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Wednesday, August 7, 2013

Egnor on 'separation of church and state'

Michael Egnor: Steven Novella on the "separation of church and state" --

So, one may ask, how did "separation of church and state" become a part of American jurisprudence, given that it originated in the personal letter of a man who had nothing to do with the Constitution and who believed that our rights were God-given?

Actually, "separation of church and state" had noting at all to do with American jurisprudence until 1870 (in the Supreme Court's Reynolds decision on Mormon polygamy), and there it was used only tangentially.

It remained absent from American law until it was used by Justice Hugo Black in the Everson decision in 1947, which addressed the use of public money to transport children to Catholic schools.

So how could a throw-away phrase written in a private letter by a man who had nothing to do with the Constitution become Constitutional law?

Well, "separation of church and state" was in fact a very popular phrase for several centuries, but not in law. It was a ubiquitous mantra among nativists and bigots. "Separation of church and state" was the desiderata of Catholic-haters beginning just before the Civil War, when Irish Catholic immigration became significant. It was incorporated in the Ku Klux Klan initiation oath.

I repeat: For a century and a half after the ratification of the Constitution, "separation of church and state" had essentially nothing to do with American law, where it was ignored. It was a prime theme of anti-Catholic bigotry, incorporated in the initiation oath of the Ku Klux Klan.

In fact, the insertion of "separation" into Constitutional law took place via the Klan, or more precisely, via a son of the Klan.

Justice Hugo Black, who had been the chief of KKK recruitment in Alabama in the 1920's and who had administered the Klan "separation of church and state" oath to new Alabama klansmen, was later appointed to the Supreme Court by FDR.

It's worth noting how Justice Black first achieved political notoriety. ...
Come to think of it, I knew that about the KKKer, Hugo Black, inserting the KKK mantra of "separation of church and state", into American Constitutional jurisprudence.


Doug Indeap said...

1. Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

That the phrase "separation of church and state" does not appear in the text of the Constitution assumes much importance, it seems, to some who mistakenly supposed it was there and, upon learning of their error, reckon they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

Doug Indeap said...

2. To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Some, like Novella, try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Hardly. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is simply wrong.

The further notion that the Supreme Court's recognition of the constitutional separation of church and state in Everson is all Justice Black's doing as part of some KKK anti-Catholic conspiracy would be laughable if it weren't contemptible bigotry. It bears noting that all nine justices in the Everson case read the Constitution to call for separation of church and state, and indeed all of the parties and all of the amici curiae (including the National Council of Catholic Men and National Council of Catholic Women) did as well; no one disputed the principle, they differed only in how it should be applied in the circumstances of the case.

Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). Indeed, he understood the original Constitution--without the First Amendment--to separate religion and government. He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

Ilíon said...

Mr Indeap,
You should know ... I don't put up with bullshit. It's clear to me that:
1) you're a (leftist_and-atheist) troll, who copies-and-pastes set-pieces to blogs identified by a web-search as having recently posted about "separation of church and state"
2) you don't intend to think clearly about the issue.

Doug Indeap said...

1. You don't like the way I play, so you're harrumphing and refusing to play? Okay, if you want to make this all about me, and by that expediency avoid the substance, suit yourself.

2. Say what? If you reread the comments immediately preceding yours, you should come across some clear thinking.