A look at the mythological
Constitutional Separation of Church and State
I use the word “mythological” to refer to the phrase “Constitutional Separation of Church and State,” because over the years it has taken on mythical dimensions, representing often vague ideologies based on half-truths, rumors and ignorance. It is bandied about as if it was the very foundation of the United States, by those who know – or should know – better. However, many Americans are unaware of the true origins and history of “the Separation,” and this bugs me enough that I am writing about it. My pain is your gain, so to speak.
First, everyone should know that the phrase, “Separation of Church and State” does not appear in the First Amendment to the Constitution, or anywhere else in the Constitution, for that matter. The good old First Amendment says:
“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.“
The first 10 words, “Congress shall make no law respecting an establishment of religion,” is what’s known as the “Establishment Clause.” The following phrase, “or prohibiting the free exercise thereof;” is the “Free Exercise” clause. Note that this applies only to laws passed by Congress. It doesn’t apply to having the 10 Commandments posted in a courtroom, or to a cross on a city-owned memorial in San Diego. It doesn’t apply to school prayer, or teaching Intelligent Design as one theory of origins. It doesn’t mean that Congress itself can’t open in prayer – it just can’t make any laws that either establishes, or limits, religion.
Now, in 1868, the 14th Amendment was added. While essentially dealing with “equal rights” (it’s a post-Civil War amendment), it also included what is now known as the Incorporation Doctrine:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; …”
So, what this essentially says is that no state can limit rights granted by the U.S. Constitution (only the courts, apparently, can do this). Again, nothing about offering prayers, displaying religious symbols, or anything of that nature. (It did, however, change the entire dynamic of the United States, giving the Federal Government, including the Supreme Court, way more power than I believe the original framers intended. This possibly was the first big move away from Original Intent, and has been the basis for many decisions resulting in a steady loss of states’ rights.)
Down the Slippery Slope
The phrase “separation between church and state” was first used by Thomas Jefferson in a letter to the Danbury Baptist Assoc., in which he so characterized the effect of the First Amendment. The Baptists feared the establishment of a National Church (and of course, feared it would not be Baptist). It is interesting to note that at the time, there were States who recognized official State churches, and Jefferson didn’t address that. Of course, this was back during the time when States actually had rights, before the 14th Amendment.
In 1947, nearly 150 years later, Supreme Court Justice Hugo Black quoted Jefferson in his opinion on Everson v Board of Education, in which he graced us with his own interpretation of the 1st Amendment. The Supreme Court, since that time, has continued to build upon arguably defective reasoning to the point that the “wall of separation” has indeed grown to mythical proportions. More recently, Justice Souter opined that “government should not prefer one religion to another, or religion to irreligion,” a very questionable interpretation of the original intent.
There is a concept in common law (not, mind you, civil law) known as stare decisis, “to stand by things decided.” Essentially this means that prior decisions, known as “case law,” becomes the new foundation upon which all new decisions are based, essentially supplanting the Constitution. Stare decisis is, then, in tension with the concepts that the S.C. has the power to interpret the Constitution, and the Congress has the power to legislate. Since the Warren Court, stare decisis has played a major role in the Supreme Court’s decision-making, leading to the accurate assessment that the Supreme Court now “legislates from the bench.” The S.C. has essentially left the original intent of the Constitution on the shelf, and has gone gleefully skiing down the slippery slope of bad case law.
Ay, there’s the rub. The mythical separation of church and state is not – in any of it’s current definitions – a concept which was in the minds of the framers of the Constitions and the Bill of Rights. Rather, it has been very recent Supreme Court justices who have abandoned any notion of original intent and have created this legal myth – which seems more closely in tune with Marxist thought than with our Founding Fathers – with which we now have to contend.
