Now that is dodging the interesting question. Do you think that the constitution read correctly permits school sponsored prayer?
In some circumstances, I would read the Constitution to permit a limited form of prayer, precisely akin to the practice every legislative house in the country has of opening their sessions with an invocation from a cleric of some kind. (Like that permitted in Marsh v. Chambers)
In order to maintain the constitutionality of this, would you support a centrally approved list of acceptable prayers or leave this to the school to determine what language is acceptable and who may deliver it? Or is there a third option?
I think an “official” list of prayers would be both limiting and constitute the very establishment the text forbids. Rather I think that broad guidelines should limit the practice from being overly intrusive (prior to important events, for example, and not a daily practice) and sufficiently inclusive (selection of benediction from rotating cross-sections of religious and secular sources).
But as the Court in Marsh observed:
Oh I accept that I am flying in the face of established precedent on this - I just think the precendent is palpably wrong…
I’d agree you cannot have an approved “Book of Prayers.” However, I am not sure how you can consitutionally, in the words of the King, “have it your way.”
“Sufficiently inclusive” is, as far as I can see, impossible. Excluding any individual religous belief seems problemmatic to me. As soon as your invocation to Satan has been rejected, then you have a problem.
Only by pretending that the “deism” you’re including is “ceremonial” - pretending that the religion you’re having the State establish actually has no content to it. If it *really *didn’t, why bother?
The problem is that you apparently wholeheartedly embrace precedent, such as incorporation, that helps you. On what basis do you approach the Court’s jurisprudence a la carte?
Don’t misunderstand me. I accept precedent defines what the law is. I don’t think it necessarily defines what it should be.
Were I preparing a brief to defend a client’s position on this, I would recognize Marsh as controlling. I might argue for its reversal, but I wouldn’t base the whole brief on that.
Similarly, if in the 1940’s I was arguing a case that African American students in Alabama were illegally discriminated against, I would not lead with an attempt to have Plessey overturned. I’d argue that the resources provided for African American education were such that the provided schools were separate but not equal. Hell - probably the worst decided case in the history of the U.S. still out there (and that might be worth a thread) is the Slaughterhouse Cases. The Court was flat out wrong there, but trying to fight a discrimination case on the basis of Priviliges and Immunities ain’t gonna get you far.
That doesn’t alter the fact that both Marsh and Plessey were wrong when decided.
How do I decide what I feel is wrong? Same way as you do, I imagine. I apply my legal knowledge and analytical technique to the case itself, and attempt to discern an answer. Where we come to a different answer, you just simply need to realize I am right and you are wrong.
I think, from what I have read, the Court’s decisions on incorporation have been generally correct. Personally I’d go for whole hog incorporation, and damn the consequences. Court didn’t think so, though. Court’s wrong there, but the outcome is right when they incorporate piecemeal (even though their method is wrong).
So IOW:
No religeous instruction in public school (McCollum v. Board of Education Dist. 71)
No school sponsered prayer (even if it’s nondenominational) (Engel v. Vitale)
No reading of the Bible over the intercom (Abington School District v. Schempp)
No posting of The Ten Commandments (Stone v. Graham)
?
The Founding Fathers never intended the 1st Amendment to apply to the states. Look at Connecticut that had an official religion until 1818. I agree with O’Donnell that the First Amendment does not explicitly ban separation of Church and State, but likewise I agree that as governments became stronger, not separating Church and State is a violation in spirit of the Amendment
Except for, you know, Thomas Jefferson.
The probably did, but there was the real political consideration of actually getting the states to agree on accepting the Constitution.
Haven’t we already established that Jefferson wasn’t one of the framers?
Would O’Donnell have made her point better if she asked “where in the Constitution is the right to remain silent”?
Well, James Madison was definitely one of the Framers (of both the Constitution and the Bill of Rights). And he had pretty strong views about the separation of church and state, or no establishment of religion, or whatever you want to call it:
As for the terminological debate–should we call it “separation of church and state” or “no law respecting an establishment of religion” or what you will–I kind of like to go with good old-fashioned originalism and call it “separation of religion and government”:
Yet also as established earlier…
“Jefferson’s Virginia Statute for Religious Freedom was a prototype for the First Amendment”
Also as established earlier…
"The phrase “separation of church and state” became a definitive part of Establishment Clause jurisprudence in Reynolds v. U.S. 98 U.S. 145 (1878), where the court examined Jefferson’s involvement with the amendment and concluded that his interpretation was “almost an authoritative declaration” of its meaning. … "
Well, let’s look at the text of that statute. It begins thusly:
How would you like that put into the Constitution?
Well she would have been better off if Coons explained she had such a right and she in turned used it.
My statement was more of a general one regarding the sense of the general current public policy, and not intended as an enthusiastic endorsement of each SCOTUS decision.
No, because her opponent would have said, “Well, that right is inferred from ‘…nor shall be compelled in any criminal case to be a witness against himself…’”
And she’d reply with a disbelieving tone, “You’re saying that ‘not compelled to be a witness against himself’ is in the Constitution??”