Ch. 2: Understanding the First Amendment

Chris OConnor

Chapter 2: Understanding the First Amendment

Please use this thread for discussing Chapter 2: Understanding the First Amendment, of Religious Expression and the American Constitution. You are also welcome to create your own threads if you prefer a more relaxed book discussion structure.

Edited by: Chris OConnor at: 4/12/07 11:20 am

Chris OConnor

Even though I have yet to receive my copy of the book I think I can comfortably assume that this chapter will be a discussion of the First Amendment. ::204

See how I figured that out? ...with nothing but the chapter title? I'm good like that.

So howz about I post the First Amendment so we can all read it and start the discussion even prior to some of us receiving our books? Good idea? I thought so.

U.S. Constitution: First Amendment ::89

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.

Edited by: Chris OConnor at: 4/12/07 11:56 am

Chris OConnor

Additional material on the First Amendment...

First Amendment Center

Wikipedia on the First Amendment

The entire US Constitution online

Links to notable First Amendment cases

Answers.com explains the First Amendment

First Amendment Foundation

A site explaining to yeachers how to teach students about the First Amendment. I wonder about this site. ::171

irishrosem

Haiman introduces theories of constitutional interpretation that are important to understand before moving on to the cases that will be discussed. This understanding will help to explain why certain decisions are made, and will also assist in sorting out your own thoughts on how decisions should evolve.

Haiman starts with the long-standing debate between “original intent” and “living document.” A decision on how the Supreme Court should interpret the Constitution will help to distinguish which of the three prominent establishment clause theories—absolutist, nonpreferentialist and accommodationist—you favor. It’s useful to keep in mind that the theory an individual chooses as the best approach to interpreting the Constitution, will not necessarily lead to the actual decisions that person may prefer, ideologically. This is the part of jurisprudence that can be most challenging, yet most interesting. For instance, if you subscribe to original intent and are an atheist you wouldn’t necessarily agree with the 14th Amendment incorporation of the 1st Amendment to restrict states from establishing a religion.

This becomes most obvious in free speech cases. Although most people abhor racist/bias/prejudicial speech, constitutionally it is, and should be, a protected right. Likewise, although you may abhor religion, if you are a state right activist, you could constitutionally argue for establishment rights for states. Alternately, one who supports federal power over state power could well argue that states should subscribe to the same restrictions as the federal government with regard to the First Amendment—regardless of her religious perspective

The point is, I think this will be an infinitely more interesting discussion if we distance ourselves from our personal opinions on religious thought, and try to apply a definite, direct, relatively consistent constitutional interpretation of the First Amendment and free religious expression/establishment clause.

irishrosem

This chapter references J. Douglas’s Opinion in Zorach v. Clausen. Although I disagree with the bulk of the Opinion quoted, one sentence struck me as significant: “That would be preferring those who believe in no religion over those who do believe” (Haiman, 17). I think, when interpreted and applied correctly, the establishment clause should satisfy anyone—theist or atheist—who objectively examines the clause. Earlier in the chapter, Haiman asserts that “prohibition against any establishment of religion and its prohibition against interference with the free exercise thereof are mutually dependent concepts—two sides of the same coin” (12). Essentially, any establishment of religion automatically eliminates the free exercise of religion. Therefore, ideally, theists who demand the freedom to exercise their own religious choices would support the wall of separation—in order to insure their own religious liberty. Where this can become a problem is when that wall of separation is abused to make a relatively objective (and I emphasize objective) person feel as though religion is treated with hostility—that non-religion is favored over religion. It is essential, in order to garner support for the establishment clause and to protect free speech rights, that strict proponents of the wall of separation do not trample those constitutional rights because of ideological/philosophical differences.

irishrosem

I’m going to link three significant Supreme Court Opinions that Haiman mentions in this chapter regarding the First Amendment incorporation of the Fourteenth Amendment. The first, Gitlow v. New York, was the first case that any part of the First Amendment was applied to the states. Gitlow dealt with freedom of speech issues in 1925. It wasn’t until 1940, with Cantwell v. Connecticut, that the Supreme Court extended the First Amendment’s free exercise clause to states. Finally, as has already been linked in chapter one, the Supreme Court extended the First Amendment’s establishment clause to the states in 1947 with Everson v. Board of Education.

BTW, Chris, thanks for the First Amendment links above. I checked out the teacher site, briefly, and didn't find anything untoward.

Mr. Pessimistic

Rose:

Quote:
For instance, if you subscribe to original intent and are an atheist you wouldn’t necessarily agree with the 14th Amendment incorporation of the 1st Amendment to restrict states from establishing a religion.

Why? I am not getting this?

As for the three interpretations, as I was reading I was thinking, and I do not know the answer to this: Does each Judge get to interpret in the mode he/she chooses? That seems to me a very chaotic way to go about things. Would'nt it be better to decide on a system that all judges would have to follow? I am a 'living document' supporter I think. 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.

Mr. P.

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

Mr. P.: Why? I am not getting this?

The point I am getting at there is your personal regard for how a decision should go, will not necessarily jive with how you think the constitution should be interpreted. If we expect to hold Justices up to these higher standards, we should, at least in these theoretical exercises, try to practice the same. So someone who is a strong supporter of state sovereignty—one who believes the federal government should get involved in state decisions only when absolutely necessary—wouldn’t likely think that the federal government should be in the business of policing state’s establishment or free exercise decisions. Using our gun example in the V.T. thread—I hate guns, I wish we would stop selling them to the public. But I have no idea where I stand on the gun control debate, because I have not thoroughly explored the constitutional implications involved with gun control. Now, obviously, we’re not S.C. justices, nor are we even lower court judges. We can think whatever we want about the decisions, regardless of how inconsistent our opinions might be. But for the purposes of this discussion, I thought it would be interesting to take a more theoretical than personal approach. Is that more clear?

Mr. P.: Does each Judge get to interpret in the mode he/she chooses?

I think the three terms are more categories of schools of thought. So, no Scalia wouldn’t stand up and state: “My name is Antonin and I’m a non-preferentialist.” But looking at a record of his decisions, the questions he might ask at oral argument, one could be able to gather as much. I don’t think it’s possible to ever know what way a Justice will decide, but one can look at the precedent she has set and gather what is likely.

Mr. P.: Would'nt it be better to decide on a system that all judges would have to follow?

The system is the Constitution and precedent. It would be antithetical to the S.C.’s purpose if a mode of ruling was prescribed to them.

Mr. P.: I am a 'living document' supporter I think. 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.

I agree, Mr. P., I actually hate the two terms, “living document” and “original intent.” They are so misleading. Obviously the “original intent” people, no matter what they like to preach, can never know, with certainty, the framers’ original intent. It also presumes that the “living document” people revel in applying random current trends to the Constitution. Unfortunately, I think original intent is often abused as justification for ignorant, antiquated ideas.

Not to put you on the spot, but I’m curious what you think of the J. Douglas quote and the issue I raised there. Do you think it is o.k. if decisions prefer non-religion to religion?

MadArchitect

Here's one thing that I feel safe in commenting on even before I get a copy of the book:

Rose: Obviously the “original intent” people, no matter what they like to preach, can never know, with certainty, the framers’ original intent. It also presumes that the “living document” people revel in applying random current trends to the Constitution.

It might be possible to cast some light on the notion of "original intent" by looking at recent scholarship on the topic of "tradition" and the way it is, and has been, interpreted over the years. Jaroslav Pelikan, for instance, has written a great deal about the meaning of tradition, and the dynamics of claiming adherence to a tradition. Pelikan is also a historian of religion, which only makes sense, as most of the scholarship on the idea and influence of "tradition" has arisen from an attempt to understand the relationship of religious tradition to religious doctrine -- that is, the relationship between the written, seemingly permanent elements of religion, and the aspects of religion that are preserved in memory and by human contact.

Just as a "for instance", fundamentalism was initially a movement within Christianity that claimed to be a more faithful reproduction of "primitive Christianity" -- ie. Christianity as it was practiced in the first couple of centuries after Jesus' death. But just as in the case of "original intent" Constitutional interpretation, the fundamentalists were fashioning their practices based on their own perception of primitive Christianity, not on any direct knowledge of what the beliefs and motives of primitive Christianity were. They may have had some historical or documentary evidence contributing to their perception of primitive Christianity, but that's a far cry from actually knowing the whys and wherefores.

So it seems that what we're dealing with when it comes to "original intent" interpretation is, in part, a matter of traditional interpretation vs. the application of written principle to modern attitudes. But traditional interpretation is not, as many people seem to imply, interpretation within the guidelines set by some intellectual forebearer. Rather, it's interpretation that takes as an influence some perception of tradition, some perception of the way things have been done and why. That isn't to say that tradition is illusory. It usually isn't (although, there are cases in which it has been) something cooked up by people on the spot. It's best to see tradition, I'd say, as a consciousness of the contribution of past thinkers on one's present disposition towards a given matter. "Original intent" interpretation, then, is not some capacity to reach back to the framing of the Constitution and pluck out the original intent. It's informed by the thought of every intervening generation, without ever reflecting any particular generation with perfect accuracy. And that, more or less, is how Pelikan explains tradition: as the inclusion of past generations as a voice in the dialogue of the present day.

George Ricker

Rose: Not to put you on the spot, but I'm curious what you think of the J. Douglas quote and the issue I raised there. Do you think it is o.k. if decisions prefer non-religion to religion?

I realize this was directed to Mr. P., but since it goes to the heart of the issue I thought I would inject my two-cents worth as well.

Like you, I liked the Douglas quote, though I didn't agree with his reasoning in the opinion.

Douglas shows great deference to what he perceives as the religious character of our people and suggests that failing to allow the released-time program would convey a hostility toward religion that is not mandated by the First Amendment and is not warranted by common sense. It's an accommodationist view that is partly responsible for the confusion that exists over the application of the establishment clause.

I don't think it's OK for decisions to prefer non-religion to religion. But I do think the establishment clause requires government neutrality on religious questions. Neutrality is not hostility.

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. Public schools are, by their very nature, secular. They have no proper role in the religious instruction of children, and there is no good reason why they should excuse students for the purpose of attending religious classes. Since the classes, in this case, were conducted by clergy at the various religious establishments, there is nothing preventing them from being held at times when the public schools are not in session.

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.

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

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


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