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Context of '1782-1786: Jefferson, Madison Establish Principle of Separation of Church and State'

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James Madison and Thomas Jefferson.James Madison and Thomas Jefferson. [Source: ecollision (.com)]Virginia Governor Thomas Jefferson, the author of the Declaration of Independence and one of the creators of the as-yet-unwritten US Constitution, writes in his book Notes on the State of Virginia: “[I]t does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” The passage follows Jefferson’s introduction of a bill in the Virginia legislature that guarantees legal equality for citizens of all religions, or no religion, in the state. The bill stalls until 1784, when Virginia legislator Patrick Henry introduces a bill mandating state support for “teachers of the Christian religion.” Fellow legislator James Madison, another author of the Constitution, presents an essay titled “Memorial and Remonstrance Against Religious Assessments” that explains why the state has no business supporting Christian instruction. Madison garners some 2,000 signatures of support, and his essay becomes a linchpin of American political philosophy, endorsing the concept of a strictly secular state that later gives the Constitution the concept of “the separation of church and state.” In the essay, Madison declares “the Religion then of every man must be left to the conviction and conscience of every… man to exercise it as these may dictate. This right is in its nature an inalienable right.” He also writes that government sanction of a religion is in essence a threat to the idea of religion: “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” Madison, a Baptist mindful of the persecution of Baptist ministers being arrested in Virginia, notes that Christianity had spread in the face of persecution from worldly powers, not with their help. Christianity, he contends, “disavows a dependence on the powers of this world… for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them.” Henry’s proposal directly challenges the idea of America as a refuge for the protester or rebel, he writes; instead, it is “a departure from that generous policy, which offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country.” Henry’s bill is roundly defeated, and Virginia establishes a law following Jefferson’s lead in mandating the separation between church and governmental affairs. After that law passes, Jefferson writes that the law “meant to comprehend, within the mantle of its protection, the Jew, the Gentile, the Christian and the Mahometan [Muslim], the Hindoo and Infidel of every denomination.” The same mandate becomes part of Article VI of the US Constitution, which states that federal elective and appointed officials “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.” In 2010, scholar Kenneth C. Davis will write, “This passage—along with the facts that the Constitution does not mention God or a deity (except for a pro forma ‘year of our Lord’ date) and that its very first amendment forbids Congress from making laws that would infringe of the free exercise of religion—attests to the founders’ resolve that America be a secular republic.” Towards the end of his life, Madison will write a letter summarizing his views: “And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.” [Thomas Jefferson, 1782; James Madison, 1784; Smithsonian Magazine, 10/2010]

Entity Tags: Patrick Henry, Kenneth C. Davis, Thomas Jefferson, James Madison

Timeline Tags: Civil Liberties, Domestic Propaganda

Disbarred lawyer and convicted Watergate figure Charles Colson (see June 1974), now the head of the Christian Prison Fellowship ministry, writes that “the Constitution does not give the Supreme Court final say on constitutional questions.” Colson, a traditional social conservative, makes this startling claim in an op-ed about the recent Boerne v. Flores decision of the Court, in which the Court struck down the Religious Freedom Restoration Act (RFRA) as an unconstitutional encroachment on the fundamental concept of the separation of church and state. Colson writes that the decision has “precipitat[ed] what may be the greatest constitutional crisis of our age.” Colson, a supporter of the RFRA, says the striking down of the act makes “religious liberties… once again vulnerable.” The overarching question Colson raises is whether the Supreme Court is the final judicial arbiter of the Constitution. Colson gives a blunt answer: “Contrary to what most Americans think, the Constitution does not give the Supreme Court final say on constitutional questions. And the Founders resisted the idea.” Colson cites the landmark 1803 case of Marbury v. Madison, in which the Court, he says, took up the power of judicial review, then gives three examples of presidents defying Court orders. However, fellow convicted Watergate figure John Dean, a former White House counsel, refutes Colson’s arguments. In 2006, Dean will write that “Colson, like [televangelist Pat] Robertson and others on the religious right, is seeking, in effect, to nullify Supreme Court decisions of which he does not approve.” Dean will note that although Colson has long since lost his license to practice law, he is considered a scholar of some importance by his conservative contemporaries, and therefore has some influence.
'Marbury' and Judicial Review - Dean notes that Colson’s interpretation of the bedrock Marbury case is wrong. Judicial review by federal courts of Congressional legislation was a long-established principle by the time the Court issued its ruling. Even before the Constitutional Conventions, state courts had routinely overturned state legislative acts. The assumption of most during the debates over the contents of the Constitution was that federal courts, and most specifically the Supreme Court, would have similar power over federal legislation.
Thomas Jefferson and the Alien Imposition Act - Colson writes that “Thomas Jefferson refused to execute the Alien Imposition Act.” Colson is wrong: there was never such an act. Dean writes, “If Colson is referring to the infamous Alien and Sedition Act of 1798, it had nothing to do with a court order, and the example is therefore very misleading.” Jefferson’s predecessor, John Adams, enforced the law, which Jefferson considered unconstitutional. Jefferson pardoned those convicted of sedition under the statute when he gained the presidency. He never “refused to execute” it because it expired the day before he was inaugurated, March 4, 1801.
Andrew Jackson and the Bank of the United States - Colson writes that Andrew Jackson “spurned a Court order in a banking case.” Again, as Dean notes, the citation is misleading. Dean believes Colson is referring to Jackson’s 1832 veto of a bill to recharter the Bank of the United States. The Court had not issued an opinion on the rechartering of a federal bank, so Jackson did not defy a Court order.
Abraham Lincoln and the 'Dred Scott' Decision - Colson concludes his historical argument by saying that Abraham Lincoln “rejected the Dred Scott decision. Lincoln even asked Congress to overrule the Court—which it did, passing a law that reversed Dred Scott (1862).” Dean calls Colson’s argument “a stunning summation, not to mention distortion, of history.” The infamous 1857 Dred Scott v. Sanford decision found that slaves were neither citizens nor persons under the Constitution, that Congress could not prohibit slavery in the territories, and that the Declaration of Independence’s statement that “all men are created equal” applied only to white men. Lincoln argued passionately against the decision during his 1858 debates with his Senate opponent, Stephen Douglas, and swore that he would seek to reverse the decision. But, as Dean will note, “Seeking reversal is not defiance of the law.” Lincoln did defy the Court in 1861 by suspending the writ of habeas corpus, and explained his unprecedented action to Congress by arguing that he did so to save the Union from dissolution. Dred Scott was overturned, not by Congressional legislation, but by the Thirteenth and Fourteenth Amendments to the Bill of Rights.
The Danger Inherent in Colson's Arguments - Dean will note: “Colson’s baseless arguments are unfortunately typical of those that authoritarian conservatives insist on making, using facts that are irrelevant or misleading, if not demonstrably wrong. The self-righteousness of authoritarians [such as] Colson and Pat Robertson… has become so pronounced that at times it seems as if they believe themselves actually to be speaking ex cathedra [a sardonic reference to the infallibility of the Pope]. Their contention that the president of the United States is not bound by rulings of the Supreme Court, or, for that matter, by the laws of Congress, when these rulings or laws relate to the functions of the presidency, has gained increasing currency with authoritarian conservatives, both leaders and followers.” Such acceptance “is truly frightening in its implications.” [Christianity Today, 10/6/1997; Dean, 2006, pp. 111-115; Catholic Encyclopedia, 2008]

Entity Tags: Charles Colson, Andrew Jackson, Abraham Lincoln, Thomas Jefferson, Religious Freedom Restoration Act, Pat Robertson, US Supreme Court, John Dean

Timeline Tags: Civil Liberties

John Yoo’s ‘The Powers of War and Peace.’John Yoo’s ‘The Powers of War and Peace.’ [Source: University of Maryland]Libertarian law professor Cass Sunstein reviews a recent book by former Bush legal adviser John Yoo, who authored several of the Bush administration’s most controversial legal opinions concerning terrorism and executive power (see September 21, 2001, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 6-10, 2001, November 15, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24, 2002, January 24-26, 2002, March 13, 2002, April 8, 2002, June 27, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and October 11, 2002). Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, is a compendium of his pre-9/11 academic writings that landed him his job at the Justice Department’s Office of Legal Counsel. Sunstein notes that Yoo, perhaps more than any other single legal scholar, has reshaped the government’s legal stance on any number of issues. He argued for the president’s unilateral ability to declare war without the approval of Congress, the use of “enhanced interrogation techniques” on suspected terrorists, the withdrawal of essential civil liberties and legal rights from suspected terrorists and enemy collaborators, the right of the administration to electronically eavesdrop on the American citizenry without judicial consent or oversight, the ability to ignore or withdraw from international treaties without congressional approval, and more besides. Sunstein writes: “[T]aken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.” Yoo is a key figure in that effort. Sunstein calls his work interesting but completely one-sided, simply ignoring “the mountainous counter-evidence” against most of his constitutional claims. “Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein writes. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?” Sunstein concludes: “[W]ith respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.” [New Republic, 1/9/2006; Savage, 2007, pp. 81-82]

Entity Tags: Bush administration (43), Office of Legal Counsel (DOJ), John C. Yoo, Cass Sunstein

Timeline Tags: Civil Liberties

Shadrack McGill.Shadrack McGill. [Source: Huntsville Times]State Senator Shadrack McGill (R-AL) tells listeners at a prayer breakfast in Fort Payne, Alabama, that state legislators such as himself deserve pay raises, but raising schoolteachers’ pay would lead to less-qualified teachers in the classrooms and violate a “Biblical principle.” Alabama legislators were given a 62 percent raise in 2007, and McGill says the raise discourages corruption among lawmakers. The previous low salaries “played into the corruption, guys, big time,” he says. “You had your higher-ranking legislators that were connected with the lobbyists making up in the millions of dollars. They weren’t worried about that $30,000 paid salary they were getting.” By paying lawmakers more up front, he says, they are less susceptible to taking bribes: “He needs to make enough that he can say no, in regards to temptation.” However, if teachers were given pay raises, then people who are not “called” to teach would begin joining the profession, he says. “Teachers need to make the money that they need to make. There needs to be a balance there. If you double what you’re paying education, you know what’s going to happen? I’ve heard the comment many times, ‘Well, the quality of education’s going to go up.’ That’s never proven to happen, guys. It’s a Biblical principle. If you double a teacher’s pay scale, you’ll attract people who aren’t called to teach. To go in and raise someone’s child for eight hours a day, or many people’s children for eight hours a day, requires a calling. It better be a calling in your life. I know I wouldn’t want to do it, OK? And these teachers that are called to teach, regardless of the pay scale, they would teach. It’s just in them to do. It’s the ability that God give ‘em. And there are also some teachers, it wouldn’t matter how much you would pay them, they would still perform to the same capacity. If you don’t keep that in balance, you’re going to attract people who are not called, who don’t need to be teaching our children. So, everything has a balance.” In 2010, McGill introduced a bill in the Alabama Senate that would tie legislators’ pay to teachers’ pay, requiring the state to give raises to legislators if it gave teachers raises. He claimed, falsely, that Alabama teachers’ salaries were the fourth highest in the nation. Some Alabama Republicans are backing a bill that would give a 2.5 percent raise to teachers with less than nine years’ experience. Representative Craig Ford (D-Gadsden) says the small raise unfairly excludes veteran teachers, and the entire controversy surrounding teachers’ and legislators’ raises is “one of the most absurd things… the Republican supermajority ha[s] ever tried to pull.” [DeKalb County Times-Journal, 1/31/2012; Huffington Post, 2/1/2012] Currently, part-time legislators in Alabama such as McGill make more than full-time teachers with master’s degrees and 15 years of experience. [Think Progress, 2/1/2012] After the national media picks up on McGill’s comments, WAAY-TV airs an interview with McGill taped earlier in the week where he told a reporter he did not believe in the separation of church and state (see 1782-1786). According to a WAAY report, both the television station’s commentators and editorial writers and commentators around the nation “raked [McGill] over the coals” for his comments. McGill tells a WAAY reporter: “Some things got taken out of context. I’m not hearing any negative feedback out of those who were there.” The audience at the prayer breakfast was very supportive of his stance, he says. “The point that I was trying to make in the speech is simply that.… Things ought to be in balance. I believe God made everything to be in balance. He weighed the Earth and the valley and the mountains and the hills on a scale to keep them in balance because he knew he was going to be spinning it real fast, so that’s the [g]ist of it.… Legislators pay ought to be in balance. They don’t need to make too much, they don’t need to make too little, both lead to corruption. Likewise, I think with teachers salaries, things need to be balanced on their education, based on the performance, class size, etc. Work load.… But by no means was I insinuating that a teacher should make less.” McGill says he hopes that after the economy turns around, Alabama teachers can get raises. McGill says he is learning that legislators such as himself are constantly being pursued by those who want to “turn” an innocent statement “into a dagger and stab you with it.” He says that he cannot understand how those who gave him “negative feedback” on his comments can call themselves Christians. [WAAY-TV, 2/2/2012]

Entity Tags: Alabama State Senate, Shadrack McGill, WAAY-TV, Craig Ford

Timeline Tags: Global Economic Crises

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