Challenge

Gene Garman ggarman at sunnetworks.net
Sat Jul 30 00:37:25 PDT 2005


Francis, what you are missing are the exact words of the Constitution.

The Constitution's religion commandments "no religious test" and "no law 
respecting an establishment of religion" obviously do not require 
government to be silent in respect to religion; they command that 
government (the essence of coercion) require "no religious test for any 
office or public trust under the United States" and "no law respecting 
an establishment of religion, or prohibiting the free exercise thereof." 
In terms of those commandments, government is separated from religion.

Thank you for your question relating to the exercise of religion and its 
boundaries, because it is the next part of the Constitution's religion 
commandments to be properly understood, in terms of application of the 
Free Exercise Clause. Again, the wording controls understanding:

"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" 
(First Amendment).

Words mean things. In 1789 members of the First Congress made numerous 
suggested wordings relating to an additional constitutional restriction 
on government in respect to religion. Finally, a distinguished 
six-member joint Senate-House conference committee was appointed, 
including cochair James Madison, who also helped write Art. 6. at the 
Constitutional Convention. The committee debated, drafted, and approved 
the wording which was accepted by the House on September 24 and the 
Senate on September 25. Those boundaries established by Congress, in 
respect to religion, were ratified by state legislatures and became a 
part of the supreme law of the land.

Wording of the First Amendment was not done in haste or without 
understanding. The men of the First Congress chose their words 
deliberately. State legislatures approved them. In respect to the "free 
exercise" of religion, it could not be prohibited by Congress. In 
respect to speech, press, peaceable assembly, and petition, those 
activities could not be abridged by Congress. The First Amendment is a 
restriction on the power of Congress.

Nevertheless, note two specific and different words used in the First 
Amendment, because they control understanding: Congress shall make no 
law ... "prohibiting" the free exercise of religion; or "abridging" the 
freedom of speech, press, peaceable assembly, and petition. In respect 
to the exercise of religion, it cannot be prohibited. In respect to 
speech, press, peaceable assembly, and petition, they cannot be 
abridged. The word "prohibiting" means totally forbidding. The word 
"abridging" means reducing. The exercise of religion cannot be 
prohibited, which means totally. Speech, press, peaceable assembly and 
petition cannot be abridged, which means reduced.

The Free Exercise Clause is not a license for anarchy. All actions are 
limited by the laws of the land which apply to all citizens equally, 
regardless of religion. While religion can be freely exercised (without 
government) and religion opinions are above the reach of law, religion 
actions are not totally free from government control.

Admittedly, nearly 200 years since James Madison wrote his c.1817 
"Detached Memoranda," the danger of encroachment by "Ecclesiastical 
Bodies" and attempts by "Congress" to establish religion by law may 
still be illustrated, but that fact does not make such attempts and such 
laws constitutional or create an exception to the Constitution's 
religion commandments.

It is, therefore, proper to take alarm at every experiment on our 
constitutional freedoms: "The freemen of America did not wait till 
usurped power had strengthened itself by exercise, and entangled the 
question in precedents" (James Madison, "Memorial and Remonstrance"). 
Congress has no constitutional authority to establish religion by law. 
Let's keep it that way.

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


Francis Beckwith wrote:

> Gene:
>
> Isn't there something odd about the government setting the parameters 
> of appropriate religious activism on the grounds that religion and the 
> government should be separate?  If they should be separate, then the 
> government should remain silent on the subject? But it hasn't.  So, I 
> can only surmise that the position you are holding is that the 
> government and the government alone determines the limits of a 
> religion's public theology.  But that doesn't that violate your 
> principle that the government and religion should remain separate? 
>  What am I missing here?
>
> Frank
>
> On 7/29/05 2:51 PM, "Gene Garman" <ggarman at sunnetworks.net> wrote:
>
>     I have just been challenged by the list manager to establish the
>     meaning of the Establishment Clause in terms of an understanding
>     which establishes its meaning as an establishment of "religion,"
>     in contrast to the revisionist understanding, for example, of
>     Justice Rehnquist, in his 1985 Wallace v. Jaffree dissent, in
>     which, by adding words, he asserts the wording really means (in
>     his opinion) "a national religion."
>
>     Actually, I thought no one on the list was ever going to ask.
>     Thank you.
>
>     Since joining the list, I have deliberately withheld any comment
>     in respect to the Free Exercise Clause, because I knew the
>     challenge would ultimately be presented.
>     I will do my best to convince you that the wording of First
>     Amendment is not ambiguous and is entirely consistent with James
>     Madison, Founding Father and cochair of the joint Senate-House
>     conference committee which drafted the final version of the First
>     Amendment, who provided numerous subsequent examples of his
>     understanding, as detailed in his "Detached Memoranda," wherein he
>     wrote: "Strongly guarded ... is the separation between Religion
>     and Government in the Constitution of the United States."
>
>     The Free Exercise Clause commands: Congress shall make no law
>     respecting an establishment of religion, "or prohibiting the free
>     exercise thereof."
>
>     The word "thereof" is the word which needs to be filled with
>     understanding. According to English 101, the word "thereof" gets
>     its entire meaning from whatever it is to which it refers. The
>     Free Exercise Clause obviously refers back to the Establishment
>     Clause and to whatever the Establishment Clause means.
>
>     If you accept Justice Rehnquist's revision of the Establishment
>     Clause, it means "a national religion." If that is the fact,
>     "thereof" MUST mean "a national religion." The Free Exercise
>     Clause then is to be understood as, Congress shall make no law ...
>     prohibiting the free exercise of "a national religion." Think
>     about that?
>
>     To the contrary, "thereof" means "religion," which is the word
>     used in the Establishment Clause, not "a national religion."
>
>     Congress shall make no law respecting an establishment of
>     "religion." It is "religion" which is not be established by law or
>     Congress, not just a national religion. Any law respecting an
>     establishment of "religion" is unconstitutional. President
>     Madison's 1811 veto messages, of religion bills passed by
>     Congress, and his c.1817 "Detached Memoranda," provide numerous
>     specific examples as to applications of the Establishment Clause
>     consistent with the understanding that, in America, an
>     establishment of "religion" is not the business of Congress.
>     The Establishment Clause provides no exceptions.
>
>     The First Amendment commands "the free exercise" of religion.
>     Government is the essence of coercion. In America religion is to
>     be completely voluntary (the absence of government). That is much
>     of about what America is. James Madison perfectly stated the
>     constitutional principle established by the Constitution's
>     religion commandments in Art. 6. and in the First Amendment:
>     "separation between Religion and Government." Let's keep it that way.
>
>     Gene Garman, M.Div.
>     America's Real Religion
>     www.americasrealreligion.org <http://www.americasrealreligion.org>
>
>
>
>
>
>
>
>      
>
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