Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
I've been perusing Nathan Bradfield's blog and some of his earlier writings on church and state. As expected, he really tends to play fast and loose with the facts. I suspect this is not intentional but rather because he simply takes all of his information from David Barton without doing any research on his own. In this post, he criticizes Americans United about their citing of James Madison but includes many false, exaggerated or overly simplified claims in the process. He begins with this mathematically challenged statement:
And no, actually, "advancing an agenda" is what liberals have been doing for the last 50 + years ever since Everson in 1947 when Supreme Court Justices ignored over 200 years of precedent and began legislating from the bench.
A little basic math is in order here: The Supreme Court could not have ignored over 200 years of precedent in 1947 because there was no Constitution and no Supreme Court until 1789. More importantly, this concept of "ignoring precedent" just doesn't mean much by itself. Cases like Everson were not possible until at least 1868; until the 14th amendment was passed, the first amendment did not apply to state action at all. I'm not aware of any cases on a similar subject that were ever considered by the court prior to Everson, so I don't believe there were any precedents to be ignored when that case came along.
It should also be noted that even if there were precedents that were either ignored or overturned, that would tell us nothing, in and of itself, about whether the case was correctly decided. Some precedents are clearly wrong and should be ignored or overturned. Conservatives said the same thing about Brown v Board of Education, which overturned 60 years of precedents based on Plessy v Ferguson; clearly, the mere fact that one case overturns or ignores a precedent is not an indication of whether the decision was correct or incorrect.
The other thing that needs to be noted about Everson - and it's astonishing to me that this is so rarely mentioned by accommodationists - is that the Court, while it did cite Jefferson's infamous phrase "separation of church and state" in its ruling, actually upheld the state law that used public tax dollars to pay for kids to be bussed to Catholic schools as constitutional. Surely a court that was, they say, hellbent on "liberal judicial activism" would have ruled that law unconstitutional rather than uphold it. Indeed, it was a 5-4 decision; Hugo Black could just as easily have led a 5-vote majority in overturning the law, using nearly the same reasoning, if he had chosen to.
Now we get into some specific misrepresentations of history concerning James Madison:
Second, to invoke Madison, especially after his Presidency (1809-1816) is misleading. Madison's proposed wording for the First Amendment demonstrates that he opposed only the establishment of a federal denomination, not public religious activities. His proposal declared:The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.
Actually, Madison wanted the entire first amendment applied to the states initially, but that was voted down; they knew it would never be ratified that way by the states. Indeed, the states were so concerned about maintaining state authority over such matters at that point that the ultimate wording of the establishment clause was written to assuage those fears (it not only prevented the establishment of a national religion, it also prevented the Federal government from interfering with any state religious establishment.
But of course, Madison meant something far broader than merely preventing the establishment of an official national church like the Church of England. Madison argued that the first amendment required complete non-cognizance on matters of religion; for him, the government simply was to say nothing whatsoever on the subject. Bradfield points to Madison's political compromises to try and weaken his clearly expressed thoughts on the subject:
In 1789, Madison served on the Congressional committee which authorized, approved, and selected paid Congressional chaplains.
But so what? Yes, he served on the committee, but he also opposed Congressional chaplains and considered them a violation of the establishment clause. In his Detached Memoranda, he wrote:
Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain! To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers or that the major sects have a tight to govern the minor.
He also writes:
Throughout his Presidency, Madison endorsed public and official religious expressions by issuing several proclamations for national days of prayer, fasting, and thanksgiving.
It's true that Madison did issue a few such proclamations, under enormous political pressure brought on by the War of 1812 and various scandals during his administration. It was something he regretted very much and, once he was without that political pressure, wrote eloquently against such proclamations and declared them unconstitutional. Bradfield glosses over this by criticizing those "who embrace Madison's later beliefs in preference to his earlier actions", but he doesn't make any argument as to why Madison's political compromises should take precedence over his clearly reasoned statements on the subject.
We must recognize that these men were all politicians and the life of a politician inevitably means compromise and having to go along with policies one doesn't agree with. Do we interpret constitutional principles based on actions which are the product of such compromises? Of course not. Who would argue, for example, that the passage of the Sedition Act by John Adams defines the limits of the free speech and free press clauses of the first amendment? The act was clearly contrary to the meaning of those clauses.
The principles of free speech and a free press that Adams championed as an intellectual he quickly compromised to gain an advantage as a politician once he was in office, something he later regretted very much. But we do not interpret the meaning of those provisions based on his compromised actions but on the clear statements of principle made by the founders. The same is true here; we do not judge Madison's views on religious establishments by his few compromises, driven by political necessity during a time of intense stress, but by his clearly expressed statements of principle.
However, let me also say this: none of that means that such proclamations, as long as they are non-coercive, are necessarily unconstitutional (and indeed, the courts have never ruled that they are; presidents continue to make such proclamations to this day). Clearly the founding fathers were divided on the issue. Washington and Adams were in favor of such proclamations as long as they were very general (none of their proclamations ever mentioned Jesus or Christianity, but typically used very general language that could appeal to Christians, deists, Jews, Muslims, and Unitarians alike) and completely non-coercive.
Jefferson was against them entirely and never issued them, as was James Monroe. Madison was opposed to them but issued some under political duress. A perfectly reasonable case can be made that the sorts of proclamations made by Washington and Adams are constitutional. But it is absurd to pretend that there is no reasonable argument to be made for the Jefferson/Madison position as well (just as it is absurd for strict separationists to pretend that the accommodationist position is completely out of bounds). One can trace both positions directly to the most influential founding fathers and both are thus legitimate positions.
He then makes some really bad arguments about Madison's defeat of Patrick Henry's bill for a general establishment in Virginia and the passage of Jefferson's Act for Establishing Religious Freedom in that state. He erects a giant straw man and proceeds to knock it down. First, he quotes the following passage but doesn't provide a link or any information as to its source (I suspect it's from Barton):
During the revolution, Virginia's official state religion was the Church of England and was ravaged as a result. In an effort to restore an emphasis on some of the necessary spiritual values, Patrick Henry proposed a tax to support statewide religious instruction for all denominations.Memorials both for and against the tax were ably written and broadly circulated in the State. However, the only one widely discussed today is that of Madison: his Memorial and Remonstrance. In that work, Madison made clear his position that given time, everyone would eventually choose to become a Christian as a result of their own personal initiative and investigation.
It appeared, however, that Madison's position would fail; for numerous distinguished Virginians, including George Washington, John Marshall, Richard Henry Lee, and others, supported Henry's bill. Yet, in the midst of the debates, Henry left the legislature to take his seat as Virginia's new Governor. With Henry gone, Madison's efforts prevailed. However, opposition to the new tax was not simply a matter of a religious debate; it was bolstered by the fact that the general state of postwar poverty which existed not only in Virginia but in all the States did not welcome new taxes of any kind.
And then Bradfield writes:
Today, one is led to believe that what Madison "accomplished" in defeating Henry's bill represented the national thinking; it did not. For example, in Massachusetts, New Hampshire, and Maryland, bills similar to that defeated in Virginia were passed, showing only that the majority of those in Virginia--and not the nation--embraced Madison's position on this issue. And it is even debatable whether the majority of those in Virginia embraced Madison's view since the evidence suggests that had Henry remained in the legislature, the bill probably would have passed.
This is one big straw man. No one argues that Virginia's passing of Jefferson's act meant it translated directly to the Federal level (Bradfield never bothers to say who exactly leads anyone to believe that, a sure sign of a straw man being erected). But there is no doubt that this battle was a key turning point in the battle for disestablishment, not only in the US but all over the world. There is a reason why only Madison's Memorial and Remonstrance is still talked about today: because it was immensely influential all around the country and because his views won the day and continue to dominate to this day.
In the aftermath of the passage of this bill, the other states began to disestablish their state churches. One by one, they did away with their various types of religious establishments, including religious tests for office and the use of tax dollars to fund the building of churches and the salaries of clergymen. The swiftness with which this idea spread is really, looking back, rather breathtaking. In 1775, all but one colony (Rhode Island) had an established church, and that was also the only state that allowed anyone other than Trinitarian Christians to hold public office; by 1833, all of them had dismantled those religious establishments, the last being Massachusetts.
Before that time, it was nearly universally believed that governments were covenants with God, and if your foundational document did not explicitly declare that covenant with God, the society was bound for destruction at the hands of an angry deity. Indeed, those very arguments were made against the Constitution by the religious right of that day. Because the Constitution was a wholly secular document, with no mention at all of God or Christianity, the prominent clergy, particularly those of a Calvinist bent, swore that it would bring down the wrath of God upon our nation.
Attempts were made in the state ratifying conventions to amend the document, to add to it specific statements of our reliance upon god, to take out the ban on religious tests for office, and so forth; they all failed. The same was attempted in Virginia regarding Jefferson's bill, which Madison was ushering through the assembly in 1786, but it also failed. The fact that public sentiment toward religious establishments changed so drastically in a mere 50 or 60 years is astonishing, and it happened primarily because of the influence of Jefferson, Madison and many others who argued passionately that "religion and Government will both exist in greater purity the less they are mixed together." Madison looked back proudly in the 1820s on the fact that the movement for disestablishment that he had championed had succeeded in nearly every state.
Further equivocation from Bradfield:
In order to utilize James Madison to oppose public religious expression, Madison's opinions from decades ex post facto must be elevated over his actions--a theory which clearly would be rejected even under the elementary rules of evidence.
Nonsense on both counts. First, this has nothing to do with "public religious expression", it has to do with official government religious expression. Individuals remain free to express their religious views in public in a thousand ways and they do so every day millions of times without a peep of protest. Second, clearly we can distinguish between words and actions and take the words as important when the person explicitly disavows their previous actions and explains why they were wrong.
Comments
"I'm not aware of any cases on a similar subject that were ever considered by the court prior to Everson, so I don't believe there were any precedents to be ignored when that case came along."
Actully, there were 21. These cases demonstrate that, contrary to the actions of current courts, early courts protected, advanced, encouraged, and promoted the role and influence of religion throughout society. Significantly, several Judges who ruled in these early cases had personally participated in the drafting and ratification of the Constitution and thus were quite sure about its intent.
Here are a few:
Church of the Holy Trinity v. United States (1892)
Commonwealth v. Abner Kneeland (1838)
John M'Creery's Lessee v. Allender (1799)
Runkel v. Winemiller (1799)
The Commonwealth v. Sharpless (1815)
Your preceeding statement, "Cases like Everson were not possible until at least 1868; until the 14th amendment was passed, the first amendment did not apply to state action at all," is a fallacy. See here: http://nathanbradfield.blogspot.com/2006/02/public-expression-of-religion-act.html
The Fourteenth Amendment was a racial civil rights guarantee for slaves set free by the Thirteenth Amendment. And for seventy years following its ratification, the Courts applied it as it was intended.
Nearly every First Amendment case appearing before contemporary courts contains a phrase declaring "the First Amendment made applicable to the States by the Fourteenth Amendment . . . " By using this phrase, the Court is invoking its decisions from the 1940's which reinterpreted the Fourteenth Amendment. That reinterpretation created a mechanism for the Court whereby, for the first time, it could intervene in virtually all practices of States and local communities, including religion.
That is, determine the legislative intent for an act before applying it. As a result of separating the wording from its intent, cases such as Cantwell v. Connecticut (1940), Murdock v. Pennsylvania (1943), Everson v. Board of Education (1947), and other decisions, the Court substituted a totally revised and foreign interpretation for the Fourteenth Amendment. In those decisions, the Court decided to extend the purpose of the Fourteenth Amendment to the other numerous items contained within the Bill of Rights.
Under this reshaped purpose for the Fourteenth--and thereby under its new extended scope of power--the First Amendment would now limit every State and community, and no longer just the federal government as originally intended. This judicial activism has been termed "selective incorporation."
What makes the Court's coupling of the Fourteenth and the First even more reprehensible is the fact that those who framed and ratified the Fourteenth made clear that it was not to be applied to the First. Notice, for example, what occurred when the Blaine Amendment had
been proposed in 1875. That proposed (and later rejected) Amendment stated: "No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof. . . . No public property and no public revenue . . . shall be appropriated to . . . the support of any school . . . under the control of any religious or anti-religious sect, organization, or denomination. . . . And no such particular creed or tenets shall be read or taught in any school or institution supported . . . by such revenue."
This Amendment would have done to the States exactly what the Court did in the 1940s; yet it was rejected by the Congress which passed the Fourteenth. The intent of the legislators who framed the Fourteenth was clear: it was not to be coupled to the First.
Madison, Madison, Madison. All you've done here is create a collage of words out of context to make him appear pro-separation. Nothing could be further from the truth.
"We must recognize that these men were all politicians and the life of a politician inevitably means compromise and having to go along with policies one doesn't agree with."
Flimsy. A perfect example of an argument that fully takes some Founders' views out of context in order to create a separation proponent argument.
"Let me also say this: none of that means that such proclamations, as long as they are non-coercive, are necessarily unconstitutional (and indeed, the courts have never ruled that they are; presidents continue to make such proclamations to this day). Clearly the founding fathers were divided on the issue."
Which goes back to my original post that showed some of the Founding Fathers to be deists and others Christians. My original point was that even though the Founders had some theoligical disagreements, they were not secularists. And any argument saying so is falshood.
Posted by: Nathan Bradfield | January 13, 2007 1:11 PM
Re: the 1947 decision "beginning" the practice of "legislating from the bench". See Lochner (1905)and its progeny. Not religious freedom cases, but its hard to beat "Lochnerizing" for (arguably) excessive interference in Legislative acts. The fact that it was "conservative" interference doesn't change the fact that it was interference. Perhaps Mr. Bradfield would care to investigate and correct his statement in light of what he discovers.
Posted by: AnneS | January 13, 2007 1:49 PM
That's just adorable! I love it when they're so cute and precious like that.
Actually, very few of the cases to make it to SCOTUS dealing with the 14th Amendment in the years immediately following its ratification had to do with extending civil rights to nonwhites. Most of them had to do with extending civil rights to the new legal structure known as the permanent corporate charter.
This is, mind you, not to get into a discussion about the relative merits or lack thereof around corporate personhood; this is merely to point out that Bradfield's latest assertion also seems to have little basis in reality.
Posted by: Jillian | January 13, 2007 1:57 PM
The first case suggesting that the Bill of Rights applied to the states is Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897), which dealt with the "Just Compensation" clause of the 5th Amendment. Contrary to Bradfield's claim, almost all of the rights which have been incorporated were in cases prior to the 1940s.
If the issue is incorporation of 1st Amendment religion clauses, this was a hot topic in legal publications as early as 1898. This is from Cooley's The General Principles of Constitutional Law in the United States of America
Cooley was the standard ConLaw text for several generations. So I think it is incorrect to say that the idea was created out of whole cloth by a few liberal justices from the 1940s.
Posted by: kehrsam | January 13, 2007 2:17 PM
Re: the scope of the 14th Amendment. While some people who voted for it did not want it to or believe that it would make the guarantees of the Bill of Rights and other privileges and immunities arising out the Constitution. Others, including the man who drafted the early versions, Representative Bingham of Ohio, believed and intended the opposite. (See http://www.constitution.org/col/intent_14th.htm).
This is the problem with constructing arguments based heavily on the intent of the founders/drafters when the plain language disagrees with your preferred interpretation. The truth of the matter is that hundreds of people draft and vote on a bill or amendment, many with different intents or understandings. Although the expressed opinions of the drafters and others can be instructive, they don't substitute for the plain language and, in any event, you can't just cherry pick the ones you agree with.
Posted by: AnneS | January 13, 2007 2:17 PM
Oops. First sentence should read "Some people who voted for it did not want to or believe that it would make the guarantees of the Bill of Rights and other privileges and immunities arising out of the Constitution applicable to the States."
Posted by: AnneS | January 13, 2007 2:22 PM
This is simply untrue. During the congressional discussion of the proposed Fourteenth Amendment, the amendment's floor manager, Senator J. M. Howard (R-Mich.), stated in explaining it, that "to these privileges and immunities . . . should be added the personal rights guaranteed and secured by the first eight amendments to the Constitution." He also stated: "The great object of the first section of the amendment is, therefore, to restrain the power of the states and compel them at all times to respect these fundamental guarantees." (Congressional Globe, 39th Congress, 1st Session. pp 2765).
In the House, Rep, John Bingham (R-Ohio), who was called by Justice Hugo Black "the Madison of the Fourteenth Amendment," stated that the amendment was intended to overturn Barron v. Baltimore (1833), in which the Supreme Court had held that the Bill of Rights was not applicable to the states. (Ibid., pp 1088-90. See also Congressional Globe, 42nd Congress, 1st Session, Appendix, p. 150, where Bingham restated his intention in drafting the 14th Amendment).
Come on, it is really not hard to find the facts. I understand there is this thing called the internet which helps with research.
Posted by: kehrsam | January 13, 2007 2:29 PM
Also dubious is that the federal government ever had to power to promote religion. Even before the first amendment, the federal government is one of limited enumerated powers. And religion was left entirely unendowed.
Posted by: Jon Rowe | January 13, 2007 2:35 PM
If the 1st amendment is not incorporated into the 14th, then individual states would be able to establish religions, as they once did, and also to suppress the free exercise of disfavored religions, and further to abridge free expression. Perhaps the most famous historical examples of the latter were slave states prior to the Civil War that banned abolitionist literature. Is Bradfield seriously arguing that states should again be able to do that? Or that that wasn't part of the liberty that the framers of the 14th amendment meant to spread, by its ratification?
Posted by: Russell | January 13, 2007 3:05 PM
kehrsam writes:
Yes, but the facts have a well known liberal bias.
Posted by: Dave S. | January 13, 2007 3:41 PM
I see you're still suffering under the delusion that people care about what you think Larry. Get a job. Flip some burgers. Clean some floors. Give your poor parents a break.
Posted by: Dave S. | January 13, 2007 3:46 PM
L. Breckenridge writes:
It doesn't seem sensible to you, because you grew up with a modern view of how our government works, based in no small part on the 14th amendment and case law that Bradfield despises. But that in fact was exactly how things worked ante bellum. The states had more power over their citizens than did the federal government. And there were a variety of state laws that would have fallen afoul the bill of rights, had they been federal law. Prior to the 14th amendment, the almost unanimous legal view was precisely that the first amendment, and the entire bill of rights, restricted only the federal government. This was expressed very clearly by the Supreme Court, in Barron v. Baltimore, in 1833:
I find it interesting that those who want to disincorporate the bill of rights seem to want to disincorporate only the parts they don't like. The want the establishment clause lifted from the states, but not the free exercise clause.
Posted by: Russell | January 13, 2007 3:51 PM
AnneS: "This is the problem with constructing arguments based heavily on the intent of the founders/drafters when the plain language disagrees with your preferred interpretation. The truth of the matter is that hundreds of people draft and vote on a bill or amendment, many with different intents or understandings. Although the expressed opinions of the drafters and others can be instructive, they don't substitute for the plain language and, in any event, you can't just cherry pick the ones you agree with."
Funny you say that b/c that is precisely what happened, beginning with Everson in 1947. That is why they had debate on the nature of the debate. Was anyone aware that there were 90 Founders that worked on the First Amendment? Believe it or not, it wasn't just Madison and Jefferson as Ed leads us to believe. And during all that debate, in Congress, the words "separation of church and state" were never uttered or written in any of the discussion. Don't you think if it was as important as Ed and other breathingists believe, that it would have come up?
Ed left that part out when he was cherry-picking my post. Your welcome.
kehrsam: "I understand there is this thing called the internet..."
Now that is funny.
Russell: "I find it interesting that those who want to disincorporate the bill of rights seem to want to disincorporate only the parts they don't like. The want the establishment clause lifted from the states, but not the free exercise clause."
More spin. I don't desire this, neither does Barton or any other conservative. We do desire that the courts recognize the original intent of the First Amendment.
Posted by: Nathan Bradfield | January 13, 2007 4:22 PM
Nathan - " Believe it or not, it wasn't just Madison and Jefferson as Ed leads us to believe. And during all that debate, in Congress, the words "separation of church and state" were never uttered or written in any of the discussion. Don't you think if it was as important as Ed and other breathingists believe, that it would have come up?"
As opposed to your extremely strained interpretation of the plain language to read that the founders didn't really mean "religion", but "denominations (of Christianity)"? Sorry, that's ridiculous. When Ed, the Court, and every other reputable scholar cite the words of Madison and Jefferson, it is to rebut the unsupported contention that the Founders REALLY meant something else. Clearly, they didn't. They rejected more narrow wordings and they knew that there were religions other than Christianity. The record of the debates and procceedings and (less importantly) the words of Jefferson, Madison, et. al. show that this was true. The actions of State legislatures in the first fifty years after the Constitution show a tendency towards removing the state from religion. These are real, tangible FACTS.
You have no support other than some revisionist historical-cultural assertions that the word "religion" was narrowly defined as "denominations of Christianity".
But let's leave all that aside. Present an argument from the PLAIN LANGUAGE of the amendment or from the debates and proceedings surrounding the adoption of the amendment that your assertion is correct.
Never mind law school, this is high school history stuff. You should have no problem.
Posted by: AnneS | January 13, 2007 4:46 PM
My original intent was to allow for abortions, no private ownership of guns, the canibalization of Catholics, set the national currency as Pesos and not the un-patriotic "dollars", and to use your taxes to pay for un-Christian things like taking care of the poor.
Posted by: First Amendment | January 13, 2007 5:05 PM
Nathan wrote:
"We do desire that the courts recognize the original intent of the First Amendment."
But Nathan, I think that the Founding Fathers wanted a constitution that would adapt with the times.
1. They implemented a system of stare decisis with Supreme Court review. Stare decisis in 18th century British system was an evolving system, albeit generally slower than society changes. But they beauty fo stare decisis is that we don't have to look to the 1780s but just go back to the latest USSC ruling. That's the system they gave us, if you don't like it, then go to Mexico.
2. The Founding Fathers took great "breathingist" leaps with the constitution. Look at the establishment of the national bank in the first decades of the 19th century. Your perspective was argued then - when the Founding Fathers were still alive - and guess what, your POV lost.
So, how can you tell me what the Founding Fathers wanted to adopt your constitutional interpretation when they themselves didn't employ it.
Posted by: Royale | January 13, 2007 7:01 PM
Nathan Bradfield wrote:
Not remotely similar. It's not even an establishment clause case.
The very name of the case should be a clue, Nathan: this is a state court case from Massachusetts and had precisely nothing to do with the establishment clause of the federal Constitution. It was, however, a free exercise case where a state court ruled that it was okay for the state to punish a man merely for his opinions about religion. Are you advocating that decision as a good one? If so, I think that speaks volumes. If not, what on earth is the point of citing it here?
Again, neither a case involving the US constitution or the establishment clause. This is a Maryland state case involving qualifications for citizenship in that state, something controlled purely at the state level (until the 14th amendment, that is). Completely irrelevant to your argument.
I know this is going to be a shock, but this is - again - totally irrelevant. It's a Maryland case and has no bearing on the meaning of the establishment clause in the Federal constitution.
Well, that's 0 for 5. This is a Pennsylvania state court case involving obscenity. It has absolutely nothing to do with the establishment clause. I think Mr. Bradfield is confused on the meaning of "precedent". A precedent is a case that, at the very least, involves the same provision of the same constitution. Cases that deal with completely different provisions of completely different constitutions are not precedents for this case.
Absolute nonsense. The fact that the law was precipitated by a racial issue does not mean it only applies to racial matters, any more than the fact that Madison's advocacy of the free exercise clause was precipitated by seeing Baptist ministers in prison means the free exercise clause applies only to Baptists. Laws are written to have a general effect, and the 14th amendment was written to apply the Bill of Rights to state actions. Ironically, those who wrote the 14th amendment were very clear on that purpose, yet the guy who claims to be an originalist denies that. How amusing.
Which does not address at all whether those decisions were correct, and they clearly were. Any originalist who denies the doctrine of incorporation is kidding themselves. For the vast evidence showing that the 14th amendment incorporated the Bill of Rights against the states, see my essay here.
LOL. Yeah, don't you hate it when reality doesn't agree with you? Then you have to say stupid things like this. Madison's words on the subject are crystal clear.
Posted by: Ed Brayton | January 13, 2007 7:23 PM
I happen to believe that a coherent theory of law can be constructed based upon originalist premisses, just as Jack Balkin is attempting to do currently. See Ed's recent post on the matter. However, there are two facts which blow the strong originalist argument completely out of the water.
The first, the battle over the National Bank, has already been mentioned. The other is the concept of Judicial Review as enunciated in Marbury a mere 17 years after the drafting of the Constitution. JR is nowhere mentioned in the Constitution, and Marshall's argument that it is implied by the language is just that, an argument. Plenty of the Founding Fathers were still around, and Jefferson vociferously denounced the ruling, and not just on political grounds. Only one STATE court had unambiguously claimed the right of JR at the time (Pennsylvania).
So the Constitution took a big breath in 1805. And again in 1819 with the bank case, and a big breath with the Charles River Bridge decisions, etc.
Thus, your position is reduced to that the Court has been doing it wrong since 1805. I'm impressed with the depths of your philosophical purity, if not your grip on reality.
Posted by: kehrsam | January 13, 2007 8:48 PM
L. Breckenridge complains:
Whatever you think of it, the consensus understanding at the time the Constitution was written is that it did not much change existing state laws, and that the Bill of Rights was entirely a constraint on the federal government. When the Supreme Court stated that expressly, it raised few eyebrows. Keep in mind that there were quite a few state laws at the time in blatant violation of various parts of the Bill of Rights. These were not overturned by the ratification of the Bill of Rights. Many were subsequently overturned by 14th amendment jurisprudence. Ridiculous or not, that was the history of it.
Posted by: Russell | January 13, 2007 9:08 PM
"The fact that the law was precipitated by a racial issue does not mean it only applies to racial matters, any more than the fact that Madison's advocacy of the free exercise clause was precipitated by seeing Baptist ministers in prison means the free exercise clause applies only to Baptists."
Weak argument and an analogy that is not consistent. Racism is a broad issue whereas Baptist ministers deals with a specific denomination.
If the amendment deals with civil rights for race, then of course it's meant for that. And 70 years of consistent precedent that changes direction one day because of some breathingist judge?
I'll let you try again.
See my next comment for demonstration of the court precedent.
Royale: "But Nathan, I think that the Founding Fathers wanted a constitution that would adapt with the times."
Sure. Take the freedom of speech, for example. I do think that the Constitution can adapt to include other mediums such as the Internet. Now before you lib's jump out your chair throwing your keyboard into your flat screen saying, "Ah hah! Gotcha", let's understand something here: Freedom of speech is already being protected. Probably too much. An argument can be made that the Founders intended that more accountability be imposed on the public than what is enjoyed today (perfect example is the NYTimes leak of secret intel that aided terrorists a year ago).
Contrast that with "separation of church and state" we have today and we first see history going in the original intended direction of religion-friendly rulings for over 150 years, then makes a 180 degree u-turn in the opposite direction.
AnneS: "Present an argument from the PLAIN LANGUAGE of the amendment or from the debates and proceedings surrounding the adoption of the amendment that your assertion is correct. Never mind law school, this is high school history stuff. You should have no problem."
That's right, AnneS, strip the conservative down to his underwear, beat him up, rob him, and leave him for dead, by taking out context, other writings, culture, termonology, and historical facts.
But ok, to make it fair for you, I'll entertain your pathetic challenge, in my underwear, beat up and left for dead with the simplest of phrases:
"... nor prohibit the free exercise thereof."
Have a nice day, and no, you cannot try again.
Posted by: Nathan Bradfield | January 13, 2007 9:46 PM
Nathan: "But ok, to make it fair for you, I'll entertain your pathetic challenge, in my underwear, beat up and left for dead with the simplest of phrases:
"... nor prohibit the free exercise thereof.""
Um, I thought you had just AGREED that basing anything on the intent of the founders was problematic because there were a lot of founders/drafters. I also thought we were talking about the ESTABLISHMENT clause (which restrains government action), not the free exercise clause (which guards individual rights). And I hardly left you "naked". I left it open to use the debates/proceedings surrounding the drafting of the 1st amendment.
Here's my very simplified plain language argument - the Establishment cause prohibits Congress from establishing a religion. REligion has its ordinary meaning, which hasn't changed substantially since 1789 (they knew that there were other religions back in 1789, Nathan). This means that Congress can't establish any religion as the official religion. Permitting the government to promote or give preference to any religion would undermine this purpose. It would also, in many cases, undermine the free exercise clause by forcing individuals who do not share the preferred religion to participate in or support observances of that religion.
Look at that, I didn't even have to mention Madison, Jefferson, Washington, or anyone else. I also didn't have to invent new meanings for words.
Posted by: AnneS | January 13, 2007 9:57 PM
But admit it, you were breathing.
Posted by: kehrsam | January 13, 2007 10:01 PM
Sadly, yes. I was also thinking, but not very hard.
Posted by: AnneS | January 13, 2007 10:02 PM
Church of the Holy Trinity v. United States (1892)
While the church's hiring of the minister had violated the wording of the law, it clearly had fallen far outside the spirit and intent of that law. The Court therefore concluded that it would be an absurd application to prosecute the church under that law.
After vindicating the church, the Court spent the remainder of the case explaining that it would be completely repugnant to the spirit of the Constitution to in any way hinder, whether directly or indirectly, the spread or propagation of Christianity by legislative act. As the Court noted: "No purpose of action against religion can be imputed to any legislation, State or national, because this is a religious people . . . This is a Christian nation."
Commonwealth v. Abner Kneeland (1838)
This case involved an attack against God and Christianity. However it had been published rather than spoken. The indictment against Kneeland invoked an interesting legal term--a term unknown to contemporary courts when associated with God: libel.
The court examined whether the law under which he was convicted had been overturned by the constitution and concluded that it had not since the law forbidding blasphemy was passed very soon after the adoption of the constitution. The court next provided numerous precedents to demonstrate that prohibitions against blasphemy did not conflict with constitutional guarantees for religious rights.
John M'Creery's Lessee v. Allender (1799)
Thomas M'Creery emigrated from Ireland to the United States where, upon his death, he left his American estate to a relative in Ireland. It was doubted whether M'Creery's estate could legally be left to an alien unless it could be proven that he had become a citizen of the United States before his death. The case was settled when a certificate was produced showing that he had indeed become a naturalized American citizen through an oath taken before Judge Samuel Chase.
I, Samuel Chase, Chief Judge of the State of Maryland, do hereby certify all whom it may concern that Thomas M'Creery personally appeared before me Thomas M'Creery and did repeat and subscribe a declaration of his belief in the Christian Religion and take the oath required by the Act of Assembly of this State entitled "An Act for Naturalization."
Runkel v. Winemiller (1799)
This case involved a conflict between a minister of a German Reformed Christian Church and the church from which he had been dismissed. The Judge who delivered the ruling noted that the court's decision had been unanimous. What was it upon which all the Judges concurred?
"Religion is of general and public concern and on its support depend, in great measure, the peace and good order of government, the safety and happiness of the people. By our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed upon the same equal footing and are equally entitled to protection in their religious liberty.
The Commonwealth v. Sharpless (1815)
This case deals with "morality;" and although many today assert that "you can't legislate morality," such charges are utter nonsense. Every law that exists is the legislation of morality. As signer of the Declaration John Witherspoon explained: "Consider all morality in general as conformity to a law."
The Founders believed the Bible to be the perfect example of moral legislation and the source of what they called "the moral law." For nearly 150 years, the Courts relied on that moral law as the basis for our civil laws.
The indictment from the grand jury describes the offense:
"Jesse Sharpless . . . designing, contriving, and intending the morals, as well of youth as of divers other citizens of this commonwealth, to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires . . . in a certain house there . . . scandalously did exhibit and show for money . . . a certain lewd . . . obscene painting representing a man in an obscene . . . and indecent posture with a woman, to the manifest corruption and subversion of youth and other citizens of this commonwealth."
A classic description of pornography--yet this occurred in 1815. The defense claimed that since this was only a "private viewing," it was not an indictable offense. The court disagreed, stating that many things occurring in private have a public effect and therefore are punishable:
"This court is invested with power to punish not only open violations of decency and morality, but also whatever secretly tends to undermine the principles of society. Whatever tends to the destruction of morality in general may be punished criminally.
Crimes are public offences not because they are perpetrated publicly, but because their effect is to injure the public. Burglary, though done in secret, is a public offense; and secretly destroying fences is indictable . . . hence, it follows, that an offence may be punishable if in its nature and by its example it tends to the corruption of morals; although it be not committed in public.
The defendants are charged with exhibiting and showing for money, a lewd and obscene painting. If the privacy of the room was a protection, all the youth of the city might be corrupted by taking them one by one into a chamber and there inflaming their passions by the exhibition of lascivious pictures.
Although every immoral act, such as lying, etc., is not indictable, yet where the offence charged is destructive of morality in general, it is punishable at common law. The destruction of morality renders the power of the government invalid. The corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences. No man is permitted to corrupt the morals of the people; secret poison cannot be thus disseminated.
5 for 5. For goodness sakes, I've got 16 more. You're out of spin.
Posted by: Nathan Bradfield | January 13, 2007 10:15 PM
Nathan wrote:
A completely irrelevant distinction. The 14th amendment was precipitated by racial problems, but the text and meaning go far beyond race. When the 14th amendment declares that a state may not "deny to any person within its jurisdiction the equal protection of the laws", it is not specific to race. It doesn't say "deny to any person the equal protection of the laws on racial issues". The principle declared is not specific to race, it is a general principle that all people must be treated as equal under the law. Likewise when it says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States", it does not specify that it cannot deny those privileges and immunities on the basis of race; it also cannot deny those privileges and immunities on any basis. You will not find any legal scholar who thinks that the text of the 14th amendment applies only to racial issues; this is simply an idiotic argument.
Posted by: Ed Brayton | January 13, 2007 10:18 PM
AnneS: "I also thought we were talking about the ESTABLISHMENT clause (which restrains government action), not the free exercise clause (which guards individual rights)."
No, it's one complete sentence. The first part does not "restrict gov't action", as you say. It prevents gov't from making laws forcing citizens to be worship in ways they may not want to. You said stick to the wording, that's what we're doing here. The free exercise thereof portion does NOT exclude gov't from free exercise. If so, they would have written, "nor prohibit the free exercise thereof, except the federal government." And no, they didn't just accomplish that in the establishment clause.
Posted by: Nathan Bradfield | January 13, 2007 10:22 PM
Nathan, do you actually have any legal training? Because before you write commentaries on legal history and theory, perhaps you should familiarize yourself with basic concepts and principles. For instance, there is a big difference between state constitutions and the U.S. Constitution. There is also difference between dicta and holdings. And, of course, there is a difference between ESTABLISHMENT clause cases and FREE EXERCISE clause cases. You don't seem to understand these basic principles, which is a problem if you're going to hold yourself out as a First Ammendment expert.
Posted by: AnneS | January 13, 2007 10:23 PM
Nathan wrote:
And the author of that opinion went on to write a book that explained that "Christian nation" only meant a nation made up primarily of Christians. Your explanation shows just how much this case does not apply: protecting church/state separation is not "action against religion", it is action against an official declaration of religion, and that is not at all the same thing. Preventing the establishment of religion is an action for religion, as it prevents all other religions from the imposition of another religion.
But the ruling was based solely on the state constitution. At the Federal level, the free speech clause would clearly forbid such a law. Or are you actually going to argue that blasphemy laws are constitutional under the first amendment? If so, that tells us all we need to know about your totalitarian views.
And again, this deals solely with state citizenship under a state constitution. At the Federal level, such a declaration is clearly unconstitutional, but prior to the 14th amendment citizenship was solely determined at the state level. This has absolutely nothing to do with the Federal constitution or the establishment clause.
Again, this is a state constitution. The established religion of that state was Christianity; such an establishment was clearly forbidden at the Federal level. Maryland did indeed have an official Christian establishment in 1799, something prohibited at the Federal level. Are you really this stupid that you can't recognize that the law was completely different at the state level than at the Federal level? And do you really not recognize that we no longer follow the common law on criminal matters in this country?
Posted by: Ed Brayton | January 13, 2007 10:33 PM
Nathan: "No, it's one complete sentence. The first part does not "restrict gov't action", as you say. It prevents gov't from making laws forcing citizens to be worship in ways they may not want to. "
It is a complete sentence with two clauses. The first restricts the government from acting to establish a religion, the second from inhibiting INDIVIDUALs' free exercise of religion. The government, particularly federal government, doesn't have rights or freedoms under our system - it has powers. Enumerated powers, to be specific, and interfering in religion or promoting a specific religion are not among them.
Don't take my word for it - take the SUpreme COurt's word (including Rehnquist, Scalia, Thomas, Roberts, and Alito). WHile the conservatives may disagree as to how far a government can go before it is establishing a religion, they don't think that federal and state governments enjoy the right to free exercise of religion.
And not for nothing, while I'm politically liberal (compared to you), I am also fairly conservative when it comes to the law. If you actually knew anything about the law, you wouldn't find this that surprising.
Posted by: AnneS | January 13, 2007 10:50 PM
Bradfield certainly knows his Barton. He probably has myth of separation open in his lap as he's writing his responses.
But just like talkorigins has a list of responses to creationist lies, there are other lists that responds to Barton's lies. I found all 5 of Bradfield's cases on this page:
http://members.tripod.com/~candst/whatsnew.htm
They are case17.htm, case08.htm, case02.htm, case01.htm and case05.htm.
Posted by: doctorgoo | January 13, 2007 10:55 PM
If one restricts the sources one reads, it is quite amazing what claims can be "proved" based upon such. Thanks doctorgoo for the heads up on what we're dealing with here. I had guessed as much when he gave us the old canard about the "dormant" Commerce Clause while ignoring Ogden v Gibbons, not to mention the Charles River Bridge flipflop.
Again, how reasonable is it to announce that EVERY supreme court decision (by both conservative and liberal courts) in the last 200 years is mistaken as to the general philosophy of law? Has he announced that his position is the TRUTH yet?
Posted by: kehrsam | January 13, 2007 11:16 PM
Ed says:
Indeed, if it were his intention to uphold 'Christian' law, then why did he five years later simply ignore the Methodist argument that prostitution should be made illegal everywhere in New Orleans because it was inconsistant with Christianity, the supposed foundation of the government?
Plus, they were simply enforcing the church's own rules.
Curious similarity time...
Nathan writes...
But David Barton writes on pg. 64 of The Myth of Separation.
This has been another episode of...Curious Similarities...
Posted by: Dave S. | January 14, 2007 6:51 AM
doctor goo writes:
Yep, there they are. Just for fun, we can guess what some of the the other amazing 16 cases Nathan can give us would be.
The People v. Ruggles
Terrett v Taylor
The Commonwealth v Wolf
Updegraph v Commonwealth
Vidal v Girard's Executors
City of Charleston v Benjamin
It's only a matter of time before he uses the Mayflower Compact as evidence.
Posted by: Dave S. | January 14, 2007 7:12 AM
I should note that even Justice Scalia has noted the Holy Trinity case a textbook for piss poor jurisprudence. Whether America was a "Christian Nation" was not the issue in the case, but meaningless dicta. And re the specific holding, they clearly got the law wrong.
Posted by: Jon Rowe | January 14, 2007 11:27 AM
A certain individual who has been repeatedly told he has been banned wrote -
This of course is not a right recognized by the courts and only exists as a strawman in the feeble minds of nutjobs like Larry.
Posted by: W. Kevin Vicklund | January 14, 2007 5:11 PM
WKV, how do we know that Breckinridge is Farfarman? Did someone compare the IP addresses? If so, wouldn't the IP be banned regardless of the name he uses?
Posted by: doctorgoo | January 14, 2007 5:20 PM
One, because he has been caught numerous times in the past using that pseudonym.
Two, he uses proxies to get around IP address bans.
Three, he is repeating some of his favorite arguments.
Four, his own blog mirrors his comments here.
Five, because Ed last week caught him posting as L. Breckinridge.
Six, he has an inimicable writing style.
Seven, Ed has already deleted the comment.
Need I go on?
Posted by: W. Kevin Vicklund | January 14, 2007 5:39 PM
No need, seven reasons is quite enough :-)
Posted by: doctorgoo | January 14, 2007 5:49 PM
That's right, AnneS, strip the conservative down to his underwear, beat him up, rob him, and leave him for dead, by taking out context, other writings, culture, termonology, and historical facts.
That would be "strip" as in the child stripping the emperor of his new clothes?
Posted by: Francis | January 15, 2007 11:11 AM
"This has been another episode of...Curious Similarities..."
It wouldn't be the first "Curious Similarity" on Nathan's site. Usually he just rips stuff word-for-word off the "Focus on the Family" website.
Posted by: Alan | January 15, 2007 1:55 PM