Saturday, December 8, 2007

Separation Doctrine

My local paper today the Reading Eagle, has a regular editorialist John Forester. Today's editorial uses Mitt Romney's speech on his faith as a springboard into a lamentation that

Today, it would appear that the ideal president would be someone who took his orders directly from the Almighty himself.
Well, I'm going to use his editorial as a springboard myself...

Mention Separation of Church and State and people usually take it to mean a denial of any mention of religious belief in the public sphere. Thanks to several SCOTUS decisions we've come to this place. In a poor attempt at originalism, Justice Black in Everson v. Board of Education (highlights mine) sought to use Thomas Jefferson's letter to the Danbury Baptist Association to insert the "wall of separation" phrase into Constitutional jurisprudence.

The Constitution is a federal, not a state document.
Therefore, the limitations in the Constitution are federal, not state, unless specifically designated.
If you read the letter, you see Jefferson's opinion that the states ought to follow the federal government's lead.

Of course, the previous paragraph is no longer true because this same Justice introduced incorporation, which applies the Bill of Rights to the states. We may talk more about that later.

Even in Jefferson's letter, there is a distinction between governmental establishment and support. Under our Constitution, government has always been free to support one particular religion over another. Federal government was restricted from coercing its citizens into a particular religion by way of taxation or religious tests for office, for example.

The idea of a cleansing of religion from the public sphere is thoroughly unconstitutional. Those that support strict separation can only point to past cases that have all developed from Everson...not the undergirding philosophy in the Declaration or the text of the Constitution.

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