Authority of sources
sjamar at law.howard.edu
Sat Aug 6 14:49:58 PDT 2005
Some of us have read a large amount of history -- some of us were
history majors in college. And some of us have read a great deal of
writings on religion and law and the history of religion in the US
and such since then. And a few on this list have even written
thoughtful works on these issues.
Some of us come to different conclusions from you about what the
historical record shows or at least the clarity with which is shows it.
Some of us do not read the grammar as you do. Words have meaning and
grammar sometimes controls meaning, but in the law, as elsewhere,
sometimes the meaning is not fully captured by the words or grammar.
Many of us consider history to be relevant and statements by the
founders to be relevant to interpreting the Constitution today, but
many of us do not consider it to be determinative, as you seem to do.
That the judges are often poor historians and manipulate the record
for their ends is perhaps somewhat distressing, but hardly news or
even remarkable. Historians generally have their own axes to grind
too and view the same facts has having different meanings or
explanations or causes or reasons or implications which are at odds
with other equally expert historians.
At least some of us have viewed the historical records around the
Constitution and have seen in it that one of the clear intents was
that it be interpreted in light of actual circumstances and that it
be a living document that is applied as times and circumstances
change. Some view this as anathema. Some of us view this as a very
Though we all are prone to tirades from time to time on this list,
most of the regular contributors are pretty sophisticated lawyers and
have studied these issues to a degree that would probably surprise
you and have thought about them and fought about them long and hard
-- at least in general approaches.
Your command of the historical record is impressive and certainly
exceeds mine and I find your selection of information to post
interesting, and I generally agree with the thrust of your position
on separation. But none of this is sufficient to persuade me that
either I should defer to your interpretation based on your reading of
history nor that I should bow in the same way you do to history.
On Aug 6, 2005, at 5:11 PM, Gene Garman wrote:
> Volokh, Eugene wrote:
> Mr. Garman: Here's a tip -- when someone disagrees with you,
> especially someone who has been working in a field for ten years,
> it's usually *not* because he has difficulty understanding.
> Rather, it's because he understands things but draws different
> implications from them than you do.
> Mr. Volokh,
> As for years, I have been involved in study of the issue of
> religion and government ever since majoring, over forty years ago,
> in religion and history at Baylor University, which has an
> institute of church and state. I make no claim to being a
> Leo Pfeffer or a Leonard W. Levy, but I have read their work and I
> am a graduate of a Baptist theological seminary, well versed in the
> issue of religion and government, including the history connecting
> the two, which is why I easily refuted and rebutted Justice William
> Haven't-done-sufficient-research Rehnquist's 1985 dissent in
> Wallace v. Jaffree:
> Read Gene Garman's essay in the May/Jun 1999 issue of Liberty
> magazine. It documents Justice William H. Rehnquist's abuse of the
> Establishment Clause and its history. Click on the following url:
> I also spent enough time in law school to know that American
> history is probably not taught in any law school. What I see in
> some of the responses on your religionlaw listserve is a
> significant lack of appreciation for the role religion history
> played in the development of the constitutional principle adopted
> in the Constitution.
Prof. Steven D. Jamar vox:
Howard University School of Law fax:
2900 Van Ness Street NW
mailto:sjamar at law.howard.edu
Washington, DC 20008 http://www.law.howard.edu/faculty/
"Face violence if necessary, but refuse to return violence. If we
respect those who oppose us, they may achieve a new understanding of
the human relations involved."
Martin Luther King, Jr.
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