Dellinger, of course, is correct about the fact that the Constitution requires interpretation because its language is often ambiguous (although he prefers the pretentious catachresis "open-textured" -- never mind that it's far from clear how a "texture" could be either "open" or "closed").

However, he provides a signal example of smuggling in a personal opinion and foisting it on the Constitution when the text itself is quite clear and unambiguous.

With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.

The "wall of Separation between church and State" (or between "religion and Government", or what have you) doesn't come from the Constitution. It comes from a personal opinion expressed by Thomas Jefferson to Connecticut's Danbury Baptist Association in 1802. The first thing Dellinger should note in his piece is not simply that the Court needs "reasons", but that it needs constitutional reasons for what it does. And a personal political opinion (such as Jefferson's) hardly counts as constitutionally authoritative.

Best,

you're so right on so many levels, tori...

religion really doesn't matter except for that henry the 8th thing and william penn's religious freedom policies...

the pilgrims...nothing different about that either.

you have so many examples to point to in the united states.

mostly because european governments were controlled by tribal families and the vatican or worse...and dwhat is mostly american today had to flee that oppression and tyranny.

you're blessed here in the usa with the separation of church and state except in massachusetts, rhode island and inside the beltway. inside the beltway will get handled soon...no prob. mass and ri don't matter.

Since only Congress can make laws

And since The Government can only act based on Congressional authorization (with a very narrow exception for immediate defense) through laws - then there is no exception for the Executive to engage in religious prostelatization of any sort.

Congress Shall Make No Law - means that The Executive Branch shall receive no authorization to act in a manner that violates that prohibition. And since Article II Section 2 makes no statement of the form

The President Shall have Power To

Regarding religion, I think you are hard pressed to find ANY authorization for the Executive to act in a manner that has any religious focus.

As for the States and Local Governments, I might remind you of the 14th Amendment's Incorporation Clause

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

And since one of my privileges as a Citizen is to be protected by the 1st Amendment's prohibition of LEGISLATIVE involvement in religion, your arguement pretty much runs out of steam.

So show us where The Executive, The Judiciary or a state derives its right to make ANY LAW (or authorize any action through law) respecting religion?

And, pray tell, which part of the "government" was set up to

pass the laws by which we are governed? I do think that

would be "Congress". Like, in the part of the First

Amendment that says "Congress shall make no laws.....";

and that means that the "government cannot".

Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.

I'm guessing he's finding that interpretation in 200+ years of Supreme Court precedent.

Tori:

You forget about the 14th Amendment and incorporation of the most of the Bill of Rights to the states (and hence, their respective governments). That's how the Establishment Clause applies to the states.

As to how it applies to the Executive, I can only offer the following:

Congress cannot use its spending power (along with its authority to pass other types of non-spending legislation) to encourage religion. Because the Constituion strictly requires bicameralism and presentment in passing federal legislation, it stands to reason that the Executive cannot "legislate" spending without Congressional involvement (and perhaps approval). Since Congress cannot directly spend money to advance religious causes, it should not be able to bypass this rule by simply giving the money over to the President to do exactly what it is constitutionally prohibited from accomplishing. If Congress gives the Executive branch the authority to spend money designated for a specific (but broadly-defined) purpose and the Executive branch chooses to use that money in part to directly advance religion, that expenditure should be imputed to Congress to avoid the very absurd result reached in this case.

I agree, of course.

The issue people bring up is the 14th amendment, which apparently somehow shoves all of federal law down each individual state throat - but only in the case of liberal laws, it appears. It seems liberals have claimed a God given right to force their own dogmatic moralism on everybody, including the right to disallow anyone else's dogmatic moralism being forced on anybody.

This is terrible nonsense, and the states should be freed from the unconstitutional shackles of this nonsense. But until people accept the notion that the constitution created a United States with a limited federal government, and that the inherent problem with slavery laws were that they prevented people from fleeing the laws to places with better laws, we will continue to see the US decline.

Torie,

Your argument holds one flaw, degree of that flaw is dependent on your poltical ideology. The first amendment does explicitly admonish Congress, however dating back to the first First Amendment cases, its easy to see that the courts have never taken this admonishment on its face. "Congress" has been interpreted to mean all forms of government. If it were only to be the actual congress, your state and local goverment would be able to act without fear in its passing of laws prohibiting speech.

By your standards my local government could make it illegal to open discussion on gun rights in the town square. But any american would be aghast at a local government engaging in this practice, conservatives and liberals alike would scream for first amendment protection. Yet you would instead argue that this was permissible because my local government is not "Congress."

Am I right in my analysis of your position, or am I missing a deeper argument?

Regards

BenK:

This is terrible nonsense, and the states should be freed from the unconstitutional shackles of this nonsense. But until people accept the notion that the constitution created a United States with a limited federal government, and that the inherent problem with slavery laws were that they prevented people from fleeing the laws to places with better laws, we will continue to see the US decline.

The central problem with slavery laws wasn't that they prevented people from fleeing to places with better laws, it was that they enslaved human beings. It wasn't the slavery laws that prevented flight, it was the Constitution and its infamous Fugitive Slave Clause.

When the Founders had their meeting in Philadelphia, they were exceedingly critical of the states, and thought that the greatest threat to liberty came from the states. [Madison's Notes on the Federal Convention are an excellent illustration: the first few days of the Constitutional Convention are dedicated the state bashing.] Hence, they reorganized the government and gave the federal government supreme authority in certain spheres. To greatly simplify, the federal government got economics and defense, the states got everything else. Fast forward seventy-five years: slaves were freed and the states retained their traditional authority to regulate their citizens' civil rights.

The states blew it. Just like they blew the opportunities they had before 1787. And then they lost their primary responsibility over their citizens' civil rights due to the Fourteenth Amendment. A number of states proved that they were unable or unwilling to grant newly freed slaves civil rights. In fact, some states were kind enough to re-enact their slave codes as the so-called black codes. I suggest you Google Mississippi's "Act to Confer Civil Rights on Freedmen, and for other Purposes," to get an idea of what the freedom-loving states can get up to when given complete control over the lives of a minority group within their borders. My personal favorite is section 7 of that legislation.

The assumptions the Founders made with regard to the Constitution (i.e. that some rights are better safeguarded by having them put through national political processes than state political processes) apply to civil rights too. All too often, it is the states, not the federal government that have deprived citizens of their rights. I don't necessarily agree with the way some of those protections have been extended, but I also don't buy the idea that maximum liberty will come from letting the states do whatever they want with regard to civil rights. History has shown that it doesn't work. Arguably, the federal role in guaranteeing civil rights hasn't been excellent, but the federal track record is better.