the Christian roots that once underpinned U.S. government

Discussion in 'The Commons' started by Rexlion, Dec 23, 2022.

  1. Botolph

    Botolph Well-Known Member

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    I sense that both our jurisdictions have suffered at the hands of high/supreme courts who extend their power and effectively change the meaning of founding documents without changing the words.
     
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  2. Invictus

    Invictus Well-Known Member

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    At this point, I am far less concerned about the meaning of the Establishment Clause than I am about what the majority of Americans actually want their institutions to look like. Most parents do not want the public school system - the place where the constitutional separation of church and state is most visibly violated - to be a place where religion is forced on their kids. Religious instruction and participation should be something that is left to the parents, and to whomever the parents have specifically delegated the task (e.g., religious schools, clergy, etc.). The decision not to participate in such things in a public school setting is absolutely not something that should be forced on students whose parents send them there with the presumption that they are receiving a secular education. Teachers (and coaches!) need to keep their convictions private and focus on the job for which they were hired (which I think the vast majority, in fairness, make a sincere effort to do).
     
  3. Rexlion

    Rexlion Well-Known Member

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    In all fairness, you must admit that religion was not being "forced" on kids in the typical situations. They didn't have to participate in prayers, didn't have to attend the religious classes, etc. That's a straw man.

    "What the majority of Americans want" today is a product of their upbringing. That upbringing has been negatively affected by the legal change.

    Formerly, government was supportive, or at the very least not opposed, to children being taught Biblical morality. Children were usually taught this at home, and parents had a reasonable expectation that some of it would be received by their children at school. The children were therefore taught to "honor thy father and mother," but were likewise taught to honor and respect all elders. When at school, these kids were likely to behave, act obediently, and respond to teachers positively. They also saw the teachers model moral behavior as they led in a prayer or read from the Bible. The parents and the teachers reinforced each other and the effect on children tended to be positive. (Of course there always have been children from broken homes and such who did not behave and did not apply themselves to their lessons, but their numbers were far less than now.)

    Now imagine a child born in, say, 1955 who attended school in the '60s; this child still was taught at home by parents to whom Christian behavior still was modeled both at home and school. This child grows up, gets married, and has kids who attend school in the 1980s; they learn some Bible-based morality at home, but they receive no reinforcing lessons at school; moreover, they are influenced by the culture of the '80s through tv, movies, and music which have become far less wholesome and family-oriented. These kids grow up in homes that often are single-parent homes, they are taught little or no Biblical morality and any that they do see appears hypocritical to them; so when they grow up, they "shack up" and have a couple of kids who attend school in the 2000s, who quite likely have witnessed secularism as a way of life and belief both at home and (most certainly) in school; these kids are ill-disciplined, unruly, disrespectful, and have a low opinion of adults. Now they in turn are shacking up and having kids of their own. The number of single-parent households has burgeoned and the 'stable family unit" has become a relative rarity.

    Is it any wonder that schoolteachers can barely teach class today because they're almost fully consumed with "classroom management" and with trying to tamp down misbehaving children? I've had teachers, librarians, and school office personnel tell me how terrible the behavior problem is.... not just the students' behavior, but the parents also!! I've witnessed first-hand (in the year I taught 7th Grade math, 2015-'16) how few students bother to expend any effort to learn what is being taught, because they figure they can cheat their way through (both class and life).

    How could American society have decayed so tremendously? One major factor is media, of course. The other major factor that comes to my mind is the removal of all references to Biblical morality and God in the public schools, beginning in the early 1960s. Each element has fed on the other and has produced a 'cascade effect'. So now we see atheism on the rise, declining church attendance, and a slew of young graduates who can barely read at an 8th Grade level or make change without a cash register, who think older adults are superstitious fools, and who believe that the world owes them a great life handed over on a silver platter.

    See, the question should not be "what does the majority of Americans want." The question should be, "what does God want? What would please Him?" But the die has already been cast, and this society is in grave danger of imploding on itself due to selfishness, greed, lust, ungodliness, and willingness to compromise what little moral compass it has left in order to gain self-satisfaction.
     
    Last edited: Dec 30, 2022
  4. Invictus

    Invictus Well-Known Member

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    You are assuming a version of American history that is problematic at best. For starters, it’s not at all clear that the morality of American society has “declined” since its founding. Nor is it clear that God “wants” prayer in public schools, for example, especially for children who aren’t Christian.

    Morally, the legitimacy of government ultimately derives from the consent of the people it governs: we’re a republic, not a theocracy. God doesn’t vote or run for office in our system. So, what the American citizenry wants ultimately outweighs all other considerations with regard to our government as such. If the overwhelmingly majority of the population were devoutly Christian, the government would ultimately reflect that character, and interpretations of the First Amendment would bend in the direction of that popular will. Likewise if the bulk of the population were militantly atheistic. The interpretation of the Bill of Rights by the Courts will ultimately reflect what society wants it to be, provided government itself remains accountable via periodic elections. The Establishment Clause in particular (and having a “Bill of Rights” in general) doesn’t really add anything extra in terms of the protection of rights.

    So, rather than debate what the “original meaning” or “original intent” of the various Constitutional clauses was - which only matters in terms of current law - it is far better to debate these things simply on their merits, viz., in terms of their intrinsic desirability, practicality, cost-benefit ratio, etc. As that pertains to the issue at hand, one such argument might proceed as follows:

    To put it simply, non-Protestant families on the whole are not going to allow local school boards to dictate to them what religious instruction their children will receive, and they will ultimately either elect representatives and judges who will be sympathetic to their concerns, or they will ‘vote with their feet’. It’s also not at all clear what the societal benefit(s) of such coercion would be. After all, atheism doesn’t cause systemic crime, poverty does. So, using public resources and limited classroom time to recite verses from the Bible (or the Qur’an), when that time and money could be spent teaching math and science so students have a strong foundation on which to build employable skills, would be a manifest waste in an already severely underfunded and overworked system. Policies that are that divisive without a commensurate benefit simply aren’t worth pursuing.​

    Undoubtedly there are counterarguments that could be made to the above (though it’s not clear how successful they would be). The point is that such a debate will ultimately take place, whether a plurality want it to or not, because real problems demand solutions (eventually), and the dead cannot legislate for the living. The Constitution cannot be an excuse for government to refuse to govern.

    None of this is to say that children shouldn’t be taught the religious traditions that are intrinsic to their family or that such things aren’t important, but rather that the best ones to pass on this tradition are the families themselves. Allowing authority figures (like coaches) to circumvent these norms and thus apply (and allow) peer pressure to be directed at recalcitrant students/athletes, is a manifestly unacceptable use of public resources that are intended for the common benefit of society as a whole, not merely one particular segment of it.
     
    Last edited: Dec 30, 2022
  5. Rexlion

    Rexlion Well-Known Member

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    Balderdash. In the Netcong case I referred to previously, the Court observed that public opinion polls showed that 82% of Americans favored prayer in public schools. That was in 1970. Yet the Supreme Court disallowed the practice in multiple ways and in multiple cases, beginning 8 years previous with Engel. If your premise were correct, the Court would have stuck its moistened finger in the breeze and noted that "the American citizenry ultimately outweighs all other considerations," including their newly constructed "wall of separation."

    There's your fine "republic" for you. The Constitution, the States, and the will of the people, all overruled by a panel of 9 robed individuals.

    "You seem to consider the judges as the ultimate arbiters of all Constitutional questions: a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. The Constitution has erected no such single tribunal...it has more wisely made all the departments co-equal and co-sovereign with themselves." -- Thomas Jefferson
     
    Last edited: Dec 31, 2022
  6. Invictus

    Invictus Well-Known Member

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    What I actually said is that the courts cannot thwart the popular will indefinitely. Eventually, jurisprudence will give way to legislation (which is the way it’s supposed to work in a republic, BTW). You’re welcome to try to disprove that. Good luck.

    I also wrote earlier in this thread that American religiosity probably peaked sometime in the latter half of the 20th century. Thank you for citing evidence to support that. :thumbsup:
     
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  7. Rexlion

    Rexlion Well-Known Member

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    To quote Jefferson again,
    "On every question of construction, carry outselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probably one in which it was passed."

    That is why the courts have long utilized an 'original intent' method of interpretation. Even in the Everson case, the Court went back to a letter written by Jefferson; the problem was that they falsely interpreted it.

    Anyone who argues that it's better to ignore original intent and instead interpret the Constitution in light of today's changing society should therefore be in steadfast opposition to the Court's use of Jefferson's letter to the Danbury Baptists to halt prayer in schools. To do otherwise is illogical.
     
  8. Rexlion

    Rexlion Well-Known Member

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    Go ahead, try any way you like to wiggle out of the box you've put yourself in.
     
  9. Invictus

    Invictus Well-Known Member

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    I don’t know what you’re talking about. :dunno:

    I agree with the sentiments attributed to Jefferson above. Unfortunately, history went in a different direction with Marbury v. Madison, in which the Court discovered a power never granted it by the Constitution, and never belonging to Courts before in any common law system.

    Ultimately there’s no such thing as “original intent.” What we have is a text whose likely technical meaning at the time it was promulgated must be reconstructed. To take the law seriously is to be a textualist, if we’re following Blackstone. The meaning of the law at the time it was enacted, not its supposed “intent,” is what should control the interpretation of a statute, wherever possible. (The paragon of this approach on the Court currently is probably Justice Gorsuch.)

    My argument above - which, in fairness, you seem not to have understood - was part factual, part moral. It is a common law principle that no legislature may bind or constrain a future legislature, yet this principle is upended by Marbury v. Madison’s characterization of the Constitution as ‘extraordinary’ or ‘superior’ legislation in contrast to ‘ordinary’ legislation. If the purpose of the Constitution is to ensure that the people are governed by consent, then the criterion of ‘constitutionality’ is something that should be presumed to have already been met if both Houses passed the proposed Bill, and, crucially, if the President signed it into law. That is the way the executive veto worked in the British system, and is the way the Framers envisioned it working under the proposed Constitution.

    “The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised.” (The Federalist Papers, No. 73)​

    So, the authors of The Federalist didn’t have anything like Marbury v. Madison in view during the ratification process. It was thought that legislation would proceed more or less as it had under the British system: the legislature would remain supreme in making the law, and the courts would be subordinate to the legislature, in the sense that the former could not usurp the Executive veto, and certainly not after a law had already been enacted. With that background in mind, I suggest you go back and re-read what I wrote earlier about the law reflecting the will of the majority (as required by the principles that (1) citizens are equal under the law, and (2) that the citizenry as a whole is the ultimate source of power in a republic):
    The reason we have all these debates about “constitutionality” and “original intent” is because law has not been allowed to function truly as law since Marbury v. Madison. And because legislation can’t function properly, as truly sovereign, we have no alternative but to constantly read new meanings into a 200+ year old document, in order justify legislation that would have already been enacted years or even decades earlier anyway. It’s an unnecessary hurdle that it would arguably be better - as President Jackson is said to have recognized (though we of course would disagree unequivocally today with the reason for his strict constructionist stance, viz., his cruel attitude and policies toward the American Indians) - for the Executive and the Legislature to simply disregard. Courts can and should interpret the law, but they should not, in a republic, be allowed to veto what the people’s elected representatives and the Head of State have already certified and enacted. For them to do so is frankly more reminiscent of the ‘guardianship’ model in force in Iran, where legislation can be undone for ‘conflicting with the Revolution’, as the clerics/judges understand it, than it is of the British common law system we are said to have inherited. A country cannot be both a secular republic of laws and a religious guardianship of the judiciary.
     
    Last edited: Dec 31, 2022
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  10. Rexlion

    Rexlion Well-Known Member

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    I agree with nearly everything you stated in this post! :cheers: The exception is the following short paragraph:

    For the sake of all readers, I will post the following links to pages which define the textualist and original intent (or original meaning) methods of interpretation. There certainly is such a thing as original intent, and it is extremely relevant. For example, the phrase "an establishment of religion" had a specific meaning to the founders (including those at the 'state' level who debated and ratified it as well as the members of the Constitutional Congress who drafted it), but the current use of the phrase is quite different. This has led to a result that goes completely against the intent of the founders.

    Textualism alone cannot guarantee a just result. Imagine if the Constitution made some important reference to a "gallon" and meant the Imperial gallon, but courts today interpreted it to mean a (smaller) US gallon. Why would we ignore founders' writings which reveal the original intended meaning, simply because our society has changed and now uses a different-sized gallon?

    Just decisions require that we utilize the available knowledge of original intent whenever possible. Regarding legal documents of any sort, Joseph Story wrote, "The first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and intention of the parties." Justice James Wilson said in regard to laws, "The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it."

    I have already quoted in a previous post what Jefferson said on the matter. James Madison similarly declared, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers...What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense."
     
    Last edited: Dec 31, 2022
  11. Rexlion

    Rexlion Well-Known Member

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    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..."

    The purpose of the First Amendment's religion clauses was to guard religious freedom by placing firm prohibitions upon government interference with religion. We see this in the language of the Amendment itself, and in the words of those people who lived at the time of its enactment and knew what the words meant.

    Justice Story wrote, "We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence than the framers of the Constitution)...Probably, at the time of the adoption... the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the State."

    The Northwest Ordinance (an important 1789 federal law) states that the means of education should always be encouraged because "Religion, morality, and knowledge" are all "necessary to good government and the happiness of mankind."

    As late as 1854, a US Senate Judiciary Committee report defined "an establishment of religion" as "that establishment which existed in the mother country" (that is, England and its state religion). The Committee report said that this fact was "without doubt."

    Despite all this, where are we today? What does the 'legal landscape' look like for religion, and what are some of the results of having created a new "wall of separation"?
    • school-sponsored prayers have been banned
    • state-sponsored displays of the Ten Commandments in schools have been banned
    • displays of the Ten Commandments in state courthouses have been banned, even though they are engraved in stone in the US Supreme Court
    • a verbal prayer uttered by a school student over his lunch was declared unconstitutional in a federal district court (Mich.), but some other courts have ruled contrary to this
    • a school student addressing an assembly of his peers may not utter a prayer
    • distribution of Bibles on school property is prohibited
    • schools may not teach scientific hypotheses of, or evidence for, creationism or intelligent design of the universe
    • a piece of art with a Christian theme may not be hung in a school hallway
    • crosses and nativity scenes have been forced from many public properties, but Satanic monuments have been upheld
    The federal government now displays open opposition and hostility toward religion, particularly the Christian religion, and the Bible. Even though Christianity is a part of our national heritage and the Bible's lessons are extremely important in historical as well as moral terms, public school administrators and teachers have been conditioned to 'err on the side of caution' in banning all religious speech and materials. Unfortunately this frequently leads to overreactions, and children are often forbidden from mentioning God in any way by their teachers. This happened to my own son when he was in either Kindergarten or 1st Grade (I forget which). Freedom of speech now takes a "back seat" to anti-religous, disestablishment fervor.

    200 years ago it was illegal to blaspheme but legal to say a prayer in school. Now it's illegal to pray in school and legal to blaspheme. O_o

    It is possible that educating the public might create enough pushback to cause anti-religion rulings to be halted and reversed. There is some awareness of this among more conservative judges; for example, former Justice William Rehnquist wrote in his dissenting opinion to Wallace v. Jaffree, "The 'wall of separation between church and State' is a metaphor based on bad history...It should be frankly and explicitly abandoned." One can hope that this sentiment might grow.
     
    Last edited: Jan 1, 2023
  12. Invictus

    Invictus Well-Known Member

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    The difference is that textualism will not automatically yield an “originalist” result, which means it is likely more impartial or ‘proceduralist’ as an overall method. The meaning of the words of a statute at the time when the statute was enacted is and should be the deciding factor - as it is the only objectively accessible feature inherent in the text - when applying the law to a set of circumstances that the legislators did not anticipate. The most famous recent example of this is Bostock v. Clayton County, in which the majority (whose opinion was written by Justice Gorsuch), found that the plain sense of Title VII of the Civil Rights Act of 1964 clearly prohibits and has always prohibited workplace discrimination against gay or transgender men, despite the fact that this particular issue was not the occasion for the passage of the Act. Justice Gorsuch’s reasoning in the majority opinion is ironclad in its soundness.

    It thus seems to me that we need more Episcopalians on the Court (as Justice Gorsuch is an Episcopalian). :D
     
  13. Rexlion

    Rexlion Well-Known Member

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    No, it's not automatic. It does open the door to some subjective interpretation. But so does "originalism" require some subjective interpretation, because one must arrive at the meaning of words and phrases in some manner or other, and a great many words have more than one meaning. Otherwise, if every statute may readily be viewed completely objectively, what need have we of interpreters (jurists)? Any man off the street should be able to read :news: and tell what the law says, and be done with it. :rolleyes: But that's not how it works.
     
  14. Invictus

    Invictus Well-Known Member

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    The legal philosophy I endorse is Blackstone’s, whether we call it “textualism” or something else.

    “The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.”

    — The Oxford Edition of Blackstone's: Commentaries on the Laws of England: Book I: Of the Rights of Persons
    I reject “originalism,” as it is commonly understood, as I take it to be asserting something substantially less comprehensive than what Blackstone described. His subsequent discussion following the passage quoted above is most enlightening, and should be required reading in any high school civics course.
     
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