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Who Separates CHURCH & State?

A Supreme Court malfunction

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The phrase ‘separation of church and state’ is nowhere in the Constitution, but rather was lifted from a letter of assurance to the Danbury Connecticut Baptists Association by President Thomas Jefferson. It is upon that phrase in that letter that aggressive antiestablishment cultists such as the American Civil Liberties Union (ACLU), the Freedom from Religion Foundation (FRF) and militant atheists base their extreme policies. There is a problem with it.

While certainly among the most brilliant, and probably the most libertarian of the Founders, Thomas Jefferson had no hand in writing the Constitution, being engaged in Paris as ambassador to France at the time of the Constitutional Convention in Philadelphia. There are reports that he was very upset with it when he returned and read it.

The sessions were secret, so the only way he could have had knowledge of the thoughts of the delegates was through the notes of the official secretary, William Jackson, and those of the delegates who also kept notes, but also possibly through the recollection of some of the delegates, especially from the Virginia delegation, whom he certainly may have known. So can we really say that Jefferson’s statement reflects the intent of Founders to the letter? I don’t think so.

I have read numerous discussions on the entire church/state issue, including the references to the Barbary Treaty signed on Nov. 4, 1796 by John Adams, after being passed unanimously by the Fifth Congress. It is invoked regularly by ACLU, etc. This is the relevant Article 11: “As the government of the United States of America is not in any sense founded on the Christian Religion, as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen, and as the said States never have entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”

Many of the members of that Fifth Congress and Adams himself had attended the Constitutional Convention, strengthening their argument. But there’s a problem with this also.

The Fifth Congress and Adams were the very same Congress and president who had passed the Alien and Sedition Acts just five months earlier, in June. That fact raises very serious questions about their judgment. If you argue the treaty is a constitutionally accurate description of the religious orientation of the United States, you must accept the argument that those same people must have felt that the Alien and Sedition Acts were constitutionally sound. They weren’t sound, but you cannot accept one argument and not the other. The people who voted for them were identical. ACLU, especially, would rail at those laws just as it did over the Patriot Act. No libertarian can support those laws, so this Barbary treaty becomes suspect.

But it gets worse for the antiestablishment cultists who cite court decisions on constitutionality, such as a member of Freedom From Religion did recently on Tucker Carlson Tonight, mentioning all the court decisions in FRF’s favor. However, Jefferson was far more prolific and emphatic in his questioning of the validity of courts ruling on the constitutionality of laws. Here are two of his quotations:

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution, which has given that power to them more than to the Executive or Legislative branches.

I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public & denounced as not law.

A simple web search will lead anyone to many more. If anyone cites Jefferson as a source for their version of anti-establishmentism, it’s inconsistent to rely on the courts, as they so often do, when he so obviously had a very dim view of constitutional review. Again, they cannot have it both ways.

I agree with Jefferson. There is no empowerment of the courts to rule on the constitutionality of any law. That is a power that was insisted upon by John Jay, the first Chief Justice of the Supreme Court. President George Washington and the Congress acquiesced. It was an unfortunate precedent and precedents are extremely important in government.

It was increased exponentially by the John Marshall Court in the Marbury v. Madison that Jefferson found so noxious. Marshall is regarded as a ‘great jurist.’ He was great in the same way Franklin D. Roosevelt and Lyndon B. Johnson were great. As did Marshall with the judiciary, they vastly increased the power of the federal government, especially the executive, far beyond constitutional limits. Evidently, trampling on the Constitution, at the expense of the states and the people, is a sign of greatness.

The Marbury v. Madison case is especially galling. Marshall wrote the decision even though he was involved in the case. That was a major conflict of interest and he should have withdrawn from it. Today, it would result in impeachment and removal from the bench, not to mention disbarment.

As far as the power of the courts, there can be no doubt that it is unseemly for any branch of government or any agency to decide its own power, yet that is precisely what the courts have done. Every believer in our checks and balances system should reject that. So what is the proper interpretation of the non-establishment clause? I have my own opinion, but one thing for certain, it should not be the exclusive province of the courts.
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Beaman is an osteopathic physician in Jacksonville.

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DaCoach

Mr. Beaman,

I must say that you have a, unique, shall we say, of history. Let's take the easy one first.

"As far as the power of the courts, there can be no doubt that it is unseemly for any branch of government or any agency to decide its own power, yet that is precisely what the courts have done."

And why not? I don't know about you, but if I have a problem with my vehicle, I take it to a mechanic, not a dentist. Things that have to do with the law should indeed be adjudicated by a court of law. Also to be remembered, the SCOTUS is balanced by the Executive & the legislative branches of government, which, by the way, were formed by the people who first decided and were empowered by them.

Another easy one.

"It is upon that phrase in that letter that aggressive antiestablishment cultists such as the American Civil Liberties Union (ACLU), the Freedom from Religion Foundation (FRF) and militant atheists base their extreme policies. There is a problem with it."

Here is the problem I see. If it were not for the "cultist," "militant," and, "extreme policies," of religion in the past & present, we would probably have no need for the organizations you mentioned. But our founding fathers knew from history & first hand experience the utter human devastation that was inflicted on humanity when religion also held political power. Militant and extreme Christianity is proof. The same can be said for Islam. Both of those religions, in the extreme, have proven the validity of the old saying, "Power corrupts & absolute power corrupts absolutely."

Those are just two examples. Here is a more difficult one, as long as we're on the topic of religion. Do a google search on the origins of religion. A caveat here--you may not like what you find. But above it all, please remember, it's only a belief.

Da Coach 5 days ago|Report this

rodericktbeaman

DaCoach:

If you think there is nothing wrong with a single entity, citizen or government agency, determining the extent of its own power, you have a view of government decidedly different from mine and most of the Founders. Your analogy of your car needing repairs fails on all fronts. SCOTUS has not had any balance exercised by the other two branches in decades. It has gone on unchecked in this even though a provision to limit it is in The Constitution.

When religion, especially the Catholic Church, was the central power of our society, from about the fall of the Roman Empire to the Renaissance & its Age of Enlightenment, we had a fairly peaceful 800 to 1,000 years. It was with the Renaissance & its Age of Enlightenment that nation-states emerged and the ensuing millennium have had the greatest barbarities in history reaching its peak in the twentieth century. Yes, power corrupts but no governments have ever had more power over their people than The USSR, National Socialist Germany, Red China, Cambodia, Cuba, etc. The problem is as you see it, but I strongly doubt whether many others have the same view.

Finally, just as I expected, you have misinterpteted my article, as I expect many others will. Nowhere, do I endorse an established religion. My problem is with SCOTUS being The Constitution's the sole arbiter in this and other matters.

I suggest you do a Google search on Jefferson & his view of the courts. My quotes from him are just two among many. He wrote extensively about it. My caveat is that you will not like what you find. But above it all, please remember, it's only my belief. 5 days ago|Report this

SusaninFlorida

Thomas Jefferson wrote a letter to a Baptist Church from Danbury, Connecticut, in which he explained his beliefs about federalism and the meaning of the Establishment Clause. Jefferson assured the congregation that the federal government could not interfere with their church or offer special favors to any particular sect.

Fifteen Baptist organizations, representing collectively over 10 million Baptists in America, collaborate with one another to protect religious liberty and the separation of church and state through their funding of the Baptist Joint Committee for Religious Liberty. Freedom of conscience is a historic Baptist distinctive, and many Baptists continue to believe the best course for obtaining and securing freedom of conscience is through the separation of church and state.

Above was copied from wikipedia

Yesterday at 1:55 PM|Report this

DaCoach

Mr. Beaman,

" My problem is with SCOTUS being The Constitution's the sole arbiter in this and other matters."

"So what is the proper interpretation of the non-establishment clause? I have my own opinion, but one thing for certain, it should not be the exclusive province of the courts."

Well I still have to ask, since you have not answered, where ELSE would you take a legal matter? In other words, where would you recommend a person take their osteopathic problem?

"When religion, especially the Catholic Church, was the central power of our society, from about the fall of the Roman Empire to the Renaissance & its Age of Enlightenment, we had a fairly peaceful 800 to 1,000 years."

And have you never asked yourself exactly how that "fairly peaceful," period was kept?

"It was with the Renaissance & its Age of Enlightenment that nation-states emerged and the ensuing millennium have had the greatest barbarities in history reaching its peak in the twentieth century."

Well & good, but I specifically mentioned the atrocities perpetrated on humanity when religion was merged with state power, thus having numerical superiority.

Da Coach Yesterday at 4:33 PM|Report this