From: kadie@herodotus.cs.uiuc.edu (Carl M. Kadie)
Subject: Re: U.S. Bill of Rights today
Organization: University of Illinois, Dept. of Comp. Sci., Urbana, IL
Date: Fri, 11 Sep 1992 15:40:55 GMT

symanzik@egr.msu.edu (Ed Symanzik) writes:


>>	Establishment: Statement by the President (who is sworn to uphold
>>		       the Constitution) that atheists aren't citizens or
>>		       patriots; this is a Christian nation.
>If "uphold the Constitution" means to interpret the Constitution the 
>way the Founding Fathers intended it to be read, then I agree.

And yet the word "God" appears no where in the body of the
Constitution and the only mention on religion is the ban on religious
tests. Moreover, the Constitution explicitly allows affirmations in
place of oaths.

Moreoever, while many of the founders were Christian, others were not.
Thomas Jefferson, Benjamin Franklin, and Thomas Paine, for example,
were deists who believed that formal religion was superfluous.
Jefferson rewrote the New Testament removing all references to the
divinity of Jesus.

[...]
>The intent of the First Amendment was to prohibit the U.S. government
>from establishing one Christian denomination as the national denomination.
[...]

The author of the First Amendment, Madison, believed in what he called
"'perfect separation' between religion and government. He said
repeatedly that religion would flourish more freely without the aid of
government because the power of government to aid religion necessarily
implied the power of government to suppress religion. ... In his own
state of Virginia, Madison opposed a 1984 tax bill that would have
subsidized religion _without preference_. ... The proposal for a
general, nonpreferential tax for supporting religion failed, and two
years later, the Virginia Statute of Religious Freedom completely
separated church and state.
 [Also,] when the Senate was originally considering the First
Amendment, it _defeated_ three motions that would have changed its
language to prohibit laws that established 'one religious sect or
society in preference to others.' ...
 Finally, ... When the First Amendment was enacted _no_ state had an
established state church or supported one religion over another. ...
What 'establishment of religion' meant in America in 1791 was
precisely nonpreferential aid. When the First Amendment prohibited the
federal government from establishing religion, it was undoubtedly
these nonpreferential establishments that the framers had in mind."
  [_Visions of Freedom_ by Ira Glasser, p. 75 (btw, a great book).]

[...]
>All of the cases you cite are a result of the Supreme Court wrongfully
>applying the 14th Amendment to the other amendments.

Many of the founders wanted the First Amendment to apply to the
States. As originally written by Madison it read "No state shall
violate the equal rights of conscience, or the freedom of the press,
or the trail by jury in criminal cases." Madison called this "the most
valuable amendment on the list" and it passed by the House (where he
was a member) by the required two-thirds. (It did not pass the Senate
by the required two-thirds, but because the proceedings where secret,
no one knows the vote or the reason.) [_Visions of Liberty_ p. 44]

>  Since that time,
>the Supreme Court has assumed more and more power.  They now determine
>the constitutionality of laws and they create laws themselves through
>"judicial orders."  This was never intended.
>
>    You seem...to consider the judges as the ultimate arbiters of all
>    constitutional questions; a very dangerous doctrine indeed, and
>    one which would place us under the despotism of an oligarchy....
>    The Constitution has erected no such single tribunal.
>	 Thomas Jefferson, 1820.
[...]
>    As the courts are generally the last in making the decision
>    [on laws], it results to them, by refusing or not refusing to
>    execute a law, to stamp it with its final character.  This makes
>    the Judiciary dept paramount in fact to the Legislature, which
>    was never intended, and can never be proper.
>	 James Madison, 1788.

You neglected to mention that Madison changed his mind and that it was
Jefferson who persuaded him. Your quote of Jefferson was from after he
had been president.  President Jefferson also advocated a
constitutional amendment that would have made judges removable by the
president.

Jefferson-the-founder had had a different point of view. As recorded
in Jefferson's March 1789 letter to Madison, "[Jefferson] thought the
judicial branch should remiain independent of the other branches of
government, in order to be able to act as a kind of umpire, an arbiter
of liberty that would interpret the constitutional ground rules, and
curb the actions of the legislative and executive branches whenever
they violated rights.  Madision echoed Jefferson's view in his ringing
speech to the House of Represenatatives, when he endorsed the notion
that a system of independent courts would be 'an impenetrable bulwark'
of liberty and have the power to strike down as unconstitutional all
legislative or executive acts that violated the Bill of Rights"
[_Visions of Liberty_, p. 47]

- Carl
--
Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign
Newsgroups: alt.society.civil-liberty,alt.politics.usa.constitution,misc.int-property