Tell me about separation of church and state.
By IlliniJon Comments (30) / Email this page » / Leave a comment »
So, I've seen lots of comments like this one by Jon Sandor (RedState poster) about the separation of church and state:
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There is no Constitutional tenet regarding the separation of Church and State. This is entirely a creation of the courts themselves which frequently is in direct contradiction of the Constitution.
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Fair enough, I understand it's not written directly in the constitution. So can you explain to me the story behind this? I would Google it but you get all sorts of useless junk. Any insights or references to previous posts or URLs would be great.
Whether or not it's a constitutional principle, it's treated as such by today's society, so I'd like to understand more about it.
Thanks!
- Jon
But for something to be covered by the Ninth it would have to be an established right in English or American law prior to the adoption of the Bill of Rights.
That's not what it says. Where did 'established' come from?
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
I can find only one meaning in the word 'retained' - that the rights were retained by the people at the time. It is not a clause which allows new rights, unknown in 1801, to be invented. If you want to put new rights in the Constitution, there is an amendment procedure.
Quentin Langley
Editor of http://www.quentinlangley.net
I think your reading only makes sense if 'the people' refers to a collective entity that began to exist in 1789 and has continued to exist to this day.
I read the Constitution as granting rights to individuals, not classes, though, so I don't see how England is at all relevant to my rights, for example.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Please provide more detail. I am not following your arguement. Why does it make any difference whether 'the people' refers to a collective entity or to individuals? What does 1789 have to do with his arguement?
The 9th refers to the Constitution and modifies it. 1789 is when that Constitution was ratified. Langley claims that the 9th amendment sets in stone any rights that aren't enumerated in the Constitution.
But I find his declaration that the rights protected by the 9th are only those in the English common law to be ungrounded in the text of the amendment. He's projecting on the document what he wants to be true: that there is a neat list of rights somewhere, and beyond that the government is unrestrained.
I think any plain reading of the 9th makes it clear, though, that just the opposite is true. We hold many rights, and we can't assume the government is free to act just because the Constitution is silent on one.
The way I read the ninth is that it reinforces both that the limitation of the government to its enumerated powers, that the ratification of the Bill of Rights amendments is not putting a cap on what rights the people have. England just isn't relevant here.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
I think the 9th is poorly written and doesn't serve any legitimate purpose. Obviously you can have rights besides what is enumerated in the Constitution. How would the BOR even be interpreted as a restriction on your rights? That seems like a stretch. Congress is clearly free to codify any rights it wants into the law in addition to the ones contained in the BOR.
What I really don't like about the 9th amendment is how it is used as a catch-all fill-in-the-blank for all these intrinsic rights you have that don't appear in the constitution, but today's judges think are hanging out somewhere in the penumbra. Somehow the fact that the 9th amendment exists turns these into constitutional rights, even though they don't appear anywhere in the BOR.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
If you don't like the 9th amendment, then change it. Until the Amendment process changes it though, it's there, and has to be respected the same as any other part of the Constitution.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
So how are you supposed to respect it? I suppose I could just come up with my own meaning like so many others do. Then I could use it to justify a constitutional right to abortion-on-demand or anything else. I'm sure I could find some judges to agree with me on that count.
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"I am a great believer in luck. The harder I work, the more I have of it." -- Thomas Jefferson
>>but today's judges think are hanging out somewhere in the penumbra.
But the tense of the verb is clear. They could only be rights that were retained by the people in 1801, so, to take an extreme example, a 'right' to a sex change operation would be an absurdity, as it could not have existed in 1801, and any court that wanted to recognise such a right would have to look wider to a right to medical treatment of your choosing.
Quentin Langley
Editor of http://www.quentinlangley.net
>>But I find his declaration that the rights protected by the 9th are only those in the English common law to be ungrounded in the text of the amendment. He's projecting on the document what he wants to be true: that there is a neat list of rights somewhere, and beyond that the government is unrestrained.
First, I said in American law, which means they were either in English Common Law prior to 1776, or had been adopted as law in America separately from English law which might, I suppose, have been either before or after 1776, since there were separate legislative processes in colonies prior to the Revolution.
As for your notion that I am projecting what I want to be so, this is pure invention on your part. You have no idea what I would like to be so, and your guess as to this is wholly wrong.
Nor have I ever said that the US government is unrestrained outside the Bill of Rights, that is nonsense. The US government is a government of enumerated powers. Any power not expressly granted to the government does not exist.
I am still confused as to your actual position on this. Are you suggesting that the Ninth incorporates any old right that someone may choose to invent at any future date? Or just rights that existed in 1801. That seems to me to be clear from the tense of the word 'retained'. This, if you recall, is where you came in, but you have not elaborated since.
I also don't understand why you keep saying that rights which pre-existed the Revolution do not apply or that English law (as at 1776) is not relevant. I don't see the connection between this question, interesting as it is, and the rest of what you are saying.
And, as far as I know, your view that American law was tabula rasa in 1776 is unique to you.
Quentin Langley
Editor of http://www.quentinlangley.net
>>I think your reading only makes sense if 'the people' refers to a collective entity that began to exist in 1789 and has continued to exist to this day.
I don't see any connection between your statement above and what I wrote. It has whizzed straight past me.
For the record, no, rights are retained by individuals. There are no collective rights.
>>I read the Constitution as granting rights to individuals, not classes, though, so I don't see how England is at all relevant to my rights, for example.
Yes the Constitution refers to rights of individuals, not classes. Incidentally, the Constitution does not grant rights, it recognises the natural rights of the people and limits the powers of the government to infringe those rights, but the Constitutional Convention did not invent the rights, they were 'endowed by their creator'.
I don't see the sequitur between the first half of your sentence and the second. That they are individual rights is unconnected to the separate question of whether the rights in the Magna Carta, for example, are recognised in the US Constitution.
English law, as at 1789, was completely relevant. The concepts of the American Revolution were principally English concepts. They did not arise suddenly and in a vacuum. The Revolution was against the British government infringing on rights which the colonists felt they had always had, not rights which they had suddenly invented.
Nor did the Revolution create Tabula Rasa. The laws which existed prior to 1789 were not swept away, the government was.
That is why American courts, rightly, have enforced the rights which were already accepted in American law prior to 1789.
Did you think those rights were swept away?
Quentin Langley
Editor of http://www.quentinlangley.net
Actually, yes, I do think that our armed revolution that succeeded in throwing out a brutal tyrant, his mercenary goons, and an unrestrained parliament, did sweep away a great deal of the arbitrary and unfair English system from this country.
As for the Magna Carta, legally that itself was swept away in the lifetime of the King who granted it, no? The only way it lives on is in historical analyses that point to it as a milestone in the tradition of limited government.
And yes, that spirit continued into America, as well as a general idea of what rights are held by people. But whether those rights did or did not continue to be recognized by the new government, has nothing at all to do with whether the rights referred to by the 9th amendment are LIMITED to those rights that England also recognized.
I just think it's a ridiculous idea that you can twist the 9th amendment from its expansive plain meaning, and its context of mollifying people who saw an enumerated bill of rights as a blank check for tyranny, and interpret it down to an incorporation of rights from a country we'd just declared as not recognizing rights well enough.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Well, if this guy's going to feed his weird information about the Constitution to this questioner, I think it's good for the questioner for him to see the background and decide for himself.
So maybe it's offtopic, but it still serves a purpose for this thread, whose founding question (it wouldn't even qualify as an acceptable diary before) was all about Constitutional interpretation.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
The discussion's basically done anyway, but I don't grant that you're correct on this, given that even in your reply you superficially shifted topics, too: bringing up the matter of textualism vs other forms of interpretation.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
You are, as always, free to pretend that you know what you are talking about. I'm sure that right is in the Ninth Amednment somewhere.
>>Actually, yes, I do think that our armed revolution that succeeded in throwing out a brutal tyrant, his mercenary goons, and an unrestrained parliament, did sweep away a great deal of the arbitrary and unfair English system from this country.
It deposed the government, not the law. In fact, the notion of rule of law was rather important to the Revolution.
>>As for the Magna Carta, legally that itself was swept away in the lifetime of the King who granted it, no? The only way it lives on is in historical analyses that point to it as a milestone in the tradition of limited government.
No. It is in English, and American, law today, and is recognised by courts in both countries. (And several others, actually).
>>But whether those rights did or did not continue to be recognized by the new government, has nothing at all to do with whether the rights referred to by the 9th amendment are LIMITED to those rights that England also recognized.
I didn't say that. I said it recognised the rights that existed in 1801, not new ones subsequently invented. The rights recognised in 1801 included, but were not necessarily limited to, rights which were recognised prior to 1776.
>>I just think it's a ridiculous idea that you can twist the 9th amendment from its expansive plain meaning, and its context of mollifying people who saw an enumerated bill of rights as a blank check for tyranny, and interpret it down to an incorporation of rights from a country we'd just declared as not recognizing rights well enough.
There is no twisting involved, at least not on my part. I am referring to the plain words of the amendment. You are the one who is being deliberatley vague. I am talking about the rights "retained by the people" which plainly means retained at the time. You have not said whence derive all these subsequent rights than have come into being since 1801 - or what any of them might be.
As for incorporating rights "from a country we'd just declared as not recognizing rights well enough", that's just the point. If the UK did not recognise rights effectively enough then you would hardly want to reject any rights that were in English law. The Revolution was supposed to be a step forward for rights, not backwards, so of course all the rights recognised by English law were incorporated.
Quentin Langley
Editor of http://www.quentinlangley.net
a bit here; I don't think our law and our rights are as positivist as you seem to. At theory anyway, American rights just ARE and only limitations and restrictions are articulated.
In Vino Veritas
Rights are moral constructs. When law ceases to be positivist then it is simply a judges philosopical opinion.
Reading the writing of the founders, the judges, and so many from those times, one clearly gains the notion that the reason for our independence was not to get rid of the rights as understood in the Magna Carta, but rather to throw off the government that was attempting to remove them!
We operate on a system of Common Law. That Common Law system is taken from English tradition, and cases have been decided on issues of common law both before and after the revolution. It is what we call "precedent." We have used, on multiple occasions, common law decisions from before the American Revolution to determine law in the United States.
"In matters of style, swim with the current; in matters of principle, stand like a rock."
--Thomas Jefferson
Oh, and please use the Reply To This link, so people are more likely to know what you're talking about. It's only because of this thread's low number of comments that I knew you were attempting to reply to me.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
The "seperation of church and state" was inserted into the law in 1947 in Everson vs Board of Education, where Justice Black opined that "The first amendment has erected a wall between church and state. The wall must be kept high and impregnable."
The real question here is, does the constitution mean what its written text says, or does the constitution mean whatever the SC says? A lot of people believe the latter.
Rights are not articulated in the Constitution, "rights" simply are and whatever they "are" is not diminished or limited by the Constitution unless there is a specific articulation of that limitation in the Constitution. The Constitution acts to restrict the newly established federal government from infringing on certain articulated rights, e.g., the right to not be forced into a government established religion or the right to keep and bear arms, as well as from infringing rights that the people might otherwise have except in specific articulated circumstances or by specific processess.
At the most basic level, an American citizen can do anything his pursuit of happiness motivates him to do unless some Constitutionally permissible law, ordinance, or rule prohibits him from doing it or restricts the manner in which he can do it.
To the most controversial area; in a world without laws, since a woman CAN have an abortion, she has a right to have one. Whether or not to have one is a personal religious or philosophical question. For most of our history, there was a cultural consensus that we as a nation did not approve of abortion and it was to greater or lesser degrees prohibited or restricted at state law. These state laws were challenged in Roe on a theory of a "right to privacy" articulated in Griswold. Intrusions into "private" matters had generally been held to require only a state interest articulated in law, e.g., specific charges and sufficient cause for a warrant.
Douglas, probably motivated as much by the fact that the old horn dog had just married a much younger and presumably fertile woman as any great legal theory, in Griswold found that while there was no articulated right to privacy, from the "penumbras and emanations" of other rights protected by the Constitution, one could find a right to privacy that prevented the US and the states from intruding into the private act of obtaining an abortion.
In Vino Veritas
It looks like you nailed this while I was in the shower thinking about it, and forming the diary I since posted.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
Not law.
That sort of thinking is what allows Justice Kennedy to invoke the "mystery of life" in striking down laws which had been around for the life of the Republic.
I have nothing against metaphysics mind you. I just don't want the courts to be allowed to get the idea that their real responsibility is to some "True Law" which only they can discern, and not to the boring old text which "we the people" authored and expect them follow.
in a world without laws, since a woman CAN have an abortion, she has a right to have one.
In a world without laws, since I CAN kill you and take your money, I have a right to. Is there a point lurking here somewhere?
In a world without laws, since I CAN kill you and take your money, I have a right to. Is there a point lurking here somewhere?
I was thinking just that when I read it.
How about:
In a world without laws, an unborn child can have a life. Therefore, it has a right to that life.
We live in a world of laws and social interaction. This is why we have a system of common law, which guides our perspectives, laws, and decisions. Common law has value since precedent can change bad law. But it has its weak points: It can be perverted to justify wholly unjustifiable claims.
As for the separation of Church and State, what separation? I only see that Congress cannot establish a religion, nor can it restrict the free practice of religion. There is nothing saying they have to remain totally separate. That would be impossible and frankly an wasted endeavor. People's religious beliefs will always taint their judgement, just as their personal beliefs about responsibility and the role of government will taint their judgement.
A Separation of Church and State is only practical if we do away with one or the other or both.
"In matters of style, swim with the current; in matters of principle, stand like a rock."
--Thomas Jefferson
>>Rights are not articulated in the Constitution, "rights" simply are and whatever they "are" is not diminished or limited by the Constitution unless there is a specific articulation of that limitation in the Constitution.
Sure, there is a natural rights philosophy underlying all American law. It is in the Declaration. That is why I parted company from Neil's remark above that the Constitution 'granted' rights. It merely recognises them.
But in the terms of the main discussions I was having with Neil, my assertions were twofold, and Neil seemed to disagree with both.
I was saying that rights referred to in the Ninth are only those that existed in 1801. The courts are not empowered to simply invent or 'discover' any such rights as they feel like at any future date. That is legislative process, and judges do not have the authority to engage in it.
Secondly, I said that the rights so recognised included those which predated 1776 and were established in English Common Law, and indeed in Royal Charter's such as the Magna Carta, on display in Philadelphia for this reason.
Your contribution, though valuable, does not directly pertain to this discussion.
Quentin Langley
Editor of http://www.quentinlangley.net
>>Fair enough, I understand it's not written directly in the constitution
It is not written in the Constitution. The notion that some things are 'directly' in the Constitution whereas others are in the 'penumbra' - clauses written in invisible ink - is part of the problem.
Only the Ninth Amendment allows for anything other than enumerated rights. But for something to be covered by the Ninth it would have to be an established right in English or American law prior to the adoption of the Bill of Rights. For example, you can cite the Magna Carta (arguably the source of Habeas Corpus) in an American court under the Ninth, but not something invented as a concept later, or unknown in American law in 1801.
Plainly, there was no accepted doctrine of separation in 1801. American Common Law derived from English Common Law, except where it had specifically been amended since the Revolution, and the Church of England had been the Established Church in English law since the 1530s. Equally, several states had established churches at the time the Bill of Rights was adopted.
The First Amendment clearly refers to *Congress* not establishing religion, but makes no mention of the states. Most constitutional lawyers believe that the First was only extended to cover the states after the Civil War, and it still, of course, made no mention of separation.
Quentin Langley
Editor of http://www.quentinlangley.net