Bryan - 01 March 2008 11:10 AM

At Samantha’s high school graduation in 2004, a minister’s prayer proclaiming Jesus as the only way to the truth nudged Mrs. Dobrich to ask the school board to consider more generic and less exclusionary prayers…

1) Is that supposed to be evidence of the government promoting a specific religion?
I remain mystified as to where you see support of a particular religious group in the facts of the story.

Yeah, if this was part of the full graduation ceremony with all students, school board members, principal, parents, etc., this would give some people in the audience the impression that the school district supported a specific religion. 

I suppose “Jesus is the only way to truth” is a gentle way of saying that Jews are excluded....

How would we feel if a member of the Catholic clergy spoke to the audience proclaiming that the Catholic faith was the only way to heaven, and that non-Catholics need to convert or risk eternal damnation? What if our state were officially “Catholic” and the public schools looked a lot like parochial schools supported by property taxes?

dougsmith - 01 March 2008 12:23 PM

Bryan - 01 March 2008 11:42 AM

I’m sorry, is that supposed to be significant?

Yes, it is. The state cannot respect an establishment of religion. That is the most important clause, so it comes first.

That reads exactly like an ad hoc argument, Doug.  Frequently, in discourse, the most powerful or more important point is left to the end.  You appear to expect me to take it on your word that the order of the clauses in this particular document establish their relative importance.  You owe more to the argument than just your say-so.  Evidence, that is.

Moreover, I think you’ve equivocated on the term “respecting” as used in the Constitution.  I think the far stronger argument is that it means “relating to” not “showing deferential regard for.” Your argument appears to suggest the latter.

1. To feel or show deferential regard for; esteem.
2. To avoid violation of or interference with: respect the speed limit.
3. To relate or refer to; concern.
http://dictionary.reference.com/browse/respecting

And then the second clause is that the state cannot prohibit the free exercise of religion. They come in that order to avoid theocracy, whereby someone claims that in order to freely exercise his religion he has to establish it as the state religion. (E.g., Sharia law).

Why wouldn’t the reverse order just as effectively avoid theocracy?  Again, your argument resembles nothing other than ad hoc reasoning.

Most important is to avoid religious tyranny. Prohibiting free exercise of religion is important as well, but clearly must be violated in some cases where exercise of religion infringes on the rights of others. E.g., your right to practice your religion ends where my nose begins. The Thuggees do not have the right to steal and murder, even if their religion says that this is the holy life.

Elaborating on the ad hoc argument doesn’t appear to have altered its essential character.

I don’t know what you mean by your digression on the 14th amendment. If you mean to imply that it doesn’t remit on the states all of the rights and protections expressed of the Federal government in the other amendments, you’re going against the entirety of jurisprudence.

You, Doug, brought up the 14th Amendment so if you consider it a digression then feel free to criticize yourself.

And the Fourteenth Amendment extended due process to the states as well.
http://www.centerforinquiry.net/forums/viewreply/34198/

As for the latter portion of your argument, you’re going weasel with the words.  You hew close to the phrasing of the 14th Amendment and then apparently try to make it seem as though the modern legal interpretation of the amendment has been standard throughout its history.  That’s not accurate, and your argument might as well be trying to deliberately obfuscate that point.

Start with Plessy v. Ferguson (1896).

Bryan - 01 March 2008 11:42 AM

I missed the part of the story that indicates that the pastor was invited to proselytize.  Perhaps you could isolate the quotation?  Don’t worry about context.  I’ll be able to find that for myself.

Who would have expected a minister to proselytize when given the opportunity? What a shock!

So you’re saying you couldn’t find the invitation to proselytize that you said was there?  That’s what I figured.  More weasel words.  If a pastor might evangelize, then whoever invited him must have invited him to evangelize.  Sloppy logic, bad argumentation.

Once we take the mask off the equivocal language, you should be able to see that a law preventing the government from inviting a pastor to speak because he might evangelize is precisely a law restricting free speech.  Though I can expect you to argue that freedom of speech is less important than freedom of religion (it being a later clause).

That said, this clearly occurred in an atmosphere of religious indoctrination, as was made clear in the article.

I don’t suppose you could specify the passage(s) that supposedly make that clear?  Perhaps the government is obligated to bar any persons from the graduation ceremony who might contribute to an “atmosphere of religious indoctrination” or at the very least engage in pre-publication censorship of free speech.

I doubt that anyone would have made such a claim or took it particularly seriously if this were an isolated incident in this particular school district. The point is less about a single incident than a pattern.

A pattern of what, exactly?  More of the same nothing already described?  You mean they’ve invited pastors to speak before?  Regardless of what a pastor says, that cannot be permitted (let’s go, censorship, let’s go!)!

Bryan - 01 March 2008 11:42 AM

Oh.  I must be a hypocrite, then.  Except I’d have no problem with corresponding free speech from a Jew, Hindu or Muslim (to name a few).

Yes, as I say, very easy to make empty claims, isn’t it?

Not counting your own claims (the first one implicit) that Christians would surely hit the roof if the shoe were on the other foot and that mine is an empty claim, of course.
Maybe one of us really is a hypocrite.

I wonder what you’d say in other circumstances, like perhaps if you were an orthodox Jew sending your kids to a nominally secular school.

Does it really matter?  You’d only count my response if it confirmed your implications that I’m a hypocrite.  Anything else and you’d just call it an “easy answer” and make the implication that I’m lying.  No? 

A more realistic experiment would be me using the types of argumentation you’ve used against me right back on you.  Where you don’t confirm my expectations of secular humanists I’ll just imply that you’re a liar.  It’ll be fun to see your reaction.

Bryan - 01 March 2008 11:42 AM

Quite.  And it’s important to note how that a particular religion being dominant establishes regional culture.  It should be appropriate for regional culture to be strongly reflected in the ceremonies of the region.  If that isn’t the case, then government by the people and for the people is questionable.  Instead, an overarching government foreign to the region has overruled local culture.

... yes, a “foreign” government set up by the people themselves to enshrine secular doctrines of fairness and the rule of law. It appears “foreign” only to those out for unfair advantage. The fact that they press this advantage from a position of overweening power simply makes their grab all the more grotesque.

Hmmm.  Another fallacy of equivocation, unless you’re really supposing that the judicial expansion of the 14th Amendment by an unelected judiciary expanding the law well beyond its plain English meaning means that the government restricting them from what their local government attempts to accomplish is a restriction that they created themselves.

And if the religious fail to realize that religion is a private matter, then the government will just have to force them to realize it.

In the name of freedom, of course. 

Hollow laughter. You do protest too much.

If only your argument could reasonably back up that empty claim (counting the implication via the phrase’s Shakespearean context).

As you well know, this sort of public proselytization goes on all the time. Only a handful of these sorts of cases are ever brought to the public’s attention or prosecuted, for the simple and obvious reason that doing so is dangerous to one’s health. Just look at the sort of antisemitic backlash that occurred when one family attempted to assert their constitutional rights. Still not sure whether and how much you were opposed to that backlash, BTW.

Just out of curiosity, which sort of Christian theocracy would you have the US institute? Baptist? Catholic?

For review, we’ve got

1) the specious the earlier the clause the more important the clause argument
2) equivocation on “respecting” as used in the Constitution
3) the ad hoc implied argument that the order of the clauses provides some type of protection not provided by the clauses in the reverse order
4) when Doug brings up the 14th Amendment that’s fine, but if I reply to his use of the 14th Amendment I’m digressing
5) Plessy v. Ferguson and many other cases apparently doesn’t count as jurisprudence if Doug needs to make a point
6) heads Doug wins, tails I lose on “easy claims” (with the insinuation of dishonesty on my part).
7) equivocation on “foreign”:  http://dictionary.reference.com/browse/foreign
8) implicit appeal to ridicule based on the equivocation noted at #7.
9) another unfounded insinuation of antisemitism.
10) The equally unfounded insinuation that I would favor a U.S. theocracy (no doubt traced to my naive notion that reversing the clauses in the First Amendment wouldn’t create a theocracy).

Great job so far, Doug.  Seriously, if you had a good argument relying on the law itself wouldn’t it be a good idea to stick with a strong presentation of that argument without all the cheesy window dressing?

As to the law, so far you’ve got the 14th Amendment plus your mistaken notion that jurisprudence on that amendment is consistent.  I hope you’ll take the opportunity to enhance your legal argument taking care to get the facts right next time.

Jackson - 01 March 2008 12:33 PM

Bryan - 01 March 2008 11:10 AM

At Samantha’s high school graduation in 2004, a minister’s prayer proclaiming Jesus as the only way to the truth nudged Mrs. Dobrich to ask the school board to consider more generic and less exclusionary prayers…

1) Is that supposed to be evidence of the government promoting a specific religion?
I remain mystified as to where you see support of a particular religious group in the facts of the story.

Yeah, if this was part of the full graduation ceremony with all students, school boad members, principal, parents, etc., this would give some people in the audience the impression that the school district supported a specific religion.

If the impression that a specific religion is supported is sufficient to demonstrate actual support then shouldn’t we raze all the churches in the United States in response to the impression of some here and abroad that the U.S. is a Christian nation because of all the steeples? 

I suppose “Jesus is the only way to truth” is a gentle way of saying that Jews are excluded....

No, no, no.  It means that he hates Jews.  Wants to kill them, gas them, and export the leftovers to Tehran or maybe make them slaves if they show a sufficient willingness to work.  Antisemitic.  Doug will explain it to you.

How would we feel if a member of the Catholic clergy spoke to the audience proclaiming that the Catholic faith was the only way to heaven, and that non-Catholics need to convert or risk eternal damnation?

I can’t speak for you, but I expect I would respectfully disagree.

What if our state were officially “Catholic” and the public schools looked a lot like parochial schools supported by property taxes?

You mean like England with its official church?  Well it would obviously be a theocracy.  Just look at England.  Can’t get more theocratic than that.

Bryan - 01 March 2008 03:49 PM

Jackson - 01 March 2008 12:33 PM

Yeah, if this was part of the full graduation ceremony with all students, school boad members, principal, parents, etc., this would give some people in the audience the impression that the school district supported a specific religion.

If the impression that a specific religion is supported is sufficient to demonstrate actual support then shouldn’t we raze all the churches in the United States in response to the impression of some here and abroad that the U.S. is a Christian nation because of all the steeples? 

No, we shouldn’t do that. 
Let’s stick with factual information on what school boards have to do to stay in compliance with US and state law.

http://www.counsel.nysed.gov/Decisions/volume31/d12679.htm
Bryan—here is decision where a school board was told that it couldn’t call the ‘holiday’ concert a “Christmas” concert.

Does this help with understanding, not with the reasoning behind the law, but the law itself.

Bryan - 01 March 2008 03:38 PM

Moreover, I think you’ve equivocated on the term “respecting” as used in the Constitution.  I think the far stronger argument is that it means “relating to” not “showing deferential regard for.” Your argument appears to suggest the latter.

No, it doesn’t. “Relating to” seems a fine construal of “respecting” in this context. As a matter of fact, one cannot show deferential regard for X without relating to X in some way.

Bryan - 01 March 2008 03:38 PM

Why wouldn’t the reverse order just as effectively avoid theocracy?  Again, your argument resembles nothing other than ad hoc reasoning.

One reads a document from beginning to end. One must deal with the first clauses before reaching the later ones.

At any rate, this is a red herring. In order to assert (as you did) that forbidding proselytization in any context violates the first amendment, you must assume the converse: that the latter clause takes precedence over the former. That is, you must assume that free exercise trumps the apparent establishment of religion by an agency of the government. So at the very least your own argument is just as ad hoc as you claim mine to be.

I should add that nobody has the unlimited right to proselytize. Proselytization is a public act involving people who might well find it an imposition on their own freedom to have to listen to that sort of stuff. It’s not the sort of thing that involves private belief or worship. As in Cantwell v. Connecticut: the Free Exercise Clause “embraces two concepts— freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.”

Bryan - 01 March 2008 03:38 PM

You, Doug, brought up the 14th Amendment so if you consider it a digression then feel free to criticize yourself.

The 14th amendment is not itself a digression. Claiming that somehow it doesn’t bind the states is a digression, since it is not a matter of any contemporary disagreement.

Bryan - 01 March 2008 03:38 PM

Start with Plessy v. Ferguson (1896).

Oh yes? Plessy is considered one of the most infamous judgments in US Supreme Court history. Or are you suggesting that the doctrine of Separate but Equal is also enshrined in the constitution? Really you’re digging yourself quite the hole here, Bryan.

Bryan - 01 March 2008 03:38 PM

You’d only count my response if it confirmed your implications that I’m a hypocrite.  Anything else and you’d just call it an “easy answer” and make the implication that I’m lying.  No? 

Even if you would happily have your children receive contrary religious indoctrination, many of your co-religionists would not. And I find it quite unlikely that you would as well: you seem quite happily belligerent about your own religious opinions. As a result, I don’t take your professions of meekness seriously. I expect you’d be the first to go to your lawyer and school board if the shoe were on the other foot.

... and BTW, I don’t take that as a bad thing, for obvious reasons. I simply don’t find your protestations to the contrary particularly credible.

As for your tendentious “review”, do remember that repeating a bunch of bad arguments doesn’t make them any better.

Jackson - 01 March 2008 04:05 PM

Bryan - 01 March 2008 03:49 PM

If the impression that a specific religion is supported is sufficient to demonstrate actual support then shouldn’t we raze all the churches in the United States in response to the impression of some here and abroad that the U.S. is a Christian nation because of all the steeples? 

No, we shouldn’t do that. 
Let’s stick with factual information on what school boards have to do to stay in compliance with US and state law.

Excellent suggestion.

http://www.counsel.nysed.gov/Decisions/volume31/d12679.htm
Bryan—here is decision where a school board was told that it couldn’t call the ‘holiday’ concert a “Christmas” concert.

Does this help with understanding, not with the reasoning behind the law, but the law itself.

Not really.  From the decision:
I note that my decision in this matter does not reach the question of whether naming a concert a “Christmas concert” is unconstitutional per se.

It is likely the judge followed the Lemon test in this decision.  Lemon has eroded considerably since 1992.

My guess is that the judge zeroed in on the justification for the law found within the law itself ("WHEREAS, the Community of Dunkirk is predominately Christian") while ignoring the latter portion ("also steeped in the tradition of Christmas holiday").*

I’ll tend to base my arguments on legislation such as the First Amendment rather than basing it on judicial precedent.  No doubt it will be suggested that I do so because I find little support in precedent.  I’ll reply that some precedent has little support in the law.

*perhaps Doug will think to use this case to buttress his suggestion the the ordering of clauses dependably establishes the order of their importance

Bryan - 01 March 2008 06:03 PM

http://www.counsel.nysed.gov/Decisions/volume31/d12679.htm
Bryan—here is decision where a school board was told that it couldn’t call the ‘holiday’ concert a “Christmas” concert.

Does this help with understanding, not with the reasoning behind the law, but the law itself.

Not really. 

This is the NY State Commissioner of Education, not a judge—

Maybe I should have said, do these examples which show what is allowed and what is not allowed help at least a little. Would more examples help, or is the crux of the discussion of this example that you don’t agree with the Commissioner of Education.  [he can remove the school board if it refuses to comply].

That is, you understand what is meant by separation of church & state, you agree with it in principle, but you don’t agree with some of these specific rulings.  Or maybe you don’t agree with the principle—I’m actually not sure....

dougsmith - 01 March 2008 04:27 PM

Bryan - 01 March 2008 03:38 PM

Moreover, I think you’ve equivocated on the term “respecting” as used in the Constitution.  I think the far stronger argument is that it means “relating to” not “showing deferential regard for.” Your argument appears to suggest the latter.

No, it doesn’t.

Your denial is implausible.  It places you in the position of explaining how you can mean “relating to” an establishment religion for the following sentence:

“The state cannot respect an establishment of religion”

The state cannot relate to an establishment of religion

I guess that means no articles of incorporation! 

The state cannot show deferential respect to an establishment of religion

At minimum, it’s difficult to make sense of what you wrote.  It seems more likely that you were trying to say that the state cannot “respect” religion in terms of showing deferential respect to a particular sect over others.  Though the root word is from the First Amendment it very likely means something different as you used it.

I’ll leave it to you to plausibly explain what you were trying to say.  Best of luck.

“Relating to” seems a fine construal of “respecting” in this context. As a matter of fact, one cannot show deferential regard for X without relating to X in some way.

Keep trying.

Bryan - 01 March 2008 03:38 PM

Why wouldn’t the reverse order just as effectively avoid theocracy?  Again, your argument resembles nothing other than ad hoc reasoning.

One reads a document from beginning to end. One must deal with the first clauses before reaching the later ones.

And therefore the later ones are of less importance?  Sounds like a perfect non sequitur, confusing temporal order with importance.
You’re blowing smoke instead of offering evidence.

At any rate, this is a red herring. In order to assert (as you did) that forbidding proselytization in any context violates the first amendment, you must assume the converse: that the latter clause takes precedence over the former.

No, I don’t need to make that assumption.  I can make the assumption that both clauses are equal and that one of them is being violated in misguided pursuit of the other.  Or I can make the assumption that the first clause takes precedence.  Either way, the right to freedom of speech and free exercise of religion is violated.  You simply turn around and say it’s OK to violate the one clause while trying to follow the other.  I remain eminently skeptical that you’ll find any support in the law for your approach as stated.  Surprise me.

That is, you must assume that free exercise trumps the apparent establishment of religion by an agency of the government. So at the very least your own argument is just as ad hoc as you claim mine to be.

Baloney, but not for lack of effort on your part.  You’re representing a statement I made as my argument.  Then you’re proceeding to make my argument for me and calling your argument on my behalf ad hoc.  Granted, the argument you produced for me does seem ad hoc in nature ... probably because you’ve had some practice.

I should add that nobody has the unlimited right to proselytize.

I don’t see why you should add that.  It’s common knowledge that the government can’t treat rights as absolute.

Proselytization is a public act involving people who might well find it an imposition on their own freedom to have to listen to that sort of stuff. It’s not the sort of thing that involves private belief or worship. As in Cantwell v. Connecticut: the Free Exercise Clause “embraces two concepts— freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.”

So apparently you’re saying that proselytizing that violates some particular right of others could be made against the law by statute.  So proselyting by murdering the convert would be illegal.  But wouldn’t that be a law against murder and not a law against proselytizing per se?

Bryan - 01 March 2008 03:38 PM

You, Doug, brought up the 14th Amendment so if you consider it a digression then feel free to criticize yourself.

The 14th amendment is not itself a digression. Claiming that somehow it doesn’t bind the states is a digression, since it is not a matter of any contemporary disagreement.

Heh.  Nice hedge.  We’ll see if you come clean on your misrepresentation of history regarding the 14th Amendment.

It’s true that your side has largely had its way with legal precedent over most of the last 10 decades.  But it’s not really consistent to regard legal precedent as higher than the law that supposedly spawned the legal interpretation.  In other words, if the court interprets the law one way today, it can change its interpretation tomorrow.  I’ll argue from the law, thanks.  Precedent is only really valuable where it accurately interprets the law--not where it ad libs on the law (not to say that legislating from the bench isn’t viewed as wonderful by those who benefit).

Bryan - 01 March 2008 03:38 PM

Start with Plessy v. Ferguson (1896).

Oh yes? Plessy is considered one of the most infamous judgments in US Supreme Court history. Or are you suggesting that the doctrine of Separate but Equal is also enshrined in the constitution? Really you’re digging yourself quite the hole here, Bryan.

Because I gave you another thin excuse to attempt to smear me?  lol

I just dug myself a hole by showing that you were utterly incorrect in your claim regarding the 14th Amendment.  At the same time, I implicitly show how precedent is only as good as the interpretation involved.  I don’t need to endorse the case to make use of those facts.  Apparently I can trust you to take the low road, though.  Three times already in this thread, counting conservatively.

Bryan - 01 March 2008 03:38 PM

You’d only count my response if it confirmed your implications that I’m a hypocrite.  Anything else and you’d just call it an “easy answer” and make the implication that I’m lying.  No? 

Even if you would happily have your children receive contrary religious indoctrination, many of your co-religionists would not. And I find it quite unlikely that you would as well: you seem quite happily belligerent about your own religious opinions.

What you seem to miss is that I deliberately seek out opinions that differ from my own.  It’s not because I’m offended by them.

I like how you traded proselytizing for indoctrination. 

As a result, I don’t take your professions of meekness seriously. I expect you’d be the first to go to your lawyer and school board if the shoe were on the other foot.

I don’t find your rationale plausible.  It seems like an ad hoc justification for stuffing me into your “Fundy” box.  Note your appeal to “many ... co-religionists.”

As for your tendentious “review”, do remember that repeating a bunch of bad arguments doesn’t make them any better.

Heh.  That’s easy to say, isn’t it?
I can make every one of them stick.  But of course you’ll start calling me long-winded and who knows what else.  Who’ll be taking the easy way out?

Jackson - 01 March 2008 06:50 PM

Maybe I should have said, do these examples which show what is allowed and what is not allowed help at least a little.

I don’t think I need a primer on church-state separation.

Would more examples help, or is the crux of the discussion of this example that you don’t agree with the Commissioner of Education.  [he can remove the school board if it refuses to comply].

His decision appears to indicate that he same action of the school board might have been OK using a different justification.

That is, you understand what is meant by separation of church & state, you agree with it in principle, but you don’t agree with some of these specific rulings.  Or maybe you don’t agree with the principle—I’m actually not sure....

I think that “church” as originally used in the Constitution was a narrower term the way people generally understand it today with respect to the First Amendment.  I suspect the popular legal view of the term makes the Constitution self-contradictory (the Constitution advocates an implicit creed that appears to qualify for the court’s contemporary understanding of “church").

Bryan - 01 March 2008 07:16 PM

Jackson - 01 March 2008 06:50 PM

Maybe I should have said, do these examples which show what is allowed and what is not allowed help at least a little.

I don’t think I need a primer on church-state separation.

Would more examples help, or is the crux of the discussion of this example that you don’t agree with the Commissioner of Education.  [he can remove the school board if it refuses to comply].

His decision appears to indicate that he same action of the school board might have been OK using a different justification.

That is, you understand what is meant by separation of church & state, you agree with it in principle, but you don’t agree with some of these specific rulings.  Or maybe you don’t agree with the principle—I’m actually not sure....

I think that “church” as originally used in the Constitution was a narrower term the way people generally understand it today with respect to the First Amendment.  I suspect the popular legal view of the term makes the Constitution self-contradictory (the Constitution advocates an implicit creed that appears to qualify for the court’s contemporary understanding of “church").

I didn’t follow your last paragraph the first time I read it.  I hadn’t heard this view before.  Do you have a reference where this is discussed in more detail. What is the implicit creed you are referring to…

Bryan - 01 March 2008 07:08 PM

It places you in the position of explaining how you can mean “relating to” an establishment religion for the following sentence:

“The state cannot respect an establishment of religion”

Where do you get that sentence from? The first amendment reads, “Congress shall make no law respecting an establishment of religion ...” The proper reading of this is “Congress shall make no law relating to an establishment of religion ...”, i.e., having anything to do with an establishment of religion. We know that “law” was to be interpreted broadly because Madison himself used the clause as his justification for the veto of a land grant to a Baptist church in 1811, as that “comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.’”

Bryan - 01 March 2008 07:08 PM

One reads a document from beginning to end. One must deal with the first clauses before reaching the later ones.

And therefore the later ones are of less importance?  Sounds like a perfect non sequitur, confusing temporal order with importance.

I’ll give you three examples. First, the Bill of Rights itself. Why do you think it starts with freedom of religion and not prohibition of excessive bail? Because freedom of religion is more important.

Secondly, in the first amendment, the rights have a particular order: no establishment of religion, free exercise of religion, free speech, free press, free assembly, petition government. See a pattern? Yes, these are all “rights” but they are ordered in importance. Leaving out the case we’re discussing at present, free speech comes before petitioning the government. It’s more important to be able to speak freely than to be able to petition the government, in case these come into conflict.

A third example, not from the US Constitution, but from perhaps the most famous law book known to the framers:  why do you think the Ten Commandments begins with the commandment to have no other gods before Yhwh, rather than that one shouldn’t covet thy neighbor’s ass? Because the commandment to exclusive worship was the most important commandment.

Generally speaking, with laws written at one time, earlier laws and clauses are more important than later ones. I wouldn’t necessarily claim that this is always true, but I would say it is usually true, and certainly truer than the converse: that later clauses or laws are more important. You are simply assuming that the later clause is more important, which as I say is both unreasonable, for the arguments I have just given, and itself ad hoc. Now, you also say:

Bryan - 01 March 2008 07:08 PM

I can make the assumption that both clauses are equal and that one of them is being violated in misguided pursuit of the other.  Or I can make the assumption that the first clause takes precedence.  Either way, the right to freedom of speech and free exercise of religion is violated.  You simply turn around and say it’s OK to violate the one clause while trying to follow the other.

Sometimes in the law one must violate one clause to enforce another. That’s precisely what’s happening in the interesting cases we’ve been discussing. I certainly agree they’re difficult cases: the Constitution is not a perfect document, and it was written with language which was intentionally vague and in need of later clarification and interpretation.

dougsmith - 02 March 2008 09:05 AM

Bryan - 01 March 2008 07:08 PM

It places you in the position of explaining how you can mean “relating to” an establishment religion for the following sentence:

“The state cannot respect an establishment of religion”

Where do you get that sentence from?

From you, Doug.

Yes, it is. The state cannot respect an establishment of religion. That is the most important clause, so it comes first. And then the second clause is that the state cannot prohibit the free exercise of religion.
http://www.centerforinquiry.net/forums/viewreply/34201/

The first amendment reads, “Congress shall make no law respecting an establishment of religion ...” The proper reading of this is “Congress shall make no law relating to an establishment of religion ...”, i.e., having anything to do with an establishment of religion.

I agree--but it’s hard to derive that understanding from what you wrote in the section I quoted.  But I’m still willing to hear your explanation.

We know that this was to be interpreted broadly because Madison himself used it as his justification for the veto of a land grant to a Baptist church in 1811, as that “comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.’”

Madison doesn’t veto the bill if it doesn’t come from Congress.  I restrict it according to the level of government, not with respect to the notion that the specific denominations should not receive federal funding.  Madison certainly had no conception at that time that the scope of the federal government would expand as it has.  A federal department of education like we have today would certainly put his jaw on the floor, along with the corresponding encroachment on the power of state and local governments.

Bryan - 01 March 2008 07:08 PM

One reads a document from beginning to end. One must deal with the first clauses before reaching the later ones.

And therefore the later ones are of less importance?  Sounds like a perfect non sequitur, confusing temporal order with importance.

I’ll give you three examples. First, the Bill of Rights itself. Why do you think it starts with freedom of religion and not prohibition of excessive bail? Because freedom of speech is more important.

Doesn’t the argument via specific examples beg the question unless you provide something beyond the happenstance that people regard one as more important than the other?  Do you also think Article III more important than Article IV?  Article III takes precedence over Article VI?
http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=144

Secondly, in the first amendment, the rights have a particular order: no establishment of religion, free exercise of religion, free speech, free press, free assembly, petition government. See a pattern? Yes, these are all “rights” but they are ordered in importance. Leaving out the case we’re discussing at present, free speech comes before petitioning the government. It’s more important to be able to speak freely than to be able to petition the government, in case these come into conflict.

Huh?  Why is it more important to be able to speak freely than to be able to petition the government?  Where does this come from other than off the top of your head?  Why do you judge free assembly less important than the freedom of the press?

A third example, not from the US Constitution, but from perhaps the most famous law book known to the framers:  why do you think the Ten Commandments begins with the commandment to have no other gods before Yhwh, rather than that one shouldn’t covet thy neighbor’s ass? Because the commandment to exclusive worship was the most important commandment.

And in like manner, it is much more important not to make a graven image than it is to commit murder.  And specific to graven images, it is worse to make a graven image of something in the heaven above rather than in the earth beneath (and so on).

I think you’re making a fool of yourself with this argument, Doug.  Examples work just as well with happenstance as they do with principle (until statistical probability enters into it in a clearly relevant way).  Your argument is extraordinarily weak.

Generally speaking, with laws written at one time, earlier laws and clauses are more important than later ones. I wouldn’t necessarily claim that this is always true, but I would say it is usually true, and certainly truer than the converse: that later clauses or laws are more important. You are simply assuming that the later clause is more important, which as I say is both unreasonable, for the arguments I have just given, and itself ad hoc.

Usually true isn’t strong enough to make your argument better than pathetically weak.  And I don’t assume that the later clause is more important.  I simply question your assertion that the former clause is more important.  The rationale you have provided in support thus far is pathetic.  Put it in a deductive syllogism and you’ll see that you’re committing the fallacy of begging the question (unless you’re just basing an inductive argument on three examples, which is also a fallacy).

Now, you also say:

Bryan - 01 March 2008 07:08 PM

I can make the assumption that both clauses are equal and that one of them is being violated in misguided pursuit of the other.  Or I can make the assumption that the first clause takes precedence.  Either way, the right to freedom of speech and free exercise of religion is violated.  You simply turn around and say it’s OK to violate the one clause while trying to follow the other.

Sometimes in the law one must violate one clause to enforce another. That’s precisely what’s happening in the interesting cases we’ve been discussing. I certainly agree they’re difficult cases: the Constitution is not a perfect document, and it was written with language which was intentionally vague and in need of later clarification and interpretation.

That was a reasonable response.  Thank you.  That’s more like the good posts I see from you (and which make up the bulk of your work from what I can tell).

Jackson - 01 March 2008 09:17 PM

I didn’t follow your last paragraph the first time I read it.  I hadn’t heard this view before.  Do you have a reference where this is discussed in more detail. What is the implicit creed you are referring to…

Noah Feldman touches on it in this lecture/discussion:
http://pewforum.org/events/?EventID=92

I linked it partially because it deals with some of the other issues discussed in this thread as well.

This one gets a bit closer to what I’m saying:

Spicer reviews various attempts to rescue public administration from its crisis of legitimacy by seeking to ground public administration in constitutional principles. He finds such attempts to be laudable but misleading. They are laudable because, like his own work, they provide a standard against which to assess the proper role of the administrative function within our system of democratic governance. However, they are misleading because they misread the constitution by focusing on “the intent of the framers” rather than the “worldview of the framers”. The purpose of Spicer’s book is to show how the worldview of the Founders of the American constitution is divergent from existing literature in public administration, thus enabling us to modify our vision of public administration “so as to render it more compatible with the worldview of the Founders (p. 10).”

In Chapter 2 Spicer sets the stage for his comparison of the bureaucratic and constitutional worldviews by outlining and illustrating the differences between the rational worldview represented by the writings of Rousseau, Hegel, Condorcet, Comte, Mill and Dewey and the anti-rational worldview represented by the writings of Locke, Hume, Ferguson, Smith, and Burke. In Chapter 3 Spicer uses this distinction between the rational and anti-rational wordviews to contrast the administrative and constitutional worldviews. He cites various writers from both the founding of the Constitution and public administration to show that the Constitution rests on a anti-rational set of assumptions in contrast to the rational assumptions of public administration.
http://www.eli.pdx.edu/erc/morgan/bureaucracy.html

Bryan - 02 March 2008 09:49 AM

From you, Doug.

OK, but I was paraphrasing. When you put it in quotes it wasn’t clear who you were quoting.

Bryan - 02 March 2008 09:49 AM

I restrict it according to the level of government, not with respect to the notion that the specific denominations should not receive federal funding.  Madison certainly had no conception at that time that the scope of the federal government would expand as it has.  A federal department of education like we have today would certainly put his jaw on the floor, along with the corresponding encroachment on the power of state and local governments.

I don’t know what you mean by this. Are you still pretending that the 14th amendment doesn’t exist? Once again, it is well established law that the first amendment is binding on the states through Due Process. If your argument turns on rejection of this interpretation of the 14th amendment, it sounds like you are arguing for a return to pre-Civil War america. At any rate you are not arguing anything that is seriously believed by any of the participants in present legal discussions of the first amendment. You’re just out on your own.

Bryan - 02 March 2008 09:49 AM

And I don’t assume that the later clause is more important.  I simply question your assertion that the former clause is more important.  The rationale you have provided in support thus far is pathetic.