The Establishment Clause

The Constitution isn't a third book of the Bible. Nothing sacred about it.

It's a set of laws written by regular people with regular brains.

References to freedom of religion meant Christian religion. Other religions were akin to calling
Canabalism or Baseball a religion...those were just delusions or obsessions of those not aware of Christianity.

Fortunately the courts are as much a part of the Constitution as anything else. The Supreme Court is always right. It can't make a legal mistake. If it decides black is white...then legally, black is white.

The Supreme Court decides what the Constitution means. The rulings on religion are always right. They can't be legally wrong (even if full of crap). The Court over the years has expanded its the original intent of 'religion', just as it has every other word. It doesn't matter what is written in the Constitution other than the Court interprets it...its self fulfilling as the Supreme Court is always right.

One can disagree with the Supreme Court's decisions. But you can't say they are legally 'wrong'. They can't be wrong.

Iamjesus said:

The Constitution isn't a third book of the Bible. Nothing sacred about it.

It's a set of laws written by regular people with regular brains.

References to freedom of religion meant Christian religion. Other religions were akin to calling
Canabalism or Baseball a religion...those were just delusions or obsessions of those not aware of Christianity.

Fortunately the courts are as much a part of the Constitution as anything else. The Supreme Court is always right. It can't make a legal mistake. If it decides black is white...then legally, black is white.

The Supreme Court decides what the Constitution means. The rulings on religion are always right. They can't be legally wrong (even if full of crap). The Court over the years has expanded its the original intent of 'religion', just as it has every other word. It doesn't matter what is written in the Constitution other than thr Court interprets it...its self fulfilling as the Supreme Court is always right.

Click to expand...

LMAO....Merry Christmas!

AlbqOwl said:

But laws passed restricting or regulating what can and cannot be done are always--that is ALWAYS--done under theory of First Amendment protection.

Click to expand...

True, but there are also situations where two constitutional principles are in conflict so something has to give. There are also laws that don't reference religion in any way but their implementation in certain circumstances interfere with religious practice. Usually a practical compromise is found because that's the only way it could work.

AlbqOwl said:

For the ACLU or anybody else not in the federal government to use the federal courts and the Constitution to file suit against religious symbols or art or traditions or practices of anybody is a violation of the very U.S. Constitution they use as justification for it.

Click to expand...

The distinction is between religious acts by government and religious acts by individuals. The complication is when individuals work for the government meaning there has to be a differentiation between when they're acting as part of government and when they're acting in a private capacity. There's sometimes no easy answer.

The constitution is full of undefined terms. It was not written like a science paper with published references and peer reviewed.

Simple example:

'We have ten fingers'. Who are 'we'...not my dog and I. Not my girlfriend and I...'we' have twenty. Is a thumb a finger. Maybe 'I have 8 fingers but 'we' have 16.

This is a concrete term 'finger'. Even more difficult with words like 'freedom', 'belief'. A hundred fuzzy words in which little is actually 'self evident'.

Any dispute over interpretation, the SC is the ultimate interpreter. Religion and all it entails is the ultimate in fuzziness when it comes up against other fuzzy defined concepts such as 'Liberty'.

HonestJoe said:

True, but there are also situations where two constitutional principles are in conflict so something has to give. There are also laws that don't reference religion in any way but their implementation in certain circumstances interfere with religious practice. Usually a practical compromise is found because that's the only way it could work.

The distinction is between religious acts by government and religious acts by individuals. The complication is when individuals work for the government meaning there has to be a differentiation between when they're acting as part of government and when they're acting in a private capacity. There's sometimes no easy answer.

Click to expand...

The point I'm making is that the First Amendment prohibits the federal government from requiring, punishing, rewarding, or interfering with the people's religion in any way regardless of how or where they exercise it. So the federal government was not intended to have ANY influence over state or local laws regarding religion whether such laws removed religion from the public sphere entirely or mandated a theocracy or settled somewhere between those two extremes or ignored the issue altogether. So there is zero credibility for ANY federal influence at any level--executive, legislative, or judicial--to dictate to a local court that it can't display a work of art with the Ten Commandments on it or that can uphold a lawsuit prohibiting a coach who silently prays after a football game or who can support complaints about a school observing Christmas instead of a winter holiday.

Local laws on the subject can mimic the federal law. But the ACLU or any other activist group is given unconstitutional powers when they are allowed to successfully sue any form of government entity for displaying or allowing or conducting something religious on First Amendment grounds.

AlbqOwl said:

The point I'm making is that the First Amendment prohibits the federal government from requiring, punishing, rewarding, or interfering with the people's religion in any way regardless of how or where they exercise it. So the federal government was not intended to have ANY influence over state or local laws regarding religion whether such laws removed religion from the public sphere entirely or mandated a theocracy or settled somewhere between those two extremes or ignored the issue altogether.

Click to expand...

The 14th amendment changed that. The Due Process clause and subsequent SCOTUS decisions established what is known as "incorporation," in which elements of the Bill of Rights must be incorporated into state law.

Not all rights outlined in the Constitution are incorporated to the states. Everson v Board of Education extended the Establishment Clause to public schools via incorporation.

Rejection of incorporation of the Establishment Clause is mostly a fringe position these days. I.e. if your interpretation was correct, then each state would in fact have its own state laws regulating things like prayer in school. Obviously, that is not how it works today.

Your claim that there is "zero credibility" to apply the Establishment Clause to public schools is factually incorrect.

Visbek said:

The 14th amendment changed that. The Due Process clause and subsequent SCOTUS decisions established what is known as "incorporation," in which elements of the Bill of Rights must be incorporated into state law.

Not all rights outlined in the Constitution are incorporated to the states. Everson v Board of Education extended the Establishment Clause to public schools via incorporation.

Rejection of incorporation of the Establishment Clause is mostly a fringe position these days. I.e. if your interpretation was correct, then each state would in fact have its own state laws regulating things like prayer in school. Obviously, that is not how it works today.

Your claim that there is "zero credibility" to apply the Establishment Clause to public schools is factually incorrect.

Click to expand...

We are not talking 14th Amendment that has been corrupted in its intent and misused by opportunists and the courts almost as much as the First Amendment. The 14th Amendment is a good subject for a separate debate. This discussion is limited to the First Amendment, and the First Amendment was obviously, to anybody who has studied the founding documents anyway, intended to prevent the federal government from having any jurisdiction anywhere re who could or could not pray or where they could pray.

AlbqOwl said:

The point I'm making is that the First Amendment prohibits the federal government from requiring, punishing, rewarding, or interfering with the people's religion in any way regardless of how or where they exercise it.

Click to expand...

I find it hard to believe the intention was that unconditional and it's certain not how it's ever been implemented, even from day one. There are lots of religious things that have been limited or prohibited. Heck, Islamic terrorism could be said to be religious practice and thus couldn't be prohibited. There are certainly things like under-age sex, plural marriage, ritual slaughter, drug use and corporal punishment.

AlbqOwl said:

So there is zero credibility for ANY federal influence at any level--executive, legislative, or judicial--to dictate to a local court that it can't display a work of art with the Ten Commandments on it or that can uphold a lawsuit prohibiting a coach who silently prays after a football game or who can support complaints about a school observing Christmas instead of a winter holiday.

Click to expand...

A court, a public university football team and public school aren't people though. In this context, they're part of the government that is subject to the constitution rather than the people protected by it.

AlbqOwl said:

But the ACLU or any other activist group is given unconstitutional powers when they are allowed to successfully sue any form of government entity for displaying or allowing or conducting something religious on First Amendment grounds.

Click to expand...

Ultimately the Supreme Court determines what is and isn't constitutional and they seem to be in complete disagreement with you.

code1211 said:

So prayer that results in the lose of a job is not hinderance?

Click to expand...

I have no idea what you're talking about. Give an explicit example and I'll tell you if it's reasonable or not.

ludin said:

tell that to the coach that has been suspended for doing just that. I think he would disagree with you.

Click to expand...

Once again, I need a explicit case of that happening.

Gringo allstar said:

I like the idea of lower taxes... theirs a couple people offering that up ya know?

Click to expand...

While simultaneously proclaiming they'll launch another war in the middle east, or even provoke Russia into a war. Yeah, seems legit.

ttwtt78640 said:

What folks choose to do at halftime during a football game whether it be play/sing a song, do a dance, have wiener dog races or say a prayer does not establish anything - it is the very definition of free exercise of first amendment rights. When we make Christmas (Christ mass?) a paid holiday (holy day?) for all government workers that may, indeed, cross the establishment line but, since we allow that, a simple optional prayer by a few folks at a HS football game is not even close.

Click to expand...

Nobody is stopping anyone from praying at a football game, nor could they stop them. What I imagine was stopped was using the event to promote jesus.

That's the thing about this, American christians complaining about persecution are never actually hindered in their personal beliefs, they are just mad they can't use their government positions to promote.

HonestJoe said:

I find it hard to believe the intention was that unconditional and it's certain not how it's ever been implemented, even from day one. There are lots of religious things that have been limited or prohibited. Heck, Islamic terrorism could be said to be religious practice and thus couldn't be prohibited. There are certainly things like under-age sex, plural marriage, ritual slaughter, drug use and corporal punishment.

A court, a public university football team and public school aren't people though. In this context, they're part of the government that is subject to the constitution rather than the people protected by it.

Ultimately the Supreme Court determines what is and isn't constitutional and they seem to be in complete disagreement with you.

Click to expand...

I appreciate your thoughtful and civil response Joe, but I hate chopped up responses like that, especially when my post was intended to be a cohesive statement with each component qualifying the others. I have little respect for courts, included a Supreme Court, who interpret the Constitution as to what they would prefer it said instead of its original intent. And I sure don't take instruction from the courts as to what is right and wrong and/or what the Founders intended with the original Constitution.

You may have difficulty believing that the Founders intended the federal government to be unconditionally hands off in matters of religion but history and the founding documents disagree with you. There was no interference of any kind by the federal government with the little state theocracies, many very harsh, narrow minded, and restrictive, that existed during and following the signing of the Constitution. And, under the umbrella of liberty and self determination, every one of those dissolved within a few years of the signing and none have been created since.

The Founders are probably rolling in their graves in anguish at how much the PC crowd and misguided Libertarianism (capital "L") has distorted the original intent of the First Amendment and how much they have allowed government corruption at all levels as well as opportunistic groups like the ACLU who use that government corruption to enrich themselves and thereby erode our religious liberties.

AlbqOwl said:

We are not talking 14th Amendment that has been corrupted in its intent and misused by opportunists and the courts almost as much as the First Amendment. The 14th Amendment is a good subject for a separate debate. This discussion is limited to the First Amendment, and the First Amendment was obviously, to anybody who has studied the founding documents anyway, intended to prevent the federal government from having any jurisdiction anywhere re who could or could not pray or where they could pray.

Click to expand...

We are talking about the 14th amendment, and the Due Process Clause, because that is the reason why the 1st Amendment now applies to states and municipalities.

Incorporation has been used and applied for well over 100 years, in numerous court rulings. The intent of the ratifiers of the 1st Amendment has been superseded by the ratifiers of the 14th Amendment, and the generations of subsequent rulings and law. That's how the Constitution was designed to work -- it was designed so that it could be updated and modified as citizens see fit.

Your attempt to isolate the 1st Amendment from all other amendments, from decades of jurisprudence and history and legal discussion, is patently absurd and legally invalid.

Thus, as I said: Your claim that there is "zero credibility" in applying the Establishment Clause to a public school is factually incorrect. It is not only thoroughly backed up by dozens of rulings, it's backed up by how states do not regulate such religious issues in their schools.

AlbqOwl said:

I have little respect for courts, included a Supreme Court, who interpret the Constitution as to what they would prefer it said instead of its original intent. And I sure don't take instruction from the courts as to what is right and wrong and/or what the Founders intended with the original Constitution.

Click to expand...

News flash! "My way or the highway" does not work in a pluralistic society with judicial review.

Your dislike for the courts does not magically make its legal standing disappear.

The Founders are probably rolling in their graves in anguish at how much the PC crowd and misguided Libertarianism (capital "L") has distorted the original intent of the First Amendment and how much they have allowed government corruption at all levels as well as opportunistic groups like the ACLU who use that government corruption to enrich themselves and thereby erode our religious liberties.

Click to expand...

Oh really? Let's play "name that founder!"

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.

….Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution for its revision at stated periods.

….It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults? If they have not, who has? The dead? But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves.

Even the interlocutor of this wise man, who espoused Constitutional stability, recognized that the nation must be allowed to revise its constitution as needed.

RabidAlpaca said:

I have no idea what you're talking about. Give an explicit example and I'll tell you if it's reasonable or not.

Click to expand...

Football Coach Suspended for Praying: How Lawless Judges Empower Censorship of Christians | National Review Online

<snip>
According to multiple news reports, for the last several years Kennedy has waited until each game ends and the players leave the field before walking to the 50-yard line and offering a quiet prayer for his students.

He never asks anyone to join him, nor does he stop anyone who wants to do so.

Moved by his example, a number of players pray beside him — and at least one agnostic student takes the opportunity to enjoy an “uplifting” moment of meditation.

By the school district’s own admission, despite seven years of mid-field prayer, no student complained.

Indeed, district administrators weren’t even aware of Kennedy’s routine until “an employee of another district” mentioned it to them.

At that point, the district — claiming liability risk — demanded that Kennedy stop praying at mid-field, offering to provide him a “private location” instead.

Kennedy declined, continued praying at mid-field, and was summarily suspended.
<snip>

Read more at: Football Coach Suspended for Praying: How Lawless Judges Empower Censorship of Christians | National Review Online

code1211 said:

Football Coach Suspended for Praying: How Lawless Judges Empower Censorship of Christians | National Review Online

<snip>
According to multiple news reports, for the last several years Kennedy has waited until each game ends and the players leave the field before walking to the 50-yard line and offering a quiet prayer for his students.

He never asks anyone to join him, nor does he stop anyone who wants to do so.

Moved by his example, a number of players pray beside him — and at least one agnostic student takes the opportunity to enjoy an “uplifting” moment of meditation.

By the school district’s own admission, despite seven years of mid-field prayer, no student complained.

Indeed, district administrators weren’t even aware of Kennedy’s routine until “an employee of another district” mentioned it to them.

At that point, the district — claiming liability risk — demanded that Kennedy stop praying at mid-field, offering to provide him a “private location” instead.

Kennedy declined, continued praying at mid-field, and was summarily suspended.
<snip>

Read more at: Football Coach Suspended for Praying: How Lawless Judges Empower Censorship of Christians | National Review Online

Click to expand...

LOL. He was asked by his employer not to do it midfield and offered him a private location and he did it anyway. That's not persecution, that's using your job to show boat. Praying doesn't work unless everyone sees you do it, right?

Do you feel that you have a right to conduct religious ceremonies on your employer's property against their consent?

Visbek said:

News flash! "My way or the highway" does not work in a pluralistic society with judicial review.

Your dislike for the courts does not magically make its legal standing disappear.



Oh really? Let's play "name that founder!"

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.

….Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution for its revision at stated periods.

….It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults? If they have not, who has? The dead? But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves.

Even the interlocutor of this wise man, who espoused Constitutional stability, recognized that the nation must be allowed to revise its constitution as needed.

Click to expand...

I said nothing about revision of the Constitution. I was speaking of corruption of the Constitution by those, including those in the courts, who interpret it according to what they want it to say instead of what it says.

As to name those Founders? I'll name all the signatories of the U.S. Constitution plus Thomas Jefferson and a few others. While certainly not any one of them got everything they wanted in the Constitution, and everybody had to consent to at least something with which he disagreed, I don't believe a single one of them objected to the First Amendment as it was originally intended. I am pretty darn sure, too, that to a man every one of them would deplore what the courts have made of it.

CrabCake said:

If your study of constitutional law ends with the bill of rights, then you've got a 200+ year gap in your knowledge. Under its original intent, it was still perfectly valid for states to have official churches and pass whatever manner of laws they wanted for or against whatever religions they wanted; thus how the Mormons were driven into exile in a manner that raised no constitutional objections. This changed with the adoption of the 14th amendment.

Here is some information that gives further details on contemporary interpretations and the relevant case law: Establishment clause overview | First Amendment Center ? news, commentary, analysis on free speech, press, religion, assembly, petition

In a nutshell, due to the 14th amendment, there is no longer a requirement that there be a specific law. You may not like that as it applies to the establishment clause of the first amendment, but aren't you glad it applies to the free exercise clause? Because if it weren't for the 14th amendment, or if we didn't interpret it the way the justices have, you would have no recourse if the government decided to muzzle your speech or break up your pro-life organizations or tea party or whatever. It would be just like you want it to be, if you can't show that congress was passing a law restricting the tea party, there would be no violation of the first amendment if your local government dismantled your tea party group.

Click to expand...

It seems to me that much of the problem comes with the Commerce clause and public accommodation laws. It would seem to me, non-lawyer, that one doesn't surrender rights simply because they are in the public sphere or engaging in commerce. Not sure how the 1st or 14th relates to that. In the known situation in which a Christian baker doesn't sell a cake with writings that the baker finds offensive the baker should have the right to refuse service. I understand the dilemma if we are talking about a life threatening situation but baking a cake? I don't think the 1st or 14th thought about that.

I like the wording of article 18 of the Universal Declaration of Human Rights (which US signed and approved by the Senate)

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Click to expand...

Public or private. With others (incorporated???) or alone. Religious belief or any belief. In speech or actions. No mention of public accommodation or business licensing.

RabidAlpaca said:

LOL. He was asked by his employer not to do it midfield and offered him a private location and he did it anyway. That's not persecution, that's using your job to show boat. Praying doesn't work unless everyone sees you do it, right?

Do you feel that you have a right to conduct religious ceremonies on your employer's property against their consent?

Click to expand...

Did you miss the part that says he waited until the game ended and the players left the field?

If I wait until the work day is over and everyone has left, I would assume that there would not be a problem.

This is a different example, though. It is not a private company. It is a public institution. It says he prayed. It doesn't say he sacrificed a lamb or screamed the prayers. it sounds like it was a very personal reflection that happened to be done on the football field.

I don't know if you watch much football or high school or college or professional sports, but there are various gestures and signs that players make routinely in the course of the game that indicate prayer in some form.

I don't see what his prayer did to inconvenience anyone.

HonestJoe said:

The Constitution isn't all that clear - how else could there be so many arguments about what it means and how it should be implemented? How could there be things long considered constitutional and acceptable in the past wouldn't even be considered today (and vice versa)? A literal interpretation of the Constitution simply wouldn't work. Reality is muddy water - practical law just has to wade through it.

Click to expand...

actually it is clear.

the argument comes when people try to distort what the constitution says by warping it with their own ideology.

actually it does work and it works quite well which is why the framers wrote it the way they did.

AlbqOwl said:

I appreciate your thoughtful and civil response Joe, but I hate chopped up responses like that, especially when my post was intended to be a cohesive statement with each component qualifying the others. I have little respect for courts, included a Supreme Court, who interpret the Constitution as to what they would prefer it said instead of its original intent. And I sure don't take instruction from the courts as to what is right and wrong and/or what the Founders intended with the original Constitution.

You may have difficulty believing that the Founders intended the federal government to be unconditionally hands off in matters of religion but history and the founding documents disagree with you. There was no interference of any kind by the federal government with the little state theocracies, many very harsh, narrow minded, and restrictive, that existed during and following the signing of the Constitution. And, under the umbrella of liberty and self determination, every one of those dissolved within a few years of the signing and none have been created since.

The Founders are probably rolling in their graves in anguish at how much the PC crowd and misguided Libertarianism (capital "L") has distorted the original intent of the First Amendment and how much they have allowed government corruption at all levels as well as opportunistic groups like the ACLU who use that government corruption to enrich themselves and thereby erode our religious liberties.

Click to expand...

If the founders had intended the constitution to be interpreted the way you'd like it to be, why didn't they interpret it that way themselves. It's never been that way because it's totally impractical. You've made no attempt to address the major issues and contradiction such an interpretation would bring about.

HonestJoe said:

If the founders had intended the constitution to be interpreted the way you'd like it to be, why didn't they interpret it that way themselves. It's never been that way because it's totally impractical. You've made no attempt to address the major issues and contradiction such an interpretation would bring about.

Click to expand...

They DID interpret the Constitution the way I interpret the Constitution. And that is not necessarily, in every case, the way I would have wanted the Constitution to be. But even though, with hindsight, I would have worded things to be less susceptible to manipulation by the courts and opportunists, it is an amazing document and was intended to allow a nation to exist in which the people would govern themselves and determine for themselves what they believed to be right and wrong and no central government authority would have any jurisdiction over that outside of the very limited powers assigned to the federal government. And it worked beautifully until around the turn of the 20th century when the opportunists figured out how to use the courts to rewrite the Constitution and chip away at our liberties with ever more power transferred to the central government until I believe we are the tipping point and in danger of losing it all.

RabidAlpaca said:

Nobody is stopping anyone from praying at a football game, nor could they stop them. What I imagine was stopped was using the event to promote jesus.

That's the thing about this, American christians complaining about persecution are never actually hindered in their personal beliefs, they are just mad they can't use their government positions to promote.

Click to expand...

What he was doing was using his position as coach as a means to promote a particular sectarian religious view. As he works for a public institution, he is forbidden from doing that. Nobody is stopping him from praying on his own time, when he is not acting as an official representative of the school, they are just enforcing the constitutional ban on promoting one religion over another by the government, which whether he likes it or not, he is a representative thereof.

code1211 said:

Did you miss the part that says he waited until the game ended and the players left the field?

If I wait until the work day is over and everyone has left, I would assume that there would not be a problem.

This is a different example, though. It is not a private company. It is a public institution. It says he prayed. It doesn't say he sacrificed a lamb or screamed the prayers. it sounds like it was a very personal reflection that happened to be done on the football field.

I don't know if you watch much football or high school or college or professional sports, but there are various gestures and signs that players make routinely in the course of the game that indicate prayer in some form.

I don't see what his prayer did to inconvenience anyone.

Click to expand...

Which is irrelevant, he is still acting as a representative of the school. He could have waited until he got back to his office or went home. He chose not to.

AlbqOwl said:

I said nothing about revision of the Constitution. I was speaking of corruption of the Constitution by those, including those in the courts, who interpret it according to what they want it to say instead of what it says.

Click to expand...

Yeah, too bad that.....

1) They did not have a 100% unified idea about how the nation should be run
2) They fully understood that the Constitution left a great deal of latitude about how the nation should be run
3) Many of those founders were still alive when judicial review was established
4) We've had over 200 years to put an end to judicial review, and for some odd reason have not done so

As to name those Founders? I'll name all the signatories of the U.S. Constitution plus Thomas Jefferson and a few others.

Click to expand...

In doing so, you are obviously ignoring Jefferson, whom I quoted extensively above. You might want to try reading his words, before imputing certain views onto him.

While certainly not any one of them got everything they wanted in the Constitution, and everybody had to consent to at least something with which he disagreed, I don't believe a single one of them objected to the First Amendment as it was originally intended.

Click to expand...

That's nice. However, and as already noted: The scope of the 1st Amendment was revised when the 14th Amendment was passed.

Your dislike for about a century of jurisprudence is noted... and rejected. The year is not 1855. The scope of the 1st Amendment has changed. I recommend you deal with it.

Visbek said:

Yeah, too bad that.....

1) They did not have a 100% unified idea about how the nation should be run
2) They fully understood that the Constitution left a great deal of latitude about how the nation should be run
3) Many of those founders were still alive when judicial review was established
4) We've had over 200 years to put an end to judicial review, and for some odd reason have not done so




In doing so, you are obviously ignoring Jefferson, whom I quoted extensively above. You might want to try reading his words, before imputing certain views onto him.



That's nice. However, and as already noted: The scope of the 1st Amendment was revised when the 14th Amendment was passed.

Your dislike for about a century of jurisprudence is noted... and rejected. The year is not 1855. The scope of the 1st Amendment has changed. I recommend you deal with it.

Click to expand...

I'm going to venture that I have studied Jefferson's words far more extensively than somebody who cherry picks quotations out of context and presents them as what Jefferson intended. And I recommend that instead of being so willing to accept that century of reinterpretation of the Constitution along with the jurisprudence that condoned it, that the consequences of those revisions be studied with a super critical eye. You know the definition of insanity. . . .

AlbqOwl said:

....even though, with hindsight, I would have worded things to be less susceptible to manipulation by the courts and opportunists, it is an amazing document and was intended to allow a nation to exist in which the people would govern themselves and determine for themselves what they believed to be right and wrong and no central government authority would have any jurisdiction over that outside of the very limited powers assigned to the federal government.

Click to expand...

News flash! Judicial review was not invented in 1915. It was used before the Constitution was ratified; it was discussed during the Constitutional Convention, during the ratification process, in the Federalist Papers; and fully established by 1803 with Marbury v Madison.

Plus, many of those same framers bluntly ignored the word and intent of the 1st Amendment right off the bat, with the Alien and Sedition Acts. Oops.

And it worked beautifully until around the turn of the 20th century when the opportunists figured out how to use the courts to rewrite the Constitution and chip away at our liberties with ever more power transferred to the central government until I believe we are the tipping point and in danger of losing it all.

Click to expand...

Yeah, not so much.

On one hand, you are correct in that we've gone from a weak clientelistic state, to a stronger central government with a far more professional civil service, and better established institutions. We also live in a society with more regulations.

You're, well, pretty much wrong in every other respect.

• As noted, judicial review was not discovered in 1900. E.g. Dred Scott was a SCOTUS decision that seriously curtailed the rights of citizens of African descent, obviously flaunting the idea that "all men are created equal," and severely damaged the Constitution.

• As noted, the Constitution was not intended to be sacrosanct, or its authors worshipped as deities; it was intended to be a living document.

• A stronger central government does not mean we have fewer liberties. In many ways, it does a better job ensuring those liberties than local governments, which have often deprived citizens of various rights. E.g. most Southern states did everything they could to deprive black residents the right to vote (among other basic rights), and federal intervention was required to protect those rights.


And let's see, how else have we "rewritten" our political system? Since 1900, we have:

• Expanded the franchise to women, and everyone age 18 and up
• Established voter and civil rights protections for minorities, women, gays etc
• Reduced restrictions on speech
• Added term limits for President and VP
• Eliminated poll taxes
• Substantially improved protections for women, including recognizing marital rape and domestic/partner abuse
• Encouraged millions of women to get an education and join the workforce, in diverse careers
• Switched from conscription to voluntary military service
• Put a major dent in machine politics and clientelism
• The SCOTUS basically rewrote the 2nd Amendment, by consigning the Militia Clause to the dustbin of history

Of course, the history of liberties in the 20th century is complex, and this is only part of the story. But I'd say that on the whole, Americans -- especially women, ethnic minorities, gays and other oppressed groups -- are far more free today than in 1900.