Ch. 2: Understanding the First Amendment

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

Garicker: For example, I don't think it reasonable to suggest, as Douglas does in his opinion, that by failing to excuse students to attend religious instruction classes at a temple, mosque or church, the public schools would be exhibiting hostility toward religions.

Yes, though I don't agree with the reasoning he applies to the particular case at hand, I can get behind his conclusion. A case where non-religion is possibly preferred to religion will surface in the text. It deals with schools, largely universities, granting access to school buildings and funds for student-led activities, but denying same to student-led activities dealing with religion. I think that's going to be an interesting discussion, and I'm looking forward to reading those cases again with Douglas's Opinion in mind.

Garicker: So while I don't think it's OK for decisions to prefer "non-religion over religion," I do think it's OK, probably even necessary, for decisions to prefer no religion at all.

I think that's nice safe ground to strive for, possibly a bit difficult to locate though.

Mad, still thinking about original intent and tradition, I'll get back to you. I do want to say though that "living document" proponents do not necessarily eschew tradition when interpreting the Constitution.

George Ricker

Rose: I agree that a government cannot have religious rights, but the states very clearly had establishment rights up until the Fourteenth Amendment made the First Amendment applicable to the states. So, though I agree that the framers' intent was to remove religion from federal government interference and, likewise, remove the federal government from religious interference, this clearly did not extend to the states at the time. In fact, it wasn't until (I think) the middle-ish 19th century that the last state finally disestablished an official state religion.

Yes, I understand the 14th amendment is key to the extension of these rights to individuals. At the time the Bill of Rights was adopted it only restricted the federal government.

And in fact, one of the complicating factors in SCOTUS decisions has been that the establishment clause was not applied to the states until almost the mid-point of the last century. Massachusetts was the last state to disestablish religion in 1833. But many states retained religious tests and the like in their state constitutions. In fact, some still do, although when challenged they are found unconstitutional, as they should be.

But I think the only reasonable position to take today is that the Bill of Rights ought to mean the same thing to all Americans in every state--at least, those parts of it that deal with individual rights and liberties. That's what the 14th amendment should have accomplished. Unfortunately, it has been, in some cases, a mixed bag.

In any case, many of the hot-button establishment issues did not exist at the time the Constitution was written. The inclusion of "under God" in the Pledge of Allegiance, the printing of "In God we trust" on paper money, the creation of a National Day of Prayer (some of us have called for a National Day of Reason to be observed on that same day -- the first Thursday in May) and so on happened during the last half of the last century.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

Mr. Pessimistic

I hate to drag up a point from earlier on in this thread, but I am trying to get back involved with this discussion...

Mad said, but my main point is the concept, not his quote:

Quote:

I'd say the difference is that "original intent" proponents focus on traditions about the drafting (and drafters) of the Constitution, while "living document" proponents draw in changing traditions of interpretation.

How CAN we accept an 'original intent' view. To me this is the same thing as basing our moral code on a book tht is +/- 2000 years old! The intent of the framers was to establish a new concept in goverment. To create a system that can function and flourish among changing concepts, ideas and times. So to pay to much mind to what their intent was beyond that to me is foolhardy. Times change. People change. Circumstances change...

I just do not see the benefits of looking at the Constitution as anything BUT a 'living document'. It would be dangerous, IMO, to do otherwise.

Mr. P.

But atheism is no more a religion than not playing chess is a hobby. - Robert Sawyer - Sci Fi Author

I'm not saying it's usual for people to do those things but I(with the permission of God) have raised a dog from the dead and healed many people from all sorts of ailments. - Asana Boditharta (former booktalk troll)

The one thing of which I am positive is that there is much of which to be negative - Mr. P.

What is all this shit about Angels? Have you heard this? 3 out of 4 people believe in Angels. Are you F****** STUPID? Has everybody lost their mind? - George Carlin

I came to kick ass and chew Bubble Gum...and I am all out of Bubble Gum - They Live, Roddy Piper

George Ricker

Mr. P: I just do not see the benefits of looking at the Constitution as anything BUT a 'living document'. It would be dangerous, IMO, to do otherwise.

Ultimately, I think you are probably right, but I have to add a caveat. There is some value in, at least, considering the historical context and the traditions in which these ideas were formulated. While we certainly have to interpret the document in light of the requirements of life in our society at the beginning of the 21st century, I think it would be ill-advised to completely sever the connection to the past. (I realize you haven't said this should be the case, by the way. But lest we be accused of taking that position, I want to preempt the objection.)

For example, nothing in my reading suggests the founding fathers would have supported the idea of a "Pledge of Allegiance" to the national flag. And even if they had, I'm quite sure the words "under God" would not have been included in it.

But it is the genius of the Constitution that it has sufficient flexibility, through interpretation and through the amendment process, to accommodate the changing needs of a changing society while, at the same time, providing cover and protection for the civil liberties that are at the heart of our freedom.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

Mr. Pessimistic

I agree George. What the framers of the Constitution did was kinda remarkable...and they did what the did so that people in future generations were not stuck with the rules and regulations of an older generation...that we were not slaves to what would become an ultimately outdated set of laws. They gave us the responsibility and ability to constantly revisit and revise the laws as conditions warranted.

That is something we should never forget. And you said it better than I in your last paragraph!

Quote:
For example, nothing in my reading suggests the founding fathers would have supported the idea of a "Pledge of Allegiance" to the national flag. And even if they had, I'm quite sure the words "under God" would not have been included in it.

I get that too. I like Haiman's characterization of Madison in the beginning of chapter 6. A devout Christian, "he viewed the slightest establishment of religion by government as entirely incompatible with the ability to exercise that freedom without inhibition". So to, I think, many of the most important framers would have agreed.

The USA is not a Christian nation, it was/is a nation made up of a majority of Christians maybe...but those Christians were smart enough to realize that politics and religion do not mix very well. We have abundant resources available to show us this throughout our short history as a civilized species.

Mr. P.

But atheism is no more a religion than not playing chess is a hobby. - Robert Sawyer - Sci Fi Author

I'm not saying it's usual for people to do those things but I(with the permission of God) have raised a dog from the dead and healed many people from all sorts of ailments. - Asana Boditharta (former booktalk troll)

The one thing of which I am positive is that there is much of which to be negative - Mr. P.

What is all this shit about Angels? Have you heard this? 3 out of 4 people believe in Angels. Are you F****** STUPID? Has everybody lost their mind? - George Carlin

I came to kick ass and chew Bubble Gum...and I am all out of Bubble Gum - They Live, Roddy Piper

George Ricker

Mr. P, here's something from Thomas Jefferson on the subject of "living" constititutions.

This is from a letter to Samuel Kercheval, written in 1816.

Jefferson writes, "Some men look at constitutions with sanctimonious reverence, and deem them like the arc (sic) of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them , and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. (emphasis added)

Jefferson was very much like that other Thomas (Tom Paine) in that he was not so frightened of republican democracy as some of his contemporaries. He thought each generation ought to have the right to make its own rules for governing its affairs. Indeed, in this letter he suggests an occasion for doing this every 19 or 20 years ought to be provided by the constitution itself.

I'm not so sanguine on this point as Jeffersion. But he clearly belonged to the "living document" school of thought when it came to constitutions.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

Mr.P.: I hate to drag up a point from earlier on in this thread, but I am trying to get back involved with this discussion...

No problem at all, Mr. P. Drag away…

Mr. P.: We cannot possibly think that people hundreds of years ago could write such a strong document that it would anticipate how things would be and how certain thoughts would apply to people hundreds of years in the future.

Speaking of dragging up old discussions, you had written this earlier in the thread. And I wanted to note that this was certainly true for the Framers of the Constitution; they did not anticipate the document, or the Union, would necessarily withstand all that it has. And it could be argued that rather than changing the document to fit our contemporary needs, some of the Framers at least would have preferred the nation to rewrite the document for those purposes. (After writing this I saw George's statement that Jefferson was one such founding father.) For instance, the Framers never considered television, the internet, video games, even radio when constructing the freedoms of the First Amendment. Because the Constitution does not definitively address such freedom, decisions are left to the courts to decide what is constitutional, which can often be highly subjective decisions. Some feel it is too subjective for our courts to address, and out of the purview of the lesser of the three branches of government.

Mr. P.: How CAN we accept an 'original intent' view.

I just do not see the benefits of looking at the Constitution as anything BUT a 'living document'. It would be dangerous, IMO, to do otherwise.

I think George hit this squarely on the head. Living document proponents do not discount the history or the ideology in which the Constitution and each of its subsequent Amendments were born. They acknowledge and consider the history but do not feel bound or constricted by the history. This is why “living document” and “original intent” are such inappropriate terms. Of course both sides consider the history of the Constitution; and, despite their claims, “original intent” proponents cannot possibly know in every situation what the Framers intended, even if we chose to be bound by that intent. I once read from a constitutional scholar (though I very unfortunately have not been able to find the quote again) that he could not help but think “original intent” is often used as an excuse to justify antiquated, and often prejudiced, perspectives. I remember there is a quote early in the book (which I do not have on hand at this moment) from one of the Justices that states essentially that his 20th century knowledge is not bound by 18th century ideas, or something to that effect.

Garicker: For example, nothing in my reading suggests the founding fathers would have supported the idea of a "Pledge of Allegiance" to the national flag.

You’re probably right here. The anti-Federalists would have fought such a pledge tooth and nail. And the Federalists, always willing to accommodate whenever the accommodation was not significant, would have been unlikely to push for such a ritualistic display of patriotism. Regardless, they certainly would not have aligned any national pledge with religion, specifically placing the nation under the auspices of “God.”

Garicker quoting Jefferson: Some men look at constitutions with sanctimonious reverence, and deem them like the arc (sic) of the covenant, too sacred to be touched.

Lovely quote, George. I think it's apropos that the very people who push for “original intent” readings of the Constitution, at least contemporarily, are often those pushing for Christianity’s influence in government. It seems likely that the same minds who want to tie us to, as Mr. P. puts it, “a book that is +/- 2000 years old” seem willing to tie us to political, social and legal ideas that are over 200 years old.

Mr. Pessimistic

Yes I did bring it up earlier...but I have been away and picked this up to elaborate as it is an important point in how the courts proceed. But as you now pose, maybe the terms are misleading and not very appropriate in really understanding these modes of thought.

Mr. P.

But atheism is no more a religion than not playing chess is a hobby. - Robert Sawyer - Sci Fi Author

I'm not saying it's usual for people to do those things but I(with the permission of God) have raised a dog from the dead and healed many people from all sorts of ailments. - Asana Boditharta (former booktalk troll)

The one thing of which I am positive is that there is much of which to be negative - Mr. P.

What is all this shit about Angels? Have you heard this? 3 out of 4 people believe in Angels. Are you F****** STUPID? Has everybody lost their mind? - George Carlin

I came to kick ass and chew Bubble Gum...and I am all out of Bubble Gum - They Live, Roddy Piper

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

Mr.P.: But as you now pose, maybe the terms are misleading and not very appropriate in really understanding these modes of thought.

I do think the terms are misleading, but I don't mean to suggest that they aren't used within general constitutional discussions. I tend to distance myself from all such labels, but most people find such labels useful and appropriate.

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

BTW, here's the quote I mentioned before. Haiman quoting Justice Brennan: "I approach my responsibility as a justice as a 20th century American not confined to [the] framer's vision in 1787. The ultimate question must be, I think, what do the words of the Constitution and Bill of Rights mean to us in our time" (Haiman, 14).


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