good contribution to this blog. I have enjoyed reading the posts, your comments, responses, etc. Before I posted it, I was rather concerned that my comment was unclear. You have confirmed this for me.
My main point comes in the last paragraph, and it seems we have a fundamental difference there. (I apologize for being confusing in other places). You said:
“i just have a hard time understanding why parents can't have their kids get this religious instruction on their own time.”
My response is the last paragraph of my first post: “The time and resources expended during the compulsory attendance of a pupil belong primarily to the pupil and her family, not the state. Anything short of that begins to turn the child into a product and resource of the state. Allowing for external religious instruction during a time period that belongs to the pupil and her family seeks to restore some of the choice that the First Amendment intends to protect.”
The public school allowing for external religious instruction is, in my opinion, religious-neutral because it allows a student to choose some religious instruction. Aside: this is a great alternative to those classes where our kids learn to put condoms on bananas. Not allowing for religious instruction during a time which is supposed to be for the benefit of the student (and not primarily for the benefit of the state) is, as I see it, anti-religious. It would be different were the state school to instruct people on religion, theology, etc. I wouldn’t go for that (I’m sure we agree there). Teaching it and allowing it to be taught are two different things. But again, I don’t view compulsory attendance as the state’s time. The Supreme Court has upheld, time and time again, that parents don’t check their parental rights at the schoolhouse door (I know, you’re not saying that they do).
I guess we also disagree on whether the lack of true choice in the school system is financial coercion. Generally, when one decides to send her child to a non-public school, it is a financial sacrifice. It’s not a sacrifice because the private school is more expensive than the public school (again, see the average tuition cost for private schools vs. per pupil expenditure in public schools). Generally, private schools are cheaper per pupil. It’s the fact that the mother has to pay for both that translates to the state financially coercing her to send her children to the public school. I know you don’t agree with me on that—that’s fine.
As far as your dad’s school being pro-religious/pro-protestant, my experience with professional educators has been very different. Your dad’s experience troubles me. Pro-protestantism was the reason behind a number of harmful state legislation and constitutional amendments throughout the nation (called the Blaine Amendments). This was in a day where the public schools were primarily protestant and the private schools were all Catholic. They were anti-Catholic amendments. There may be some remnant of that around today. Anyway, back to the whole idea of public schools being too “pro-religious.” I’ve never heard the same complaint from the many teachers that I’ve interacted with. I worked for the Senate Education Committee for several years which afforded me the opportunity to be in a number of committee meetings, focus groups, etc. with teachers. I have many public school teachers in my family, my church, and my neighborhood (well, the one I grew up in back in SC). Our opinions are different based on the experiences and even verbal complaints of those that we love and respect. Assuming that there are many public schools out there that are too religious, that does not change my mind that allowing for external religious instruction is permitted by and even appropriate under the First Amendment.
This post is probably more painful to read than it was to write. Having had quite a scare today with my pregnant wife, my mind is a bit jumbled. I really hope that my first post didn’t come across as rude. I certainly confess that I am a sinner always in need of God’s grace.
All in all, gentlemen, this is a great discussion.
thanks for clarifying MMM! i see where we differ and where we agree, and i think we both have good evidence to support our opinions! it's nice to engage in this kind of discussion in a measured tone, s/thing i'm guilty of NOT being nearly as good at doing in person as i think we've done here on a blog! go blogs!!! luther, you're the man.
http://dayofthefight.blogspot.com/2007/07/was-this-country-founded-as-christian.html
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