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checks-n-balances Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 10:31 PM
Original message
Little-Known Historical Origins of U.S. Church/State Separation
Little-known, at least, by many religious people...

I don't know the date of this article, but it makes some good points. Balmer is well-known for being an excellent commentator on the subject.

The Future of American Protestantism
By Randall Balmer


Much to the consternation of some, Roy’s Rock, the two-and-one-half-ton monument emblazoned with the Ten Commandments, has been relocated to a storage area in the Alabama Judicial Building. The removal, in compliance with a federal court order, has prompted all manner of wailing and gnashing of teeth on the part of conservatives, many of whom call themselves Baptists. This is a clear indication, they insist, of the moral decline in American society. One hysterical screed circulated by e-mail predicted that the depiction of Moses and the Ten Commandments in the U.S. Supreme Court Building would soon disappear. A protester in Montgomery loudly declared that if you wanted to see the future of America – by which he meant, presumably, a future devoid of religious sentiment – consider the blank space in the lobby of the Judicial Building where Roy’s Rock once sat.

<snip>

What Judge Moore and his supporters fail to recognize, apparently, is that the First Amendment is the best friend religion ever had! The founding fathers, in their prescient wisdom, concluded that it would be foolish to ordain one religious expression as the state religion. They decided instead to set up a free market of religion, where religious entrepreneurs (to extend the metaphor) are constantly competing with one another for popular followings. This has lent a dynamism to religion in America that is unmatched in any other western nation. In Great Britain, for instance, where Anglicanism is the state church, roughly 3 percent of Britons attend the Church of England on any given Sunday, and in Sweden, leaders of the state Lutheran church actually appealed to the parliament several years ago to be disestablished. We Americans are an extraordinarily religious people by almost any standard; 94 or 95 percent of us tell George Gallup that we believe in God or a Supreme Being, a figure that has remained fairly constant since World War II. Put simply, religion has thrived in this country for more than two centuries precisely because the state has (for the most part, at least) stayed out of the religion business. The examples of other western nations suggest that once you begin to dictate religious belief or behavior – as with prescribed prayer in schools or Roy’s Rock in Montgomery, Alabama – you kill it.

Finally, although I am an evangelical Christian, I am not a Baptist, and I wonder whatever happened to the Baptists? (As a historian of religion in America, I think I know the answer, but I raise this as a rhetorical question.) Roger Williams, founder of the Baptist tradition in America, was a dissident in Puritan Massachusetts who was expelled from the colony and went to Rhode Island to form a religiously tolerant society. It is to Williams that we owe the notion of the separation of church and state. He recognized the perils of state interference in religious affairs (he wanted to protect the “garden” of the church from the “wilderness” of the world), and, as a religious minority himself, he sought also to protect the rights of religious minorities from the government. He cherished the notion of “soul liberty,” which, ostensibly, at least, is one of the cornerstones of Baptist beliefs (along with, of course, adult as opposed to infant baptism). Throughout American history, at least until the late 1970s, Baptists have been fierce guardians of the First Amendment and the separation of church and state.

And yet, Judge Moore and many of his followers claim to be Baptists. How peculiar! I want to know why every Baptist in the state of Alabama didn’t storm the Judicial Building after Judge Moore installed his monument (under cover of darkness, by the way) and demand that it be removed immediately – not merely because the monument itself became the subject of a kind of perverse idolatry but, more basically, because it violated bedrock Baptist principles of soul liberty and freedom of individual conscience. Shame on every Baptist in Alabama who sat by silently and put up with this nonsense!

<snip>

Randall Balmer is the Ann Whitney Olin Professor of American Religion at Barnard College, Columbia University.

More at:
http://www.mainstreambaptists.org/balmer.htm

My thoughts:
There are too many people in this country (biblical LITERALISTS, btw) who claim there is no "wall of separation" because such a phrase is not LITERALLY stated in the U.S. Constitution! And Baptists who believe this are ignorant about Roger Williams and deny their own church history & heritage.
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 10:38 PM
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1. The saddest part of all
is that our country was founded in the belief that no one should have any religion shoved upon him if he didn't want it. The First Amendment is a genius work of art.

When did people get the idea that the United States is a Christian country, and do they know how offensive that is to its citizens?

It all started when "under God" was inserted - for purely political reasons, during the Red-Hunting heyday - into the Pledge of Allegiance, and I still think it should be taken out.

Fat chance I'll ever live long enough to see THAT.
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unblock Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 10:43 PM
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3. not founded as a christian nation, rather by those FLEEING xtian nations!
they just don't get it. if they wanted a christian nation, they would have stayed in england, france, spain, portugal, holland, germany. christian nations one and all.

they came to america to practice religion (or not to) WITHOUT THE INTERFERENCE OF THE STATE.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 04:10 AM
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unblock Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 07:34 AM
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25. yes, but because they disagreed with the official version of xtianity
that's the whole point of religious freedom.
you get to practice religion YOUR way, not the STATE's way.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 10:15 AM
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RevCheesehead Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 10:45 PM
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4. Just a comment:
"When did people get the idea that the United States is a Christian country, and do they know how offensive that is to its citizens?"

Why don't Christians know how offensive that idea is to Christianity???
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 11:11 PM
Response to Reply #4
6. I call them
"professional christians."

Note the lower case "c." I suspect the real Christ would shudder to be associated with these people.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 03:52 AM
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Tue Nov-16-04 02:42 PM
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RevCheesehead Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 01:58 PM
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42. Because Christ is for ALL nations.
Even his message to Israel was one that was declared to ALL nations, even the gentiles - so that through him, all people would find salvation.

If America were indeed a Christian nation, we would spend more time feeding the hungry and caring for the poor. We would care for "the least" in society. There would be no homeless. We would share what we have with our neighbors. And we most certainly would not wage war on false pretenses, declaring entire countries as our enemies, or engage in "preemptive strikes."

I would recommend the writings of Stanley Hauerwas or John Yoder for theological writings on morality, ethics, and Christian identity. You might also find Leslie Newbigin to be helpful.


PS - you're not my brother, are you? He has a beagle. He's a repub, but I wouldn't put it past him to come here and lurk! John, is that you???
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 02:14 PM
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pacifictiger Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 11:42 PM
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12. amen to that
It would be nice to get back to "one nation indivisible"
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 04:05 AM
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RevCheesehead Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 10:42 PM
Response to Original message
2. Good, thoughtful article.
I had a Baptist friend in seminary who used to argue that even the very notion of the Southern Baptist CONVENTION was antithetical to the notion of being a Baptist (of congregationally-centered authority). I now know she was right!
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Paying Attention Donating Member (2 posts) Send PM | Profile | Ignore Sun Nov-14-04 03:20 AM
Response to Reply #2
13. The purpse of the Southern Baptist Convention
was to allow the churchs to share their resources to send missionaries out. (Sending out missionaries is central to Christian thought and practice). It had no authority, and still has no authority.

It's most powerful aspect, and the aspect that has created great disagreement amoung Baptists is that it controls a large amount of the money going to seminaries. (The money comes from the individual churchs, which individually decide how much to contribute to the Convention). A certain group in the Convention decided they didn't like what the seminaries were teaching, and wanted to use that money to control what professors the seminaries hired, and what they taught.

A lot of churchs didn't like what happening, so they left the Convention. Apparently, it is hard to leave the Episcopal Church "Convention" ( whatever their governing authority is called) or the Prespryterian Church (however you spell that). They just decided to leave, and left. They decided on a new Convention, and now they belong to the new one. Some churchs contribute to both Conventions.

So you can see, despite what your learned (and quite mistaken!) friend thinks, the Southern Baptist Convention proves out Baptist thought. What one church alone cannot do, Several can do together, But the resulting Organization can never be allowed to overthrow the authority of the individual church. When the Southern Baptist Convention did try to dictate their termss, the churchs did their equivalent of " what if someone threw a war and no one came to it?"

That is, someone thought they could leverage their monetary power against the independance of Baptist churchs, so the independant Baptist churchs just stopped giving them money.

There is something kindof American about all this.
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newyawker99 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 11:44 AM
Response to Reply #13
38. Hi Paying Attention!!
Welcome to DU!! :toast:
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RevCheesehead Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 01:51 PM
Response to Reply #13
41. What my friend was commenting about was the politicization
of the SBC. As a student in seminary, it was very disheartening to her that she could not, in good moral conscience, attend any of the SBC "approved" seminaries. These seminaries were taking a very strong move to the far right, and beginning to teach and demand a literal interpretation of scripture. And as a woman, she was pretty sure that many of these seminaries were telling her she was not welcome.

I saw this so-called takeover have effect in our seminary (at Duke), where moderate Baptists began coming in droves. It made for lively discussion in some of our classes, especially when Baptist and United Methodist theologies diverged (infant vs. "believer's" baptism, for example). Duke is a United Methodist seminary.

I also witnessed first-hand the after-effects when a Baptist church in Chapel Hill, NC, ordained a gay seminary student. He was a friend of mine. The church was expelled from the SBC, and/or the church withdrew its membership from the SBC, depending on your point of view. They didn't care - they ordained him anyways.

What I'm saying is, many seminary students have been direct victims of manipulation of the SBC's, for as much of a political, rather than a moral or theological purpose.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 02:32 PM
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struggle4progress Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 02:09 PM
Response to Reply #13
43. The purpose of the Southern Baptist Convention was to ...
... enable slave-state Baptists to associate only with other Baptists who supported slavery. Whenever they're ready to abandon their racism, they can repent of the heretical hatred that originally caused this split among Baptists. Until then, the history of the Southern Baptists evidently proclaims the meaning of the denomination.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 02:45 PM
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struggle4progress Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 04:16 PM
Response to Reply #48
56. Your statistical claim on AAs in SBC churches seems somewhat suspect:
posted 09/02/2004 8:30 a.m.
"Today the SBC is seeing dramatic growth in its number of African American congregations, adding 1,600 in the '90s to total more than 2,700 by 2002. By comparison, the historically black National Baptist Convention USA has more than 5,000 congregations, and the Progressive National Baptist Convention counts 1,800 congregations in its ranks. This makes the SBC one of the largest "black denominations" in the United States."
http://www.christianitytoday.com/ct/2004/009/23.54.html


And the joyful SBC tendency to promote schism seems to have persisted:

The Cooperative Baptist Fellowship (CBF) is a quasi-denomination that split from the Southern Baptist Convention (SBC) in 1991. The driving force for the schism was a long-standing fundamentalist-moderate battle within the SBC. The Fundamentalist takeover of the SBC is now essentially complete. <snip>
http://www.religioustolerance.org/hom_cbf.htm


Sunday, November 9, 1997
Split could create autonomous state group, both sides say

DALLAS (AP) -- Southern Baptists' long-running power struggle between moderates and conservatives could widen into an official rift at the state convention that begins Monday, says a candidate for president of the statewide organization.

"I think that very likely would happen," said Russell Dilday, a moderate and the only announced candidate for president of the Baptist General Convention of Texas.

Dilday added that a split resulting in a separate Texas-based infrastructure of religious educational opportunities, mission programs and teaching materials might eliminate politics and be beneficial to the group. <snip>

Texas Baptists' moderate-conservative split has been a source of rancor for years. Dilday was the head of Southwestern Baptist Theological Seminary in Fort Worth for 16 years, until he was forced out three years ago by the Southern Baptist Convention's conservative leadership. <snip>
http://texnews.com/texas97/split110997.html


July 9, 2001
Carter calls on 'traditional' Baptists to move on
By Bob Allen
Associated Baptist Press

ATLANTA (ABP)--Former President Jimmy Carter urged estranged moderates to "forget" the conservative-led Southern Baptist Convention and form new partnerships to advance "traditional" Baptist views. <snip>
http://www.baptiststandard.com/2001/7_9/pages/carter.html

Southern Baptists Vote To Leave World Alliance
By Alan Cooperman
Washington Post Staff Writer
Wednesday, June 16, 2004; Page A02

The Southern Baptist Convention voted yesterday to pull out of the Baptist World Alliance, accusing the worldwide organization of a drift toward liberalism that included growing tolerance of homosexuality, support for women in the clergy and "anti-American" pronouncements. <snip>
http://www.washingtonpost.com/wp-dyn/articles/A44658-2004Jun15.html


But you are right: I really did overlook the SBC apology for slavery, such as it was:

The Atlanta Journal-Constitution: 6/14/03
An unfulfilled promise? After a 1995 apology for racism, Southern Baptists say they're making progress toward including blacks in decision-making, but some complain it's not fast enough
By JOHN BLAKE

<snip> "If they're going to accept black people and their churches, they're going to have to get rid of the slave master's mentality that's so prevalent in the convention," says the Rev. James Coffee, pastor of the first black church admitted to the SBC, Community Baptist Church of Santa Rosa, Calif. <snip>

In 1964, convention delegates voted to oppose the 1964 Civil Rights Act. <snip>

Even the 1995 apology wasn't good enough for some black SBC leaders. Coffee says the apology was good, but it made no mention of the Southern Baptist Convention's 20th-century sins: staying on the sidelines of the civil rights movement. "They apologized for slavery but not for what Southern Baptists didn't do," he says. "They didn't do their part as far as working for integration." <snip>
http://www.ajc.com/living/content/living/faithandvalues/0603/16sbc.html


Personally, I'd take the apology more seriously if the Southern Baptists dedicated themselves to a real reconciliation: the Methodists had experienced a similar slavery split but effected a reunification in 1939. Instead, it appears that, having reluctantly admitted that racial prejudice is incompatible with scripture, the SBC continues to find plenty of other opportunities to advance its other prejudices, such as second-class citizenship for women and gays.


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Lydia Leftcoast Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 10:56 PM
Response to Original message
5. And doesn't it say in the Constitution...
that "no religious test shall be required for public office" or words to that effect?
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 11:12 PM
Response to Reply #5
8. It also says
" Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 11:17 PM
Response to Reply #5
9. Yes - Article VI
Last paragraph:

"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

I've taught Con Law in law schools and practiced law for almost thirty years, and I've never - never - gotten over the prescience and brilliance of the men who drew up this document. It amazes and humbles me daily.

And, right now, the matter of the electoral college and John Kerry's candidacy just might be making history. I sure hope so.
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Paying Attention Donating Member (2 posts) Send PM | Profile | Ignore Sun Nov-14-04 05:10 AM
Response to Reply #9
23. What constitutes a religious test? Are the answers in the back of the book
Edited on Sun Nov-14-04 05:17 AM by Paying Attention
?

Edited to add punctuation, which will make my Grammar teaching Madre happy.

(and surprisingly, the time at this correction was 10am, even though it is only 5am by human time)
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 07:08 AM
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 02:39 PM
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__Inanna__ Donating Member (246 posts) Send PM | Profile | Ignore Sun Nov-14-04 04:19 PM
Response to Reply #9
57. To any lawyers out there: Constitution Restoration Act of 2004
Maybe you can clear something up for me I've been worried about? The Constitution Restoration Act of 2004, which is on the verge of becoming law?? I had heard (can't confirm) that it passed both the house and senate, but then I stumbled on a conservative website urging the RW to call their senators, etc to get it passed. Here is a link, but what is most disturbing is section 1260:

`Sec. 1260. Matters not reviewable
`Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.'. (NOTE THE LAST SENTENCE)

http://thomas.loc.gov/cgi-bin/query/z?c108:S.2082

If the link doesn't work, a google should bring it up. What does this mean for us??
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 04:48 PM
Response to Reply #57
59. Ah, that's rightwingnut deposed jurist Roy Moore's baby
Don't worry about it - he's nuts, the bill is nuts, and the only way to change the Constitution is to amend it, which is a long and difficult process.

If this sucker ever made it out of committee - and I'll bet it didn't - it wouldn't survive the most basic of legal challenges.

They're such panderers. Whores, too.

See, Moore is planning to run for elective office, and now he can blather that he helped draft this "bill." Then he can claim that the "librulls" shot it down.

Ah, Moore. You are such a head case.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 03:55 AM
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Laelth Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 11:11 PM
Response to Original message
7. In all fairness ...
... our struggle over slavery during the civil war is partly to blame. The liberals in the U.S. (then the Republican party--and I would have proudly been a Republican in the 19th century) used Christian rhetoric and values to expose the hypocrisy and injustice of slavery, and this strategy worked quite well for them. Union soldiers sang "Onward Christian Soldiers" going into battle. The words "In God We Trust" first appeared on our currency during the civil war. As a result of their active infusion of religion into political rhetoric, the Republican party got an early lock on "God" and they've never lost it, despite the fact that their current values are completely un-christian.

Before the Civil War, however, the wall between church and state was solid in this country. Consider this except from the 1797 Treaty of Tripoli, adopted by our Founding Fathers, in Congress.

"As the Government of the United States is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the law, religion or tranquility of Musselmen; and as the states never have entered into any war or act of hostility against any Mohometan nation, it is declared by the parties that no pretext arising from religious opinion shall ever produce an interruption of harmony existing between the two countries."

Personally, I favor re-establishing that wall solidly, but the Republican party won't allow that. They've been able to win on the "God" issue for a long time. They won't abandon it until it's a loser for them. And for them, it's all about winning. Who cares about the Constitution, right? Tragic.

-Laelth
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Nov-13-04 11:24 PM
Response to Reply #7
10. They're exploiting fear in a very clever way
Demonizing the entire Muslim world, attacking Iraq, there is that subtext of "godlessness" that's so appealing to these rightwingnut professional christians. Of course, it's all subtext, but it's almost custom-made for their purposes, and the dummies buy into it.

I believe in the strength of the Republic, I really do. And I believe that the sea change will come about in a dramatic and sudden way. Soon.

I hope.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 04:03 AM
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 08:21 AM
Response to Reply #19
28. You don't catch enough news,
and Christ told me to tell you to vote a straight Democratic ticket from now on.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 10:18 AM
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Rumba Donating Member (277 posts) Send PM | Profile | Ignore Sat Nov-13-04 11:27 PM
Response to Reply #7
11. F***ing kick-ass quote


That excerpt from the treaty of tripoli is both incredibly revealing of the views that held sway then, it's also tragically ironic given the current state of affairs.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 04:01 AM
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Laelth Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 08:11 AM
Response to Reply #18
26. Absolutely, the Constitution should change ...
Edited on Sun Nov-14-04 08:22 AM by Laelth
as the world changes. The Founding Fathers were wise enough to build an amendment process into the Constitution, just in case we needed to change it at some time. And I think the early colonists did have a religious right. That's why the Founding Fathers insisted that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" (First Amendment). That seems pretty clear to me. The Federal government has no power to tell the people what they must do, religiously, nor can the Federal government tell people what they can not do, religiously. The Supreme Court has ruled that this amendment applies to individual state governments as well. We the People are, of course, free to amend this at any time, but until we do, this is the law of the land.

-Laelth


Edit:Laelth--corrected typo.
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Sun Soldier Donating Member (2 posts) Send PM | Profile | Ignore Sun Nov-14-04 08:13 AM
Response to Reply #18
27. How do you think it should change?
I think the original intent was very clear. The Founding Fathers were very religious but they still came up with the first ammendment.

"No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States." George Washington

"It is the duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship." John Adams

"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." Thomas Jefferson
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newyawker99 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 11:46 AM
Response to Reply #27
40. Hi Sun Soldier!!
Welcome to DU!! :toast:
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 08:27 AM
Response to Reply #18
29. It's a living document
and that makes it grow.

Note how well it's served us since its inception. It's meant to be interpreted according to the customs and mores of the times, which is why it's such a brilliant document.

Changing the Constitution has always been an option - that's why there are Amendments. But, fortunately, adding an Amendment is a difficult task, as well it should be. And the concept of "activist" judges is something that comes along with the Constitution, since the framers meant for it to be a guideline, subject to interpretation and discussion.

Read "Marbury v. Madison," and see how beautifully the issues within that case were decided when, in fact, none of them were expressly delineated anywhere in the document - here's a nice place to get started (and I mean "get started" - Marbury v. Madison has consumed the lives of scholars, that's how complicated a story it is: http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm

If you study the Constitution and its history very carefully - and there are some wonderful books out there devoted simply to the history of this marvelous document - you'll begin to grasp what an amazing piece of work it is, and how it continues to define America in its most ideal state.

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Wright Patman Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 09:33 AM
Response to Reply #29
30. My Constitutional Law
professor at UT School of Law, Philip C. Bobbitt (LBJ's nephew, BTW), was fond of the analysis of Alexander Bickel. He assigned Bickel's "The Least Dangerous Branch" (reference to judiciary).

The main thing I got out of studying constitutional law is how much judges have enjoyed interpreting the Constitution's plain language out of existence over the years. I think Alberto Gonzalez has recenty reiterated what a justice named Charles Evans Hughes opined during the 1920s. "The Constitution is what the judges say it is."

The "living document" proponents won out long ago. A human body supposedly regenerates a whole new set of cells every seven years. The judges take longer to do that to the Constitution, but do it they do. I remember the concept of "economic due process" as one of the most egregious examples of this. Corporations now have the rights of a human being. While a human being's rights die along with his physical body or shortly thereafter with the execution of his will, the corporation is theoretically immortal.
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 10:04 AM
Response to Reply #30
31. Enjoyed?
I'm not sure how much they enjoyed or didn't enjoy doing their jobs. I do know that without the brilliance and courage of a lot of the justices, our country would be a very dark and failed place. The "plain language" to which you refer was always meant to be a guide, and was not to be taken as cant. Read Marbury v. Madison (AGAIN!) and remember how the language was interpreted, right from the start. That's why it's "living." And brilliant.

If you see corporations as having the same rights as human beings, then you also concede that, when the law is properly applied - something traditionally not done under Republican administrations, and this one is especially egregious in its dismissal of the law - they also have the same liabilities as human beings. If properly applied, it works out correctly, I think.

And, if you're a really sharp estate planner and tax attorney, you can make a human being, if he's wealthy like a big corporation, immortal. You know that. Hell, that's the American way.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 10:28 AM
Response to Reply #31
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Laelth Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 11:06 AM
Response to Reply #35
36. Judges do make laws ...
Judges have always made laws. It's called the "common law." Judges have been making laws for a lot longer than the American legislatures have.

-Laelth
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 02:37 PM
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 03:13 PM
Response to Reply #46
50. This is why people go to law school, or
study political science in college.

I would recommend to you "A History Of American Law," revised edition, Lawrence Friedman.

That's a great starting point for a student, and then you can go on from there.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 03:15 PM
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 03:19 PM
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 03:28 PM
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 03:15 PM
Response to Reply #36
51. No, sorry
Common law is what it sounds like - the kind of laws that just sort of evolved by word of mouth and common practice.

Judge-made law is called "case law."

Laws made by regulatory or deliberative bodies like Congress are called "statutes" or "statutory law."

And now, because the meter is about to be turned on, and I don't feel like working, I'll pull in my shingle.

;)
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Laelth Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 04:24 PM
Response to Reply #51
58. My apologies for my lack of precision.
As a second-year law student, I often confuse the two--common law and case law. Nevertheless, my point stands, and you seem to agree. Judges do make law--always have and always will.

-Laelth
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 04:52 PM
Response to Reply #58
60. Congratulations.
You made it out of the first year, and you seem to be still standing. Well done.

Yes, I agree that judges must interpret the Constitution as well as the common and statutory laws brought into question before them. Times change, and the law must change with them. That's what makes it a timeless instrument.

Good luck, by the way. You're about to embark on a truly wonderful professional experience.
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OldLeftieLawyer Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 03:11 PM
Response to Reply #35
49. Well, for openers
It's not a democracy, it's a republic.

Check out the difference.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 03:17 PM
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 10:21 AM
Response to Reply #29
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CaptainCorc Donating Member (131 posts) Send PM | Profile | Ignore Tue Nov-16-04 03:19 PM
Response to Reply #29
64. Old Lefty, please help me out.....
I am, like the Lord Chancellor in Iolanthe, in a nice quan-dary. I'm 53 years old and grew to middle age believing that the separation of church and state was an unassailable principle of our government. Plainly, I am an idiot, for we now find that not only is it not unassailable, it's possible that within a few years the whole concept will be officially thrown out the window. I posted the following elsewhere and did not receive a reply...I'm reposting it here and I'm hoping that you and/or others with legal training will comment on it. Please feel free to tell me I'm a complete jackass for even thinking about this. I posted the following in regards to a letter by a certain Mr. Van Os from Texas in which he called for determined opposition to the erosion of the principle of separation of chuch and state:

I would love to see someone dispassionately dismantle the fundies argument that the Founders and Framers never intended to bar "God" from influencing the government of the United States. It seems to me they interpret the Constitution as only barring the government from restricting "God" and have managed to formulate arguments to support this position.

At this point I must pause and assure you that I am no expert on Constitutional law or theology or anything else for that matter. What I hope to do here is niggle some people smarter than I in a direction which I THINK could bear fruit.


Mr. Van Os quite correctly points to the "religious test" clause as proof of his (and our) position, but I think you'll agree with me that, while having this clause is a protection of sorts, it certainly cannot stop people from casting their votes based on religious convictions. There's nothing we can do about that other than explode our heads in vain arguments about the separation of church and state. I say vain because there is no way to stop people from conducting their own private religious tests for public office. I myself am increasingly convinced that one of the reasons for Gore's defeat in 2000 was that he was running with a Jew. This is a hateful thought to me, but I do believe it.

So we can't stop them from voting their religious convictions and therefore there is a de facto religious test going on in this country in spite of the Constitution and we're pretty much stuck with it.

Separation of church and state based on the establishment clause is, it seems to me, a thorny argument too due to the precise nature of the wording. It does nothing to ward off the imposition of religion on government, it only protects religions FROM government. This, I believe, is a strict constructionist view.

BUT and here I'm finally getting to the point I really want to make and I'm sorry it's happening way down in the post after I've lost the attention of most readers--I think there is an exceptionally good argument against fundies and constructionists contained in the preamble to the Constitution. Does not the preamble describe the intent of the document? And is not intent a large component of the law? If the Founders INTENDED to incorporate this wondrous "Judeo/Christian philosophy" into our government, wouldn't they have said so in the preamble? Isn't the absence--the CAREFUL absence moreover--of any such sentiment indicative of their desire to maintain a government free of religious influence? Isn't this legal proof of their desire? I would argue that it is, but would an ACLU lawyer argue on that basis too? I would also argue that the purposes they did state: to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity--those purposes are more truly served by allowing full freedom of worship while at the same time keeping religion out of government.

If I am stating the obvious here I ask for your indulgence. As I said, I am no expert on the law--when I was young I didn't realize there would come a time when a guy would have to be a lawyer and a theologian to fend off religious zealots. I wish I had known the time was coming--I would have prepared myself better.

We need to outflank these sons of bitches with the LAW...not philosophical arguments. They don't give a rat's ass about our philosophy. They can be forced to respect the law.

In closing I wish to state that I view this religious encroachment as the most serious threat to our government since the British burned down the White House in 1812. I would dearly love to have a part in the struggle to repel these fundies. If someone can help me get into that fight, I would very much appreciate a PM. Thanks.
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newyawker99 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Nov-14-04 11:45 AM
Response to Reply #11
39. Hi Rumba!!
Welcome to DU!! :toast:
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sun Nov-14-04 03:58 AM
Response to Reply #7
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PATRICK Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Nov-16-04 04:12 PM
Response to Original message
65. Baptists cover a large spectrum
as well as the Catholic Church which homogenizes the blend. The Catholic origins come from fighting to enforce the separation of Church and state when poor immigrants were culturally and religiously oppressed by Protestant dominance in the public school system, Hence the creation of Catholic schools, not because of godless atheism but because of the forced indoctrination by other Christians in the dominant culture!

SCOTUS backed up the status quo violation of rights in those early days.
The very creation of public schools came because there was no protective separation in the school system. Behold today's irony as newbie private schools raise armies of believers to infiltrate and seize the government back again, possibly afraid that the growing influx of new migration is Catholic. By the way Bush is roping more such immigrants in so his cultic manipulation designs on Catholics should not be dismissed either.
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