Friday, March 28, 2014

Dougindeap Comment to: Disputing Separation Church/State Part 1

Dougindeap - Separation Church-State blogger

Actually Dougindeap, the post that quotes your original comment is somewhat of an introduction to several parts on the separation of Church/State. Frankly I disagree with your view of (chuckle) your refutation of my refutation. Albeit as part of an introduction a piece on Deism is a good foundation because my experience is that is one of the primary sets of reasoning Liberals use to denigrate the influence of Christianity on America's Founding Documents. It will take me awhile to get to everything you originally commented on. I've managed to get to a Part 5 (so far) and I feel like I am still on the tip of the iceberg in demonstrating you are incorrect about separation of Church/State as far as the people being involved in government is not a valid assertion. The Establishment Cause is a one-way street keeping government out of religion.
I have to say your arguments are well thought out even though I disagree with your interpretation of events. This comment is credible enough for me to post without much comment on my part. I'll probably show another side of the coin with future points to the original comment. :-)
JRH 3/28/14

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Dougindeap Comment to: Disputing Separation Church/State Part 1
I don’t know whether I should be flattered or worried that you intend to go to so much effort to refute my arguments, bit by bit. I appreciate the opportunity, in any event, to explore and air out differing views on separation of church and state. (My pseudonym, by the way, is merely a play on words developed many years ago as part of an April Fool’s joke.)
If you aim to refute my arguments, though, you might better focus on what I actually say—and not wander through dictionaries and deism and whatnot. In my argument, I said nothing of such things.
But let’s get to my argument. You quote one sentence, which happens to be the topic sentence of a paragraph that explains the argument that you’re supposedly refuting. Here is the full paragraph:
Separation of church and state is a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the first place, the Supreme Court has thoughtfully, authoritatively, and repeatedly decided as much; it is long since established law. In the second place, the Court is right. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.
Note that I liken the separation of church and state to the separation of powers and checks and balances because the founders did not state any of these principles in so many words in the Constitution. Rather they drafted the Constitution so as to actually accomplish and implement these principles. With respect to separation of church and state, I pointed to five aspects of the original Constitution plus the First Amendment. I concluded by emphasizing that the principle rests on more than just the First Amendment.
How have you gone about refuting this argument? As I read your post, you did five or six things. First, you asserted that my topic sentence is “absolutely FALSE” and, apparently as explanation, further asserted that “[s]eparation of powers as well as government Branch checks and balances are specifically enumerated in the Constitution.” Surely you jest. As you well know, neither those phrases nor the phrase “separation of church and state” or anything like them appear in the Constitution.
Second, you ignored the explanation I offered and said nothing of the several aspects of the Constitution that reflect its separation of church and state.
Third, notwithstanding my observation that the separation of church and state rests on much more than the First Amendment, you focused solely on it and offered your own interpretation of it. You assert that the establishment clause says “Congress can make NO law to establish a State religion (meaning Christian Church in the 1780s)” and elaborate that “Congress specifically, cannot enact legislation that makes a Christian Church a tax supported State institution.”
While the First Amendment undoubtedly was intended to preclude the government from establishing a national church or religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or support a church with taxes, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is hardly a new invention of modern courts. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church. Suffice it to say that no court in the history of our country has ever held that the First Amendment means as little as you suppose.
You add that the separation in the First Amendment is “one-way,” i.e., “Congress is to stay out of the religion-church business [but t]here is no specified prohibition for Christian Churches to be a moral influence on government.” In this, you are on more solid ground. The Amendment indeed imposes constraints on government and not on individuals and churches. It is important to distinguish between “individual” and “government” speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. (Students also are free to exercise and express their religious views–in a time, manner, and place that does not interfere with school programs and activities.) If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.
Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.
Confusion understandably arises because the constitutional principle is sometimes equated with a widely supported political doctrine that goes by the same name and generally calls for political dialogue to be conducted on grounds other than religion. The underlying reasons for that political doctrine are many, but three primary ones are that (1) it facilitates discussion amongst people of all beliefs by predicating discussion on grounds accessible to all and (2) it avoids, in some measure at least, putting our respective religious beliefs directly “in play” in the political arena, so we’re not put in the position of directly disputing or criticizing each other’s religious beliefs in order to address a political issue and (3) since the government cannot make laws or decisions with the predominant purpose or primary effect of advancing religion, it makes little sense to urge the government to do just that. This political doctrine, of course, is not “law” (unlike the constitutional separation of church and state, which is), but rather is a societal norm concerning how we can best conduct political dialogue in a religiously diverse society. Reasonable people can disagree about whether the doctrine is a good idea or not and whether or how it should influence us in particular circumstances.
Fourth, you took a tour of deism. As my argument does not rest in the least on any thoughts of deism, I’ll leave you to that.
Fifth, you note that many founders were Christians and suggest they therefore must have believed Christian morality to be the foundation of the rule of law. It is not entirely clear to me what you have in mind. To the extent, though, that you mean to say that they founded the Constitution or the federal government on Christianity, I think that is mistaken.
While the religious views of various founders are subjects of some uncertainty and controversy, it is safe to say that many founders were Christian of one sort or another and held views such as you note regarding religion. In assessing the nature of our government, though, care should be taken to distinguish between society and government and not to make too much of various founders’ individual religious beliefs. Their individual beliefs, while informative, are largely beside the point. Whatever their religions, they drafted a Constitution that establishes a secular government and separates it from religion as noted earlier. This is entirely consistent with the fact that some founders professed their religiosity and even their desire that Christianity remain the dominant religious influence in American society. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion. It is entirely possible for thoroughly religious folk to found a secular government and keep it separate from religion. That, indeed, is just what the founders did.
Finally, you appeal to the Constitution’s date as evidence the founders had no plan to separate Christianity from the government. True enough, in keeping with the convention of the time, the date is keyed to the Christian calendar. You don’t offer any reason this trivial observation should be regarded as substantive or significant. Are we to suppose that the founding of the government on Christianity is to be surmised from the dating convention? That is grasping at straws.
It is, in any event, also moot since the dating language is not part of the text of the Constitution voted upon and adopted by the Convention or ratified by the states. It was apparently just appended by the scrivener who prepared copies of the document.
As the founders neither drafted, nor chose, nor decided on the dating language added to the end of the document, that language says nothing of their intent.
Edited by John R. Houk
© Dougindeap

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