From: joem@meaddata.com (Joe Mehrle)
Subject: Re: Separation of Church and State
Organization: Mead Data Central, Dayton OH
Date: Tue, 15 Sep 1992 13:09:12 GMT

In article <bass.716223841@convex.com>, bass@convex.com (Brad F. Bass) writes:
|> In <1992Sep11.015114.11004@news.vanderbilt.edu> rickertj@athena.cas.vanderbilt.edu (John Rickert) writes:
|> 
|> >The phrase "separation of church and state" is not in the Constitution.
|> >...
|> >What _does_ occur in the Constitution is the clause, "Congress shall
|> >make no law respecting an establishment of religion, or prohibiting the
|> >free exercise thereof."
|> >...
|> >This really seems different to me in language and intent from the
|> >usual "separation of church and state" platitude.
|> >...
|> >I guess my point is, it bothers me when
|> >people re-interpret the Constitution if it allows for possibilities they
|> >don't like.
|> 
|> Ah, here's a quote that'll make it all clear:
|> 
|>     "...the law is what ever you can convince the court that it is."
|>     			Robert Heinlein -- _The_Star_Beast_
|> 
|> In the case of the so-called "separation of church and state", that's
|> what constitutional-law judges have interpreted it to mean.  The fact
|> that it's not what the Constitution says, has been supplanted by various
|> falderal such as "what the framers intended" and "the spirit of the law".
|> 

 First off let me say that I apologize for entering this thread late so
if I appear to be unfocused bear with me.  Second, I am a second year
law student who is just now in constitutional law and I see several
areas of potential confusion.

Article III establishes the Supreme Court's power to review and
interpret constitutional questions.  So whenever (I'm sure I will be
sick of all these cases by the end of the year) the Supreme Court (SC)
ruled that gov't funding for religious activity violated separation of
church and state, then  it was at that point the ruling became part of
the constitution.  There are two general types of clauses in the
constitution those that are explicit, and those that are equivocal.
If a clause is ambiguous than the court is capable of expanding the
interpretation and they look to the following things when establishing
the interpretation (listed by priority):

1.) Framers original intent;
    A.But, remember there is an inherent problem in this mehtod which
      is, the drafters (framers) of the constitution and the ratifiers
      (those that ultimately adopted the constution were for the most
      part two separate groups and the ratifiers modified parts of the
      original constitution.

2.) Public Policy of the day;
3.) History;
4.) Economics (this is the least preferred).

 The framers knew the constitution would be the single most important
document in the history of the United States and they intentionally
left ambiguous clauses for citizens of a later time to interpret and
that power was vested in the SC.  So, my point is, if the SC reads an
amiguous clause to say no government funding for religious activities
then it is part of the U.S. constitution because in the constitution
they have that authority to do that with these types of clauses.

|> So, can the Feds establish a state religion?  NOPE.  Can various religious
|> groups, be they Christian, Muslim, Jew, Hindu or whatever, petition and
|> lobby Congress or attempt to influence legislation or entitlements?  YOU
|> BET THEY CAN.  They have the right to do so, just like the National Rifle
|> Association, the National Organization for Women, and General
Motors do.

 This is not entirely true, because any law passed by congress which
goes to a constituional issue is reviewable by the court.  The court
this year in a 5-4 decision declared government support of any
religion as still unconstituional.  So, any law passed by congress on
this issue is per se unconstitutional (at least today).

What you have is two options to get state supported religious
activities declared lawful:

1.) Hope Bush is elected and replaces Blackmun with another
    conservative  (Ipersonally hope not) and then hope for another
    case to eventually be heard by the court.  Probably will take no
    less  than 3 years for the court to even hear a new case, also
    remember that Blackmun may stick around for 4 more years;

2.) Hope congress or the states call a constitutional convention of
    which you need 3/4 of all the state legislatures to ratify it.
    This is incredibly unlikely, so you better hope for number 1
    above.

 Lastly, even if the SC hears such a case and declares such an issue
constitutional remember that the individual states are free to
maintain the separation in their individual constitutions because the
U.S. constitution guarantees a minimal level of rights and the
individual states are always free to give more rights, just not less.
And, my guess is that even the current SC would allow states to retain
the separation on the state level if they so choose.  So, basically
only the bible belt will latch on.  Do you live in the south?

  Does clear up what appears on the surface to be ambiguous
interpretations made by the SC?  The process of judicial review is
actually quite structured and it is rarely ambiguous.

|> --
|> Brad Bass		It is a well-known phenomenon that computer programs,
|> bass@convex.com		left to themselves, will cease to work. This is known
|> Convex Computer Corp.	as "Bit Rot".  Programs NOT left to themselves also
|> Richardson, Texas	cease to work.  This is known as "enhancement".

--
Joe Mehrle                        ----------------------------------
Mead Data Central, Dayton, Ohio   |  **    CLINTON/GORE `92      **  |
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