I'm not letting ADD completely get in the way of things around here. I'm trying to keep my hair on and vindicate my one overarching New Year's Resolution: Routine and Regularity Replace Risk
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I am missing a key point. What examples does Prof. Laycock submit for actions the government has taken to protect itself from religious citizens? When I was in Con law my professors were of the opinion that the Consitution protects the minority from the majority. Under this theory by having the govt. absolutely neutral, it does not have to be involved in the panoply of religious beliefs and celebrations. I have never given much thought to either of these positions, but do feel that while individuals are free to vote and speak their mind as they will, and while it is impossible, if not undesireable to have a representative leave their beliefs at the door to the legislative chamber, that it is unacceptable for religious beliefs be used as the basis of govermental policy, just because they are either religious beliefs, or the perceived beliefs of the majority.
So, back to my initial point, what is the central mistake in application that the professor is commenting on?
When I was in Con law my professors were of the opinion that the Consitution protects the minority from the majority.
Precisely -- and what was their reasoning, such as a basis in text, history, precedent, etc., for that? I have never found it other than that many wish it were so. In fact, there is a very good originalist (though Professor Laycock does not qualify as an originalist) reading that the entire Bill of Rights exists to protect mediating institutions that otherwise protect majorities from the national government. Moreover, the notion that "the majority" can be equated with the national government is an interesting theory, but not one I think most religious persons or even most taxpayers, both of which are the majority, would accept. At the time the Constitution was written, I'm not sure all the founders even would have thought in terms of a "majority" or "minority
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I really have not paid a lot of attention to Con Law since law school. Presumably the logic is that the majority does not need protection from the Govt. as they elect it. But I digress. Regardless of how we got here I have not heard anyone commenting or discussing the issue of protecting government from religious citizens. What examples does he give of government being threatened by religious citizens.
Basically, he is looking at concerns held by non-believers or by members of one religious group that another religious group will co-opt the power of the government to oppress others, either deliberately or as an incident of its exercise of power. This is not necessarily a fear justified in fact, but look at the response to President Bush's faith-based initiatives
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An interesting piece, I'll have to read more of this article. I think he has a good interpretation of the current misapprehension of what "Freedom of Religion" or what the First Amendment's "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" means.
As I see it and apparently Mr. Laycock, it means that People should exercise their religion freely without contraint of Congress and that Congress shall not enact legislation mandating any one religion over any other. Not that Congress or government has the right to restrict religious expression in the name of equal representation.
I wish I could republish the article, but honestly, it is history of the Reformation, Counter-Reformation with particular attention to the English experience that you probably know off the top of your head. It may be available on the net somewhere -- it's actually amazing how much lawyers pay for Westlaw and Lexis and much of what they want is wandering around for free. My librarian friends tell me the problem is that much of it's almost impossible to find without the search engines, however.
Laycock takes the historical conflicts I listed in my comment to soliano above, given that these would have been strong influences on the Framers, and asks what evil the clauses must have been aiming, and notes that there are two different and widely held views, both of which, inconveniently, probably have at least some truth to them
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I"m following your discussions with Sollano rather voraciously as I'm finding it a good overview of the basis for the two general schools of thought regarding religion in the US from a politico/legal standpoint.
And his bottom line is that the English experience is what counts, anyway, because it is what would have most influenced the Framers.Quite possibly, however one must not ignore the influence of the Pennsylvania and New York Dutch/Germans who had endured similar persecutions as both Protestant (Lutherans, Baptists, Presbyterians) and as Roman Catholics (Orange Free Staters) undougtedly there is (although I don't recall any literature to the effect) at least some argument counter-argument and subsequent compromise regarding these various views and the influences of the temporal powers of organized churches and their hierarchies over the various states that produced the religious refugees who sought the distance and comparative safety of colonial life from those states and feuding churches. The French had little influence in
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Laycock does not fit in this dichotomy. He’s a true libertarian. I taught his article, "Religious Liberty as Liberty" to my students this past fall, which showed that the guarantee of religious liberty is nothing more than a guarantee of liberty in another aspect of individual and communal life (as to the “communal life” part, there are better sources than Laycock, who is derivative of the original work of others, but I’ll outline here the argument of three folks who essentially feed off each other
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So, back to my initial point, what is the central mistake in application that the professor is commenting on?
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Precisely -- and what was their reasoning, such as a basis in text, history, precedent, etc., for that? I have never found it other than that many wish it were so. In fact, there is a very good originalist (though Professor Laycock does not qualify as an originalist) reading that the entire Bill of Rights exists to protect mediating institutions that otherwise protect majorities from the national government. Moreover, the notion that "the majority" can be equated with the national government is an interesting theory, but not one I think most religious persons or even most taxpayers, both of which are the majority, would accept. At the time the Constitution was written, I'm not sure all the founders even would have thought in terms of a "majority" or "minority ( ... )
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As I see it and apparently Mr. Laycock, it means that People should exercise their religion freely without contraint of Congress and that Congress shall not enact legislation mandating any one religion over any other. Not that Congress or government has the right to restrict religious expression in the name of equal representation.
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Laycock takes the historical conflicts I listed in my comment to soliano above, given that these would have been strong influences on the Framers, and asks what evil the clauses must have been aiming, and notes that there are two different and widely held views, both of which, inconveniently, probably have at least some truth to them ( ... )
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And his bottom line is that the English experience is what counts, anyway, because it is what would have most influenced the Framers.Quite possibly, however one must not ignore the influence of the Pennsylvania and New York Dutch/Germans who had endured similar persecutions as both Protestant (Lutherans, Baptists, Presbyterians) and as Roman Catholics (Orange Free Staters) undougtedly there is (although I don't recall any literature to the effect) at least some argument counter-argument and subsequent compromise regarding these various views and the influences of the temporal powers of organized churches and their hierarchies over the various states that produced the religious refugees who sought the distance and comparative safety of colonial life from those states and feuding churches. The French had little influence in ( ... )
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