Seperation of church and state

[Jimmy1]

MEBuckner I find it interesting you cite James Madison and then summarily fail to mention the fact James Madison established the practice of opening sessions of Congress with a moment of prayer given by a Chaplain who is paid by the taxpayers.

Additionally, you forget the occasion Madison signed into law a National Day of Prayer in 1812. What does this suggest to me? It suggests to me that some of what the U.S. Supreme Court said in Everson does not allign itself with the intent of the Framer of the First Amendment, i.e. James Madison.

It was not Madison’s intent to keep the state free from religion. Rather, Madison did not want the state government preferring one religion over another religion. This much is apparent by the justifications he gave for singing into law a National Day of Prayer. Madison observed there was no mention to a particular deity but rather religiously neutral words were used such as Almighty One, or Sovereign of the Universe, or Omniscient and Omnipotent one. No doubt such language is of a religious character and implies an all power deity who intercedes into human affairs exists but Madison did not for a moment believe it violated the Establishment clause of the First Amendment because it was non-denominational.

Madison did not advocate, nor did he hold a position that precluded the federal government from involving itself to some degree in religiosity. How do I know all this? Not only did I take a First Amendment class in law school but James Madison is my favorite politcal thinker.

[Apos]

MEBuckner I find it interesting you cite James Madison and then summarily fail to mention the fact James Madison established the practice of opening sessions of Congress with a moment of prayer given by a Chaplain who is paid by the taxpayers.

I find that hard to believe given that he was against the practice throughout his career.

He was, after all, the same guy who said this: “Are not the daily devotions conducted by these legal ecclesiastics already degenerating into a scanty attendance, and a tiresome formality?” when he was being outvoted in the bill that would establish the Congressional Chaplain?

Wasn’t he the same guy who wrote this: “Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them, and these are to be paid out of the national taxes. Does this not involve the principle of a national establishment…?”
– James Madison, “Essay on Monopolies” unpublished until 1946, cited in Brant, Irving, The Bill of Rights, 1965

So… Cite?

I suggest you read Memorial and Remonstrance again for some insight into Madison’s views.

Madison did not advocate, nor did he hold a position that precluded the federal government from involving itself to some degree in religiosity.

So how do you explain quotes like these?

“The civil government … functions with complete success … by the total separation of the Church from the State.”
– James Madison, 1819, Writings, 8:432

“Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies may be illustrated by precedents already furnished in their short history. (See the cases in which negatives were put by J. M. on two bills passd by Congs and his signature withheld from another. See also attempt in Kentucky for example, where it was proposed to exempt Houses of Worship from taxes.”
– James Madison, “Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments,” in Elizabeth Fleet, “Madison’s Detatched Memoranda,” William & Mary Quarterly, Third series: Vol. III, No. 4 (October, 1946) p. 555.

Please don’t tell me that you are yet another person who’s been duped by Daniel Barton.

[Jimmy1]

Apos then you simply do not want to believe the facts.

Ask anybody who has studied up on James Madison as I have. I have read several books on the man. I have watched documentaries on the man. I have a one or two volume biography on the man’s life on my bookshelf.

James Madison Jr, born in March of 1751, did so establish the practice of opening sessions of Congress with a moment of prayer given by a Chaplain and paid for by the taxpayers. A practice still engaged in daily in Congress.

The only duping around here is yourself. You find a few quotes on the internet, read a few here, or hear some in passing and think you know James Madison Jr. Well evidently you do not really have much of a clue about James Madison Jr.

He singed a national day of prayer legislation in 1812 and justified on the grounds I mentioned and started the opening of sessions of Congress with prayer by a Chaplain paid for by the taxpayers.

Try reading a First Amendment Jurisprudence book or a Constitutional Law Rights of the Individual book, or a book on the man James Madison Jr because your facts right now are myth and not history.

[John_Mace]

*Originally posted by Guinastasia *
Sorry it’s Fox News, it was hard to find.

Why would you be sorry that it’s Fox news?

[Jimmy1]

Apos it is worth noting that Madison, like all humans, had some proclivity of saying one thing but at a later date or point in time doing the contrary or what seemed to be the contrary to what he had proclaimed earlier.

For example James Madison rejected the creation of a Bank of the United States. Madison did not find Hamilton’s arguments in favor of the bank persuasive and believed the bank to be unconstitutional. Yet, James Madison, while President of the United States, signed into law legislation creating a second term of existence for the Bank of the United States.

Madison was just as paradoxical as the rest of us. State one thing but almost recant later by contrary actions.

[Apos]

Jimmy, I provided cites to those quotes, and if you don’t think Memorial, one of his most important works ever, is of interest to this conversation, and at least worth addressing, then you are just fronting. Anyone can claim to be . On these boards, however, it counts for zip zilch. For all I know, your books and documentaries were published by Wallbuilders Inc.

If you think he changed his mind, then please gather some evidence supporting this claim and present it to us so we can evaluate it.

For example James Madison rejected the creation of a Bank of the United States. Madison did not find Hamilton’s arguments in favor of the bank persuasive and believed the bank to be unconstitutional. Yet, James Madison, while President of the United States, signed into law legislation creating a second term of existence for the Bank of the United States.

If that’s the quality of your evidence that he changed his mind on the issue (simply because a President signed into law a bill that he had no political ability to veto in the first place), you are in hot water indeed.

[Susma_Rio_Sep]

Dear nodope:

If I may, I seem to discern in your OP that your sympathy is with the on the face of it reading of Amendment numero uno. That’s also my sympathy, namely, an understanding of separation of church and state that a working mastery of English would convey.

Legal scholars of law history and the interpretation of law will come up with different and even contradictory meanings of separation of church and state, as their respective biases dictate.

If you ask my ET visitor, namely, Herr Martian, he will tell you that to know what is separation of church and state you have to go to the history of the question of “sacerdotium et imperium”, and the history of anti-clericalism, from the dark ages of Europe to the present jurisprudence of the U.S.A.

His conclusion is that more and more the state will regard the church as no different from the way it regards the Rotarians or the Lions Clubbers. Now, church does merit a special regard from the state, insofar as the state is understood as politicians who are running for elective offices, and courting the greater number of people who happen to belong to some similar church alliances.

It is my hope and yours most probably that at least in the highest level of law ideology of the U.S., that is the Federal Supreme Court, the literal meaning of separation of church and state will be strictly adhered to. Now, if you have a supreme court that is the tool of politicians, then good-bye to a purely secularist state where such a principle of separation is the ideology.

If you want an example where separation is much better and therefore genuinely ideologically practiced, read on relevant questions and controversies in Canada. I think you have in Canada a very secularist state, for being freed of big chunks of similarly church-allied groups which can sway elective politicians.

Susma Rio Sep

*nodope4us
Member

Registered: May 2002
Location: Sheridan, Oregon
Posts: 24
Seperation of church and state

                     I wasn't sure if this belongs here so if you think it should be elsewhere I wouldn't
                     be surprised, but this subject is of debate nationally so here I will try here. The
                     whole seperation of church and state movement is a joke. The constitution does
                     not even say the phrase(from what I have read). I'm guessing but I bet the
                     founding fathers wanted to avoid the situation in England with having the church
                     run government.

                     Here is where I looked to read the amendments. Amendment numero uno says 

                          quote:

                          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.
                     for those who do not want to look it up. It says it will not make a LAW respecting
                     a religious estableshment or prohibit it. That is not enough to cause a movement
                     to make sure no religion is envolved in the government in pretty much all ways.
                     Where did seperation of church and state originate. Well I will end this now
                     because I am rambling. Any debate to my thinking is welcomed.

                                                          Report this post to a moderator | IP: Logged
 07-17-2003 06:11 AM

[MEBuckner]

*Originally posted by Jimmy1 *
MEBuckner I find it interesting you cite James Madison and then summarily fail to mention the fact James Madison established the practice of opening sessions of Congress with a moment of prayer given by a Chaplain who is paid by the taxpayers.

I do my best to avoid including in my posts “facts” which are not actually facts. James Madison did not “establish” the practice of employing chaplains; chaplainships for both the armed forces and the (Continental) Congress go back to the Revolution and pre-date the Constitution. This in part explains why the courts have not ruled against such practices: “Well, we’ve gotten away with it for this long; why stop now?” (I’m sure it sounds more elegant in Latin or perhaps Norman French.)

[iampunha]

*Originally posted by Jimmy1 *
Apos then you simply do not want to believe the facts.

With all due respect, Jimmy1, whether or not Apos is as you charge him is irrelevant here (though MHO would lean toward no, your statement is not accurate). What is relevant is that he has supported his points with factual citations; you have left your post here to stand on its own. Inasmuch as you have attempted to give it legs:

Ask anybody who has studied up on James Madison as I have. I have read several books on the man. I have watched documentaries on the man. I have a one or two volume biography on the man’s life on my bookshelf.

It would then be extraordinarily easy for you to cite one or eleven of these references, seeing as you have a few on your shelf. So do so:)

Try reading a First Amendment Jurisprudence book or a Constitutional Law Rights of the Individual book, or a book on the man James Madison Jr because your facts right now are myth and not history.

His facts are supported by factual citations. Yours are supported by your word. Your word, seeing as you have yet to prove what credentials you have asserted, is without binding power, so to speak.

[Jimmy1]

Apos try reading the U.S. Supreme Court case Marsh v. Chambers where they discuss Madison’s involvement in establishing the practice of opening sessions of Congress with a moment of prayer by paid chaplains. Never mind I will quote the relevant parts of the case for you:

It bears note that James Madison, one of the principal advocates of religious freedom in the colonies and drafter of the Establishment Clause was one of those appointed to undertake the task (task being the establishment of this practice) and voted for the bill authorizing payment of the chaplains…Clearly the men who wrote the First Amendment Religion Clause (i.e. James Madison) did not view paid legislative chaplains and opening prayers as a violation of the First Amendment

do my best to avoid including in my posts “facts” which are not actually facts. James Madison did not “establish” the practice of employing chaplains; chaplainships for both the armed forces and the (Continental) Congress go back to the Revolution and pre-date the Constitution.

Actually Madison most certainly did participate in establishing the practice of employing chaplains in the Congress of the United States under the U.S. Constitution as is indicated in the case of Marsh v. Chambers. There is a difference between what the Continental Congress did and the U.S. Congress did. Both are separate entities and just because a ritual existed in the Continental Congress does not mean it automatically transferred into existence in the U.S. Congress under the U.S. Constitution. Rather, the new Congress had to draft legislation creating the pracitce of opening sessions of Congress with prayer where said prayer is given by Chaplains and the Chaplains are paid for by the taxpayers and this practice in the U.S. Congress under the U.S. Constitution was most certainly brought into existence by the labor’s of James Madison and voted for by James Madison.

[MEBuckner]

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.

If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expence. How small a contribution from each member of Congs wd suffice for the purpose? How just wd it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt

Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal Ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality?

Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex:[sup]1[/sup] or to class it cum “maculis quas aut incuria fudit, aut humana parum cavit natura.”[sup]2[/sup] – James Madison, from the “Detached Memoranda”

[sup]1[/sup] de minimis non curat lex: “the law does not concern itself with trifles”
[sup]2[/sup] Horace, Ubi plura nitent in carmine, non ego paucis Offendar maculis, quas aut incuria fudit, Aut humana parum cavit natura, “Where there are many beauties in a poem I shall not cavil at a few faults proceeding either from negligence or from the imperfection of our nature.”

[Jimmy1]

Now regarding Jame Madison’s justifications calling for a National Day of Prayer during 1812. The site considers the proclamation calling for a National Day of Prayer to be nothing more than the calling for an observation of a religious holiday, an ancestor of ourThanksgiving .www.jmu.edu/madison/churchandstate/index.htm

President Madison justified this by saying, “I was always careful to make the proclamations absolutely indiscriminant and merely recommendatory; or rather, mere designations of a day which all who thought proper might unite in consecrating it to religious purposes according to their own faith and forms.” http://www.jmu.edu/madison/churchandstate/index.htm

In the proclamation Madison used terms such as “great Parent and Sovereign of the Universe,” and “eyes of all be turned to that Almighty Power in whose hand are the welfare and the destiny of nations; to redner him(Great Sovereign and Parent of the Universe) thanks for the many blessings he has bestowed upon the people of the United States;” http://www.jmu.edu/madison/churchandstate/index.htm

Now this is a proclamation issued by James Madison acknowledging the existence of an almight Creator who participates in the affairs of human beings, blesses human beings, and controls the destiny and welfare of nations. This proclamation is most certainly a religious proclamation issued by the man who wrote the First Amendment Establishment Clause and Free Exercise of Religion Clause.

This most certainly shows, as the site indicates and whose words I choose to adopt in saying, “Madison did not insist upon an absolute separation of church and state.” http://www.jmu.edu/madison/churchandstate/index.htm

[Jimmy1]

MEBuckner yeah James Madison may have said all that which you have posted but how did he act?

Did he not help establish the chaplainry in the U.S. Congress? He most certainly did. Did he not help to establish the chaplainry for the purposes of opening sessions of Congress with prayer? Yes he most certainly did. Did he not then vote in favor of paying the chaplainry with taxpayers dollars? Yes he most certainly did.

Are the Framers known for saying one thing and doing another? Absolutely and James Madison is no different.

As the U.S. Supreme Court said in Marsh v. Chambers, Madison helped establish the chaplainry in the U.S. Congress, he helped establish them for the purpose of opening sessions of Congress with prayer, and he then voted in favor of this practice and to pay the chaplains. As the U.S. Surpeme Cour observed the drafters of the First Amendment evidently, by their own actions, did not perceive the chaplainry service to be a violation of the First Amendment Establishment clause and this consequently would include James Madison.

[MEBuckner]

Incidentally, while I agree with Madison on the need to separate religion from government, I disagree with him on the issue of de minimis non curat lex. I think he was overly optimistic. Each minor violation, seemingly “symbolic” or “ceremonial” and of no practical importance, is used to justify the next: Jimmy1 notwithstanding, I have no doubt that the fact that chaplainships were already a fifteen-year-old “tradition” dating back to the first days of the Continental Congress was used to justify the Congress under the new Constitution continuing the practice. And if we’ve always had chaplainships, why not put “In God We Trust” on the money? And if “In God We Trust” is on the money, why not make it the national motto? And if we as a nation trust in God, why not post the Ten Commandments in public buildings? And if we post them in capitols and courthouses, why not public schools? And if we post the Ten Commandments in public schools, why not have the students recite a daily prayer each morning? And if the students recite daily prayers each morning in the public schools, why not let public school teachers “witness” to their students about the need for a “personal relationship with Jesus Christ” (especially if something tragic has just happened, like the death of a classmate)? And so the “symbolic” “ceremonial deism” can be used to justify the religious indoctrination of students by public school teachers, and suddenly we’re talking about things which aren’t so purely “ceremonial” any more.

As such, I prefer Mr. Madison’s statement that “it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens”.

[Captain_Amazing]

Well, there’s no neccesary contradiction between Madison proclaming a National Day of Prayer and being opposed to Congressional chaplains, the first being a nonbinding, voluntary, general statement (as you’ve quoted him as meaning it), and the second being direct government employment of religious figures.

[Jimmy1]

MEBuckner

Incidentally, while I agree with Madison on the need to separate religion from government, I disagree with him on the issue of de minimis non curat lex. I think he was overly optimistic. Each minor violation, seemingly “symbolic” or “ceremonial” and of no practical importance, is used to justify the next: Jimmy1 notwithstanding, I have no doubt that the fact that chaplainships were already a fifteen-year-old “tradition” dating back to the first days of the Continental Congress was used to justify the Congress under the new Constitution continuing the practice. And if we’ve always had chaplainships, why not put “In God We Trust” on the money? And if “In God We Trust” is on the money, why not make it the national motto? And if we as a nation trust in God, why not post the Ten Commandments in public buildings? And if we post them in capitols and courthouses, why not public schools? And if we post the Ten Commandments in public schools, why not have the students recite a daily prayer each morning? And if the students recite daily prayers each morning in the public schools, why not let public school teachers “witness” to their students about the need for a “personal relationship with Jesus Christ” (especially if something tragic has just happened, like the death of a classmate)? And so the “symbolic” “ceremonial deism” can be used to justify the religious indoctrination of students by public school teachers, and suddenly we’re talking about things which aren’t so purely “ceremonial” any more.

Okay fair enough but this is a slippery slope argument. My point is James Madison, so far as we can tell from his actions, did not believe in an absolute separation between Church and State. Rather he seems to have what five justices on the U.S. Supreme Court have and called a “neutralist” position regarding the Establishment clause. Government can reference, so long as they do not coerce and reference indiscriminately without prefering one religious establishment as opposed to other denominations, is permissible under the Establishment Clause. In fact it is not impossible to distinguish a neutral stance but one based in religiousity and one imbued with denominational preference. The latter is not permitted but the former most likely is in terms of the intent of the Framers.

Using the Establishment clause to exclude any and all general references of a religious nature does not allign itself with the intent of the Framers, well at least not with James Madison’s intent.

[nodope4us]

Thank you Susma Rio Sep for a little more understanding to what I mean. Some people probably think I want to rid the spereation, which is not so. I think theres a difference between a teachers aid(thanks for the correction Diogenes) wearing a cross, and her or even a teacher wearing a T-shirt or a button saying, “Jesus is the only way” or something along those lines. The cross was NOT purchased by the school or any government body, nor was she accused of “preaching,” but of “wearing” a religious symbol. That is my beef. And the other posters know more about the subject than I do. I think there is one major problem with the seperation as it is upheld today. The people who interprate the meaning of the constitution don’t know what the people who wrote the constitution meant. That is why they “interperate” the meaning. I still think some people do abuse the meaning on purpose. Since congress can open with a prayer, can they hire people to represent every faith and lack there of? Well it has been a long day, time for me to lay back and read the bible, oh I mean T.V. guide sorry.

[iampunha]

[QUOTE]
*Originally posted by Jimmy1 *
Okay fair enough but this is a slippery slope argument.

[QUOTE]

I think that might have been MEB’s intent. I thought he was showing how “not sweating the petty things” could lead to the petty things becoming … well, less petty. I do believe this would be visible in an examination of precedent use in court cases regarding, for example, “in god we trust”, the national motto, certainly the ten commandments’ place in public buildings. I wish I had the resources/knowledge to find out for sure either way.

The cross was NOT purchased by the school or any government body, nor was she accused of “preaching,” but of “wearing” a religious symbol.

My problem with this continues to be that this can be (and often is) seen as state sponsorship of that religion, or implicit approval of it, etc.

[iampunha]

Ack. Missed a backslash in my [/qu****ote] sign. That second paragraph attributed to Jimmy1 is mine.

[ronbo]

I’m entering this thread late, so I apologize for getting my rant in here.

The non-separation of Church and State is indeed a joke, unfortunately a bad joke…on us.

Ammendment I
Congress shall make no law respecting an establishment of religion

The governments of the U.S. and the States are rife with laws that establish religion. They are called Vice laws. Many people (including the President) are proud and feel that its a “duty” to impose their religious beliefs (morals) on America. Remember Blue Laws? Laws against Lotteries? Prohibition (alcohol)?

The Declaration of Independence
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain Unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

These are the Morals on which our Country is based.
If the Pursuit of Happiness does not cause harm to anyone else, it should not be illegal. Indeed, in that situation, it is the law against the Pursuit of Happines that is illegal. Generally these laws cause more harm than the original vice.
There is a higher power than the Constitution, it is the Declaration of Independence. Tyranny of the majority is still Tyranny.
Definition:
God: The creative force behind our existance.

We exist. Use of “God” in this context does not promote religion and can be used by Governments.

The Declaration of Independence
…the Laws of Nature and of Nature’s God…

The Ten Commandments are a historically significant example of Early Laws. If they are placed on public property, there should be a disclaimer that our laws have Evolved beyond Religious laws to Enlightened laws.

Thats my story and I’m sticking to it.