Comments | direwolf23: Questions of Constitutionality

direwolf23

Questions of Constitutionality

Oct 07, 2009 13:43

Yeah, I know, you've only just read the title and you're already yawning and contemplating fuzzy naps. Thankfully, Dr. Tiggyfluff here has selflessly agreed to take that nap for you so you can continue and read the post.

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Comments 24

tosk October 8 2009, 16:12:36 UTC

Overall these are great points as to why it may be illegal in our modern social system. However, I still hold that this is separate and outside the intention of the First Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

I don't see Congress making laws about football banners and Congress didn't prohibit this (the school administrators did). So from my perspective, the entire argument is outside of the First Amendment and lies solely in our social system of what is acceptable to 21st century America. I think that's a valid concept to base our laws on, but I don't think we should do that by invoking the Constitution. This seems to lie outside of that.

direwolf23 October 8 2009, 16:19:08 UTC

Personally, I think it's in there. Either way, the Supreme Court thinks it is - as they specifically cited the Establishment Clause of the 1st Amendment in these cases - and I would say that they are well versed, thorough, and experienced in such matter. :P

Either way though, things like slavery weren't outlawed explicitly through the constitution either, but they've certainly become illegal over time. I think you can make the claim that such equality was there in principle, from things such as the Declaration of Independence as well, but that it just took time for society to catch up. Likewise, I see no convincing reason to believe that the Founders would not have support religious equality through neutrality when it came to the Government and extensions of it.

tosk October 8 2009, 16:42:52 UTC

I think, based on my study of history, particularly during the 16-18th centuries... that you are correct to a point ( ... )

tosk October 8 2009, 16:51:58 UTC

Also from another of Madison's writings, note the focus of 'seperation' here isn't that there can be no religious expression... just that there can be no religious expression paid for by the State... or (in other writingsd) enforced by the State. The idea that anything related to the State in any way must be entirely secular is rather new and (I think) outside the scope of the First Amendment.
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I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on the private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation that the deviation from it took place in Congress, when they appointed chaplains, to be paid from the National Treasury. It would have been a much better proof to their constituents of their pious feeling if the members had contributed for the purpose a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can ( ... )

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