Saturday, January 29, 2011

States nullification of Federal legislation

In 1802 President Thomas Jefferson wrote a letter to a group in Connecticut where he mentioned the concept of “separation of church and state.” For about 130 years after that letter, God and government were interchangeable in America. Many public schools used the Bible as a reader. Many town squares at Christmas displayed a Nativity scene.

Then in the 1930’s or early 1940’s a Federal judge discovered Thomas Jefferson’s letter with “separation of church” and state, and inserted it into the Constitution. The thinking was if Thomas Jefferson, a Founding Father wrote it, then it must have been the intend of the Constitution.

Never mind that in 1787 in Philadelphia at the Constitutional Convention among the 55 delegates was missing Thomas Jefferson. Because at the time of the Convention Mr. Jefferson was the United States minister to France.

Currently Many states (Idaho, Texas, Alabama, Kansas, Main, Missouri, Montana, Oregon, Nebraska, and Wyoming) are considering legislation that will nullify Congressional legislation if three-fourths (3/4) of the states agree the legislation is unconstitutional.

Many liberals and the news media are saying that nullification would be unconstitutional. Really? While Thomas Jefferson was president on at least three different occasions he stated nullification by the states of Federal law is constitutional.

So if Thomas Jefferson wrote a letter which mentioned “separation of church and state, and became law, how come he being a proponent of nullification has not been interpreted as law as was “separation of church and state?” Can you say liberal hypocrisy or news media bias? Hmmm?


1 comment:

Doug Indeap said...

To reduce the constitutional separation of church and state to a modern liberal-conservative political issue is ridiculous. The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they've discovered the smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”
that they were contrary to the establishment clause.

The First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you.