Dispatches from the Culture Wars

But in reading these articles, it's clear that not too many of these Admins, Principles and teachers received or understood the memo.

Bible-Reading Student Gets Lesson in Litigation
Banned Bible Reader Sues Del. Co. School District
Lawsuit claims students not allowed to carry Bibles
ADF Lawsuit Claims High School Censoring Christians

A completely irrelevant response. My statement was about what the law says, not the ignorance of some school administrators about the law. Yes, there have been many cases where a school administrator, out of sheer ignorance of the law, prevents a student from reading their Bible at recess, or refuses some form of religious expression. But the key fact, which he leaves out, is that the law is on the side of the students. And 9 times out of 10, all it takes is a letter from an attorney explaining the law and the school quickly reverses itself.

A second key fact, which the STACLU crowd always leaves out because it does not fit the nonsense they peddle, is that the ACLU often represents students in such cases and sends those letters. For instance, one of the famous cases that the religious right loves to cite is the case of a group of students in Massachusetts who were told they could not hand out candy canes with Bible verses attached to them. Jerry Falwell wrote an article about this injustice where he said that the kids have free exercise rights "no matter what the ACLU says." In fact, the ACLU not only agreed, but represented those same students, sending a letter to the school and getting the decision reversed. I could list similar cases all day long where the ACLU has defended the religious liberty rights of students, and have listed them many times in the past.

Next he objects to my statement that, "Indeed, Madison argued that the very fact that Congress had chaplains was a violation of the first amendment." I went on to quote from his Detached Memoranda, where he made a strong argument against congressional and military chaplaincies. Again, loboinok offers an irrelevant response:

In 1789, Madison served on the Congressional committee which authorized, approved, and selected paid Congressional chaplains.

This is true, actually, but irrelevant. Being on a committee is not equivalent to agreeing with the committee's decisions and we know, from Madison's own words, that he objected to the appointment of chaplains paid out of the treasury at the time. He wrote in a letter to Edward Livingston on July 10, 1822:

I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation, that the deviation from it took place in Cong. when they appointed Chaplains, to be paid from the Natl Treasury. It would have been a much better proof to their Constituents of their pious feeling if the members had contributed for the purpose, a pittance from their own pockets.

He also tries to imply that somehow the Detached Memoranda are unreliable because the document was not discovered until later. He offers a quote, but I can't tell where it comes from. Here's the relevant part:

"Significantly, the "Detached Memoranda" was "discovered" in 1946 in the papers of Madison biographer William Cabell Rives and was first published more than a century after Madison's death by Elizabeth Fleet in the October 1946 William & Mary Quarterly. In that work, Madison expressed his opposition to many of his own earlier beliefs and practices and set forth a new set of beliefs formerly unknown even to his closest friends. Since Madison never made public or shared with his peers his sentiments found in the "Detached Memoranda," and since his own public actions were at direct variance with this later writing, it is difficult to argue that it reflects the Founders' intent toward religion."

He put "in 1946" in bold print as though it somehow casts doubt on the authenticity of the document; this is nonsense. That the document is authentic is not disputed by any competent Madison scholar. The handwriting matches perfectly and it is not at all unusual for such writings to turn up long after someone's death. There simply is no reasonable dispute that the document was written by Madison and accurately reflects his own views when he wrote it.

The claim that the Detached Memoranda conflicts with "many of his own earlier beliefs and practices" is absurd. As noted, he did object to chaplaincies at the time they were appointed, so there is no inconsistency on that question. The only argument he offered in the Detached Memoranda that is at all at odds with his earlier practice was that he argued strongly against even generic religious proclamations by the government when he himself had issued a couple of them during his presidency.

Now here's what is left out: he issued those proclamations under extreme political pressure with the impending War of 1812. Congress was demanding those proclamations and he very reluctantly gave in. He later regretted it very much. Welcome to politics, where sometimes principle and practice are in conflict and one is forced to compromise. How that invalidates Madison's argument against such proclamations and his belief that they were unconstitutional is a mystery.

He also makes this bizarre statement:

Madison's proposal for the First Amendment shows that he opposed the establishment of a federal denomination, not public religious activities. His declared:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established."

Where on earth does the phrase "not public religious activities" come from? No one is claiming, nor has ever claimed to my knowledge, that Madison was opposed to "public religious activities." This is standard religious right rhetoric, conflating government-endorsed or government-supported religious activities with public religious activities.

He is right, of course, that this is the wording that Madison initially proposed for the first amendment's religion clauses. But he skips over the next proposed amendment by Madison (the text he quotes is from Madison's proposed 4th amendment, though it ended up in the first amendment). Madison's 5th amendment said:

Fifthly. That in article 1st, section 10, between clauses 1 and 2 be inserted this clause to wit: No state shall violate the equal rights of conscience, or freedom of the press, or trial by jury in criminal cases.

Notice that he was addressing both Federal and State governments in his proposed amendments. It is therefore not surprising that he would use the word "national" in the amendment that addresses what the national government may do, while the next amendment addressed what state governments could do. Ultimately, the 1st amendment did not apply to state action, but Madison believed they should (and proposed so on August 17, 1789. From the Annals of Congress on that day:

MR. MADISON conceives this to be the most valuable amendment in the whole list. If there were any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments. He thought that if they provided against one, it was as necessary to provide against the other, and it was satisfied that it would be equally grateful to the people.

He was an adamant opponent of all religious establishments at both the Federal and state level, and not only to de jure establishments - the actual naming of an official church - but to de facto establishments as well, including any use of tax dollars to support the expression of religion. In this, Madison was quite consistent in this, starting early in his career when he led the fight to do away with all de facto religious establishments in Virginia. One need only read the Memorial and Remonstrance Against Religious Assessments for proof.

So, three arguments offered, none of them true and all of them irrelevant. Yes, Madison did oppose congressional chaplaincies and he did so right from the start. And yes, he opposed not only de jure establishments but anything that even gave a hint of government endorsement of religion at both the Federal and state levels.