Monday, April 25, 2005

TotC Talks About My Activist Judges Blog.

Paul at Teeth of the Constitution - Activist Judges, Left and Right makes his own comments on judicial activism as it relates to the Pryor vs. Moore case I discuss in my blog on judicial activism and the suitability of Bill Pryor to serve.

The problem Paul and many others have is how the concept of separation of church and state is way off from what the constitution actually dictates. The constitution does not actually call for the prohibition of prayer or religious expression on public property. In fact, the Ten Commandments are on display in the building of the Supreme Court of the United States.

The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Where does the First Amendment say strike down public prayer or public religious expression? I think it quite reasonable to say the First Amendment bars the Federal Congress from designating an official religion, from creating a church (ala Church of England) of the USA. It also bars the Federal Congress (hereafter referred to simply as Congress) from prohibiting religious practice (however, I know there are restrictions for example one can not practice human sacrifice as a matter of religious duty), so the constitution bars Congress from prohibiting say "The First Church of Elmer Fudd" from practicing its religious beliefs. How do these two ideas extend to the prohibition of prayer in schools? How does this bar the display of the Ten Commandments from a courthouse?

The source usually cited for the radical separation doctrine is an exchange of letters between (this website adheres to the radical separation doctrine) The Danbury Baptists and President Thomas Jefferson.

If the radical separation doctrine is the true meaning intended by the Founding Fathers then why did that vision take so long to come to pass? Why did the founding fathers not state those beliefs more fully in the Constitution? Why did the executive in those early years not more zealously carry out their duties? Why did Connecticut continue to recognize Congregationalism as its official religion for 30 years after the Constitution's ratification? (see MSN Encarta) Is it not plausible if Thomas Jefferson had meant his statement the way it is taken today by the radical-separationists, then he would have been duty bound to stamp out the officiality of Connecticut's religion? That perhaps, the "wall" quote is being abused today?

So what did Jefferson mean when he used the "wall" metaphor? Jefferson undoubtedly meant that the First Amendment prohibited the federal Congress from enacting any law respecting an establishment of religion or prohibiting the free exercise thereof. As the chief executive of the federal government, the President's duty was to carry out the directives of Congress. If Congress had no authority in matters of religion, then neither did the President. Religion was clearly within the jurisdiction of the church and states. As a state legislator, Jefferson saw no problem with proclaiming days of thanksgiving and prayer, and even on one occasion prescribed a penalty to the clergy for failure to abide by these state proclamations. Jefferson believed that the Constitution created a limited government and that the states retained the authority over matters of religion not only through the First Amendment but also through the Tenth Amendment. (18) The federal government had absolutely no jurisdiction over religion, as that matter was left where the Constitution found it, namely with the individual churches and the several states.
Source: The Myth Behind "Separation of Church and State" by Mathew D. Staver, Esq. Liberty Counsel

The only way to arrive at the conclusion the separationists do is to ignore the clear words of the Constitution. Alas this is all too common. An anecdote Justice Scalia relates a brief he once read:
"Unfortunately, the legislative debates are not helpful. Thus, we turn to another guidepost in this difficult area, the statutory language."
See Note #1

The language of the Constitution is clear on this matter.


  1. Page 31, A Matter of Interpretation - Federal Courts and the Law. Antonin Scalia edited by Amy Gutmann published by Princeton University Press copyright 1997


  1. 4/25/2005, 6:35 pm.
  2. Initial publication. Expect heavy revision of this blog due to its nature.
  3. 4/25/2005, 6:55 pm.
  4. Clarified that the parenthetical note near the link to the Danbury Baptist Letter refers to the website itself and not the letter.