I actually know that, Max. Sorry to pigeonhole you. This Frist stuff plays into my number one, absolute most hated stuff about today's GOP and I'm guilty sometimes of taking that out on religious people who've been known to support them, particularly when those people's faith has played a role in that support. I don't like that about myself and I really do apologize for it, but I don't take the full blame. Frist's line of attack is familiar and it does nothing so much as deepen our divisions, which is exactly what it seeks to do. Anyway, sorry.
I am surprised that the board lawyers did not pipe in on this. The Law is broken down into two spearate parts: Statutory Law and Common L.aw. Statutory law come from the legislature. Common law come from the courts' "interpretation" of laws and precedence. I think you are espousing that Common Law is unconstitutional, right? here is a link : Wikipedia: Common Law I am not a lawyer, but it would appear that common law an integral part of our judicial system. I do know that Congress does pass laws with the intent of letting the judicial system sort/flesh them out (e.g. tax law). If common law was really unconstitutional, I strongly suspect that the tax lawyers would have raised the issue long ago.
Our founding fathers left important issues, like slavery, for later generations to sort out. The fact that Christianity is a part of our history, like slavery, does not automatically make it an unquestionable good thing.
I am not a lawyer either but I understand common law to be more civil law based upon jury decisions. I am talking about case law where interpretations are written and then written on top of interpretations.. this is also commonly called judicial law. Where judges are writing law through interpretation. Statutory law is where there is 'law on the books' . The issues with religious freedom are a little more different in that they are constitutional law. This is the excersise judges have to deem legislation as constitutional or not. My point is that when speaking of judicial activism it is not just the republicans or democrats partisan issues that are scary but the abuse of the Constitution. Sooner or later some judge will find himself in conflict with the intent of the protections in the constitution. For instance - The right to bear arms. A law on gun control may come before a federal court. A judge may decide that there is no right to bear arms. And that is not what judges were supposed to do. When a law violates the constitution it should be struck down no matter which party is supporting the law. This is what I call judicial activism- revision to the Constitution freedom guaranteed in the Bill of Rights. I am not really concerned about which liberties are being violated, I am concerned that they are being re-interpreted and changed and violated. The intent to protect the freedoms in our Constitution should be just as valid today as they were in 1776. I guess this issue for me is not about who is against people of faith, but who is against the protection of the first admendment given to religious people. I am not for arguing which politician or political party is religious? I am more interested that I can freely express my religious beliefs and practice those beliefs without fear of the govt. in America.
Rhester; I again salute you for your dedication to Constitutional liberties and totally agree with you. That said though I think when it comes to the expression of religious symbols on government property its an all or nothing view. So on a practical basis I doubt most schools, cityhalls, courts and etc.. would allow the display of Satanists symbols while we know of several of those institutions trying to display Christian symbols. All the Constitution asks is neutrality towards religion. Neutrality can be expressed either through the inclusion of all or the exclusion of all. So until I see a government institution in the US allowing the display of Satanists symbols I'm going to say that the government is violating the Constitution if they allow the display of Judeo-Christian symbols. I've read Jefferson's letter to the Bishop of Danbury and I understand the context of the "Wall of seperation between church and state." and yes it is about free expression of religion but a wall shuts off both ways and also implies to government not getting involved in religion. Under that reasoning there should be no official prayer in school, faith based initiative or government funded display of religious symbols since those amount to government sanctioning religion.
Agreed. I think federal buildings already are loaded with religious expression as are state govt. buildings. For 175 yrs it has been all. What is happening today can be called pluralism. Separating faith from life. Or secularism removing faith from society. Instead of protecting religious expression we have moved from our previous position to one where expression is repressed. Bad move. Non-religious people are going to court and winning cases unconstitutionally by having religious symbols and expression removed. As far as satanist getting some exposure. They will. They are gaining strength and I don't doubt we will see more expression of their beliefs. And these expressions should have the same Constituional protections. That is why the context of the letter what definately reassuring the Danbury Baptists that the govt. would not impose restrictions or prejudices against them with any LEGISLATION. The key issue is federal legislation that would prevent them from free expression. The wall of separation actually implies a wall of protection from govt. repression of a particular religious group. A protection from the govt. repressing them. It was intended to assure them they would have the freedom to express and practice their religion. In the First Amendment is a Wall that protects the free expression of religion from govt. laws which would censor that liberty. The wall is intended to protect religious liberties from federal law. Again read the first amendment slowly and carefully. The Wall does not separate govt. and religion. No more than it prevents the religious from participating in govt. If the Wall was designed to remove religion or separate religion from govt. we would need to elect only the non-religious to serve in govt. Because we are a government of the people. Common citizens of faith are elected and they live out that faith as they govern, be it Jew or Moslem or Christian or etc. We have twisted the First Amendment to say Religion shall have no place in the free exercise of Government. Those who resent religious expression are at the forefront of lawsuits that have removed prayer from commencement ceremonies, shut down Bible study groups on school campuses and had Bibles removed from monuments (this happened recently in Houston at the Star of Hope Mission). The people who are filing lawsuits and resting under the 'Separation' clause, want religious expression removed. I cannot for the life of me read that into the protections of the First Amendment. As a Constitutional issue and as a religious person I find this scary and extreme. Nobody in America would have thought it as I grew up in the late '50's and early '60's. But now we find ourselves in a secular, pluralistic culture that allows for a non-religious re-interpretation of the Constitution. We are seeing a time in America where religious expression is being repressed by courts. I don't think Moslems should be targeted for repression because of terrorism and I don't think other religions should be either because of pluralism. At least I lived in a time when we opened our public school day with the Lord's Prayer. Because we wanted to. Not because we were told we could, must or couldn't. We had the freedom to choose. And if there was a problem we didn't need Washington or a Federal Court, we had local ordinances that could be passed, if it even went to court. Please for our freedom's sake leave the Federal courts , the Congress and the President out of anything that would alter the Constitution. When I was in 1-3 grades I was taught Thou Shalt not Bear False Witness, Steal or Murder. People all around the world wanted to be like us and respected Americans. They admired our character. We knew all people i our school were not religious and we respected each other. We allowed teachers who didn't believe in God to choose other forms of expression. No student was criticized for not saying a prayer. But as long as we didn't force others, most agreed, no one complained and the biggest problems on school campus were: 1. Kids cutting in lunch line. 2. Kids talking too much in class without permission. 3. Chewing gum on school grounds. We are much more progressive now and secular, our kids are smarter- well grounded in math, science, English and geography; and all they have to worry about is drugs, guns and STD's.
No, that is not correct.No "laws" of any sort are based on jury decisions. However, a jury decision can be the catalyst for an issue being reviewed. Common law is the result of any appellate judicial decision. After a jury makes a decision, a defendant in a criminal case and either party in a civil case may appeal to the appropriate appellate court if they feel the law was inappropriately interpreted by the trial judge. The appellate judge rules on the issue and (unless he just rejects hearing the case, which means he agrees with the trial judge) writes an opinion. That opinion becomes common law. Now, how "binding" that common law is depends on the level and region of the appellate court that wrote the opinion. Since Marbury vs. Madison in 1803, the above-mentioned practice - known as judicial review - has been a key component of how our government works. Because our Constitution, its Amendments and just about all federal, state and local statutes are written with a certain amount of ambiguity, the judiciary is responsible for resolving conflicts regarding how those laws are applied. Furthermore, the judiciary rules when two laws are in conflict with one another. So to say the judiciary has no right to overrule an act of the legislature is ridiculous - that is EXACTLY what they are there for. Finally, rhester, I appreciate how civil you are in your opinions, but I have to disagree when you say that religion is being oppressed. Any person is free to practice their religion in the United States today. However, the courts have interpreted the first Amendment to mean that any government bodies should not be promoting any faith. The courts have also found that when government agencies display religious monuments, that is effectively promoting a religion. Thus, such displays are unconstitutional. So the only thing being "oppressed" are government displays of religion - no individual is being prevented from doing anything religious (except in those rare cases where a religion's practices have been ruled illegal - i.e. polygamy, human sacrifice). If I had more time, I'd dig up the Supreme Court cases regarding religion and give you an idea of how the separation of Church and State has evolved through common law.
subatomic, thank you for the clarification of common law. I don't know alot of law. I think though I am correct in that a jury could award a civil decision and that become common law, for instance an issue on smoking at a public venue could be tried. Civil suit, common law, I didn't think criminal or constitutional issues were relegated to common law but were considered statutory or constitutional by definition. Common law and Constitutional law are as different as Statutory and Common law. But I could be wrong, maybe you could straighten that more for me. The truth is where the Constitution does not speak it is not being ambiguous it is clearly delegating those decisions to the states. That is exactly what is stated in the Constitution. What is silent in the Constitution is silent for the reason that the individual States must decide, that is the foundational principle of State rights. And where states are silent those issues are delegated to local government. This is the historical foundation of our govt. I certainly agree there is ambiguity in state and local laws, especially if they were to be applied outside their own jurisdiction, but I must stronly and respectfully disagree that there is ambiguity in the Constitution. The Constitution is very specific and addresses fundemental issues that can't and shouldn't be trumped at the state or local level. For instance any protection of citizen rights or liberties should not in the least be considered ambiguous or inapplicable to common law. If that were to happen (and it is happenig) then the Constitution will be destroyed or rendered impotent to the extent that is allowed. This is judicial tyranny to violate the Constitution with the cloak of common law. Constitutional rule trumps the will of the people, the judges and anyone else except where a Constitutional amendment makes such change the law of the Land. I don't think there is a judge in the country who feels he can overrule congress. That is not the problem. When Congress passes a law and it is challenged in court it is challenged on the basis of its Constitutionality. Does it violate the Constitution? When a state law or local law is challenged on Constitutional grounds the same process is effected- does the law violate the protections of the Constitution. The problem is not Constitutional muster the problem is one of case law and common law trumping the Constitution. For instance suppose that a law was passed that news editorials could be examined by the govt. to determine if they incite terrorism. Now suppose this is challenged in court, but the courts rule that the govt. had a responsibility to protect the country from terrorism more than it did to ensure free press. This would be a bad decision, that should be overturned based upon the Bill of Rights. The Constitution is always the highest laws of the land. No, The U.S. Constitution is in no way ambiguous, it is clear about what it addresses and what it is silent on must be handled by the individual sovereign States of the Union.
You're wrong Common law is nothing more than appellate opinions, regarding any issue (Constitutional law is thus a specific type of common law). A jury decision NEVER becomes common law - the jury's job is to look at facts only. The trial judge determines (based on all law) what facts are admittable and what laws are applicable. An appellate judge then determines whether the judge was correct in his use and application of the law. I disagree with your assessment that the Constitution isn't ambigious. For example, the fact that people are still debating what constitutes a legal "establishment of religion" certainly demonstrates that there is no clear answer. I suppose we could go back in forth on this, but I'm at work and I doubt either of us is going to change the other's mind.
Subatomic, that helped clarify common law and I read up on it and found it applies primarily to civil cases. People aren't debating at all any laws passed by Congress that might be "establishment of religion". Please look at the first amendment and read it carefully. Congress shall pass no laws...The First Amendment addresses laws passed by Congress and it can't be read any other way because it is written that way very specifically. The Constitution is very clear that Congress cannot pass a law that is an establishment of religion. That is all it says about that and there is nothing ambiguous. Can you name one law that Congress has passed that is an establishment of religion and has been argued in court and struck down? Not one, because there is no debate here. The problem is we have used the 'Separation' phrase in common law cases that have usurped the intent, wording and plain understanding of the Constitution. That is why there is debate. Not because we cannot understand the Constitution. Someone decided that an misinterpretation (a big misinterpretation) of a letter Thomas Jefferson wrote to ensure a Baptist group that congress would not pass any law to repress them could somehow redefine the First Amendment and put a wall between religion and government. A wall that would reach to Heaven until religion had to be removed from the public. A 1st grader can understand the First Amendment. This is a tragedy. All of this jockeying to separate religion from govt. is just that, jockeying wth the Constitution and separating people of faith from their religious freedom. You are right that there is a great debate today about what is "allowable" as far as religious expression. But don't try to say it is because the Constitution is vague, ambiguous, too lofty for our mental capacity or to antiquated for the 21 st century. Just call it as it is. The Constitution doesn't fit a society that is pluralistic and secular. The Constitution doesn't fit a society that will trade liberty for money. The times they are a changing.
I think you're confusing government non-support of religion with suppression of religion. There's nothing in statuatory or case law that I'm aware of preventing anyone from praying on public property or in school. Most of these cases deal with the government displaying religious symbols or mandating religious activity. Those I would say clearly violate the establishment clause. Here's the First Ammendment. 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; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. The key there is that there are two clauses relating to religion. One agrees that Congress shouldn't prohibit the free exercise of but the first says no establisment of. I read this as saying that as private individuals we can practice religion as much as want but government cannot. Government must stay apart from religion. To me that clearly would rule out funding of religious groups or association of religious symbols with government. The problem that I think that you and other Christians have is that Christianity has largly gotten a break in US history. As noted Jefferson's statement was meant to reassure other Christians that the US Government wouldn't establish a particular branch of Chrisitianity as a State Church. If we are to read this clause strictly it doesn't say any particular religion though but it says religion in general. Therefore Christianity which has long gotten a pass from US, state and local governments now finds itself in the same position as other religions whose symbols were explicitly kept out of schools and other institutions even when a majority of the people in that locality followed a non-Christian tradition (ie Native Americans.) In the meantime far from an attack on religion there's nothing preventing you or me from practicing our religions all it means is that we can't expect government to support us either way. What I percieve most Christians like you are upset about is that you feel that since Christianity has historically gotten a break of that for now at least still is in the majority that Christian symbols and practices deserve to be sanctioned by the government. Again I would contend that violates the establishment clauses since it applies to all religions but also because I think its very unrealistic to expect that most localities really are neutral about display of any religious symbol.
I will agree that in Constitutional terms 'Congress' has been expanded to mean 'Government' but that applies to the rest of the First Ammendment too. Under that strict of a reading though you run into the problem that the second clause dealing with religion, not prohibiting the free expression of, is only limited to Congressional law. Under that argument any government institution could ban the free expression of religion as long as Congress didn't pass a law. You could have local municipal ordinances banning Christianity or ban the display of crosses through executive directive.
I am commenting on the characterization that I read of Jesus by FB. Jesus' message was distinct, direct and unwavering. It was not unclear at all. Frist is pandering... to his own side. He's a political animal not a savior.
Sishir Chang- That is exactly the way it should be. That is exactly what I am saying. That is exactly the historical setting that the Constitution was written in. There were many local laws in place favoring one religion or another. You had Quakers, Congregationists, Puritans, and other Christian groups that were often segregated by local community. The intent of the First Amendment with respect to religion is two-fold. First to ensure Congress could not pass a law to establish religion (that was left to local communities and state rights) Second to ensure Congress could not prohibit the free expression of religion. This is the trump card against religious censure. The Constitution is the Supreme Law of these United States. The bigger battles that have been fought over issues like this have been States rights issues. That is where things really get sticky. But it should always be clear to religious people that as long as they are U.S. citizens they can freely express their religion in public life without censure of govt. I certainly don't believe that in a imperfect world with imperfect people that this high ideal would prevail and all will live in peace without any controversies or problems or wrongs. But I also don't believe that removing religion from public life and govt. was the intent of the First Amendment.
Couldn't agree more. I am against the govt. funding any religious group in any way it is most definately giving preference to one religion. I am against all of this faith based initiatives that Bush has proposed. However, in the states that is a different issue. That is a State Rights issue. And as far as religious symbols, I don't think the federal government has any right to pay for them. That is same as above. But as far as removing them. There is nothing wrong at all with religious expression in public life or in public buildings. That should be handled on local levels. These are two different issues. Government officials have the freedom to express their religion. Government should express their religion whatever it may be as a religious liberty. What government cannot do is 'favor' one religion to the point of supressing another. The federal government should not fund religion. The association of religious symbols is and individual right. Whether that person is a Congressman who has a statue of Buddha sitting in his office or a group of Congressmen who have a Buddha sitting on the floor of the house. What is so frightful about the expression of religion? As long as one group is not stripping the rights from another group the religious diversity of America can be protected. But when the non-religious begin to mandate that religion must be removed from the govt. and the public life of citizens then you have a brand new religion receiving preferential treatment- the secularist. The religion of the secularist is receiving all the favor and they are establishing their religion. Don't let them remove our symbols and our expressions. They need to get their own.
Again, I personally believe that the First Amendment should protect Native Americans, Hindu, Satanists etc. from being censured. They should not lose their religious freedom. I know this is a difficult issue. It should be handled locally if possible. Let it be worked out, let people struggle with these issues. And then when someone's American Constitutional rights are violated let the battle find victory in the Constitution. Let people express their religion- give them that liberty. I only ask that the federal government protect this basic human freedom as much and as well as possible by staying out of it as much as possible. The majority religion (used to be Christianity) should not have the right to supress the minority religion. Now that the shoe IS on the other foot we have the Secularist trying to supress the Christian. I am sure Christians used to abuse them, but still I pray that all religions will have the right of free expression. For as long as we can hold on to these liberties our Founders gave us. And when they are gone. I am sure my church will be registered by the govt. (like China) and I will be told not to speak against the admin or I might be labeled a terrorist. Or we might just wipe out all religion (N. Korea) and declare ourselves Secularists. Or we could be taken over by a religion (Indonesia) and declare a state religion. Or we can hold on to the First Amendment by a thread and hoe that the diversity of religion in America grows and the free expression on buildings in homes, in schools and in churches, temples and other meeting places flourishes. And the precepts of the religions that are virtuous, honesty, integrity, love, respect- will make the character of our nation something more than the political moray we are slipping into.
