s****hawk <s****hawk@[EMAIL PROTECTED]
> wrote:
>:|
>:|Why don't you tell us what "respecting" meant at the time the
>:|constitution was accepted by all the states. Then you can tell use
>:|what the word "an" means. As I read the language, Congress can make
>:|no laws respecting "an establishment of religion," i.e., a religious
>:|establishment, any religious establishment, whether it's the Catholic
>:|Church or David Koresh's cult.
>:|
Ok
http://groups.google.com/group/alt.society.liberalism/msg/ea050382a385c0f1?hl=en&&q=respecting+an+establishment
http://tinyurl.com/6kyx2b
Paul Revere
Jan 22 2004, 4:06 am
Newsgroups: alt.education, alt.politics.democrats.d,
alt.politics.liberalism, alt.politics.republicans,
alt.politics.usa.constitution, alt.politics.usa.republican,
alt.society.liberalism
From: z...@[EMAIL PROTECTED]
(Paul Revere)
Date: Thu, 22 Jan 2004 08:06:47 GMT
Local: Thurs, Jan 22 2004 4:06 am
Subject: Re: Biblical Roots of American Liberty
In article <100rcec2prl3...@[EMAIL PROTECTED]
>, "dpr" <why> wrote:
>http://www.libertyhaven.com/noneoftheabove/religionandchristians/bibl....
>html
>Biblical Roots of American Liberty
The Separation of Church and State
Jesus of Nazareth: "Give unto Caesar that which is Caesar's and unto the
Lord that which is the Lord's".
noting that nothing in the establishment clause appears to limit its
applicability to national establishments of religion (or, alternatively,
to
establishments of a national religion). On the contrary, the words
"establishment" and "religion" are left unmodified, as we would expect if
they were intended broadly. Similarly, the clause doesn't distinguish
between preferential and non-preferential establishments; accomodationists
create this distinction without one word of grounding in the text. Rather,
as pointed out by legal scholar Douglas Laycock, the version of the
establishment clause adopted by the First Congress "is one of the broadest
versions considered by either House:"
It forbids not only establishments, but also any law respecting or
relating
to an establishment. Most im****tantly, it forbids any law respecting an
establishment of "religion." It does not say "a religion," "a national
religion," "one sect or society," or "any particular denomination of
religion." It is religion generically that may not be established
("Nonpreferential Aid to Religion: A False Claim about Original Intent,"
William and Mary Law Review, vol. 27, 1986, p. 881).
Conversely, the free exercise clause does contain limiting language,
although accomodationists don't read this clause narrowly. To illustrate
this narrowness, compare the free exercise and free speech clauses:
· Congress shall make no law...prohibiting the free exercise
thereof;
· Congress shall make no law...abridging the freedom of speech.
As noted by Constitutional scholar Leonard Levy:
The framers of the amendment deliberately used different verbs in the
freedom of religion and freedom of the press clauses....If the framers
meant what they said and said what they meant, then Congress may abridge
the free exercise of religion so long as Congress does not prohibit it.
(The Establishment Clause,pp. 118)
The word "respecting:"
The establishment clause does more than ban the federal government from
establi****ng religion; it bars even laws respecting establishment. This
language is far more consistent with the broad reading of the clause than
it is with any version of accomodationism. To quote again from Levy:
The First Amendment does not say that Congress shall not establish a
religion or create an establishment of religion. It says Congress shall
make no law respecting an establishment of religion. Whether "respecting"
connotes honoring or concerning, the clause means that Congress shall make
no law on that subject. The ban is not just on establishments of religion
but on laws respecting them, a fact that allows a law to fall short of
creating an establishment yet still be unconstitutional. The entire
nonpreferentialist argument reduces to the proposition that, although a
law
preferring one religion over others would be unconstitutional, government
aid to all without preference to any would be constitutional. But if
government cannot pass a law on the subject of an establishment of
religion, whether the aid is to all without preference or to only one
makes
no difference. A law of either kind is a law on a forbidden subject and
therefore unconstitutional. (The Establishment Clause, p. 118)
The word "thereof:"
An overlooked aspect of the free exercise clause is that it looks back to
the establishment clause for its definition of "religion;" the
establishment clause says that Congress may make no law respecting the
establishment of "religion," while the free exercise clause says that
Congress cannot prohibit the free exercise "thereof." Logically, the word
"thereof" must have the same content as the object to which it refers.
Accordingly, what counts as "religion" for one clause must count as
"religion" for the other. Critically, the free exercise clause makes no
sense unless the word "religion" is read to encompass more than a church,
denomination, or sect. On the contrary, it is common ground that the state
abridges free exercise when it interferes with only small parts of an
individual's religious practice. The state, for example, abridges free
exercise when it tells student they cannot pray during school, even if it
allows them complete freedom to practice all other aspects of their faith.
Similarly, the state cannot tell a church it can't erect a nativity scene
on its front lawn even if the church is otherwise left free to use its
property as it wishes. Private prayer and nativity scenes are protected by
the free exercise clause despite the fact that neither of these practices
constitute religions in and of themselves. If prayer and nativity scenes
count as "religion" for the purposes of the free exercise clause, they
must
also count as "religion" for the purposes of the establishment clause.
Just
as the state abridges religion when it tells a student she cannot pray, so
to does it establish religion when it requires prayer to be said in the
schools. Just as the state abridges religion when it tells a church it
can't set up a nativity scene, so to does it establish religion when it
sets up a nativity scene on government land at public expense. The state
does not cross the line to establishment only when it goes to the trouble
and expense of setting up a state church; it crosses that line when it
sets
up any religious practice that constitutes "religion" for the purposes of
free exercise.
Legislative History of the Religion Clauses
If, as accomodationists want to argue, the purpose of the First Amendment
was simply to bar the establishment of a state church, then one would
expect to see evidence of this intent in the framing of the Amendment. In
fact, the framers rejected versions of the First Amendment that would have
done nothing more than bar the establishment of a state church. Rather,
the
framers adopted what is arguably the broadest of the proposed versions.
(All information in this section is taken, unless otherwise indicated,
from
Leonard Levy, "The Original Meaning of the Establishment Clause of the
First Amendment," in James E. Wood, ed., Religion and the State, pp.
43-83.
For other discussions of the framing of the Amendment, see Thomas Curry,
The First Freedoms, ch. 8, and Douglas Laycock, "'Nonpreferential' Aid to
Religion: A False Claim about Original Intent," William and Mary Law
Review, vol. 27, pp. 875-923. Additionally, please consult our online
collection of all the mentions of the religion clauses recorded in the
Annals of Congress and the Senate Journal for the first Congress.)
The House debates:
James Madison introduced the first version of the Amendment in the House
of
Representatives in 1789. The version read as follows: "The civil rights of
none shall be abridged on the account of religious belief, nor shall any
national religion be established, nor shall the full and equal rights of
conscience in any manner or on any pretext be infringed." A House
subcommittee immediately edited out the word "national" from Madison's
proposal. A variety of additional versions were proposed and debated; none
of these versions contained the word "national," or can be construed to
bar
only the establishment of a national religion. After further debate, the
House approved the following, clearly broader, amendment: "Congress shall
make no law establi****ng religion, or to prevent the free exercise
thereof,
or to infringe the rights of conscience." The first two thirds of the
proposal are similar to our present version of the First Amendment;
nothing
in the proposal seems independently to authorize Congress to aid religion
in any way.
The Senate debates
The House amendment went to the Senate in August. On September 3 the
Senate
took up three alternatives to the House language. The wording of these
versions were as follows:
· Congress shall make no law establi****ng one religious sect or
society in preference to others.
· Congress shall not make any law infringing the rights of
conscience, or establi****ng any religious sect or society.
· Congress shall make no law establi****ng any particular
denomination
of religion in preference to another.
None of these versions passed muster. Instead, the Senate approved the
following, much broader, language: "Congress shall make no law
establi****ng
religion." Six days later the Senate returned to the Amendment for the
final time and approved the following: "Congress shall make no law
establi****ng articles of faith or a mode of wor****p, or prohibiting the
free exercise of religion." The Senate, in other words, rejected three
versions of the First Amendment that would have codified the
accomodationist position (i.e., the barring of a national church, and
little else) in favor of a version that, while not as broad as the House
proposal, was no longer narrowly focused on the establishment of a "sect,"
"society," or "denomination."
The conference committe debates:
Given the approval of different versions of the Bill of Rights by the
House
and Senate, a conference committee was created to resolve differences. The
House members of the committee (headed by Madison) flatly refused to
accept
the Senate version of the religion Amendment, thereby "indicating that the
House would not be satisfied with merely a ban on preference of one sect
or
religion over others" (Levy, "The Original Meaning of the Establishment
Clause," p. 60). The Senate conferees then abandoned the Senate proposal,
and the current version of the Amendment was adopted.
The history of the framing of the First Amendment, in other words, gives
little sup****t to the accomodationist position. The House never considered
a version of the Amendment that codified the accomodationist position. The
Senate did consider such versions, but rejected them. In their place, the
Senate approved a more broadly drawn Amendment that barred the
establishment of articles of faith and modes of wor****p without reference
to religious denominations. The final version of the Amendment was even
more broadly drawn than the House version in that it barred not only an
establishment of religion, but even laws respecting the establishment of
religion (i.e., wording that further guaranteed that the federal
government
could not interfere with the religious affairs of the states). Clearly,
Congress intended the First Amendment to do more than simply bar the
establishment of a state church.
http://members.tripod.com/%7Ecandst/tnppage/basic3a.htm
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
To the above let me add the following information:
OXFORD ENGLISH DICTIONARY &
The Barnhart Concise Dictionary of Etymology.
Establishment, Part I
http://candst.tripod.com/est01.html
In any discussion it is always wise to define terms. When a discussion is
historical in nature, those terms must be defined and understood as the
people of the period used them.
One excellent tool to use in creating that understanding is the Oxford
English Dictionary. Not only does the Oxford English Dictionary list all
the possible definitions of any given term, it also cites literary
references demonstrating how the term was actually used by writers of
different periods beginning with the earliest known usage of the term.
Another excellent tool is The Barnhart Concise Dictionary of Etymology.
This handy resource provides a short history of what language a term
originally came from and when its changing usages occurred.
To being our discussion of Establishment as it pertains to religious
freedom, let's look at some definitions of terms as found in these two
references:
Establish v. about 1380 Establishen, to fix, settle, set up;
borrowed from Old French Establiss-, stem of establir, from Latin
stabilire
make stable, from Stabilis STABLE Steady; Establishment n. 1481, a settled
arrangement, earlier, property, income (before 1480) Formed from English
establish + -ment. The phrase the Establishment, meaning the established
church is first recorded in English in 1731.
The Barnhart Concise Dictionary of Etymology. The Origins of American
English Words, Robert K. Barnhart, Harper Collins Publishers, (1995) p 253
Respect n. Probably about 1380. Respecte relation, reference,
regard, borrowed from Old French Respect, and directly from Latin
Respectus
(genitive respectus, regard; literally, act of looking back at one, from
respect-, past participle stem of respecere look back at, regard, consider
(re- back + specere look at). — v. 1548, to regard, consider, take into
account, probably from the noun reinforced by middle French respecter look
back, delay, respect, and Latin Respectare frequentative form of respicere
look back at, regard
The Barnhart Concise Dictionary of Etymology. The Origins of American
English Words, Robert K. Barnhart, Harper Collins, (1995) p 657
ing a suffix meaning action, result, product, materials, etc.
The Barnhart Concise Dictionary of Etymology. The Origins of American
English Words, Robert K. Barnhart, Harper Collins, (1995) p 387
an meaning not, meaning to, toward, before, meaning being or
belonging to.
The Barnhart Concise Dictionary of Etymology. The Origins of American
English Words, Robert K. Barnhart, Harper Collins, (1995) p 24
Religion probably before 1200, religion, a religious order or
community.
The Barnhart Concise Dictionary of Etymology. The Origins of American
English Words, Robert K. Barnhart, Harper Collins, (1995) p 650
Religion
***********************************************************************
http://candst.tripod.com/bthot-lr.htm
Some Thoughts on Religion and Law
Written by Susan Batte, Esq.
1. The Constitution did not provide any mechanism for the establishment
of religion or for the sup****t of religion.
2. Religious tests were the primary mechanism for perpetuating an
established church within the political structure.
3. The Constitution specifically prohibits religious tests or oaths for
office.
THEREFORE, the Constitution created the concept of Separation of Church
and
State by providing nothing in the constitution that sup****ts the idea that
Government as Government is allowed to sup****t any religion for any reason
and by specifically prohibiting the primary political mechanism for
sup****ting religion.
The 1st Amendment may only be interpreted, as being consistent with the
Constitution and the views expressed in the Constitution concerning
religion because:
1. The 1st Amendment was drafted after the Constitution was ratified
and
was not designated as repealing any provision in the Constitution.
2. The 1st Amendment does not provide any mechanism for establi****ng
religion.
3. The 1st Amendment does provide the mechanism to allow an individual
as an individual and not as government to exercise the religion of his or
her choice.
THEREFORE, the 1st Amendment cannot be interpreted to mean that some
governmental entities may sup****t religion in some ways (i.e., vouchers,
welfare programs, etc.).
Once the 1st Amendment prohibited Congress from establi****ng religion by
prohibiting it from making any law respecting an establishment of religion
- Congress was thereby precluded from passing any kind of appropriation
bill to fund any religious enterprise.
In order for the above to be true, the interpretation of "establishment"
would have to be broad, and in fact the broad interpretation of
"establishment" is sup****ted. First, the O.E.D. (Oxford English
Dictionary)
sets out a 1561 definition of establishment as "a means of establi****ng;
something that strengthens, sup****ts or corroborates. Into the 1700s -
1800s, "establishment" could be defined as "the establi****ng by law (a
church, religion, form of wor****p.) As an example, the O.E.D. sets out the
following: 1886 Earl Selborne De Ch. Eng. I. iv. 77 All such relations of
the Church to the State as those which are summed up in the term
'Establishment'.
Second, a broad interpretation of"establishment" is consistent with the
indefinite article that proceeds it. "An"'establishment of religion'
refers
to all or any religious establishment --- not to one or some
establishments. In the absence of definiteness, the inclusion of "of one
Christian sect over another" after "Congress shall make no law respecting
an establishment" would be necessary if, as Mr. Barton argues, the 1st
Amendment was all about stamping out competing rivalries between Christian
sects.
In addition, the operative word in the Establishment Clause is RESPECTING.
Respecting an establishment of religion. Any religious institution, be it
a
20 member country church or a huge multimillion member international
religion, is an establishment of religion. The government is forbidden
from
making any laws, positive or negative that would pertain to an
establishment of religion.
The narrow definition of establishment is that the 1st Amendment meant
only
to prevent a "State Church" from being officially sanctioned by the
Government. (In this way, some people have tried to argue that sup****ting
religious schools doesn't establish anything.) However, such a narrow
reading of "Establishment" would need specific language added to the
Amendment to sup****t it since a plain language reading of the Constitution
clearly shows no bias for (or against) Christianity as opposed to any
other
religion or even irreligion. And neither does the 1st Amendment.
I would be remiss if I did not point out that the 10th Amendment is not
implicated in the matter of funding religious schools. The 14th amendment
applies the establishment clause against states
********************************************************************
"Congress (which now means any level of government) shall make no law
RESPECTING (touching, helping, sup****ting touching upon, touching, aiding,
hindering, applying to, have to do with, etc) an ESTABLISHMENT
(institution) of RELIGION (any religious sect, society, denomination,
religion), . . . "
The use of public monies, the taxing of individuals to sup****t religion
was
considered a form of religious establishment at the time of the founding
of
this nation.
-----------------------------------------------------------------------------------------
Alexander Hamilton defined establishment of religion as the government
sup****t and protection of religion.
"Remarks on the Quebec Bill," in Hamilton Papers, 1:169-70.
---------------------------------------------------------------------
''[F]or the men who wrote the Religion Clauses of the First Amendment the
'establishment' of a religion connoted sponsor****p, financial sup****t, and
active involvement of the sovereign in religious activity."
http://supreme.lp.findlaw.com/constitution/amendment01/02.html#1
----------------------------------------------------------------------------
==========================================================
------------------------------------------------------------------------------
The word "establishment" had at least two meanings at the time the
First Amendment was adopted and has those meanings today. One was a
technical reference to monopoly status, such as the Roman Catholic
church had for many years in Spain; or to government patronage and
control of a church, such as the Church of England; or government
regulation and financial sup****t of one or more churches, as in some
colonies and states in early America.
The other meaning of the word "establishment" is institution. The two
meanings are used interchangeably today as they were then. A religious
establishment is an institution of religion. Madison spoke of "the
establishment of the chaplain****p" in Congress.' He vetoed a bill to
give a parcel of land to a Baptist church with the statement that
"Congress shall make no law respecting a religious establishment.".
Jefferson, in drafting a "Bill for the Establishment of District
Colleges and University" and in the Regulations of the University of
Virginia, provided that the students "will be free and expected to
attend religious wor****p at the establishment of their respective
sects."
(Religious Liberty And The Secular State, the Constitutional Context,
by John Swomley, pages 48-49)
***********************************************************************
RELIGION An Overview
Madison's original proposal for a bill of rights provision concerning
religion read: ''The civil rights of none shall be abridged on account of
religious belief or wor****p, nor shall any national religion be
established, nor shall the full and equal rights of conscience be in any
manner, or on any pretence, infringed.'' The language was altered
in the House to read: ''Congress shall make no law establi****ng religion,
or to prevent the free exercise thereof, or to infringe the rights of
conscience.'' In the Senate, the section adopted read: ''Congress shall
make no law establi****ng articles of faith, or a mode of wor****p, or
prohibiting the free exercise of religion, . . .'' It was in the
conference
committee of the two bodies, chaired by Madison, that the present language
was written with its some what more indefinite ''respecting ''
phraseology.
Debate in Congress lends little assistance in interpreting the religion
clauses; Madison's position, as well as that of Jefferson who influenced
him, is fairly clear, but the intent, insofar as there was one, of the
others in Congress who voted for the language and those in the States who
voted to ratify is subject to speculation.
http://caselaw.findlaw.com/data/constitution/amendment01/01.html
*********************************************************
"Congress shall make no law RESPECTING (touching, helping, sup****ting
touching upon, touching, aiding, hindering, applying to, have to do with,
etc) an ESTABLISHMENT (institution) of RELIGION (any religious sect,
society, denomination, religion), . . . "
It is im****tant to bear in mind, this is not one way. Religion was not
given any seat at the table of government. No trappings, no office, no
say,
no authority., not was government given any seat at the table of religion.
**************************************************************
LEONARD W. LEVY
* Second, the nonpreferentialists stress the "a" in Madison's
recommended amendment without considering that it did not pass the House.
The amendment as adopted bans any law "respecting the establishment of
religion." It does not refer to 'a religion" or "a national religion." The
reference is to religion in general. The nonpreferendalist argument is
founded on a discarded proposal rather than the constitutional text.
Nevertheless, Madison had an interpretation of "national religion," as we
shall see, that undoes the nonpreferentialist argument.
Third, "the" is not "generic"; it is specific. Contrary to Robert
Cord, Daniel Dreisbach, and the others, the employment of "the" instead of
"an" as the article preceding "establishment of religion" would not have
broadened the establishment clause. Fourth, "the" can be as singular as
"a"
or "an." But those are quibbles.
A more im****tant objection to the nonpreferentialist emphasis on
the definite article in the establishment clause derives from the attempt
to construe it literally or strictly. That which is inherently ambiguous
cannot be strictly construed. Worse still, strict construction of the
First
Amendment, if ever taken seriously, would lead to the destrucdon of
basic rights. Strict construction often leads to narrow-mindedness.
Consider the exact language of the amendment: "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."
The framers of the amendment deliberately used different verbs in the
freedom of religion and freedom of the press clauses. That is a matter
of considerably greater semantic im****tance than the difference between
"an" and "the" in the establishment clause. Ifthe framers meant what they
said and said what they meant, then Congress may abridge the free exercise
of religion so long as Congress does not Prohibit it. The point is that
contrary to Rehnquist and company, the principles embodied in the First
Amendment's clauses, not some misunderstanding based upon a grammarian's
niceties, command our constitutional respect.
(SOURCE OF INFORMATION: The Establishment Clause, Religion and the First
Amendment, by Leonard W. Levy, Second Edition, Revised, The University of
North Carolina, Chapel Hill, (1994) pp 117-118
*************************************************************
* The still more im****tant fact is that the type of article used
in
the establishment clause makes no difference. The First Amendment does
not
say that Congress shall not establish a religion or create an
establishment
of religion. It says Congress shall make no law RESPECTING an
establishment
of religion. Whether "respecting" connotes honoring or concerning, the
clause means that Congress shall make no law on that subject The ban is
not
just on establishments of religion but on laws respecting them, a fact
that
allows a law to fall short of creating an establishment yet still be
unconstitutional.
The Establishment Clause, Religion and the First Amendment, Leonard W.
Levy, Second Edition, Revised, The University of North Carolina Press,
(1994) p. 118
******************************************************************
" The First Amendment bans laws respecting an establishment of
religion. Most of the framers of that amendment very probably meant that
government should not promote, sponsor, or subsidize religion because it
is
best left to private voluntary sup****t for the sake of religion itself as
well as for government, and above all for the sake of the individual. Some
of the framers undoubtedly believed that government should maintain a
close
relation****p with religion, that is, with Protestantism, and that people
should sup****t taxes for the benefit of their own churches and ministers.
The framers who came from Massachusetts and Connecticut certainly believed
this, as did the representatives of New Hamp****re, but New Hamp****re was
the only one of these New England states that ratified the First
Amendment.
Of the eleven states that ratified the First Amendment, New Hamp****re and
Vermont were probably the only ones in which a majority of the people
believed that the government should sup****t religion. In all the other
ratifying states, a majority very probably opposed such sup****t. But
whether those who framed and ratified the First Amendment believed in
government aid to religion or in its private voluntary sup****t, the fact
is
that no framer believed that the United States had or should have power to
legislate on the subject of religion, and no state sup****ted that power
either."
(The Establishment Clause, Religion and the First Amendment, By Leonard W
Levy, page 146-147)
************************************************************
He [Madison] included chaplains for Congress, military and naval
chaplains,
and presidential proclamations "recommending fasts & thanksgivings" as
examples "of a national religion. 24 Rather than let these examples, which
went beyond "the landmarks of power," have the effect of legitimate
precedents, he said it was better to apply to them "the legal aphorism of
de minimis non curat lex [the law does not
bother with trifles] ."25
Thus, the proposition that Madison meant merely a national church or no
preference in the sup****t of religion is groundless, as foolish perhaps as
his proposition that the provision of military chaplains was like a
national religion. The point, however, is that to Madison "a national
religion" broadly covered as much as even the most trifling matters. Chief
Justice Rehnquist built most of his opinion favoring the constitutionality
of nonpreferential government aid to religion on the baseless reading he
gave to "national religion," without considering of that Madison believed
that military chaplains or a fast day constituted a national religion
.26
Rehnquist merely read his own values into "national religion" (as did
Madison). The views that Madison expressed in 1789 on establishments of
religion conformed generally to his views ,whether he thought in terms of
a general *****sment, a religiousestablislhment, or a national religion.
In
each instance he wanted
"perfect separation" 27 between government and religion.
24. 18. Elizabeth Fleet, ed., "Madison's Detached Memoranda,"' William and
Mary.Quarterly 3 (1946)18. Elizabeth Fleet, ed., "Madison's Detached
Memoranda,"' William and
Mary.Quarterly 3 (1946) pp. 558-6o; Madison's emphasis.
25. Ibid., p. 559.
26. Wallace v. jaffree, 472 U.S. 38, 91-114 (1985).
27. Thomas Jefferson to Edward I.ivingston, July 10, 1822, in Writings of
Madison, 9:100.
Leonard Levy, The Establishment Clause, Religion and the First
Amendment, Second Edition, Revised (University of North Carolina Press,
1994), 123.
*************************************************************
ANSON PHELPS STOKES
" In recent discussions of religious freedom and Church-State separation
in
the United States attention has been so much centered constitutionally on
the Bill of Rights that the im****tance of this Provision in the original
Constitution as a bulwark of Church-State separation has been largely
overlooked. As a matter of fact it was and is im****tant in preventing
religious tests for Federal office--a provision later extended to all the
states. It went far in thwarting any State Church in the United States;
for
it would be almost impossible to establish such a Church, since no Church
has more than a fifth of the population. Congress as constituted with men
and women from all the denominations could never unite in selecting any
one
body for this privilege. This has been so evident from the time of the
founding of the government that it is one reason why the First Amendment
must be interpreted more broadly than merely as preventing the state
establishment of religion which had already been made almost impossible."
(SOURCE OF INFORMATION: CHURCH AND STATE IN THE UNITED STATES, VOLUME I,
Anton Phelps Stokes, D.D., LL.D, Harper & Brothers Publishers (1950) page
527)
************************************************************
o James Madison And National Religion
http://members.tripod.com/~candst/madnational.htm
*****************************************************************
THOMAS J. CURRY
Of the eleven states that ratified the First Amendment, nine
(counting Maryland) adhered to the viewpoint that sup****t of religion and
churches should be voluntary, that any government financial assistance to
religion constituted an establishment of religion and violated its free
exercise.(78) . . .
.. . . It meant at least this: that each citizen had a right to the free
exercise of his or her religion as long as it did not "break out into
overt
acts against peace and order." Further, the people of almost every state
that ratified the First Amendment believed that religion should be
maintained and sup****ted voluntarily. They saw government attempts to
organize and regulate such sup****t as a usurpation of power, as a
violation
of liberty of conscience and free exercise of religion, and as falling
within the scope of what they termed an establishment of religion.
(SOURCE OF INFORMATION: The First Freedoms, Church and State in America
to
the Passage of the First Amendment. Thomas J. Curry. Oxford University
Press. (1986) pp 202 - 222)
*****************************************************************
1771
In 1771 Thomas B. Chandler, an Anglican minister in New Jersey
involved in a heated dispute with Boston Congregationalist minister
Charles
Chauncy, wrote that if Chauncy were going to continue to change the
meaning
of the word "establishment," he ought to "publish a Glossary, wherein the
singularities of his Phraseology are carefully explained."' Given the
usage
of the word in colonial America, Chandler's suggestion was eminently
practical. The ambiguities of "establishment" in the colonies stemmed from
such peculiarly American situations as that in New York, where the
minority
Anglicans claimed to be the establishment, or in New England, where
Congregationalists -- Dissenters within the Empire -- in fact constituted
the establishedchurch.
In England "establishment" clearly referred to the Anglican
Church,
officially approved and sup****ted by the government, which excluded
non-Anglicans, who probably constituted less than to per cent of the
population, from positions of power, privilege, and social influence. In
America the constant need for more settlers made such exclusivity
unachievable.
SOURCE OF INFORMATION: The First Freedoms, Church and State in America to
the Passage of the First Amendment.Thomas J. Curry. Oxford University
Press. (1986) pp 105 - 107)
***********************************************************
Edmund Randolph of Virginia pointed out that the multiplicity of sects
would prevent "the establishment of any one sect, in prejudice to the
rest.". Patrick Henry, insisting on the need for an amendment on religion,
stated that "no particular sect or society ought to be favored or
established, by law, in preference to others."16 p. 197
In Connecticut, Oliver Ellsworth, replying to criticisms of the
Constitution, pointed out that Americans enjoyed full religious liberty
unlike other countries, where "one religion" was "established by law." At
his state's Convention, he stated that given the prevalence of knowledge
and liberty, the United States would never "be disposed to establish one
religious sect, and lay all others under legal disabilities. "22
pp. 197-98
This description of establishment presents a paradox to the modem
historian. By emphasizing the "exclusive" favoring of "one particular
'sect," Americans appeared to draw a careful distinction between such an
exclusive establishment and a non-exclusive establishment or favoring of
several or all sects. However, during the revolutionary period, the only
serious Church-State conflicts had to do not with e exclusive state
preference for a single religion, but with proposals for non-preferential
state sup****t of many religious groups. This issue gave rise to bitter
struggles in New England, in Maryland, and in Virginia where Madison led
the opposition. p. 198
SOURCE OF INFORMATION: The First Freedoms, Church and State in America to
the Passage of the First Amendment. Thomas J. Curry. Oxford University
Press. (1986)
**************************************
"The civil rights of none shall be abridged on account of religious
beliefs, nor shall any national religion be established, nor shall the
full
and equal rights of conscience in any manner or in any respect be
infringed."
(Civil rights, establishment, rights of conscience, broad word
establishment used)
Not accepted
"No religion shall be established by law, nor shall the equal rights of
conscience be infringed."
(Establishment and conscience, broad word establishment used)
Not accepted
"Congress shall make no laws touching religion , or infringing the rights
of conscience."
(Establishment and conscience, broad word establishment used)
not accepted
"Congress shall make no law establi****ng religion, or to prevent the free
exercise thereof, or to infringe the rights of conscience."
(Establishment, free exercise, conscience, broad word establishment used)
not accepted
"Congress shall make no law establi****ng religion, or prohibiting the free
exercise thereof, nor shall the rights of conscience be infringed."
(Establishment, free exercise, conscience, broad word establishment used)
not accepted
"Congress shall make no law establi****ng one religious sect or society in
preference to others, nor shall the rights of conscience be infringed"
(Establishment of a preference, conscience, narrow non preference use of
establishment)
not accepted
"Congress shall not make any law, infringing the rights of conscience, or
establi****ng any religious sect or society."
(establishment of a preference, conscience, narrow non preference use of
establishment)
not accepted
"Congress shall make no law establi****ng any particular denomination of
religion in preference to another, or prohibiting free exercise thereof,
nor shall the rights of conscience be infringed."
(preference establishment, free exercise, conscience, narrow use of non
preference reference to establishment)
not accepted
"Congress shall make no law establi****ng religion, or prohibiting the free
exercise thereof."
(Establishment, free exercise, back to broad use of establishment)
not accepted
"Congress shall make no law establi****ng articles of faith or a mode of
wor****p, or prohibiting the free exercise of religion."
(establi****ng preference, free exercise, back to narrow non preference use
of the word establishment)
not accepted
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof."
(establishment, free exercise, back to broad)
accepted.
What can be said with any degree of certainty?
We do know for sure that it was to prevent the later use of the "necessary
and proper" wording from being used as a doorway to make laws regarding
religion. We know that because Madison mentions that.
We do know that it was to prevent a sects, denominations, religions from
combining and establi****ng religions, forcing others to go along with the
program. We know that again because Madison mentions it.
We know the obvious, that is it was meant to prevent the government from
establi****ng religion, a religion, a sect, a denomination as the
"official"
religion of the nation. However, that might be less obvious if it is taken
into account that Congress was made up of members from all the states
(well
maybe not all N C and R I had not ratified the Constitution yet, and while
they did eventually do so and did eventually send people to Congress I
think that during the first session of the first congress neither of those
states had people in congress). There was a mixture of religious beliefs
which would have made it very difficult for any one sect, denomination etc
to gain enough sup****t to allow for the passage of laws making it the
"official" religion. So that is just one factor to take into account.
We also know that Congress was prevented from making an law RESPECTING an
establishment of religion. We know that because those words were
eventually
chosen to be used.
We know that several non preferential proposals were made and all lost out
to the more broad, less defined word establishment, but even that word did
have meaning that applied in this country.
The First Freedoms, Church and State in America to the Passage of the
First
Amendment, by Thomas Curry, page 220.
*******************************************************************
PROF. JOHN SWOMELY
The First Amendment clause, "Congress shall make no
law respecting an establishment of religion," means what it
says. The word "respecting" means concerning or touching
upon, or in relation to, or with regard to.The word "establishment"
had at least two meanings at the time the First Amendment was
adopted and has those meanings today. One was a technical
reference to monopoly status, such as the Roman Catholic
church had for many years in Spain; or to government patronage and
control of a church, such as the Church of England; or government
regulation and financial sup****t of one or more churches, as in some
colonies and states in early America.
The other meaning of the word "establishment" is institution. The two
meanings are used interchangeably today as they were then. A religious
establishment is an institution of religion. Madison spoke of "the
establishment of the chaplain****p" in Congress.' He vetoed a bill to
give a parcel of land to a Baptist church with the statement that
"Congress shall make no law respecting a religious establishment.".
Jefferson, in drafting a "Bill for the Establishment of District
Colleges and University" and in the Regulations of the University of
Virginia, provided that the students "will be free and expected to
attend religious wor****p at the establishment of their respective
sects." Whether either or both of these
definitions apply, it is clear that the amendment does not say
"Congress shall make no law establi****ng religion," but does
say "no law respecting an establishment of religion." It there-
fore cannot be construed as authorising Congress to sup****t
religious institutions.
It would be illogical to suppose that an amendment expressly designed to
prohibit a power never given to Congress in the Constitution should be
construed as creating the authority to enact laws benefitting religion
financially. Yet this is precisely what contem****ary proponents of aid to
churches are trying to do. The U.S. Catholic Conference (USCC), as
indicated in an earlier chapter, filed in 1983 a "friend of the court"
brief in the Supreme Court with respect to Mueller v. Allen in an effort
to
reinterpret the Establishment Clause as an authorization of financial
benefits for churches. Among the arguments in that brief are the
following:
(1) "The phrase 'respecting an establishment' cannot mean concerning or
touching upon religion. Indeed that was the terminology of Livermore's
proposal which was eventually rejected." Actually, the Livermore motion
was
only tem****arily replaced by another because it triumphed in the final
vote; the phrase "touching upon" was replaced by the word "respecting,"
which means the same thing. It is reasonable to suppose that Fisher Ames's
motion that tem****arily replaced Livermore's "Congress shall make no law
establi****ng religion" was intended to make sure that there was a
reference
to establishment in the motion. The Ames and Livermore motions were united
in the final wording in the phrase "respecting an establishment of
religion."
(2) The USCC brief also says: "The language of the clause does not concern
itself with religion in general, but with the particular problem of an
establishment of religion. There was no concern expressed during the
August
15 debate that Congress might enact a law beneficial to religion or
religious institutions."15 This argument overlooks the fact that the
entire
debate was about establishments of religion and the further fact that
there
were no establishments of religion in the United States or the colonies
apart from laws intending to provide financial and other benefits to
religion and religious institutions.
(3) The third argument of the USCC brief is that the word establishment
really means preferment. It said: "Nothing in the House and Senate
proceedings suggests that the thrust of the compromise differs in any
material degree from the final House and Senate versions. It was directed
against the preferment or establishment of religion." Actually, there are
crucial differences between the final product and the House and Senate
versions. One crucial difference is the use of the word "respecting." A
second difference is that the final Senate version dealt only with
"articles of faith or a mode of wor****p," whereas an establishment of
religion also includes religious education, church finances, and medical,
charitable, and other enterprises of churches.
(Religious Liberty And The Secular State, the Constitutional Context,
by John Swomley, pages 49-51)
*******************************************************
"In contem****ary America the only church that has steadily sought
substantial aid for its institutions is the Roman Catholic Church.
It is the Bishops rather than the laity that make such decisions through
the U.S. Catholic Conference (USCC). The USCC filed an AMICUS brief in the
MUELLER v ALLEN case in 1983 in an effort to reverse 'no aid to religion'
decisions of the Supreme Court. The brief indicated that the Supreme
Court,
beginning with the EVERSON decision in 1947, relied too heavily on
'Virginia disestablishment history' and that the meaning of the religion
clause cannot be derived solely from the experience of any one colonial
group or locale' it proposed instead 'a sharp focus on the great diversity
of religious practice among the states.' however, that brief's discussion
of diversity focused on matters of ecclesiastical detail, such as 'assent
to the doctrine of the Trinity' and the exclusion of 'ministers from civic
office.'
The USCC brief said that 'the great number of people who ratified the
First
Amendment in the states did not share a church-state tradition in common
with Virginia or each other.' That brief was mistaken. the common
church-state tradition ca be summarized as follows:
(1) Nine of the original 13 states had a colonial practice of established
churches financed by public tax funds.
(2) The revolution against establishment in all nine colonies was begun
and
continued by protest against the sup****t of religion.
(3) In single establishment colonies, an effort was made to make public
sup****t of the established church tolerable by including other
denominations in the establishment through the device of multiple
establishments.
(4) six of the states at the time of the Constitutional Convention had non
preferential aid to religion in the form of multiple establishments.
(5) prior to the ratification of the first Amendment four states- North
Carolina in 1776, New York in 1777, Virginia in 1779, and South Carolina
in
1790, ended their establishments of religion, making a total of eight out
of the thirteen that had no taxation for religious purposes. Maryland,
which in 1776 adopted a constitutional provision for multiple
establishments but never implemented it, would bring the total to nine
states that were not providing public funds for religious purposes.
(6) At the time the First Amendment was adopted, the major uniform
establishment practice remaining in the states was that of
non-preferential
aid to churches.
The above summary revels a common church-state tradition for most of the
thirteen states, although they vary on details of doctrinal emphasis. it
also shows the Virginia history is not unique, because it was one of the
nine colonies with established churches (in colonial times), one of the
nine where there was significant protest against taxation for religious
purposes, and one of the four that disestablished before the First
Amendment was ratified. However, it was unique in the caliber of religious
liberty leader****p of persons like Thomas jefferson, James Madison, George
Mason, and in the quality of their statements for religious liberty."
(RELIGIOUS LIBERTY AND THE SECULAR STATE, THE
CONSTITUTIONAL CONTEXT, by John M Swomley pp 89, 90)
******************************************************
MYTH: The First Amendment's religion clauses were intended only to prevent
the establishment of a national church.
FACT: If all the framers wanted to do was ban a national church, they had
plenty of op****tunities to state exactly that in the First Amendment. In
fact, an early draft of the First Amendment read in part, "The civil
rights
of none shall be abridged on account of religious belief, nor shall any
national religion be established...." This draft was rejected. Following
extensive debate, the language found in the First Amendment today was
settled on.
The historical record indicates that the framers wanted the First
Amendment
to ban not only establishment of a single church but also "multiple
establishments," that is, a system by which the government funds many
religions on an equal basis.
A good overview of the development of the language of the First Amendment
is found in scholar John M. Swomley's 1987 book Religious Liberty and the
Secular State. Swomley shows that during the House of Representatives'
debate on the language of the religion clauses, members specifically
rejected a version reading, "Congress shall make no law establi****ng any
particular denomination in preference to another...." The founders wanted
to bar all religious establishments; they left no room for
"non-preferentialism," the view touted by today's accommodationists that
government can aid religion as long as it assists all religions equally.
(The Senate likewise rejected three versions of the First Amendment that
would have permitted non-preferential sup****t for religion.)
*********************************************************
The use of the word "establishment" in the First Amendment is
unique to constitutions of this period. No state constitution used this
particular term, preferring to make specific provisions which prohibited
tax monies for churches, discrimination against minority sects, and other
measures which might establish a church. The use of the vague term in the
Bill of Rights indicates the belief that the national government had no
power in these specific areas, so that a general prohibition towards
matters of religion was sufficient.
(SOURCE OF INFORMATION: Religion Under State Constitutions, John K.
Wilson.
Journal Of Church and State, Volume 32, Autumn 1990, Number 4, pp
753-773.)
*********************************************************
[REHNQUIST]
and forbade preference among religious sects or denominations. Indeed, the
first American dictionary defined the word "establishment" as "the act of
establi****ng, founding, ratifying or ordaining," such as in "[t]he
episcopal form of religion, so called, in England." 1 N. Webster, American
Dictionary of the English Language (1st ed. 1828).
[REBUTTAL]
The first American dictionary to link "establishment" to a church
was Webster's 1828 edition, which was published almost forty years after
the First Amendment was drafted. Webster supplemented the sparser 1806
edition by adding the following definition: "The episcopal form of
religion, so called in England.
[Referring to this new 1828 definition, Justice Rehnquist, in sup****t of
his argument that the word "establishment" "had a well-accepted meaning,"
ignored Webster's 1806 edition and wrongly stated that the 1828 edition
was
"the first American dictionary." Wallace v. Jaffree, 472 U.S. 38, 106
(1985) (Rehnquist, J. dissenting).]
The frequency of the usage "establishment-. without any reference to
religion, and the relative infrequency of its use in regard to religion,
certainly suggests that the word was not a term of art bearing a technical
definition.
The term "establishment," when applied to a religion,
nevertheless
was controversial in the eighteenth century. An examination of several
disputes where the meaning of the term was debated suggests that by 1789
the word was more of a term of opprobrium than a description of any
particular church-state relation****p.
SOURCE OF INFORMATION: A Standard for repair, The Establishment Clause,
Equality, and Natural Rights. By T. Jeremy Gunn. Garland Publi****ng, Inc.
N. Y. (1992) p. 71-73)
***********************************
The use of public monies, the taxing of individuals to sup****t religion
was
considered a form of religious establishment at the time of the founding
of
this nation.
****************************************************************
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