Saturday, June 16, 2012

Criticizing the Current Interpretation of Disestablishment Clause

Fisher Ames Framer 1st Amendment
Fisher Ames

John R. Houk
© June 16, 2012

On my AC2C blog I posted this title: “Keep Govt. OUT of Church – NOT Church out Govt.” The main focus of the post was a Youtube video of excerpts of President Ronald Reagan speeches with a definite portrayal of Christianity on the U.S. government.

I wrote this as a little introduction to the Ronald Reagan excerpts:

The disestablishment clause of the First Amendment is a one-way action as far as Separation of Church and State is concerned. That one-way is that government must be separate and out of the religion business AND NOT that the Church be separate from the government.

Here are the limited comments on my AC2C blog pertaining to my introduction to the Reagan video:

Comment by CJ on Wednesday:

If they want to keep their tax exemptions they can't preach it at the pulpit.  So, what? … they [can] go out in the political world. the church can interfere, influence government but government can't interfere with the church...???????

I do believe the Founders wanted "religion" out of politics and politics out of 'religion".

Let's just agree to disagree John.

Comment by John on Wednesday

I respectfully disagree CJ. The Church in various denominations can and should be an influence on government and the government should never interfere with the Church in its various denominations. Both sides of that coin can work and did in America until the 1960s.

Comment by CJ on Monday

[N]ot sure about this....can't have it both ways...if you want government out of the church then let the church stay out of the government....

Now just for clarity’s sake I am not criticizing CJ. We are friends on AC2C. Indeed, at AC2C CJ is a big fish and I am just a little mackerel. I am thrilled when CJ reads my posts and comments on them. We are both Conservatives. You should also know Conservatives do not agree on all issues. On the Church/State issue I am all about the government needs to mind its business relating to the Church and the Church needs to be a moral foundation for the rule of law in America and thus the U.S. government.

As the moral foundation, I am not advocating that Christianity itself be the law of the land. I am advocating that Christian morality and principles be the measuring stick for the rule of law in Congress enacting laws and the Executive Branch enforcing those laws or appending rules in conjunction to Congressional enacted laws to define enforcement. Neither the President nor the Judiciary Branch should enact laws according to the U.S. Constitution that are outside the scope of duly enacted Constitutional Congressional laws. The Executive enforces or manages the rule of law and the Judicial Branch merely interprets the enacted law or the enforcement of an enacted law according to the U.S. Constitution and the duly State ratified Amendments.

As far as the Church, the State and the Constitution are related I like this statement on a Jeremiah Project article:

While the concept of separation of church and state might be implied by the First Amendment which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....", it says nothing about the "separation of church and state." And, even if you accept the principle of the separation of church and state being implied by the First Amendment, it's implication is not there to protect Americans from religion, it is there to protect religious Americans from the government.

In their desire to promote their
secular humanist philosophy using the power of government, many liberals today want to alter America's Christian heritage and replace it with the 10 Planks of Communism. They want to remove religion from our history and replace it with the Soviet doctrine of the separation of Church and State. They don't want to safeguard denominational neutrality by the state as the Founders intended, rather they want to eradicate every vestige of religion
from our public institutions. (The bold emphasis is mine. America’s Godly Heritage; Jeremiah Project)

For me the First Amendment in its Original Intent means that which I placed in bold print above: “it's implication is not there to protect Americans from religion, it is there to protect religious Americans from the government.

This is what I meant by Church and State separation is a one-way street. This is why I disagree with CJ. In CJ’s reasoning there is no two-ways about it; i.e. if government cannot be involved Church then Church cannot be involved in government. There is one I can agree with CJ’s reasoning. That agreement is the Church cannot be a Branch of the government say like Islam is a part of the Iranian government making Iran a theocracy. In this line of thinking CJ is absolutely correct in keeping religion/Church separate from government.

The USA is a democratically representative Republic by the people and for the people. There is nothing theocratic about America. In promoting Christian principles in government Americans are doing that which keeps America great. The more God that is prohibited in American government the less America is great. So on government property whether it is Federal, State or local government the emblems of America’s heritage should remain to remind the government what the basis for the rule of law comes from. Part of that heritage is also Judeo-Greco-Roman influence. There is no shame for a secular government to emblemize reminders of our heritage following the Judeo-Christian-Greco-Roman line.

This is the one-way street: no government meddling in religion; however religious influence on government is needful for good government for the people and by the people.

The thing is most Democrats disagree with the one-way street paradigm I briefly stated because of the Living Constitution doctrine has allowed Left oriented activist Judges to begin slowly aligning the nation away from the Original Intent of the Founding Fathers to utilize Christian morality and love to be the foundation of the rule of law.

Here are some remarks that disfavor the Living Constitution doctrine from deceased Chief Justice William Rehnquist:

At least three serious difficulties flaw the brief writer’s version of the living Constitution. First, it misconceives the nature of the Constitution, which was designed to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times. Second, the brief writer’s version ignores the Supreme Court’s disastrous experiences when in the past it embraced contemporary, fashionable notions of what a living Constitution should contain. Third, however socially desirable the goals sought to be advanced by the brief writer’s version, advancing them through a freewheeling, nonelected judiciary is quite unacceptable in a democratic society.

The brief writer’s version of the living Constitution, in the last analysis, is a formula for an end run around popular government. To the extent that it makes possible an individual’s persuading one or more appointed federal judges to impose on other individuals a rule of conduct that the popularly elected branches of government would not have enacted and the voters have not and would not have embodied in the Constitution, the brief writer’s version of the living Constitution is genuinely corrosive of the fundamental values of our democratic society. (The Notion of a Living Constitution; by William H. Renquist – Read Entire PDF Document)

Here are some thoughts from Justice Antonin Scalia:

In a 35-minute speech Monday [2005], Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. …

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

"Why in the world would you have it interpreted by nine lawyers?" he said.

Citing the example of abortion, he said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process.

"Abortion is off the democratic stage. Prohibiting it is unconstitutional, now and forever, coast to coast, until I guess we amend the Constitution," said Scalia … (Scalia Slams ‘Living Constitution’ Theory; by AP on Fox News; 3/14/05 - Read Entirety)

Here is excerpted definition of Original Intent from The Free Dictionary:

The theory of interpretation by which judges attempt to ascertain the meaning of a particular provision of a state or federal constitution by determining how the provision was understood at the time it was drafted and ratified.

Sometimes called original understanding, originalism, or intentionalism, the theory of original intent is applied by judges when they are asked to exercise the power of Judicial Review during a legal proceeding. (The power of judicial review is the power of state and federal courts to review and invalidate laws that have been passed by the legislative and executive branches of government but violate a constitutional principle.)

… Judges who do attempt to apply this judicial philosophy generally agree that only through its application may courts be bound by the law and not their own views of what is desirable. They also generally agree that courts must apply original intent in order to preserve the representative democracy created by the federal Constitution.

… They argue that the interpretation of most written documents, legal or otherwise, involves a form of "communication" in which "the writer seeks to communicate with the reader", Constitutional interpretation is no different, originalists say, because it involves the attempt of judges, as readers, to understand the meaning of a constitutional provision as conveyed by the Framers and ratifiers who authored it. Originalists believe that judges who fail to employ this method of interpretation transform courts into naked power organs.

Originalists contend that judges who deviate from the original understanding of a constitutional provision are forced to replace that understanding with their own subjective sympathies, social preferences, and notions of reasonableness. When judges substitute their own value choices for those actually written in the Constitution, federal courts become super-legislatures that make decisions based on the personal will of judges and not the law of the land (Day-Brite Lighting v. Missouri, 342 U.S. 421, 72 S. Ct. 405, 96 L. Ed. 469 [1952]).

Originalists assert that judges who legislate from the bench violate the separation of powers by making law rather than interpreting and applying it. These judges also violate the principles of federalism, the second essential feature of U.S. constitutional democracy identified by originalists. Under these principles, courts must strike an appropriate balance between the sovereignties of state and federal governments, not allowing the smaller state governments to be wholly consumed by the ubiquitous federal government. Originalists contend that this balance impermissibly tips in favor of the federal government when federal courts invent new constitutional rights that state governments are then required to enforce.

Respect for principles of federalism, then, is intimately connected with the third essential feature of U.S. Constitutional democracy identified by originalists, the Bill of Rights. The Bill of Rights protects certain freedoms from the popular will no matter how democratically the majority attempts to trample them. In all other areas, originalists assert, state and federal majorities are entitled to rule for no better reason than that they are majorities. Originalists explain that majority tyranny occurs if legislation invades areas properly left to individual freedom, and minority tyranny occurs if the majority is prevented from ruling where its power is legitimate.

Originalists argue that the judiciary facilitates minority tyranny by improperly interpreting the Bill of Rights to guarantee liberties not contemplated by the language and intent of the Framers. To avoid this pitfall, originalists believe, judges must safeguard only the liberties that can be clearly derived from the Constitution. Originalists cite a series of cases in which the Supreme Court recognized a right to privacy as the antithesis of proper constitutional interpretation.

… (Read Entire Definition)

That is stage I have attempted to refute on the so-called Separation of Church and State theory the courts have maintained since the mid-20th century to stop America’s Christian Heritage on or in anything that is supported by any kind of taxpayer money.

In 1947 a five to four decision in the Supreme Court ex nihilo added Thomas Jefferson’s letter to the Danbury Baptist Church assuring them that the Federal Government would not establish a National Church thus that Church would not have worry about its parishioners paying taxes to a State Church as the British citizens had to do to support the Church of England (Anglican Church – Episcopalian in USA). In that letter Thomas Jefferson promised a “Wall of Separation” between the Church and the State.  Justice Hugo Black wrote the opinion for the five Justices that egregiously added to the Constitution via a misinterpretation of Jefferson’s intent in his letter to the Danbury Baptist Church. (Dissenting Opinions of Everson v. Board of Education: Jackson and Rutledge)

Here is a great rendition of Original Intent pertaining to the First Amendment and the Disestablishment Clause.

JRH 6/16/12 (Thanks to CJ for inspiring me to ponder)
The TOTAL TRUTH Solutionfor a Fr\ac/tur\ed America

Big Picture Answers for America's Big Problems -
Rebuilding on America's Original Worldview

By Leonard Ransil
Thread Started on Feb 28, 2009, 3:53pm

Section 4: America Founded on a Christian Worldview

Chapter 31: A Key Court Case in the Secularization of America

Amendments to The Constitution of the United States of America

Amendment 1

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, of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Ratified December 15, 1791.

Amendment 14; Section 1.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Ratified July 9, 1868.

Everson Revisited

The bulk of this chapter focuses on the 1947 Supreme Court case, Everson v. Board of Education of the Township of Ewing. The landmark case involved a New Jersey statute that enabled parents who sent their children to parochial schools to receive reimbursement for their transportation expenses.

Justice Hugo Black delivered the opinion of the Court which greased the government’s slide toward secularization through his blatant judicial activism, and popularized the current misinterpretation of the "separation of church and state". His secular based interpretation of the First and Fourteenth Amendments of the U.S. Constitution formed the basis for the opinion. Ironically, his opinion was not consistent with his actual ruling and was "corrected" in a later case. Excerpts from the opinion are quoted here; the full document can be found at the
Cornell University Law School website.

"Prior to the adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against the states. Most of them (the states) did soon provide similar constitutional protections for religious liberty. But some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups. (emphasis added)

Justice Black failed to note that it was the Christian beliefs, held by the vast majority of American Colonists, that enabled them to form a cohesive Federal government based on freedom. The tolerance among Christian sects, which was gradually extended to others, set America apart from other countries. Many hotspots exist today because their leaders reject that example, usually traceable to intolerance within their Worldview assumptions. Secularists think they can reform society by imposing the force of law. Christians believe that true reform can only happen when individual hearts and attitudes are changed for the good through faith in Jesus Christ. In the Everson case, Justice Black argued that using laws to, in effect, outlaw all Christian influence, would improve America; in fact such policies only serve to rip out the rock foundation upon which America was built, causing inevitable moral erosion.

Ironically, Justice Black tacitly admitted in his above lament the existence of a Christian foundation under our state governments that was maintained by the protection of the First Amendment - the very foundation he challenged.

"The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the 'establishment of religion' clause. The interrelation of these complementary clauses was well summarized in a statement of the Court of Appeals of South Carolina,23 quoted with approval by this Court, in Watson v. Jones, 13 Wall. 679, 730: 'The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasions of the civil authority.' " (emphasis added)

Notice Justice Black conveniently omits the qualifier ‘Congress’ in the first sentence. Our Founders intentionally handcuffed Congress from making such laws precisely so that the people of each state would have jurisdiction and freedom to decide whether or not to “establish a religion.”
As his argument unfolded, it became clear that he thought an "evil", namely religion, needed to be suppressed if not replaced - and he supplied the means to do it.
His agreement with the last two sentences of the above quote revealed his underlying bias that the First Amendment "… has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve of the slightest breach."
But previously, he lamented that the states had imposed religious restraints. So how and when did the “structure of our government” rescue “the temporal institutions from religious interference?” It was the Founders, influenced by Christian principles, who fashioned the structure of our government on those Christian principles. Justice Black seemed shamelessly bent on replacing the paradigm of a government based on the Christian belief system - which he misnames "religious interference" - with a government based on no belief system - which is inherently impossible to do. That is like saying it is possible to have a second story building without a first story.
As noted in previous chapters, all governments are founded on some set of assumptions - collectively, a belief system. So, to call a government's foundational assumptions “interference” is irrational. But Black did this for a calculated reason. His hidden agenda was to replace what he called "religious interference," specifically Christian principles, with another belief system, namely Secularism. The notion that Secularism is somehow “value neutral” and therefore does not “interfere” with government operations, is absurd. It is a belief system of competing, and often hostile, assumptions that deny the validity of the assumptions upon which America was built such as America's dependence on God's providence for survival. That is why attempts to remove our nation's Christian foundation or attacking the name of Jesus Christ were once treated as treasonous by early American courts. Justice Black's court opinion officially formulated the criteria Secularists use even today to unilaterally destroy America's Christian foundation and heritage. This was the first official volley in the so-called Culture War.

Seven Black Commandments

Following his interpretation of what constitutes religious interference, Justice Black went on to explain, “The 'establishment of religion' clause of the First Amendment means at least this.” He then issued seven decrees (numbered here for sake of clarity):

1. “Neither a state nor the Federal Government can set up a church.”

How did Justice Black arrive at that new meaning which imposed prohibitions diametrically contrary to the First Amendment? His radical departure from the previous norm was justified by his activist interpretation and extension of the Fourteenth Amendment.

"The broad meaning given the [First] Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom There is every reason to give the same application and broad interpretation to the 'establishment of religion' clause." (emphasis added)

There is 'every reason to give the same application and broad interpretation' only if an activist court majority ignores 160 years of Constitutional and judicial precedent and arrogantly decides that they can invent a reason that fits their secularist Worldview. A section of the Fourteenth Amendment states,

"... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ..."

Secularists are quick to declare that there is no longer such a thing as “states rights.” That saves them the trouble of working to pass laws that support their agenda in every state. All they have to do is get a Federal judge to make a law through a court case and it then applies everywhere. They have used that means to substitute the rights to religious liberty of the majority with the rights of as few as a single American. That travesty of justice and perversion of the First Amendment happened when one woman, atheist and socialist sympathizer Madalyn Murray O’Hair, sued to have Bible reading removed from all public schools and won her case by an 8-1 Supreme Court ruling. With that decision, just eight men effectively violated the freedom of children to hear the truth of the very book upon which our public schools were originally based. No doubt, their outrageous thinking was based on the next decree:

2. "Neither [state nor federal government] can pass laws which aid one religion, aid all religions, or prefer one religion over another."

While this is consistent with Black’s first decree, it is totally opposite the policies and practices of our Founders, including Thomas Jefferson, as documented in previous articles and underscored in his Second Presidential Inaugural Address:

"In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it, but have left them, as the Constitution found them, under the direction and discipline of the church or state authorities acknowledged by the several religious societies."1

Similarly, in 1833, Joseph Story, an Associate Supreme Court of the United States from 1811 until his death in1845, summarized the purpose of the First amendment,

"Probably at the time of the adoption of the constitution, and of the (First) amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as it is not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."2

Story’s further comments clarify that the Christian Worldview was preferred over other Worldviews including Secularism, which he called “infidelity.” The First Amendment, he argued,

“…  was not to countenance, much less to advance Mohammedanism [Islam], or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which would give to an hierarchy the exclusive patronage of the national government.”3 (emphasis added)

In other words, Christianity was to be protected as the foundational religion of America with no single Christian sect given a priority position over another. Justice Black's second decree could not have been more wrong or more destructive to America’s heritage and well-being.

3. "Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion."

This decree also contradicts the previous Federal and state government policy of influencing its citizens by supporting and even requiring Bible-based schools by law. Even as late as 1946, the Dallas Public School system published a survey of the New Testament that would rival what is taught in many seminaries today.

4. "No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance."

Current attempts to force tolerance and acceptance of any belief system today are making possible the appalling scenario that Christianity itself will no longer be tolerated in America. That is tantamount to throwing overboard the people who own the boat.

5. "No tax in any amount, large or small, can be levied to support any religious activities or Institutions, whatever they may be called, or whatever from (sic) they may adopt to teach or practice religion."

Indeed, states carried on that very practice of taxation for decades after the First Amendment was passed proving again our Founders never intended the Federal government to meddle in this area. The hand of Big Government is progressively strangling the throats of state and local governments, a betrayal of power which would have horrified the likes of both George Washington and Thomas Jefferson.

6. "Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa."

Again, Thomas Jefferson did this openly as president for 8 years when he personally attended weekly church services in the Capitol building.

7. "In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ "

Justice Black's failure to correctly cite the origin and true purpose of Jefferson's phrase was a deceitful omission. Using it to then bolster an unrelated argument amounted to propaganda and led to what we have today - the intimidation of Christians and the silencing of religious expression.

The Secularist Avalanche

Our Founder’s words and deeds clearly contradict Justice Black’s interpretation and application of Jefferson's "separation of church and state" remark. It is clear that the court purposely seized the opportunity of the enactment of the Fourteenth Amendment to amend the First Amendment without benefit of the constitutionally required process. That violation of the proper process has continued through the years by activist judges, in league with anti-Christian ideologues, who are bent on secularizing, and thereby destroying, America as we know it. Our rich heritage and practices are being systematically ripped away through despicable court rulings which seek to justify the opposite of what our Founders intended.

"Everson was the beginning of a powerful separationist drive by the Court, during which many programs and practices given government sanction were found to have religious purposes or effects and thus invalidated.”4 (emphasis added)

The unprecedented interpretation of our hallowed First Amendment in the Everson case was the initial snowball that triggered an avalanche of court cases that threaten to destroy our Founder's intent for the First Amendment by establishing the religion of Secular Humanism as the foundation of our government.

The next chapter will describe the proper Constitutional use of judicial power meant to interpret rather than make laws. Once civil servants use any branch of our government to overstep Constitutionally established boundaries, it spells the beginning of the end of our Constitutional Republic. This is especially so when the judiciary replaces Constitutional Law with its own whims.


1 Page By Page Books, "Second Inaugural Address, Thomas Jefferson,", retrieved November 8, 2007.
2 Joseph Story, A Familiar Exposition of the Constitution of the United States (Lake Bluff, IL: Regnery Gateway, [1859] 1986), 316.
3 Murray Hornsby, American Heritage Alliance, America: Our Christian Heritage, Our History and Faith in God, "The Deception of Separation of Church and State",, retrieved November 8, 2007.
4 Wikipedia, Everson v. Board of Education,, retrieved (sic) November 8, 2007.

Last Edit: Mar 1, 2009, 3:10pm by Mark
Criticizing the Current Interpretation of Disestablishment Clause
John R. Houk
© June 16, 2012
Chapter 31: A Key Court Case in the Secularization of America

SlantRight Editor: This page had the dreaded question mark encapsulated by a solid black diamond for unrecognizable punctuation marks; ergo I guessed in editing.

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