Humpty Dumpty, James Madison, the States and Meaning
edarrell at sbcglobal.net
Wed Jul 27 11:11:16 PDT 2005
My understanding is that each of the 13 colonies had substantially disestablished by 1778, in the drive to modify their charters for governing without England, as the Continental Congress had asked. Only four of the colonies had even vestiges of establishment after that time. The only attempt of which I am aware in any of the colonies to backtrack on disestablishment was the 1785 proposal from Patrick Henry to fund clergy as teachers; popular opposition to that proposal was so great that the Virginia legislature took the opposite path and passed Jefferson's Statute for Religious Freedom, instead.
Does anyone have a reference to a serious attempt to re-establish a church after 1778, in any of the colonies?
Gene Garman <ggarman at sunnetworks.net> wrote:
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
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 . . . .
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.
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."
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