Floodwaters and Undermined Walls

[Ed Darrell]

Were there penalties in the past, they would have pre-dated the Establishment Clause, and so would not be relevant to EC litigation.  Washington's actions are noteworthy, perhaps:  Congress sent him (non-binding) resolutions calling for days of prayer or fasting; Washington carefully edited out references to Jesus or other specific deific mentions, and issued (non-binding) calls for days of thanks, etc.  
 
Washington also lived long before Keynes noted that governments need not sit idly by and watch disaster happen.  But Washington was rarely, if ever, accused of sitting on his hands.  As a behind-the-scenes instigator of the Constitutional convention, he rather clearly demonstrated his bias for action as far as humans can go, before, during and after resort to prayer.  And at his inaugural, once the official, government exercises were done, Washington and company adjourned to a church up the street, away from the government hall, for prayer and a sermon.  I think Judge Dement would have approved of that, too.   
 
Surely there should be no less separation after incorporation.  
 
We can learn a lot from history.
 
Ed Darrell
Dallas

JMHACLJ at aol.com wrote:
In a message dated 9/1/2005 4:11:37 P.M. Eastern Daylight Time, edarrell at sbcglobal.net writes:
In a purely legal vein, I would note that the governor's call carries no penalty for noncompliance, nor any penalty for complying by praying differently, or to a different deity.These define a standard by which adventures in Establishment Clause violations could be measured.  In fact, I suspect that a record of evidence could be mounted to show that, in the early history of our country, at least in the colonial period, that individual but public failure to honor days of fasting and prayer did, in fact, carry these kinds of penalties, and help to characterize and define the established nature of the respective colonial state churches. 
 
Of course, what happened in the colonial period, or in the States before Incorporation, for that matter, does not per se inform us of the meaning of the Establishment Clause but, as with the jailing of Baptist preachers, it can provide a persuasive backdrop against which to argue for Jefferson's or Madison's view of maximizing religious liberty.
 
Jim Henderson
Senior Counsel
ACLJ
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