First Amendment and the Ten Commandments

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alternatefutures
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First Amendment and the Ten Commandments

Post by alternatefutures » Sun Aug 24, 2003 3:30 am

Let’s try something political on this board, please don’t be put off by it’s length, but I just have so much to say and need to rant (well, actually build a well constructed argument).

With the recent goings on about a certain display of the Ten Commandments in a certain Alabama courthouse, I have been noticing a rash of people tossing out the phrase “governmental ban” and “First Amendment rights” all over the place. “Separation of Church and State” is perhaps the most common saying being shouted over the subject, and it is all in reference to the First Amendment. Not being the kind of person who likes third-hand information (the media reporting on a commentator’s view on the Constitution) I decided to spend some hard time with a document I thought I knew and understood, and I really want to share what I found with everyone here, because the document all Americans have been taught, the document US laws are based off of, and the document that was written by the founding fathers and later amended with the Bill of Rights, are all very different. As Internet culture generally gets its feathers ruffled whenever it perceives its rights are being trampled on, I think you might find this enlightening.

Here’s the plain text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It seems simple enough, but it’s amazing how easily this is misread (not misinterpreted, as you’ll see, there’s very little room for interpretation). Let’s start with the first word: “Congress”. Note that it does not say “Government”. In fact, that it says Congress makes it very specific, as Article I, section 1 of the Constitution says Congress “shall consist of a Senate and a House of Representatives.”

Moving on; “shall make”. It doesn’t say “should make”, it’s an absolute order.

“no” Not to be confused with “some” or “occasional” and it doesn’t have a clause saying, “unless 100% of the people agree” or anything like that (sorry Do Not Call list). Zero. Nil.

“law” Article I, section 8 of the Constitution grants Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Notice the word “all” in that quote. No other branch of the Federal government can make laws, not the executive, and certainly not the judicial.

“respecting an establishment of religion, or prohibiting the free exercise thereof” This is the “Establishment Clause”. Notice how “respecting an establishment of religion” does not specify whether a law positively or negatively impacts an establishment of religion. Both are equally banned. However, it seems from “prohibiting the free exercise thereof” that Congress could take to encouraging people to exercise their religion, just as long as they don’t hinder it. This has major implications for “separation of Church and State.” As the ACLU points out (inadvertently) through successful litigation, in order for an oil and water type relationship to exist between the two, there must indeed be laws respecting an establishment of religion or prohibiting the free exercise thereof passed by Congress. But then again, they get around this by ignoring Article III of the Constitution, which I’ll cover later, but that’s the bulk of the language that is misread.

So, the question now is, how does a stone monument placed in a courthouse by a judge constitute a law passed by Congress? Well, now you need to skip ahead a bit to the Fourteenth Amendment. Of particular interest is the following:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This basically means that the States cannot override any rights granted onto an individual under the Constitution. Fair enough. Now, the courts have decided to use this to spread the First Amendment as an umbrella over the States. But there’s a problem; there aren’t any rights accorded under the First Amendment. As those first five words clearly indicate (“Congress shall make no law”) it is no more than a direction to Congress. It’s precisely because the Constitution is so targeted that you can sue for liable, that yelling “Fire” in a crowded theater or sending death threats gets you in trouble with authorities, because States are allowed to infringe on those freedoms. In fact, even those courts that have extended the First to the States let these cases slip through, creating a very inconsistent and confusing application of the law. There’s no problem extending the Fourth, which begins “The right of the people…” but as written the most you could hope to extend out of the First would be the right to peaceably assemble. Now, it’s hard to see how a stone monument infringes on the right to peaceably assemble, isn’t it?

This is where the courts’ power to interpret the law comes in, and apparently to change it on the fly. The interesting thing is, in order for the courts to have this power they had to first use it, which is a neat paradox. Article III, section 2 of the Constitution details precisely where the courts have authority:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority

The phrase “all Cases” birthed the concept of “judicial review,” which is when the Supreme Court, with one ruling, can toss an entire collection of laws. Judicial review later was interpreted to allow editing and more liberal (not the political affiliation) interpretations of laws. Of course, nowhere is it in here that the courts can toss out or revise laws, only the cases that are born of those laws. But because of judicial review the Constitution was changed… with a court issued opinion.

And now, separation of Church and State has been, through a series of opinions, become a well-hidden and buried amendment. If it wasn’t for that, the courts couldn’t have even been able to have heard the Alabama Ten Commandments case, thanks to the “in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made” part of Article III, as that case was not prompted by anything in the Constitution or any law or treaty. Like a massive game of telephone, thanks to the concepts of “precedent” and “common law”, which aren’t mentioned in the Constitution, just the phrase “government endorsement of religion” was enough. It was the courts wishing to address an issue that was not addressed in the other two branches.

Now, I personally don’t think the Ten Commandments should have been placed in the courthouse. I don’t think “In God We Trust” should have been added to our coinage, nor “Under God” inserted into the pledge of allegiance. But these are not even minor annoyances compared to what is being done to eliminate them. The way the US Government was set up, it should be possible for an average man, armed only with a copy of the Constitution, the ability to read carefully, and perhaps a dictionary, to construct a rock solid defense based upon a law’s unconstitutionality in a handful of hours. But the rug has been pulled out from under us. The Constitution only exists now to give the system an appearance of propriety, and the law has been taken out of our hands in the name of what is popular and what is expedient. To defend yourself today, you better have a high priced lawyer, lest the judge hearing your case decides to “interpret” the law against you. It’s high time we start taking the law back.

Thank you for indulging me. Have at it, tear it up.

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Arigatomina
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Post by Arigatomina » Sun Aug 24, 2003 3:45 am

The ammendments need to be ammended, that's all there is to it.

If the president can rule against people because he's a Christian and believes in following christianity in regards to certain laws - ban on gay marriages because Catholics don't like it and he's a Christian, then there is no separation of Church and State. He's the leader, and he can make decisions based on his religion and the sway of a church in England. How much more do you need before you see a problem in this pretense of 'separation' between the government and religion.

There is no separation, and never has been one - nice to point out the coinage. It's been there from the beginning and will remain long after. But arguing with the fact that the government contradicts itself won't do you any good if you're trying to push the separation - it won't happen because separation never existed.

Instead, push that they fix the lies in the constitution to say 'they'll do what they like and what goes with general opinion (unless the church tells them otherwise)' - that would at least be honest.

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Post by post-it » Sun Aug 24, 2003 9:11 am

The Church used to be a Government; but at no time has the Government been a Church!

. . your confusing the issues on this subject 8)

Ten Commandments on Government property is a violates the seporation of Church and State.

"I Pledge Aliegence to the flag . . . " can mean
"I Plead My Aliance to this Country with this Flag and All that it stands for . . "
but at no time is it open to intentional intuition of opinion 8)

. . the intension of this law . . :shock:
8) Read it Line-By-Line Verse-By-Verse or not at all 8)
These LAWs were written to be fair to Everybody and not to a selected few.

. . gay's and/or lesbians should have the right to . . . :cry:
8) The Union of Man and Woman is to Appropriate Children 8)
Even when the Church was the Government - this was The LAW of Marriage.

. . crime is on the increase ever sence the black and hispanic's . . :cry:
:cry: yeah - and hermorphodite sex changes double every year too :cry:
8) Race is not a factor in business or crimes, never has been 8)

. . girls have more say in the way things are going these day's . .
8) guy or gal makes no differance to me 8)

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Post by alternatefutures » Sun Aug 24, 2003 9:27 am

Well, the point of my rant was not about religion and government, but about how the process to change the law has been usurped by the court system, and instead of three fourths of the States being required to create an amendment, five out of nine appointed judges can do it (in some cases fewer). But, I'll bite.

First, the powers of the President are clearly defined in Article II, section 3 of the Constitution:

...he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officer, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.


So the President has no power to "rule against people" or ban gay marriage. In fact, there has been no such action. Candidates are often asked what they support, but the truth is they do not have legal authority to pass those laws, nor do they attempt to exercise such authority. Presidents only have their prominent position (the bully pulpit) to prompt Congress to action, but the ultimate responsibility for forming and passing laws is in Congress. (Although the whole Executive Order thing messes that up a bit)

Second, "In God We Trust" was not there from the beginning. It first appeared in 1864 on the two-cent piece.

Keep in mind that separation of Church and State cuts both ways. So, not only can religion not infringe on government, government cannot infringe on religion. It would create a scenario whereby any law attempting to enforce a separation would be in volition of itself, as it would be government attempting to limit religion. Thus, such an amendment would need to be first ignored so that it may be enforced.

If it is enforced it would not be hard to use it to attack religion. You could have scenarios where religious schools and universities are not accredited and you cannot use a degree from one to secure a position in government, for example. It allows the government to actually become repressive towards religion, and we are seeing such cases begin to emerge already (such as the Boy Scouts having their leases revoked on public property because they require a belief in a higher being).

I value freedom of speech far too much to ever support the legal requirement of a separation of Church and State. Religious speech and expression should be treated exactly the same as any other speech and expression. Government should be indifferent towards religion. It's the only model that has been shown to work.

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Post by alternatefutures » Sun Aug 24, 2003 9:36 am

post-it wrote:Ten Commandments on Government property is a violates the seporation of Church and State.
And that sentence contains a violation of proper spelling. However, neither spelling nor the separation of Church and State are law... did you even read my post? When you say something violates the separation of Church and State, you're saying it violates a letter written by then-president Thomas Jefferson to a Baptist church:

To Messrs. Nehemiah Dodge and Others A Committee of the Danbury Baptist Association in the State of Connecticut
January 1, 1802

Gentlemen,

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing. Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.

Thomas Jefferson President of the United States


Does that really look like law to you???

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post-it
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Post by post-it » Sun Aug 24, 2003 9:37 am

"Second, "In God We Trust" was not there from the beginning. It first appeared in 1864 on the two-cent piece."

you are absolutely correct 8) Backed By Gold was the Motto and it made this country feared by even the Brittish; to them, this over-ruled the fights between Germany, France and England over "who God Has Blessed!"
- referance "the Battle of the Roses" on this issue ^^

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Post by madmallard » Sun Aug 24, 2003 11:13 am

you're forgetting one important detail. Language.

Marriage is a religious word. when you don't want to tread on the sanctity of marriage, that means you understand there is a religious foundation to the act of being married, stemmed from scriptures.

if you refuse to acknowledge this you are not only blind, but a fool too.

This does not mean that gay people shouldn't be able to develop their own lifestyle and means of creating a union (not that i'm going out and campaigning for it) but the use of the institution of "Marriage" to do it is an insult to those who feel differently. Not questionable, but an -insult- because it so clearly contradicts what they think to be acceptable.

however, back in the day, there was no counterpart to Marriage to use any different words. you use words to describe something unfamiliar in familiar terms. Times have changed.
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Nurd
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Post by Nurd » Sun Aug 24, 2003 12:11 pm

Arigatomyna wrote: If the president can rule against people because he's a Christian and believes in following christianity in regards to certain laws - ban on gay marriages because Catholics don't like it and he's a Christian, then there is no separation of Church and State.
This is why we have the election system, if we elect someone who does things that are against the people as a whole, then we can elect someone new.

Unfortunately his election is also where the electoral college system fails us. Because he was not elected by majority of the popular vote. He lost, and not by just a few votes either.
sixstop wrote: Marriage is a religious word.
Originally yes, but once it was codified into law, it then became a secular unity of two people for taxation and property-separating (in cases of divorce) purposes.
sixstop wrote: This does not mean that gay people shouldn't be able to develop their own lifestyle and means of creating a union (not that i'm going out and campaigning for it) but the use of the institution of "Marriage" to do it is an insult to those who feel differently. Not questionable, but an -insult- because it so clearly contradicts what they think to be acceptable.
I'm sorry, the thought that we should not do things because they contradict what someone thinks of as acceptable, is, as an American, completely absurd and sickens me to no end. With this logic, very little would be permissable in a society as varied as ours. If they don't want to call the union of homosexual couples a "Marriage" then the law needs to be changed as such so that it is merely referenced as a union, for all people. Those who are religious can call it a "Marriage" all they want. There is no reason to afford one set of people more rights than another because of something like sexual orientation.
alternatefutures wrote:Although the whole Executive Order thing messes that up a bit)
The ability of the President to do this in any time other than a time of emergency, (i.e. Meteor strike, war on U.S. land, etc..) is a failure of the sytem as a whole. We have Congress for a reason, giving one man the ability to sidestep our system of checks and balances is putting too much power into the hands of that person.


As far as the Ten Commandments being in that courthouse. I am not a religious person, at times in my life I have been anti-religion all together. But we must remember that those ten commandments are not only a quote of religious scripture. These words are also historic, as they are some of the oldest "written" laws that we know of. I'm sure the records of chinese scholars dating well before this book could be found, but that does not change the historic signifigance of these words. Still, it gives the illusion of bias, that the commandments of the Jewish and Christian people will be better represented within that court. I say it be replaced witha stone monument of the U.S. constitution, so that all Americans can feel that they will be treated fairly (even though some probably won't)

Nurd

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Post by alternatefutures » Sun Aug 24, 2003 1:35 pm

Nurd wrote:Unfortunately his election is also where the electoral college system fails us. Because he was not elected by majority of the popular vote. He lost, and not by just a few votes either.
Being in Wisconsin for that election and seeing first hand how easy it is for an improperly run election to generate many bad (illegal) votes taught me once and for all that the electoral system = good. There is a massive margin of error in the popular vote, easily able to encompass the margin by which Gore "won," and the electoral college mitigates some of that error. Plus, in some areas, when a candidate has enough votes to win the electoral, absentee ballots are not counted, so we really do not know who had the most votes cast for them.

Besides, now I have a great example to point to when I hear someone say "the majority of Americans can't be wrong." ^_^

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Post by Arigatomina » Sun Aug 24, 2003 3:34 pm

Just to clarify since I obviously made little sense with my statement:
Arigatomyna wrote:There is no separation, and never has been one - nice to point out the coinage [as an example of the tie between church and state]. It's [this tie between church and state] been there from the beginning and will remain long after. But arguing with the fact that the government contradicts itself won't do you any good if you're trying to push the separation - it won't happen because separation never existed.
My main point was that even when the constitution was written, the creator's had an eye on religion. I don't have a quick source, but the written laws and agreements were signed 'before God and man' or something simillar - God is always mentioned in early goverment since the leaders tended to be deeply Christian. The words may not appear on the official documents, but the religious bias is still there.

Also, marriage - I'd have to agree with Nurd, and thanks to him for clarifying this. I *don't* consider this word a religious one because in the US this institution (an American institution if you ask the President) does give special rights to the people who enter into it. And it is *not* just for those reproducing - if it were then every marriage that did not result in childbirth would be annulled for breaking the 'purpose' of marriage. Tell me every two people who get married are planning to have children - it's a boldfaced lie. If marriage were only limited to those wanting to reproduce, we'd have a lot less marriages. All a marriage is is a union between two people that is recognized and legalized and gives the united couple certain rights. Yes, if they're religious people it may have other meanings but marriage as 'an American institution' is not some religious pact for two people planning to bring forth children.

But that was not my main point. I don't care if anyone thinks homosexuals should or shouldn't be allowed to get married. My point is that the president should not be able to make this decision based on popular opinion and the Pope. Before opinion swayed in the other direction he was for it - then when opinion (especially from the religious crowd) changed, he changed to support them. That's what I was pointing out as the problem, not so much the ban itself (which isn't the issue here) - it's the President's power and the way religion sways how he uses that power.

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