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McCain: America a “Christian Nation” (Merged)
Posted: 31 October 2007 07:55 AM   [ Ignore ]   [ # 46 ]
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Dude, don’t be tacky.

Sorry, Spanky.  I apologize.  :grin:

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“If there is no sufficient reason for war, the war party will make war on one pretext, then invent another… after the war is on.” - “Fighting Bob” La Follette

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Posted: 31 October 2007 07:56 AM   [ Ignore ]   [ # 47 ]
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FredFlash - 30 October 2007 08:48 PM

At this point the Court should have substituted Madison’s definition of religion for the word “religion” in the First Amendment and arrived at the following construction:

“Congress shall make no law respecting an establishment of a duty which we owe to our Creator, or prohibiting the free exercise of a duty which we owe to our Creator.”

At his point, the Court would have faced the problem of determining whether a Mormon’s duty to take more than one wife was an exercise of a “duty owed to the Creator.”  The Court, in my view at least, should have reasoned that it was not, because taking more than one wife involves more than a man and his God.  It involves a Man, his God, his first wife and his second wife. 

(A duty to God is one that is owed only to God only and has no effect on other men.  A duty that involves other men is what Jefferson termed a “social duty.”)

Madison’s definition of religion is incorrect. There are non-theistic religions, such as certain varieties of Buddhism and Taoism. There are animist and polytheistic religions without a clear sense of a (or a single) “creator”. The notion that religion equals monotheism is largely a construction of Judaism, then adopted by Christianity and Islam.

There is also the real question for many of us on this forum as to whether one can have duties to fictional entities at all. I would suggest that one cannot.

As for the stuff on “common law rules”, your links don’t work for me. At any rate, you will have to explain how this is relevant to the discussions at issue. Rules of construction are themselves vague and open to interpretation. If one is expecting to nail down interpretation of the Constitution by means of some prior base of rules, I’d say that’s a vain hope.

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Posted: 31 October 2007 07:57 AM   [ Ignore ]   [ # 48 ]
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mckenzievmd - 30 October 2007 08:05 PM

The notion that the interpretation of the Constitution should be guided primarily by what the writers intended seems a ridiculous attempt to avoid hard decisions and retreat into a mythical Golden Age when America was a good, white, Christian nation. The reality of our times change and so, cautiously and slowly, should our laws and practices. This doesn’t just mean re-writing the Constitution but re-interpreting it in reasonable ways even though these may differ from the founders’ own values. Doug is right to point out that the reliance on the authority of the founders for the notion that we live in an intentionally Christian nation is mistaken, but ultimately I don’t think what the founders’ believed is the most improtant guide to how we implement the principles of the Constitution. It is not an infallible holy text and should not be treated as such. Respected, yes, but understood as a scaffold on which a facade, which is changed and updated as necessary, is built.

It strikes me as an obvious illustration of the hypocrisy and ulterior motives of the constructionists, those who claim to view the Constitution as a sacred document that should mean what the founders’ intended it to mean, that the same people tend to support amending the document to protect the flag or heterosexual marriage. And they are the same people who refuse to acknowledge the obvious meaning of the language of the 2nd amendment (the provision for a state-regulated militia) and engage in interpretive contortions to support their oppositioon to regulation of guns. They are simply interested in implementing their world view however possible, and theysupport preserving the document or altering it as suits their agenda.

Agreed, Brennen.

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Posted: 31 October 2007 09:43 AM   [ Ignore ]   [ # 49 ]
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dougsmith - 31 October 2007 07:56 AM
FredFlash - 30 October 2007 08:48 PM

At this point the Court should have substituted Madison’s definition of religion for the word “religion” in the First Amendment and arrived at the following construction:

“Congress shall make no law respecting an establishment of a duty which we owe to our Creator, or prohibiting the free exercise of a duty which we owe to our Creator.”

At his point, the Court would have faced the problem of determining whether a Mormon’s duty to take more than one wife was an exercise of a “duty owed to the Creator.”  The Court, in my view at least, should have reasoned that it was not, because taking more than one wife involves more than a man and his God.  It involves a Man, his God, his first wife and his second wife. 

(A duty to God is one that is owed only to God only and has no effect on other men.  A duty that involves other men is what Jefferson termed a “social duty.”)

Madison’s definition of religion is incorrect.

Words are merely symbolic representations of intellectual ideas.  Madison, in his M and R, used the symbol “religion” to signify the idea of “the duty we owe the Creator.”  You may attach another meaning to the word, but that doesn’t make his idea “wrong.”

There are non-theistic religions, such as certain varieties of Buddhism and Taoism. There are animist and polytheistic religions without a clear sense of a (or a single) “creator”.

You got a point there.  Fortunately, the free exercise of Buddhism and Taoism by, in America, has not come into conflict with our civil laws.  I have no idea what Buddhist and Taoists believe regarding the establishment of religion by civil authority.

The notion that religion equals monotheism is largely a construction of Judaism, then adopted by Christianity and Islam. 

James Madison wrestled with the issue of religious liberty in a society that was 99%, if not 100% monotheistic.  He didn’t have to deal with the problem of animist and polytheistic religions without a clear sense of a creator.

There is also the real question for many of us on this forum as to whether one can have duties to fictional entities at all. I would suggest that one cannot.

Each person, not the civil authorities, decides what his duties, or non duties, to God are.

As for the stuff on “common law rules”, your links don’t work for me.

Darn it.

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Posted: 31 October 2007 10:20 AM   [ Ignore ]   [ # 50 ]
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dougsmith - 31 October 2007 07:56 AM

As for the stuff on “common law rules”, your links don’t work for me. At any rate, you will have to explain how this is relevant to the discussions at issue. Rules of construction are themselves vague and open to interpretation.

What’s vague about Blackstone’s fundamental principle that, “the first and fundamental rule in the interpretation of all legal instruments is, to construe them according to the sense of the terms, and the intention of the parties?”

What is vague about Mr. Justice Blackstone’s remarked, that “the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law.”  What is vague about Blackstone justification of the remark by stating, “that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject-matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes, which led to its enactment, are often the best exponents of the words, and limit their application?”

If one is expecting to nail down interpretation of the Constitution by means of some prior base of rules, I’d say that’s a vain hope.

What do you suggest we use instead of the rules of construction the founders, who sat on the first U. S. Supreme Court, used to ascertain the meaning of the Constitution?  See “Chisholm v. Georgia” (1793) - the first case that required the Court to construe a provision of the Constitution - (search “rules” and “construction” to find references to the rules of construction)  I will post excerpts from the opinion later.

There are also numerous references to rules of construction, or rules of interpretation, in the Federalist and Anti-Federalist Papers, the records of the State Ratifying Conventions, the debates in Congress, during the 1790’s, regarding whether the Constitution gave the government power to establish a national bank. 

The actual rules are found in the works of English authorities including Blackstone, Rutherforth, Coke and Middleton.  Early American legal authorities Saint George Tucker and Joseph Story discussed the rules of interpretation in their works on the Constitution.

Here is a link to the chapter, in Story’s Commentaries, on the rules of interpretation. http://www.constitution.org/js/js_305.htm

[ Edited: 31 October 2007 10:41 AM by FredFlash ]
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Posted: 31 October 2007 10:22 AM   [ Ignore ]   [ # 51 ]
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PaineMan - 31 October 2007 07:55 AM

Dude, don’t be tacky.

Sorry, Spanky.  I apologize.  :grin:

Feel the love, dude.

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Posted: 31 October 2007 11:05 AM   [ Ignore ]   [ # 52 ]
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FredFlash - 31 October 2007 10:20 AM

What’s vague about ...

Well, what you’ve quoted seems admirably sensible advice. But my question is how this pertains to the present debate. I’d raised ways in which we could use Jefferson and Madison’s interpretation of the Constitution to interpret the establishment clause of the First Amendment. This is an example of “constru[ing] them according to the sense of the terms, and the intention of the parties”, as per Blackstone.

However one must say that “construing things according to the sense of the terms, and the intention of the parties” and the rest of Blackstone’s advice is, in fact hopelessly vague. Any two people looking at the same evidence are likely to come up with at least slightly different interpretations as to what the “senses of the terms” are or the “intentions of the parties”. And the same holds for all the rest of what you quoted.

Different Supreme Court Justices, familiar with this sort of advice as anyone, have come up repeatedly with radically different interpretations of just these very things.

But that said, we do the best we can. There’s no other way to approach these documents than by doing complex and reasoned interpretations. And for Justices, one mustn’t forget that judicial precedent is also key.

Re. Madison’s view of the word “religion”:  it is clearly wrong, based on his own ignorance of large swaths of religious practice. One shouldn’t necessarily hold him responsible for that ignorance—I doubt many westerners at all knew about non-theistic religions of Asia during his day. But now we do. So any notion of religion cannot include an essential reference to a “creator” or “God”. Most contemporary definitions, however, do include reference to the supernatural. If a purported belief system does not include any supernatural elements, arguably it is a philosophy rather than a religion. But supernatural elements do include souls, the afterlife, et cetera. Buddhists may not believe in a creator God, but they do believe in karma and reincarnation, which are essentially supernatural.

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Posted: 31 October 2007 11:31 AM   [ Ignore ]   [ # 53 ]
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FredFlash - 31 October 2007 09:43 AM

James Madison wrestled with the issue of religious liberty in a society that was 99%, if not 100% monotheistic.  He didn’t have to deal with the problem of animist and polytheistic religions without a clear sense of a creator.

It is quite inconsistent to refer to these beliefs as a “problem” while expecting your beliefs to be regarded as worthy of special legal provision.

FredFlash - 31 October 2007 09:43 AM

Each person, not the civil authorities, decides what his duties, or non duties, to God are.

There is much dogma in this statement.  The whole point is that there are many Americans that don’t believe there to be a god.  By your wording, you are insisting that there is a god to which a person may or may not feel duties.  There are other people in America who matter and are of a contradictory persuasion.  Your words suggest to me a certain tone of intolerance as being built into your belief system.

And isn’t that what all of the rhetoric behind your historical arguments is really about?  You demonstrate a wish to force god belief on nonbelievers and you wish to use the government as a tool to accomplish this.  You are asserting an involvement of givernment with religion whether you choose to define it as such or not.

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Posted: 31 October 2007 02:04 PM   [ Ignore ]   [ # 54 ]
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dougsmith - 31 October 2007 11:05 AM

Well, what you’ve quoted seems admirably sensible advice.

I’m glad you think so.  Saint George Tucker and Joseph Story, the legal authorities of the early republic, advocated their use.  The first five Justices of the U. S. Supreme Court liked them so much they actually used them to determine the meaning of the Constitution.

...my question is how this pertains to the present debate.

The issue on the table is the meaning of the First Amendment’s religion clauses.  Right? 

I’d raised ways in which we could use Jefferson and Madison’s interpretation of the Constitution to interpret the establishment clause of the First Amendment.

Why should Jefferson and Madison be authorities on the meaning of the religion clauses, other than because their views square with your personal beliefs.  Why shouldn’t John Adams, Oliver Elsworth and William Paterson be the authorities?

This is an example of “constru[ing] them according to the sense of the terms, and the intention of the parties”, as per Blackstone.

Huh?  Are you saying that Madison and Jefferson applied Blackstone’s rules to the words of the First Amendment?

However one must say that “construing things according to the sense of the terms, and the intention of the parties” and the rest of Blackstone’s advice is, in fact hopelessly vague.

So, why do you suppose the first Supreme Court used them?  Perhaps they seem useless to you because you have no formal training in the law?

Re. Madison’s view of the word “religion”:  it is clearly wrong

Sorry, dude.  You’ve already anointed Madison as the authority.  Therefore, he can’t possibly be wrong.

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Posted: 31 October 2007 02:26 PM   [ Ignore ]   [ # 55 ]
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dougsmith - 31 October 2007 11:05 AM

Any two people looking at the same evidence are likely to come up with at least slightly different interpretations as to what the “senses of the terms” are or the “intentions of the parties”. 

Give me an example.

Here is Joe Story’s interpretation of the religion clauses:  “...it is declared, that “congress shall make no law respecting an establishment of religion,” which seems to prohibit any laws, which shall recognise, found, confirm, or patronize any particular religion, or form of religion, whether permanent or temporary, whether already existing, or to arise in future. In this clause, establishment seems equivalent in meaning to settlement, recognition, or support. “

Show me an interpretation by someone else, using Blackstone’s rules, that you believe is different.

Different Supreme Court Justices, familiar with this sort of advice

I wouldn’t assume that today’s Supreme Court Justices are familiar with Blackstone’s rules, dude.

But that said, we do the best we can. There’s no other way to approach these documents than by doing complex and reasoned interpretations.

Your proposed fundamental principle which calls for the use “complex reasoning” to discern the will of the lawmakers and the time the law was made, is much more ambiguous than Blackstone’s tried and true rules of construction.  Unless, you expound some more detailed rules.

And for Justices, one mustn’t forget that judicial precedent is also key.

Supreme Court Justices aren’t bound by judicial precedent. 

A judicial opinion that established a precedent has to be interpreted, just like the original statue did, with Blackstone’s rules.

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Posted: 31 October 2007 02:49 PM   [ Ignore ]   [ # 56 ]
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Lots of silly stuff there, dude. Please point out to me where I said that Madison couldn’t be wrong. If I take your authority about what you meant when you wrote up a shopping list, do I then imply that you are infallible? No.

Do I then imply that nobody else can be right about what’s on the list? Obviously not. To say otherwise would be to engage in a straw man argument of the worst sort.

Jefferson and Madison were arguably the two most influential thinkers of the great American founding documents—the Declaration of Independence and the Constitution. As such I take their opinions as more weighty than the opinions of less influential people of the time. Adams was also a great figure, and AFAIK largely agreed with them about the constitutional separation of church and state.

But they were all homo sapiens, and as such not actually infallible.

And Supreme Court Justices do view themselves as largely bound by judicial precedent, or stare decisis. For an introduction to this, see HERE for example:

Judge Roberts embraced the traditional doctrine of “stare decisis” - or, “let the decision stand” - and seemed to agree that judges should be reluctant to overturn cases that had been repeatedly reaffirmed.

As for Blackstone’s rules, I was assuming you were taking them as a sensible starting place for interpretation. Now I see they were a meaningless diversion, dude. Let’s not waste more time down that blind alley.

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Posted: 31 October 2007 02:57 PM   [ Ignore ]   [ # 57 ]
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Doug - But my question is how this pertains to the present debate.

Freddy says- The issue on the table is the meaning of the First Amendment’s religion clauses.  Right?

Actually, no.  The issue on the table is: McCain said “I would probably have to say yes, that the Constitution established the United States of America as a Christian nation.”

The comment - “Separation of Church and State is a myth.  It is found no where in the Constitution.”  sent this thread off into another direction.

To get back to the issue “on the table”, we should be addressing where in the Constitution McCain reads that a Christian Nation is established.  Doug mentioned a few examples in the Constitution related to religion, one of which was the First Amendment, but the specific question is “Does the Constitution establish the US as a Christian nation?”  I don’t think you’ll find that in the First Amendment, no matter whose interpretation method you use.  Nor will you find it elsewhere in the Constitution.

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Posted: 31 October 2007 03:10 PM   [ Ignore ]   [ # 58 ]
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erasmusinfinity - 31 October 2007 11:31 AM
FredFlash - 31 October 2007 09:43 AM

James Madison wrestled with the issue of religious liberty in a society that was 99%, if not 100% monotheistic.  He didn’t have to deal with the problem of animist and polytheistic religions without a clear sense of a creator.

It is quite inconsistent to refer to these beliefs as a “problem.”

I was referring to the problem of securing the rights of conscience from government influence.

while expecting your beliefs to be regarded as worthy of special legal provision.

Huh?  I don’t expect special treatment for my religious beliefs, dude.

FredFlash - 31 October 2007 09:43 AM

Each person, not the civil authorities, decides what his duties, or non duties, to God are.

There is much dogma in this statement. 

Well, you got me there, dude.  But, so what?  The religious beliefs of the majority are going to be reflected in that society’s policy regarding the relationship of religion to civil government.  Fortunately, the majority of Americans, at the time of the founding, subscribed to the creed of a religion that advocated no civil authority over purely sacred things or “Soul Liberty.”

The whole point is that there are many Americans that don’t believe there to be a god.  By your wording, you are insisting that there is a god to which a person may or may not feel duties. 

True.  However, my theory, which I stole from James Madison, also says that a man’s duties to his Creator are determined by each man’s conscience and conviction.  If you don’t have a God, then you have no duties to him, and the government is going to respect your decision.

There are other people in America who matter and are of a contradictory persuasion.  Your words suggest to me a certain tone of intolerance as being built into your belief system.

OK, dude.  You formulate and expound a theory of religious liberty that is better than Madison’s.

And isn’t that what all of the rhetoric behind your historical arguments is really about?  You demonstrate a wish to force god belief on nonbelievers and you wish to use the government as a tool to accomplish this.

Dude, my view of religious liberty prohibits the government from even trying to influnce the people’s religion(s) with reason and persuasion.

You are asserting an involvement of government with religion whether you choose to define it as such or not.

The essence of religious liberty, in my view, is no human authority over the duty we owe to our Creator, dude.  What is yours?

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Posted: 31 October 2007 03:38 PM   [ Ignore ]   [ # 59 ]
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dougsmith - 31 October 2007 02:49 PM

Jefferson and Madison were arguably the two most influential thinkers of the great American founding documents—the Declaration of Independence and the Constitution. As such I take their opinions as more weighty than the opinions of less influential people of the time. Adams was also a great figure, and AFAIK largely agreed with them about the constitutional separation of church and state.

Show me any evidence you have the lawmakers who gave us the Constitution ever indicated that the instrument was to be construed according to the views of most influential thinkers of the day.  That sure as hell ain’t what the first five Supreme Court justices did, and four of the five participated, officially, in its writhing or ratification. 

Here is a reference in Chisholm v. Georgia, by John Jay, to the “rules for construction.”

The question now before us renders it necessary to pay particular attention to that part of the second section, which extends the judicial power ‘to controversies between a state and citizens of another state.’ It is contended, that this ought to be construed to reach none of these controversies, excepting those in which a State may be Plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense.

http://supreme.justia.com/us/2/419/case.html

Here is another reference in Chisholm to “rules of interpretation.”

I have now, I think, established the following particulars. 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the Legislature appointing Courts, and prescribing their methods of proceeding. 2nd. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3rd. That there are no principles of the old law, to which, we must have recourse, that in any manner authorise the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is, that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with.

From the manner in which I have viewed this subject, so different from that in which it has been contemplated by the Attorney General, it is evident, that I have not had occasion to notice many arguments offered by the Attorney General, which certainly were very proper, as to his extended view of the case, but do not affect mine. No part of the Law of Nations can apply to this case, as I apprehend, but that part which is termed ‘The Conventional Law of Nations;’ nor can this any otherwise apply than as furnishing rules of interpretation, since unquestionably the people of the United States had a right to form what kind of union, and upon what terms they pleased, without reference to any former examples. If upon a fair construction of the Constitution of the United States, the power contended for really exists, it undoubtedly may be exercised, though it be a power of the first impression. If it does not exist, upon that authority, ten thousand examples of similar powers would not warrant its assumption. So far as this great question affects the Constitution itself, if the present afforded, consistently with the particular grounds of my opinion, a proper occasion for a decision upon it, I would not shrink from its discussion. But it is of extreme moment that no Judge should rashly commit himself upon important questions, which it is unnecessary for him to decide. My opinion being, that even if the Constitution would admit of the exercise of such a power, a new law is necessary for the purpose, since no part of the existing law applies, this alone is sufficient to justify my determination in the present case. So much, however, has been said on the Constitution, that it may not be improper to intimate that my present opinion is strongly against any construction of it, which will admit, under any circumstances, a compulsive suit against a State for the recovery of money. think every word in the Constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication (neither of which I consider, can be found in this case) would authorise the deduction of so high a power. This opinion I hold, however, with all the reserve proper for one, which, according to my sentiments in this case, may be deemed in some measure extra-judicial. With regard to the policy of maintaining such suits, that is not for this Court to consider, unless the point in all other respects was very doubtful. Policy might then be argued from with a view to preponderate the judgment. Upon the question before us, I have no doubt. I have therefore nothing to do with the policy. But I confess, if I was at liberty to speak on that subject, my opinion on the policy of the case would also differ from that of the Attorney General. It is, however, a delicate topic. I pray to God, that if the Attorney General’s doctrine, as to the law, be established by the judgment of this Court, all the good he predicts from it may take place, and none of the evils with which, I have the concern to say, it appears to me to be pregnant. 

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Posted: 31 October 2007 03:44 PM   [ Ignore ]   [ # 60 ]
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Spanky said:
OK, dude.  You formulate and expound a theory of religious liberty that is better than Madison’s.

It no longer really matters exactly was going on inside the heads of the so-called Founding Fathers.

What DOES matter is that in this day and age, we have matured as a people to the extent that, unlike colonial times, we realize that all people start out with a right to be treated equally under the law, regardless of race, color, creed or national origin.  We know that many of the Founding Fathers did not fully believe this, but they’re dead and gone and therefore not pertinent to the discussion.

And then Spanky said:
The essence of religious liberty, in my view, is no human authority over the duty we owe to our Creator, dude.  What is yours?

The essence of religious liberty, in my view, is no human authority over what I think.  If I feel compelled to perform some sort of “duty”, it cannot infringe upon the rights of nor can it impose my beliefs on others.

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