Marsh

[at marie a. failinger]

After my post, I too thought maybe my point might be inapt in this case,
e.g.,on legislative prayer.  Certainly if Madison and Jefferson were prepared
to make theological justifications for religious freedom, they may have
felt that generic prayer was consistent with the First Amendment.  But it
troubles me that we so seldom ask the expediency question, assuming that
there must be some way to logically reconcile the actions of the Framers,
when it is so clear in watching current legislative activity that
expediency is a major concern.  The attempts to make everything fit
through some complex theory of the First Amendment obscures the Founders'
prejudices, self-interest, and political cowardice that should help us
decide how much we do want to rely on intentionalism in interpreting the
Constitution.

Marie Failinger

On Mon, 3 Mar 1997, Eugene Volokh wrote:

> Marie Failinger writes:
>
> > With Congressional prayer, I always wonder if Jefferson's (?)
> > point should not be made--that a legislature did X which appears
> > inconsistent with their general principle against Establishment may
> > be from lack of courage rather than any evidence of their belief
> > that X was not covered by the principle.
>
>     That's the question, though, isn't it:  Was the early adoption of
> legislative prayer actually inconsistent with the Framing
> generation's principles, or did it demonstrate just what the scope of
> their principles was?  I'd certainly be happy to hear arguments in
> support of the former, but it seems quite possible that it was the
> latter:  That at the time the phrase "establishment of Religion" was
> not considered to encompass ceremonial appeals for divine guidance.
>
>
>