Wednesday, September 7, 2005

The Wall of Separation: The Myth and Hoax

Many times, my religious views and those of countless others, have been severely criticized for “violating” the Sacred Cow of the Wall of Separation between the State and Religion. The putdowns we receive are usually delivered with the solemn tone and somber mien of the schoolmaster admonishing the rebellious student. This is the end of the matter: no further discussion; no adult dialogue. When I, in my innocence, would ask where is such a separation described in the American jurisprudence, my Betters, with a pained smile, will lecture me about the Constitution, the Bill of Rights, the Declaration of Independence, Justice Hugo Black, gobbledy-gook legalese and pure hokum.

Meanwhile, Justice Rehnquist, a reasonably well schooled Constitutional Law scholar, writes:

“There is simply no historical foundation for the proposition that the Framers intended to build the 'wall of separation' that was constitutionalized in Everson… The 'wall of separation' between church and state is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.1”

If this is so, how does one explain the widespread belief in this existent Wall? Who advocates it? Where does it come from? Marc Levin, one of the more pre eminent of contemporary Constitutional lawyers, believes that the Myth has been based on a misreading of a short courtesy note written by Thomas Jefferson to the Danbury Baptist Association in 1803. This note was written 14 years after the Amendment was passed by Congress. It has been noted that he was not an ideal source of contemporary history relative to the meaning of the Religion Clauses of the First Amendment. He was not even in the United States when the Bill of Rights was passed by Congress.. He was living in France. Yet, the Critics still rely on Jefferson’s words to justify their opposition to almost any government intersection with religion.

In a sense, the King has no clothes on. The Freedom of exercise (of religion) clause clearly states that the government is prohibited from interfering with the people’s free exercise of their own religion. It also prohibits the establishment of a National church having in mind the Church of England whereby a formal union of political and ecclesiastical authority was put in the hands of the State. There was no prohibition against religion but against a Federal or National Church. It is laughable when secular spokesmen quote Jefferson and Madison, the two most secular in outlook, to bolster current hostility to religion. Historically, the widespread belief, at that time, was that Faith was a necessary predicate to liberty. We recall that it was Jefferson who wrote in the Declaration of Independence that all human beings have rights endowed, not by governments or monarchs, but by GOD

He also wrote “.. and can the liberties of a nation be thought secure when we have removed their only (emphasis added) firm basis, a conviction in the minds of the people that these liberties are the gift of God?” And his colleague Madison, whose viewpoint is sometimes quoted as justification for “ separation”, wrote that “belief in God is essential to the moral order of the world.” What does it take to enlighten our modern American that opposition to an established church is not opposition to religion in general. How did this truism become so lost to the today’s secular minds? Madison further interpreted Free Exercise to mean no privileges and no penalties. 2 Interestingly, the very day after the First Amendment was proposed, the President was asked by Congressmen to issue a Thanksgiving to Almighty God for the blessings He had poured down upon them.3

What happened? How did viewpoints change so radically? How explain the contradiction between the history of the Republic with its clear intent and the modern near hostility to religion? The first 150 years of our history had multiple instances in which government monies were spent on sectarian religious causes. Note the considerable money spent on the Kaskasia Indians each year to support their Roman Catholic priests until 1897. However, in 1947, in the famous Everson v. Board of Education case, Justice Hugo Black started the Separation Question rolling. He wrote: “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they are called, or whatever form they may adopt to teach or practice religion.” “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”4

Marc Levin thinks that the Everson case is an inherently flawed opinion. He points out that the absolutist position leads to absurd outcomes and quotes Bruce Fein (once deputy attorney general of the United States) to make the point. “Black seemed to sense the absurdity of his categorical prohibition, which would have required public ambulances to deny service to a cleric who suffered heart attack while preaching from the pulpit. Accordingly, he immediately retreated from his unbending stance----but without saying so.”5

Justice Rehnquist describes the intellectual mess of “separation” thusly:

“In the 38 years since Everson our Establishment clause, cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, have with embarrassing candor conceded that the “wall of separation” is merely a “ blurred, indistinct, and variable barrier,” which is “ not wholly accurate” and can only be “ dimly perceived.” What has apparently happened according to Judge Robert Bork and others is that the Court has intervened not on constitutional grounds but because it wishes to dictate policy. Even some members of Congress, themselves, wrongly think of judges as policy makers.

It has been suggested that Black may have had more sinister reasons for his strange position. He was an ex-KKK member in the 1920s,a time when the Klan was fiercely anti Catholic. Hugo Black junior AND senior had negative feelings about the Catholic Church which they both suspected in the manner of Paul Blanshard whom they avidly read. The possibility of absurd conclusions (from the Black position) have surfaced many times. Note the 2000 Court decision on the prohibition of prayer before a football game on the basis of “the right not to feel uncomfortable.” Such nonsense now trumps the First Amendment’s guarantee of the free exercise of one’s religious feelings. Let us ask why so many Americans are displeased with Roe v. Wade after 30 years? One obvious reason is the dishonoring of the democratic choices of the people and the dishonoring of our basic religious rights. In the light of our democratic history and the clear will of the largely religious American populace, the contemporary meaning of this “wall” is absurd.

When human beings become driven by the absurd, they can contradict human nature itself. One might recall the tragic opinion of Roger Taney in Dred Scott v. Sanford in 1856.The humanity of slaves was denied in complete disregard of the more encompassing language of the Declaration of Independence which stated that “all men are created equal.” Such a conclusion derives from ignoring the very Natural Law of God Himself so enshrined in the Declaration. No one, in or out of office, can set himself above the Divine law. Incidentally, neither John Kerry nor Ted Kennedy should feign surprise when they are called upon by the Church to use their persuasive gifts, for example, to reduce the incidence of abortion ( a violation of both Divine and Natural law) and certainly not to be its propagandists.

Douglas Kmiec, Professor of Constitutional Law at Pepperdine University, points out that the tools of Interpretation are cerrtainly the Constitution, text, history and structure. But one must remember, with Lincoln’s insightful reflection, that the Constitution was framed for the philosophy of the of the Declaration, not the other way around. Government is instituted to insure our unalienable rights—which self evidently come from God. Kmiec believes as matter of original understanding there is nothing in the Constitution to discourage religious people from urging government to agree with their public policy agenda. Stephen Carter, the noted Professor of Law at Yale makes the same point in his powerful book, The Culture of Disbelief.

On the other hand, did anyone censure a New York Senator when he, in effect, told an Alabama nominee to the Court of Appeals, that he could not be eligible for the judgeship since he was such a believing Catholic? Does Article VI of the Constitution mean anything when it says: “No religious test shall ever be required as a Qualification to any Office or public Trust under the United States”? Dr. Charles Krauthammer, a noted physician columnist, noted after the insulting appraisal by the Senator, that henceforth no serious Catholic should ever be considered for a judgeship.

Whence the changes in religious freedom? We are told by fiery leftists that the Constitution is a living document which should be altered based on the preferences of individual judges in the light of NEW circumstances, like electronic wiretaps and the internet. But, Judge Stephen Markman, of the Michigan Supreme Court, tells us that our Constitution would be an historical artifact—a genuinely dead letter—if its original sense became irrelevant, to be replaced by the views of successive waves of judges and justices, who are intent on “updating” it with contemporary moral theory. Would such “flexibility”, deconstructionism and moral relativism feed even more into the obvious moral decay of our beautiful country? Is there any correlation between characterologic breakdown and the contemporary perception of “the wall of separation”? There are many concerned American thinkers who believe this to be true.

There is something perennial about truth and goodness and God. Secularist groups legitimately have their own agenda but the original American political theory enshrines permanent religious values in its own meaning. A startling evidence of this is the Washington monument which was topped, in 1888, by an aluminum cap with the words Laus Deo (praise be to God). On the 12th, 20th and 24th landings are biblical quotes and prayers carved into the stone. In 1848, a Bible was enclosed in the cornerstone, noting the moral direction and spiritual mood of America at that time. Even earlier, the Father of our country, George Washington, himself, with no apparent empathy with a Wall of Separation, prayed: “Almighty God, we make our earnest prayer that Thou will keep the United States in Thy Holy protection….”

To paraphrase Cicero, even the stones shout out! It is obvious that the secular King has no clothes on! The “Wall” is a myth and a hoax and, in the spirit of the late Justice Rehnquist, should be abandoned. Where is our modern Ronald Reagan who can eloquently shout: “Tear down that wall.” Can we hear the words of the Lord Himself? “Unless the Lord builds the house, its builders labor in vain. Unless the Lord watches over the city, the watchman guards in vain.” (Ps. 127).

I am old and tired but I love my country. I worry over it and pray for it. May the good God bless America and protect her from her own people!

1 Wallace v. Jaffree,472 U.S.38, 107
2 V. Munoz Establishing free exercise, First Things, Dec. 2003
3 Annals of Congress, 914 (1789)
4 everson v. bd. of ed. 330 US, 1,3 (1947_)
5 The Recorder Dec. 27. 1993

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