Some Wacky Poll Results In New York

[loCAtek]

Oh Yea? O'Donnell asked;
"Where in the Constitution is separation of church and state?"

If I haven't died laffing by tomorrow, I may take a greyhound bus cross-country just to slap her!

[Lord Jim]

Well, O'Donnell has said some dopey things, but when she observes that the phrase, "separation of church and state" doesn't appear in the Constitution, she's merely making a statement of fact.

[rubato]

So if she HAD said that the phrase does not appear in the constitution she would have been correct but what she DID say was that the idea does not appear there which a layperson's knowledge of legal history can refute.

The mistake was repeated by the college dropout drug-addicted blowhard who is the true leader of the Republican party; Rush Limbaugh.

Why learn the truth when you can be a Republican and spout lies instead?

yrs,
rubato

[Sue U]

Well, O'Donnell has said some dopey things, but when she observes that the phrase, "separation of church and state" doesn't appear in the Constitution, she's merely making a statement of fact.

Oh please; this was O'Donnell's clumsy and ill-considered attempt to pander to the know-nothing wingnut base, and it backfired terribly because she simply didn't understand what she was talking about. And it's an idiotic argument to begin with. The exact words "separation of church and state" don't appear in the constitution because they are plainly understood to be the entire point of the First Amendment's prohibition against laws respecting establishment and impeding free exercise, which Jefferson reaffirmed in his letter to the Danbury Baptists (alluding to "a wall of separation"). There's nothing at all controversial or unsettled about this except in (what passes for) the minds of wilfully ignorant Christian jihadists.

O'Donnell can now add "constitutional scholar" to her ever-growing list of credentials, since she once discussed the (apparently unread) document at a law school she went to (on a bus).

[Guinevere]

Yeppers, exactly what Sue said. It doesn't take a law degree to be able to understand the clear intent of the First Amendment. I knew what it meant well before I ever became a lawyer -- and I don't even have an AB or a liberal arts education, either.

[Sue U]

It doesn't take a law degree to be able to understand the clear intent of the First Amendment. I knew what it meant well before I ever became a lawyer -- and I don't even have an AB

Neither did she, until last month.

[Lord Jim]

to be able to understand the clear intent of the First Amendment.

While I would vigorously dispute that it was the "clear intent" of the First Amendment to do things like prohibit voluntary prayer in public schools, or ban The Ten Commandments from being displayed in public buildings, (it seems obvious to me that given the historical context, the "clear intent" was to prevent the federal government from establishing a National Church, along the lines of The Church Of England...Jefferson had absolutely nothing to do with the drafting of the Constitution...he was in France at the time.) I nevertheless have to concede that over the years the Establishment Clause has been interpreted by the courts in ever more expansive and creative ways.

[Sue U]

While I would vigorously dispute that it was the "clear intent" of the First Amendment to do things like prohibit voluntary prayer in public schools, or ban The Ten Commandments from being displayed in public buildings, (it seems obvious to me that given the historical context, the "clear intent" was to prevent the federal government from establishing a National Church, along the lines of The Church Of England...Jefferson had absolutely nothing to do with the drafting of the Constitution...he was in France at the time.) I never the less have to concede that over the years the Establishment Clause has been interpreted by the courts in ever more expansive and creative ways.

The intent of the First Amendment is crystal clear: to create a complete separation of church and state. How that principle might be applied to any particular set of facts is obviously subject to interpretive arguments. (And by the way, there is neither any prohibiton on voluntary prayer in schools nor any blanket ban of the Ten Commandments from public buildings required by either the text or jurisprudence of the First Amendment. That you imagine such things are the law as "interpreted by the courts" shows only that your grasp of the subject may be somewhat tenuous and/or colored by false propaganda of the religious right.) And Jefferson, although not the author, was clearly qualified to speak about the intent of the First Amendment; he and Madison had worked closely together on the same issue for years in the Virginia legislature, with Madison being the sponsor of Jefferson's Bill for Establishing Religious Freedom. Madison's virtually identical views are set out in his classic Memorial & Remonstrance Against Religious Assessments.

[Lord Jim]

The intent of the First Amendment is crystal clear: to create a complete separation of church and state.

I know you would certainly prefer for that to be true...

I simply do not see it that way; for that to be accurate than prohibiting "establishment" and insisting on " complete separation" would have to be interchangeable concepts, and it is "crystal clear" that they are not; the words mean entirely different things.

If they had "intended" to do what you claim, why not simply use those words? Why choose words that obviously refer to the creation of an official national Church?

[Sue U]

Oh for Pete's sake, are you channeling Christine O'Donnell? That's exactly what Jefferson and Madison had been doing since (at least) 1779, exactly what they said their view of the issue was, and it's specifically what Jefferson said the language of the First Amendment meant in his letter to the Danbury Baptists, which was intended for publication. The Supreme Court in the 1870s had no problem concluding that separation of church and state as described by Jefferson was "the scope and effect" of the First Amendment.

[Joe Guy]

And all this time I was thinking that the First Amendment just allowed us to post freely and say things like 'shit' and 'Steve your a moron' at places like the CSB.

I forgot all about that church & state thingy.

Amazing interpretation!... watch this -

[Sue U]

That Limbaugh clip is unfuckingbelievable. How can anyone actually listen to this douchebag? How does he even have a radio show? Separation of church and state is only a "modern and incorrect description" if by "modern" you mean "1801, at the latest" and by "incorrect" you mean "what the founders/framers actually said about it themselves."

Did this asshat ever pass eighth grade civics?

[Andrew D]

It seems to me that the problem flows from what the law calls "incorporation" -- the application of provisions of the Bill of Rights to the States. (We actually have what the law calls "selective incorporation": Not all of the provisions of the Bill of Rights apply to the States, but most of them do.)

Until after the Civil War, nothing in the Bill of Rights restricted the behavior of the governments of the States. The States had their own constitutions, of course, and much of what was in many of those constitutions was at least similar to what is in the Bill of Rights. Still, the U.S. Constitution did not prohibit the States from establishing religions* or prohibiting the free exercise of religion. (Nor did it prohibit them from kicking in people's doors without warrants, trying people over and over for the same crimes, forcing people to testify against themselves, denying people the right to jury trials in criminal cases, etc.)

So take, for example, prayer in public schools. One can wonder what the Framers would have thought about it, but such wonderings are entirely academic: Public schools were a matter for the States, not the central government; the First Amendment did not restrict the behavior of the States; so whether a State did or did not permit (purportedly) voluntary prayer in public schools simply did not bring the U.S. Constitution into play at all.

Similarly, displays of the Ten Commandments (in whichever of their various versions) on public buildings. Take for granted (and I think that this would be completely in line with the Framers' views) that the Ten Commandments cannot be displayed on the U.S. government's buildings. Nonetheless, the Framers' understanding of the Bill of Rights -- applicable only to the U.S. government and not restricting the behavior of the States -- would allow the display of the Ten Commendments on State buildings: That was a matter for the States to decide, and the U.S. government had nothing to do with it.

All of that went out the window with the adoption of the Fourteenth Amendment. One can argue at great length (even by my standards) about what the Fourteenth Amendment was intended to achieve. But one thing about which there is no room for rational dispute is that when the Fourteenth Amendment was ratified, the Framers of the Bill of Rights were all dead and had nothing to say about it.

So when it comes to interpreting the First Amendment -- in light of its application to the States via the Fourteenth Amendment, an application which the Framers had no reason to foresee -- the expressed and recorded opinions of the Framers of the Bill of Rights are of dubious value. They didn't spend their time thinking about how the Bill of Rights would operate when applied to the States, because they didn't see it as applying to the States in the first place.

But now the Bill of Rights (well, at least most of it) does apply to the States. And the opinions of the Framers -- which concerned only the application of the Bill of Rights to the U.S. government -- are largely irrelevant. We are on our own, and the best we can hope to do is muddle on through.

* There is a very interesting body of legal scholarship concluding -- in my opinion, correctly -- that the Establishment Clause of the First Amendment was actually designed to make it impossible for the U.S. government to stop a State from establishing a church. How a constitutional provision originally designed to protect the power of a State to establish a church morphed into a provision prohibiting a State from establishing a church is one of those weird things about U.S. constitutional law.

[Long Run]

I simply do not see it that way; for that to be accurate than prohibiting "establishment" and insisting on " complete separation" would have to be interchangeable concepts, and it is "crystal clear" that they are not; the words mean entirely different things.

If they had "intended" to do what you claim, why not simply use those words? Why choose words that obviously refer to the creation of an official national Church?

This is obviously not a "clear" issue since a substantial amount of the judiciary, represented by the four dissenters in the 10 Commandments case, see it the way you describe, 4 saw it more along the lines that Sue suggests and O'Connor sided over to Sue's side in casting the deciding vote.

From Scalia's dissent in McCreary County v. ACLU, http://www.law.cornell.edu/supct/html/03-1693.ZD.html:

"With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between … religion and nonreligion,’ ” ante, at 11, and that “[m]anifesting a purpose to favor . . . adherence to religion generally,” ante, at 12, is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives, see 148 Cong. Rec. S6226 (2002); id., at H7186, criticizing a Court of Appeals opinion that had held “under God” in the Pledge of Allegiance unconstitutional. See Act of Nov. 13, 2002, §§1(9), 2(a), 3(a), 116 Stat. 2057, 2058, 2060—2061 (reaffirming the Pledge of Allegiance and the National Motto (“In God We Trust”) and stating that the Pledge of Allegiance is “clearly consistent with the text and intent of the Constitution”). Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century."

On the other hand, O'Connor said

"Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish."

Even Souter acknowledges that this is not an obvious result from the Constitution's language: http://www.law.cornell.edu/supct/html/03-1693.ZO.html

The importance of neutrality as an interpretive guide is no less true now than it was when the Court broached the principle in Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), and a word needs to be said about the different view taken in today’s dissent. We all agree, of course, on the need for some interpretative help. The First Amendment contains no textual definition of “establishment,” and the term is certainly not self-defining. No one contends that the prohibition of establishment stops at a designation of a national (or with Fourteenth Amendment incorporation, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), a state) church, but nothing in the text says just how much more it covers. There is no simple answer, for more than one reason.

* * *

The historical record, moreover, is complicated beyond the dissent’s account by the writings and practices of figures no less influential than Thomas Jefferson and James Madison. Jefferson, for example, refused to issue Thanksgiving Proclamations because he believed that they violated the Constitution. See Letter to S. Miller (Jan. 23, 1808), in 5 The Founders’ Constitution at 98. And Madison, whom the dissent claims as supporting its thesis, post, at 4, criticized Virginia’s general assessment tax not just because it required people to donate “three pence” to religion, but because “it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” * * *

The fair inference is that there was no common understanding about the limits of the establishment prohibition, and the dissent’s conclusion that its narrower view was the original understanding, post, at 2—3, stretches the evidence beyond tensile capacity. What the evidence does show is a group of statesmen, like others before and after them, who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined. And none the worse for that. Indeterminate edges are the kind to have in a constitution meant to endure, and to meet “exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).

All of the opinions, however, do look to the original intent of the Establishment Clause in trying to support their opinion, to a greater or lesser extent.

[oldr_n_wsr]

In the 1st Congressional district (my district), Altschuler (R) leads Bishop (D, incumbant) by 300-400 votes with 9000 absentee ballots still to be counted.
They are calling for a hand count of all the ballots.

there's another tight race in Nassau county (for state senate) that they are also calling for a hand recount.

[dgs49]

There is nothing in the text of the Fourteenth Amendment that imposes the full weight of the Bill of Rights on the States. This was a later interpretation, adopted long after the "Framers" of the Fourteenth Amendment had gone to their graves. Indeed, had the authors of the 14th intended that the first (shall we say) eight amendments flowed down to the States implicitly through the 14th, there would have been no need to say, for example, that, "...nor shall any State deprive any person of life, liberty, or property, without due process of law..." This was clearly stated in the Fifth Amendment and would have required no re-articulation.

The Establishment of Religion clause in the first amendment means nothing more than it says. CONGRESS cannot designate a particular religion as the official religion of the United States. There is, and never has been, a "constitutional" wall of separation, and, more importantly, the Amendment was never intended to establish atheism as the preferred stance of the Federal Government. Consider that the Framers started each session - including the ones in which they drafted the First Amendment - with a PRAYER.

As for the First Amendment's Establishment of Religion clause applying to the states retroactively through the 14th, this is pure balderdash - made up nonsense. The clause prohibits CONGRESS from doing something. There is only one Congress, and it ain't in Harrisburg, PA or any other state capitol. There is NOTHING in the Constitution or any Amendment thereto that would prevent the State of Utah from designating the Church of Jesus Christ of Latter Day Saints as the religion of the State of Utah.

It may be that the Fourteenth, as originally intended, would prevent the State of Utah from disqualifying Rastafarians from running for Congress from that state, but there is no Constitutional provision that would prohibit Utah from being an LDS state.

As a wise Joseph Sobran once wrote, our "constitutional law" exists in spite of the Constitution, not because of it.

[oldr_n_wsr]

Bishop is now ahead by some 200 votes with 2000 absentee ballots from overseas (mostly military) to be counted. Then there are some 2000 contested ballots to work through.

[Andrew D]

Well, "the full weight of the Bill of Rights" has never been applied to the States. For example, under the Fifth Amendment, the U.S. government must use the grand-jury system in criminal prosecutions; the States are not required to use that system. Nor are the States bound by the Seventh Amendment's requirement of trials by jury in civil cases.

But the claim that the application of the Bill of Rights to the States is a "later interpretation, adopted long after the "Framers" of the Fourteenth Amendment had gone to their graves" is simply not true. In fact, many of the framers of the Fourteenth Amendment believed that applying the Bill of Rights to the States was exactly what they were doing, and they said so. (See, e.g., the Appendix to Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting) and sources cited therein.)

Of course, most of them thought that the Fourteenth Amendment would apply the Bill of Rights to the States via its Privileges or Immunities Clause:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ....

(U.S. Const., Amdt. XIV, Sec. 1.)

But the Supreme Court gutted the Privileges or Immunities Clause not long after its adoption. (See Slaughterhouse Cases, 83 U.S. 36 (1873).) And that is what has left us with the headache of trying to understand how the Fourteenth Amendment's Due Process Clause applies most, but not all, of the Bill of Rights to the States.

What the Supreme Court should do is overrule the Slaughterhouse Cases and hold that the entire Bill of Rights applies to the States via the Fourteenth Amendment's Privilieges or Immunities Clause. (By the way, Clarence Thomas is at least partly right on this point, which puts him a big step ahead of his colleagues.)

No more fooling around with trying to decide what rights are so fundamental that they are "implicit in the concept of ordered liberty," whatever the hell that means. (Adamson (majority opinion), reiterating the holding of Palko v. Connecticut, 302 U.S. 319 (1937).) Just a clear, rational, unconvoluted statement of the law: All of the rights recognized in the Bill of Rights are "privileges or immunities of citizens of the United States".

(That does not mean that only the rights recognized in the Bill of Rights are such privileges or immunities. As I mentioned recently, the Ninth Amendment authorizes the Supreme Court to recognize as constitutional rights things which are not mentioned in the Constitution. And if rights not mentioned in the Constitution could not be recognized as constitutional rights, we would lose such fundamentals as, among many others, the right to travel from one State to another.)

Lamentably, it appears that the Supreme Court is unwilling to take that direct, straightforward action, which would make a great deal of constitutional law intelligible to people who are not members of my profession. It would still leave substantive questions open -- what, exactly, constitutes an establishment of religion? or the free exercise of religion? or speech? or press? or due process of law? etc. -- but at least it would comprehensibly explain why the Bill of Rights applies to the States. And it would render moot such esoteric questions as why the Sixth Amendment's Speedy Trial Clause applies to the States, but the Sixth Amendment's Vicinage Clause ("the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law") apparently does not.

The last thing we should do is return to an "understanding" of the Constitution pursuant to which the States were free to prohibit the practice of unpopular religions, squelch unpopular speech, try someone over and over and over for the same crime, beat "confessions" out of criminal suspects, kick down doors and ransack houses without warrants or probable cause, and so forth. The constitutional law we have at the moment concerning the application of the Bill of Rights is a mess. And we should fix it. But even the mess we have now is far, far better than would be taking a giant step backwards.

[dgs49]

Nice essay, Andrew.

Too bad the USSC is prohibited from giving advisory opinions.

But a Constitutional Convention might be a good idea. No lawyers allowed.

[Sean]

There now follows a couple of genuine question for the Americans in our midst from somebody who has little or no knowledge of the American constitution or consitutional law (but still is enough of a pedant to be irked with non-Americans who want to "plead the fifth"):

Does it bother you that there are elements of your constitution which are open to interpretation rather than being black and white?
Why is this allowed to continue?