Humpty Dumpty, James Madison, the States and Meaning

[Gene Garman]

Unfortunately, Steve's suggested "problem" is erroneous and a 
distortion. I never said the First Amendment when written applied to the 
states. It obviously applied to Congress. I have addressed the "original 
intent" for the Establishment Clause. James Madison left primary source 
documentation for meaning and intent of the Establishment Clause. Use of 
Madison to establish original intent is not inappropriate. It is called 
research. None of the other five members of the 1789 joint Senate-House 
conference committee left any commentary as to the meaning of the words 
they composed.

I have made no mention of the Fourteenth Amendment and the Court's 
application of the Establishment Clause to the states, which does not 
mean I am unaware of the distinction.

Nonetheless, all of the states which had state establishments of 
religion (not all of them had state churches), on their own, 
significantly disestablished religion laws by 1833. After the Fourteenth 
Amendment many states added specific provisions separating religion and 
government into their Constitutions, but that fact has no bearing on the 
intent of the Establishment Clause, about which we have been discussing. 
The Constitution established a principle of separation between religion 
and government which has gained approval throughout the states, 
regardless of historical hangovers to the contrary.

Indeed, I stand on an understanding documented by the Father of the 
Constitution. I do consider myself a "strict constructionist." If that 
be heresy, so be it. I do attempt to discuss one thing at a time, the 
subject line. If you wish my review of current religion law, for 
example, Justice Stephen Breyer's concurring opinion in Van Orden v. 
Perry will give you a clue: 
http://www.sunnetworks.net/~ggarman/breyer.html .

Gene Garman, M.Div.
America's Real Religion
www.americasrealreligion.org



Steven Jamar wrote:

> There is, of course, one basic problem with Gene Garman's argument to 
> the extent it is premised on the First Amendment before the Civil War 
> Amendments.  It says "Congress shall make no law respecting an 
> establishment of religion . . . ."  By its terms it did not limit what 
> states can or cannot do.  On this point even Jim Henderson would agree 
> with me, I think.
>
> The Civil War Amendments rewrote the Constitution and rebalanced the 
> powers and through the incorporation of most of the Bill of Rights 
> through the 14th Amendment guarantees of liberty and the incidents of 
> citizenship, states also became limited by the establishment restriction.
>
> But, until then, the state restrictions were within state 
> constitutions and statutes.  Congress, of course, had power over the 
> territories (hence the Reynolds case).
>
> Madison may have been consistent about not wanting government at the 
> state, federal, or local level to impose religion and wanted a clean 
> separation -- but that is not what the 1st amendment of his time did 
> other than at the federal level.
>
> That said, Madison's comments are relevant.  But they are not 
> determinative.  And just looking to them to explain the meaning of 
> "respecting establishment" indicates  my point that the words are not 
> so clear as to be self defining except as to a certain core meaning 
> (e.g., no national church).  If the words were themselves so clear, 
> why the appeal to an interpretive aid like Madison's writings?
>
> No single method of interpretation is sufficient for this complex 
> area.  Fortunately the Court has recognized this.  Whatever else it 
> has done and will do with EC and FE, we can expect that it will not go 
> the way of simplistic even naive reading of the Constitution.  Witness 
> the continuing witless use of the 11th Amendment . . . .
>
> Steve
>                  
> On Jul 27, 2005, at 10:44 AM, Gene Garman wrote:
>
>> The suggestion that the position of James Madison was inconsistent in 
>> respect to religion and government is simply not sustainable. In 
>> Madison's 1785 draft of his "Memorial and Remonstrance" against 
>> religion assessments (taxes), that is, against the "Bill establishing 
>> a provision [tax money) for Teachers of the Christian Religion," 
>> Madison uses "establishment" seven times. His First Amendment 
>> understanding of "an establishment of religion" is documented again 
>> when as President he vetoed two religion bills passed by Congress 
>> (neither of which was overturned) and declared them unconstitutional 
>> violations of the Establishment Clause.  
>
> [snip]
>
> -- 
>
> Prof. Steven D. Jamar                               vox:  202-806-8017
>
> Howard University School of Law                     fax:  202-806-8567
>
> 2900 Van Ness Street NW                   mailto:sjamar at law.howard.edu
>
> Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/
>
>
> "If a man empties his purse into his head, no man can take it away 
> from him.  An investment in knowledge always pays the best interest."
>
>
> Benjamin Franklin
>
>
>------------------------------------------------------------------------
>
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