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Ch. 2: Understanding the First Amendment

#37: April - June 2007 (Non-Fiction)
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Chris OConnor

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Ch. 2: Understanding the First Amendment

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Chapter 2: Understanding the First AmendmentPlease 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
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Chris OConnor

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Re: Ch. 2: Understanding the First Amendment

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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. 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 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
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Chris OConnor

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Re: Ch. 2: Understanding the First Amendment

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Additional material on the First Amendment...First Amendment CenterWikipedia on the First AmendmentThe entire US Constitution onlineLinks to notable First Amendment casesAnswers.com explains the First AmendmentFirst Amendment FoundationA site explaining to yeachers how to teach students about the First Amendment. I wonder about this site.
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Re: Ch. 2: Understanding the First Amendment

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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
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Re: Ch. 2: Understanding the First Amendment

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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
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Re: Ch. 2: Understanding the First Amendment

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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.
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Re: Ch. 2: Understanding the First Amendment

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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 CarlinI came to kick ass and chew Bubble Gum...and I am all out of Bubble Gum - They Live, Roddy Piper
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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
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Re: Ch. 2: Understanding the First Amendment

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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.
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Re: Ch. 2: Understanding the First Amendment

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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
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