Still looking? Again, here’s how to find “separation of church and state” in the Constitution

May 16, 2012

It’s an election year. People get crazy. I’ve already heard from a dozen wacko candidates that “separation of church and state isn’t in the Constitution.”

Yes it is. Separation of church and state resides in the Constitution.  Here’s a post from 2010 to help them find it.

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It’s been at least 20 years since I first heard the old canard of an argument that “there’s no separation of church and state in the Constitution.” I think I first heard it attributed to David Barton, which would make sense, since he doesn’t understand the Constitution, but neither does he fear sharing his misunderstandings.

It was an incorrect statement then, and it’s been incorrect since September 1787. Separation of state and church is woven throughout the Constitution, part of the warp and woof.

Recently, latter-day Constitution ignorami repeat the old canard.

Toles cartoon on dangers of marrying church and state

Toles cartoon on dangers of marrying church and state

I was surprised to discover I’ve not posted this before on this blog. So here’s a slightly-edited version of a response I gave many months ago to someone who made that silly claim, a basic description that I developed years ago to explain the issue, in speeches by members of the Senate Subcommittee on the Constitution:

Separation of church and state: It’s in the Constitution.

I don’t play a constitutional lawyer on television, I am one*, but it seems to me anyone can read the Constitution and see. Especially if one understands that the Constitution sets up a limited government, that is, as Madison described, one that can do only what is delegated to it. The Constitution is a short document.

Where should you look to find separation of church and state in the Constitution?

First, look in the Preamble. It is made clear that the document is a compact between citizens: “We the people . . . do ordain and establish this Constitution . . .” The usual role of God ordaining (in some western nations) is altered, intentionally. It is not God who establishes this government, but you and I, together. From the first words of the Constitution, there is separation of church and state. The power of our government grows out of a secular compact between you and me, and 308 million other residents of the nation. We have a government created by consent of the governed, as the Declaration of Independence said a just government should be. It is not a government created by the will of God directly (though some, including the Mormons, argue it is divinely inspired). We have no divine right kings or other monarchs. The government is not the grantor of rights from God, but is instead the protector of the rights of citizens, whatever the source of the rights.

Second, look in the key parts of the document itself. Start with Article 1. The legislative branch is given no role in religion; neither is any religion given any role in the legislature. In Article 2, the executive branch gets no role in religion, and religion gets no role in the executive branch. In Article 3, the judicial branch gets no role in religion, and religion gets no role in the judicial branch. In Article 4, the people get a guarantee of a republican form of government in the states, but the states get no role in religion, and religion gets no role in state government. This is, by design of the founders, a perfect separation of church and state.

Third, in Article 6, the convention wrote the hard and fast rule that no religious test can be used for any office in government, federal, state or local, means that no official will have a formal, governmental role in religion, and no religion can insist on a role in any official’s duties.

Fourth, Amendment 1 closes the door to weasling around it: Congress is prohibited from even considering any legislation that might grant a new bureaucracy or a new power to get around the other bans on state and church marriage, plus the peoples’ rights in religion are enumerated.

Fifth: In 1801 the Baptists (!) in Danbury, Connecticut, grew concerned that Connecticut would act to infringe on their church services, or teachings, or right to exist. So they wrote to President Jefferson. Jefferson responded with an official declaration of government policy on what the First Amendment and Constitution mean in such cases. Jefferson carefully constructed the form of the device as well as the content with his Attorney General, Levi Lincoln, to be sure that it would state what the law was. This “letter” is the proclamation. It’s an official statement of the U.S. government, collected in the president’s official papers and not in his personal papers. Make no mistake: Jefferson’s letter to the Danbury Baptists was an official act, an official statement of the law of the United States. Jefferson intended it to assuage the Baptists in Danbury, to inform and warn the Connecticut legislatures, and to be a touchstone to which future Americans could turn for information. It was only fitting and proper for the Supreme Court to use the letter in this capacity as it has done several times.

Sixth: The phrase, “separation of church and state” dates back another 100 years and more, to the founding of Rhode Island. It is the religion/state facet of the idea of government by consent of the governed without interference from religious entities, expressed so well in the Mayflower Compact, in the first paragraphs of the Declaration of Independence, and carried through in the Constitution (see especially the Preamble, above).

No, the phrase “separation of church and state” never appears in the Constitution. The principles of separation of church and state are part of the warp and woof, and history, of the document, however. The law is clear, the law was clear, the law has always been clear, and denying the Constitution says what it says won’t change it or make it go away. You could just as easily point out that the word “democracy” or “democratic” never appears in the document, though we rely on democratic mechanisms and institutions to make it work. You could point out that nowhere does it say that our national government is a republic, though it is. The Constitution doesn’t say “checks and balances,” nor does it say “federalism.” The Constitution doesn’t mention political parties. The Constitution was written before the advent of broadcasting, and makes no mention of radio nor television, nor of the internet — but the First Amendment freedoms apply there anyway. The Constitution doesn’t say “privacy,” though it protects your right to privacy.

You won’t find “separation of church and state” as a phrase in the Constitution. If you read it, you’ll find that the concept of the separation of state and church can’t be taken out of the document, either — it’s a fundamental principle of our government.

More, and Resources:

__________

* A non-practicing one. We have way more than 50,000 lawyers in Texas. That’s enough trouble for one lifetime. Someone has to look out for the welfare of the world.


How to find “separation of church and state” in the Constitution

December 27, 2010

It’s been at least 20 years since I first heard the old canard of an argument that “there’s no separation of church and state in the Constitution.”  I think I first heard it attributed to David Barton, which would make sense, since he doesn’t understand the Constitution, but neither does he fear sharing his misunderstandings.

It was an incorrect statement then, and it’s been incorrect since September 1787.  Separation of state and church is woven throughout the Constitution, part of the warp and woof.

Recently, latter-day Constitution ignorami repeat the old canard.

Toles cartoon on dangers of marrying church and state

Toles cartoon on dangers of marrying church and state

I was surprised to discover I’ve not posted this before on this blog.  So here’s a slightly-edited version of a response I gave many months ago to someone who made that silly claim, a basic description that I developed years ago to explain the issue, in speeches by members of the Senate Subcommittee on the Constitution:

Separation of church and state: It’s in the Constitution.

I don’t play a constitutional lawyer on television, I am one*, but it seems to me anyone can read the Constitution and see. One can see especially if one understands that the Constitution sets up a limited government, as Madison described, one that can do only what is delegated to it. The Constitution is a short document.

Where should you look to find separation of church and state in the Constitution?

First, look in the Preamble.  It is made clear that the document is a compact between citizens: “We the people . . . do ordain and establish this Constitution . . .” The usual role of God ordaining (in some western nations) is altered, intentionally. It is not God who establishes this government, but you and I, together. From the first words of the Constitution, there is separation of church and state.  The power of our government grows out of a secular compact between you and me, and 308 million other residents of the nation.   We have a government created by consent of the governed, as the Declaration of Independence said a just government should be.  It is not a government created by the will of God directly (though some, including the Mormons, argue it is divinely inspired).  We have no divine right kings or other monarchs under the Constitution.  The government is not the grantor of rights from God, but is instead the protector of the rights of citizens, whatever the source of the rights and whatever the rights.

Second, look in the key parts of the document itself.  Start with Article 1 The legislative branch is given no role in religion; neither is any religion given any role in the legislature. In Article 2, the executive branch gets no role in religion, and religion gets no role in the executive branch. In Article 3, the judicial branch gets no role in religion, and religion gets no role in the judicial branch. In Article 4, the people get a guarantee of a republican form of government in the states, but the states get no role in religion, and religion gets no role in state government. This is, by design of the founders, a perfect separation of church and state.

Third, in Article 6, the convention wrote the hard and fast rule that no religious test can be used for any office in government, federal, state or local, means that no official will have a formal, governmental role in religion, and no religion can insist on a role in any official’s duties.

Fourth, Amendment 1 closes the door to weasling around it: Congress is prohibited from even considering any legislation that might grant a new bureaucracy or a new power to get around the other bans on state and church marriage, plus the peoples’ rights in religion are enumerated.

Fifth: In 1801 the Baptists (!) in Danbury, Connecticut, grew concerned that Connecticut would act to infringe on their church services, or teachings, or right to exist. So they wrote to President Jefferson. Jefferson responded with an official declaration of government policy on what the First Amendment and Constitution mean in such cases. Jefferson carefully constructed the form of the device as well as the content with his Attorney General, Levi Lincoln, to be sure that it would state what the law was. This “letter” is the proclamation. It’s an official statement of the U.S. government, collected in the president’s official papers and not in his personal papers. Make no mistake: Jefferson’s letter to the Danbury Baptists was an official act, an official statement of the law of the United States. Jefferson intended it to assuage the Baptists in Danbury, to inform and warn the Connecticut legislatures, and to be a touchstone to which future Americans could turn for information. It was only fitting and proper for the Supreme Court to use the letter in this capacity as it has done several times.

Sixth: The phrase, “separation of church and state” dates back another 100 years and more, to the founding of Rhode Island. It is the religion/state facet of the idea of government by consent of the governed without interference from religious entities, expressed so well in the Mayflower Compact, in the first paragraphs of the Declaration of Independence, and carried through in the Constitution (see especially the Preamble, above).

No, the phrase “separation of church and state” never appears in the Constitution. The principles of separation of church and state are part of the warp and woof, and history, of the document, however. The law is clear, the law was clear, the law has always been clear, and denying the Constitution says what it says, won’t change it or make it go away.  You could just as easily point out that the word “democracy” or “democratic” never appears in the document, though we rely on democratic mechanisms and institutions to make it work.  You could point out that nowhere does it say that our national government is a republic, though it is.  The Constitution doesn’t say “checks and balances,” nor does it say “federalism.”  The Constitution doesn’t mention political parties.  The Constitution was written before the advent of broadcasting, and makes no mention of radio nor television, nor of the internet — but the First Amendment freedoms apply there anyway.  The Constitution doesn’t say “privacy,” though it protects your right to privacy.

You won’t find “separation of church and state” as a phrase in the Constitution.  If you read it, you’ll find that the concept of the separation of state and church can’t be taken out of the document, either — it’s a fundamental principle of our government.

More, and Resources:

__________

*  A non-practicing one.  We have way more than 50,000 lawyers in Texas.  That’s enough trouble for one lifetime.  Someone has to look out for the welfare of the world.


Ohio news: No creationist right to burn crosses on junior high science students

December 1, 2010

Oops!  Update and correction, from NCSE, applies equally here:

Update and correction (December 1, 2010): The case is apparently not officially settled after all. What was approved was not the overall proposed settlement, but the terms of the settlement as it concerns Zachary Dennis (a minor) — the “James Doe” of the suit — and it was approved not by the judge presiding over the case, Gregory L. Frost of the Federal District Court for the Southern District of Ohio, but by Licking County Probate Judge Robert Hoover, acting in his role as Juvenile Court Judge for the county. The settlement still needs to be approved by Judge Frost.

John Freshwater’s side finally agreed to a settlement in the suit against him and the local school district prompted by his using an electrical device, a small Tesla coil testing device, to burn crosses on the arms of students.  Thus mostly ends one of the more bizarre stories of creationism and misguided religion in a public school classroom.

Here is the entire story in all its anticlimactic wonder, from the Mount Vernon (Ohio) News:

Judge approves settlement in civil lawsuit

NEWARK — Licking County Probate Judge Robert Hoover on Nov. 23 approved a settlement agreement with regard to the civil lawsuit filed on behalf of Zachary Dennis against suspended Mount Vernon Middle School teacher John Freshwater.

The lawsuit was originally filed in the U.S District Court on June 13, 2008, and included as defendants the Mount Vernon City Schools Board of Education and various school employees. The suit alleged that Freshwater violated the constitutional rights of Zachary Dennis and those of his parents, Stephen and Jennifer Dennis, by, among other things, displaying religious items in his classroom, by teaching intelligent design and by expressing his own religious beliefs to students in the classroom.

The board’s portion of the lawsuit was resolved on or about Aug. 26, 2009, and Freshwater was the sole remaining defendant.

With Judge Hoover’s ruling last Tuesday, the suit against Freshwater was officially settled. The settlement of $475,000 to the Dennis family includes $25,000 for attorney fees, $150,000 each to Stephen and Jennifer, and $150,000 to be used for an annuity for Zachary.

At Panda’s Thumb, Richard B. Hoppe’s complete covering of the case notes that we still await the decision of the referee in the proceeding of John Freshwater’s appeal of his firing, and school board action on that recommendation.

At length, then, officially, it’s a bad idea for a creationist science teacher to burn crosses on the arms of supposedly-willing students using a Tesla coil, in any configuration. Yet to be determined:  May a school board fire a teacher who does that anyway?

More:


Cynthia Dunbar’s sham marriage of God and politics

June 7, 2010

Tony Whitson’s Curricublog has a rather lengthy, and very troubling, post about Texas State Board of Education member Cynthia Dunbar and her wilder gyrations on the issues of religion in education.  Go read it.  It’s got quotes, it’s got video, and if you don’t find it troubling you’re not paying attention.  There is an astounding smear of  Thomas Jefferson, the Constitution, and the principle of separation of state and church.

There’s a line usually attributed to Euripides, “Whom the gods destroy, they first make mad.”  That’s mad-crazy, not mad-angry.

What’s Dunbar done to upset the gods so?


Hired back, Mississippi teacher promises to continue leading prayers in classroom

May 29, 2010

Religious terrorists kidnapped the First Amendment while it was visiting Meadville, Mississippi, last week.

Local resident’s expressed support for the kidnappers.

The teacher whose job was on the block for leading prayers in violation of federal law protecting students from school-imposed religion, was hired back on a technicality:  There was no formal, written warning to her that leading prayers is against the law (though it’s in every teacher training program).

The teacher, Alice Hawley, promised to continue to lead prayers in class, in violation of the law.

The newspaper did not ask whether she will follow any laws in her classroom.

On the other hand, one might take some hope that a teacher who flagrantly flouts the law in this case makes the path clear for Texas teachers to flout the standards voted in by the Texas State Soviet of Education, who would nominally be colleagues-in-crucifying to Ms. Hawley.  If you can’t fire a teacher for violating the Constitution and rulings of the U.S. Supreme Court, certainly you can’t fire a teacher for teaching history instead of Don McLeroy’s claim that the U.S. Constitution says the federal government can dictate religion to us.

Mississippi:  Fighting for its ranking among U.S. states, in educational achievement.  (Last place)


Trouble at Texas Board of Education: Social studies

January 11, 2010

Here is a news rundown of stories on the Texas State Board of Education, who have been planning for a year now to mess up social studies standards for Texas public schools, this week.

Get on your horse and warn Texans:  The Idiots are coming to get your good schoolbooks:

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Bathtub reading, mortuary, cemetery, restaurant and airport version

August 30, 2009

Family funerals combine bitter and sweet.  A long life well-lived, the grief over loss, getting together with family and friends from eight decades — and then it’s back to work in a jolt.

Trying to stay caught up:

Outrageous insult to Darwin and Constitution in Missouri: Were the parents concerned about the quality of the brass section in the band, or did they really object to a humorous depiction of “the evolution of brass” in 2009, the bicentennial of Darwin’s birth?

They deserve to have their brasses kicked, but the innocent kids don’t.

P. Z. Myers caught the grossest tragedy:

Band parent Sherry Melby, who is a teacher in the district, stands behind Pollitt’s decision. Melby said she associated the image on the T-shirt with Charles Darwin’s theory of evolution.

“I was disappointed with the image on the shirt.” Melby said. “I don’t think evolution should be associated with our school.”

She doesn’t want her school associated with evolution?  How about associating the school with the Taliban of Afghanistan?  How about associating her school with Homer Simpson’s stupider brother?  How about associating her school with backwards thinking, 16th century bad science?  How about associating her school with the St. Bartholomew’s Day Massacre and the sort of stupidity that leads religiously-based violence?

Ray Mummert probably got the call to help Sedalia out, and he’s organizing to fight the forces of smart and intelligent people.  Comments from residents of Sedalia are shocking in their lack of information, and depressing.

Kids, pay attention in science class: A proud science teacher in Minnesota, and probably some proud parents, tooTip of the old scrub brush to Pharyngula on this one.

Anybody who complains about this deserves to get their tail kicked with Tom Delay and every Republican who redistricted Texas last time around. (Sen. Ted Kennedy suggested the Massachusetts legislature should allow the governor to appoint a temporary replacement to represent the state in the U.S. Senate in the event of a vacancy, until a special election can be held.)

First Amendment wins again: Kentucky had a law that said the state could be safe from al Quaeda attack only by the grace of God.  A judge, noting that it will take a lot of work by a lot of dedicated Kentuckians who deserve credit, and that it’s illegal to make such a claim in law, overturned the law.

Private insurance failed this woman; Medicare would pay for the treatment under some circumstances, but there is no lie opponents to health care reform won’t tell in order to scare people away from the facts. They claim the woman couldn’t be treated under government care, but Medicare pays for the expensive drug in question.  Can’t they at least tell the truth?

This is getting depressing.  I’m going to go look at mountains.


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