The fact that so many people got upset when the Ninth Circuit ruled that “Under God” was unconstitutional (this decision was later overturned) and many of the ones making the biggest fuss just happened to be very religious seems like decisive proof that it is religious in nature and not just two meaningless words being strung together:
“Ceremonial deism” my ass.
My underlying assumption is that her comment was a pre-prepped, spring-loaded Gotcha Ya she wanted to throw at Coons. The underlying point being that she, a Constitutional scholar, is astute enough to recognize the difference between principles generally assumed to be plainly written in the Constitution, and principles that actually are written in.
So everyone who lives in a state with a television knows the Miranda warning by heart. But not everyone knows that it’s a relatively recent creation, and not without controversy. There were strongly written dissents in the original case, there are rational arguments that the courts were overreaching their authority, and rational arguments that the Miranda protections are broader than the Constitution should mandate (note the recognition of the normative/positive discussion of what is/isn’t Constitutional).
The association of the SoCaS with the First Amendment is much stronger than the link between the Fifth and the Miranda Warnings. While she was probably trying to play to the Gland Beck crowd, the relatively simplistic arguments he and his ilk make in that regard are quite weak. Moving along the Miranda lines would open many more legitimate avenues of discussion–avenues that carry weight with the right wing.
My mind blanks but there was a recent case that chipped away at the can’t-talk-to-a-suspect-after-he-asks-for-a-lawyer rule. There are also statements by Scalia (again, my mind is drawing a blank so ignore if necessary) critical of Miranda. It’s my contention that an astute politician/debater could have drawn points on the underlying score without coming across as ignorant as she–merely by changing the focus of the Gotcha Ya.
If it comes with your recommendation, I have to wonder at its efficacy.
Agreed completely.
There have been a couple of relatively recent attempts to clarify (or weaken) Miranda and Edwards. In 2000, the Supreme Court considered Dickerson v. US, which clarified that Miranda’s protections were of constitutional dimension and not simply the Supreme Court’s power to make federal rules of evidence in the absence of statute. That alone would be rife with possibility.
Except that the Ninth Circuit never rued that “under God” was unconstitutional. You typed it up above, I just typed it. Mr. Obama, Mr. Scalia, Ms. Feinstein can use it in both their private and public capacities. What the Ninth determined was that compulsory or coercive recitation of the Pledge (as in “it’s voluntary,if you don’t want to do it, just step out into the hall while everyone else says it”) violates not only the Speech Clause (settled law since Barnette in 1941 but also the Establishment Clause.
And, because the Pledge is in a “Rand Rover” statute, the “Flag Code”, which gives standards for what “ought to be done” but no penalties for failing to do so. It is therefore aspirational rather than mandative, giving guidance rather than command, it cannot be itself unconstitutional – only regulation purporting to mandate its use enforceable by public authority can be.
Returning to the topic, yes, she’s an idiot. I would have given her the benefit of the doubt if she left it at, “the Constitution doesn’t mention separation of C & S”, since that’s a common conservative comment, and literally true.
Speaking of the Pledge, here’s the Republican version:
I Pledge Allegience to the Flag and…God.
They don’t believe in allegience to the Republic For Which It Stands (i.e. the government), they don’t beleive we’re One Nation but rather 50 separate ones, they don’t believe we’re Indivisible, but rather divided between Christians and second-class citizens, and no one knows better than gays that they don’t believe in Liberty and Justce for All.
Oh, but they loooove the Flag and all the great things it stands for. :rolleyes:
Not true. We believe in a republic, quite literally: a union of fifty states, supremely sovereign in its limited, enumerated powers but with the plenary police powers of the states also showing that the states retain joint sovereignty.
THE Republic refers to the Federal Government of the United States of America–including Barack Obama–not some theory. If you want to drown the government in a bathtub, it means you want to drown The Republic For Which It Stands in a bathtub.
And I notice you didn’t even dispute all my other points.
No. What the heck does “not some theory” mean? It sound like precisely the osrt of anti-intellectualism for which the Tea Party is often reviled. What “the Republic” is in the Pledge is exactly some theory. Their position is that the flag stands for a republic. You attempted to dispute that with some riff on federalism issues. I don’t know anyone who contends the federal government should be eliminated; I know plenty who believe it’s overstepping its enumerated powers. Believing that the feds are reaching farther than the Constitution allows is not the same as disclaiming any loyalty to “the Republic.”
Yes. The other points you raise are not so easily parsed. I prefer to hit the home run from the nice fat floater over the center of the plate instead of swing wildly at the low and outside ball.
For example… “indivisible.” It’s true that many Tea Partiers seem to believe that Christians are a favored religion in this country, and it’s true that this is a division in the country. But how can we imagine a country with such uniformity of opinion that there are no divisions whatsoever? It’s true that the particular division you speak of is odious, but if you feel that “indivisible,” is breached whenever there are differences of views, then “indivisible” ceases to be a compliment and becomes a condemnation.
To avoid hijacking the current thread, I’m just going to agree to disagree, but since this study has come up in a number of threads I may start a new GD thread about it.
Cite?
Yes, obviously they had quite strong views about the separation of church and state, since they put it in the Constitution. That wasn’t my point. It doesn’t prove they would have agreed with every decision the Supreme Court has taken in the name of separation of church and state - some of which dealt with things that would have never have even occurred to people in the 1700s, and which they may not have considered particularly significant for church-state separation in the circumstances that existed then.
I don’t think that makes the Court’s decisions in these cases wrong, BTW. It was only a comment.
**How come no one is giving Christine O’Donnell the Alvin Greene treatment? **This is a single, middle aged woman, unemployed, who has never held office. She went to University but never graduated. She owes the IRS back taxes. She has made really goofball and off the wall remarks.
Since, like I said, she is broke, unemployed, without a spouse for income, where did she get the money to run for office? In the case of Alvin Greene in South Carolina, many think it was some kind of conspiracy. Why aren’t the same people asking the same questions to Christine? Is it because she is a stupid pretty white girl, vesus a stupid, not so handsome black guy? At least Alvin Greene graduated from college and was in the service. What has Christine won?
How did she beat an establishment candidate? Because she was pretty? Or is it a case of a bunch of Democrats crossing over in the primary to vote for a weaker candidate? Which is a bad thing because what happens if both parties do this and the voter ends up with two imbeciles to vote for? (Gore/Bush, Bush/Kerry, McCain/Obama, notice a pattern?)
My point is that “the Republic” refers to the government as it actually exists. It goes without saying that it’s a republic. If the government became something other than a republic, the Flag would still be the emblem of that government and not of an opposition movement to restore “a” republic.
If you’re contending that the Tea Partiers, etc, are all fully loyal to the government–Barack Obama, Democratic-run Congress and all–then fine. They often don’t give that impression, but I’ll give them the benefit of the doubt.
You do realize that that was just a snarky observation on my part.
But during the rancorous debate over “under God” in the Pledge, you must have heard some politicians suggesting that school children who object to reciting such a religious oath go stand in the hall. That’s not indivisible; that’s dividing us.
Conservatives obsess over one phrase in the Pledge–one that was tacked on much later–while appearing to discount several of the others. That’s what I’m getting at.
The difference is that O’Donnell actually, has some previous experience in politics, was famous enough to appear on Bill Maher, ran a primary campaign and was polled as having support. Alvin Greene was totally unknown to the public at large before his nomination and didn’t do any serious campaigning but put his name on the ballot.
Yep ,she ran before. that is why she had campaign funds that she has been accused of using illegally.
I think that the argument could be reduced to the idea that Jefferson’s phrase “separation of Church and State” was meant to contrast with Great Britain. The Government was not the head of the church AND the priesthood, pastorship, etc. was not to be head of the government. Those were separate entities.
It was not meant that religion, in general, and government, to extent that you mean all government controlled institutions down to elementary schools, are not to mix at ALL.
The prayer in school or the ten commandments on the public square threads are all over this board, so no need to rehash here, but I think that her rather inarticulate point was that the 1st amendment never intended so VAST a separation of church and state as the people or the courts think it should be today. And, in fact, the constitution does not contain those words.
It did seem like a talking point she was repeating, but there is a large element of truth in it that she was unable to follow up on.
Well, as previously pointed out in this thread, Jefferson wasn’t one of the Framers of the Constitution, so even if you’re right, who cares what he thinks, eh?
James Madison is known as the “Father of the Constitution”. Based on his published, verifiable writings, he thought that Congressional Chaplains (which predated the Constitution itself and went back to the Congress of the Confederation) were a bad idea, and while he had no particular expectation of getting rid of them on grounds of practical politics, he thought every effort should be made to keep them from being used as a precedent for anything else. (That such entanglements of religion and government become so easily entrenched and so hard to get rid of is another argument for nipping them in the bud when they do show up.) He felt similarly about Presidential proclamations of “days or prayer” and the like.
It’s harder to say how Madison would have felt about, say, religion in public schools, since the guarantees of the First Amendment were not yet applied to state and local governments, and it’s certainly true that 18th Century and early 19th Century Americans had very different views on the relation between the federal government and the state governments. This is not to say Madison (or Jefferson) would not have objected to prayer in public schools; but they might not have objected on “First Amendment” grounds, but on first principles, or on the basis of the constitution and laws of Virginia. But Madison is certainly on record as favoring a strict separation of religion and government, as being best for both the state and the church(es). At any rate, as already noted, if we throw out the application of church-state separation to the states, we would have to re-evaluate the incorporation of the whole Bill of Rights, which most Americans would likely find both unwelcome and likely even downright shocking.