By Dan Kennedy • The press, politics, technology, culture and other passions

Two arguments down

Charles Foster Kane has done such an impressive job of picking apart one of Gregg Jackson’s spurious propositions that I’m inspired to take on another one. Like Kane, I’ll rely on columnist Thomas Sowell’s description of what’s in Jackson’s book, “Conservative Comebacks to Liberal Lies,” since Jackson himself won’t send me a copy.

According to Sowell, one of the “liberal lies” that Jackson exposes is the idea that “the Constitution of the United States provides for ‘separation of church and state.'” Sowell continues:

Among the historical facts [brought forth by Jackson] is that there is absolutely nothing in the Constitution about a “separation of church and state,” despite how often that phrase has been repeated in the media, in politics, and even in courts of law.

Over the years, liberal judges have twisted the First Amendment’s phrase about “free exercise of religion” to mean the opposite — that you are not free to exercise your religion if atheists or members of non-Christian religions say that they are offended.

Whatever the best social policy might be as regards Christmas displays or the use of vouchers in parochial schools, none of this is banned by the Constitution. Some judges, however, use the Constitution as a blank check, authorizing them to ban whatever they don’t like and call it Constitutional law.

Now, I think we’ve all known since the sixth grade that Jackson and Sowell are correct about the wording of the Constitution. Here is what the First Amendment actually 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.

But does it therefore follow that the “separation of church and state” is a myth foisted upon an unsuspecting public by liberals, the media and — well, you know, the liberal media? You will probably not be surprised to learn (although Jackson might be stunned) that the phrase and the concept go back to the Founders.

Because the Constitution is terse and at times cryptic, all good legal scholars — even conservatives — rely on contemporaneous source material to help them determine the meaning and context behind particular sections. (One might even say especially conservatives, since it is they who say they are most interested in sticking to the Framers’ original intent.)

The Federalist, of course, is the best-known example of this extra-constitutional source material: a series of essays written by Alexander Hamilton, James Madison and John Jay with the intent of persuading the state of New York to adopt the Constitution. The Federalist, however, was written before the Bill of Rights. Thus we must look elsewhere.

It turns out that Madison, sometimes called “the Father of the Constitution,” as well as the author of the First Amendment, is also the father of the separation of church and state. Here are a few quotes on the subject from our fourth president:

The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State (Letter to Robert Walsh, Mar. 2, 1819).

Strongly guarded as is the separation between religion and & Gov’t in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history (Detached Memoranda, circa 1820).

Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together” (Letter to Edward Livingston, July 10, 1822).

I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others. (Letter Rev. Jasper Adams, Spring 1832).

To the Baptist Churches on Neal’s Greek on Black Creek, North Carolina I have received, fellow-citizens, your address, approving my objection to the Bill containing a grant of public land to the Baptist Church at Salem Meeting House, Mississippi Territory. Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself (Letter to Baptist Churches in North Carolina, June 3, 1811).

Thomas Jefferson’s views are often dragged into the debate by those who oppose church-state separation, since Jefferson himself was no friend of the Constitution. Far better to rely on Madison, as strong a supporter of the Constitution as there was in the early days of the Republic, as well as the undisputed expert on the meaning of the First Amendment.

Note what I am not saying. I’m not saying that every single action taken by the courts in the name of “the separation of church and state” is proper. I think we need to be reasonable. Obviously every person’s idea of reasonable is different, but lines have to be drawn somewhere. Personally, crèches on public property and the phrase “under God” in the Pledge of Allegiance don’t bother me, but mandatory school prayer does, even if there’s an opt-out provision.

The point is that the concept has a long and noble history going back to the drafting of the Constitution. Gregg Jackson’s assertion that the Constitution does not provide for the separation of church and state is technically accurate — but manifestly untrue.

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  1. Anonymous

    Jeez Dan, Just because Jackson was verbose, did that mean you had to be likewise? Hope MikeB1 doesn’t trip a switch..

  2. Dan Kennedy

    Anon 7:15: I didn’t really write that much — I left it to Madison, who’s a far better stylist than I am.

  3. Anonymous

    Anyone who has visited Madison’s home learns how seriously he took separation of church and state. He kept portraits of religious leaders in one wing of the house and portraits of political leaders in another.Also, these folks seem to keep forgetting another key clause that’s in the Constitution itself: “There shall be no religious test for public office…”

  4. Anonymous

    I hate to send anyone over to his site, but for a superb “third argument down” check out the comments on Gregg’s site, under his screed on global warming. Harvey LeifertPublic Information ManagerAmerican Geophysical UnionWashington, D.C. just calmly, rationally sets the record straight and shows the huge distortions Gregg has used to make his arguments. It’s as masterful a job as yours and Charles F.K.’s.

  5. Lefty McLefty

    Apparently the right wing kooks want to overrule Marbury v. Madison on their way to proclaiming the U.S. a Christian Republic. It is the rule of common law in the United States that freedom of religion means freedom of non-religion.Jackson’s book sounds more like satire than an earnest tome.

  6. metallicaMobes

    lefty mc dolt,as far as I know, no “right wing kooks” are looking to have the Bible amended into the Consitution and have our official President become Jesus Christ and have every child given a state-sponsored baptism. We merely want ridiculous infringements on the rights of Christians to practice our religion in the Public Square without interference as well as having the ACLU and idiots who want to have memorials and crosses removed from government property as if that somehow “discriminates” against atheists. But of course that’s just Jesus McBush talking, my bad.

  7. Charles Foster Kane

    Metallicamobes might do well to remember (well, probably not remember because I’m fairly certain this is completely new to him) the admonition found in Matthew 5: And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by men. I tell you the truth, they have received their reward in full.But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you.+++++++++I also see that besides being unfamiliar with the Bible, metallicamobes also doesn’t understand American political and religious history. What a surprise.

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