From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: Separation of Church and State
Organization: University of Colorado, Boulder
Date: Tue, 15 Sep 1992 23:05:00 GMT

In article <1992Sep15.130912.18982@meaddata.com> joem@meaddata.com (Joe Mehrle) writes:
>Article III establishes the Supreme Court's power to review and
>interpret constitutional questions

Article III does not grant any such power, nor does any other 
part of the Constitution. John Marshall claimed such authority
(and made it stick, to some extent) in Marbury v. Madison (1803)
Marshall, by the way, had a sever conflict of interest in the
case, and today would have been legally required not to take part
in the ruling. Instead, he used it as a vehicle to establish
judicial review, despite it's irrelevance to the case.

>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.

No: Even with judicial review, the Court can only interpert the
Constitution. They can not (legitimately) add to or amend 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.

Many legal experts (in my opinion) take these difficulties an
an excuse to ignore original intent, and proceed on to insert their
own political biases into their interpertation. Even when the intent
is not clear, there is usually enough evidence to _limit_ the possible
interpertations. (Even if the details of a compromise position are
unclear, it must have been somewhere between the opposing views
expressed, for example.)

> 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.

No, they left ambiguous clauses, because they wanted to produce a
ratifiable constitution, and is they had been specific about 
controvercial points, they would have created too much opposition.
However, these various opposing opinions still bound the intended 
meaning.

Nor was the Supreme Court vested with the power to interpert such
clauses (see above). 

>  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.

It clearifies the process by which the Court reached that conclusion,
but not their legal authority to do so: The Court must logically
support it's interpertation (i.e. show how it is a reasonable
reading of the text and is consistant with what is known of the
intneded meaning.) An unsupported assertion by the Court is 
without legitimate basis, and outside the Court's constitutional
authority.

                                          Frank Crary
                                          CU Boulder