Why so scared of Christmas?

[Michael Tee]

<<Why should the interpretation of "establishment " be so broad?

<<Wasn't it narrow in the first place?>>

I guess it's just life.  Time passes, things get more complex.  Lots of things start off narrow in the first place, then broaden out with time.  "Human being" or legal personhood was pretty narrowly defined in the Dred Scott case (I think the Supreme Court in its wisdom decided then that a black man was only three-fifths of a man) and now the whole thing of legal personhood has blossomed out to include blacks, Asians and even (gasp!!!) women.  I mean, Jeeeziz, is there no limit to these liberal judges and their stretching of the Constitution??

I think life starts off pretty simple, the "establishment" of a religion that would have been foremost in men's minds at the time the Constitution was written might have been the establishment of the Church of England as the "official" church of the realm, much to the disgust of Methodists, and others, to say nothing of the RCC, which itself was the "established" church of much of Continental Europe and Latin America.  So I would think that the leading concern would have been to prevent such an "establishment" in the U.S.A.  Later on, as historical and sociological understanding grew, we all became aware of more subtle means by which a particular religion might become "established," and steps were taken to prevent it, perhaps going beyond what the framers themselves had envisaged but nevertheless remaining true to the spirit and intent of the law.

[gipper]

I would add to what Michael has said that the modern-day interpretation of the Establishment Clause is driven by the concepts that are embedded within the principle, which don't change, adapted to the factual context now existing, which does.

[Christians4LessGvt]

sirs
it's funny
lets pretend CHRISTmas is not about Christ
like lets pretend MLK Day is not about Martin Luther King
yeah lets change the name of MLK Day to something else
call it Holiday Day
lets live in fanatasy land and pretend reality is whatever we think it is

[Michael Tee]

<<lets pretend CHRISTmas is not about Christ
<<like lets pretend MLK Day is not about Martin Luther King
<<yeah lets change the name of MLK Day to something else
<<call it Holiday Day
<<lets live in fanatasy land and pretend reality is whatever we think it is>>

Or, on the other hand, why not just give up your misguided efforts to force Jewish, Muslim, Hindu, Buddhist, atheist and agnostic taxpayers to finance your own particular brand and celebrate it where it ought to be celebrated - - in your homes and churches, with your friends, families and religious leaders?

Or would that be too mature and sensible for you?

[Amianthus]

There is no religion in the real world which believes in religious celebration on public property as an element of either religious practice or belief, so there is no prohibition of the free expression of any religion involved.  If there were such a religion, the anti-establishment clause would be in such obvious conflict with the free-expression clause that the entire provision would be totally ineffective.  It must have been clear to the framers of the Constitution that no such conflict could ever arise (because no such religion existed) - - otherwise they would have been writing a nullity, or worse, a "right" which would only have been enforceable only by any religion which claimed the right to publicly-sanctioned worship as an essential element of its theory and/or practice.

Perhaps you should define "free exercise" for us.

[Michael Tee]

<<Perhaps you should define "free exercise" for us.>>

It means what most people think it means - - exercise of the religion without any restraints from Congress on how it's exercised.

This doesn't mean they can exercise their religion on my property, if they happen to believe my home is built on sacred ground.  It doesn't mean they can exercise their religion at will on John Q. Public's property either.

You seem to be under the illusion that all you need to interpret the Constitution is a copy of the document itself plus a good English dictionary.  I hate to disillusion you, but it's not quite that simple.  It's an art and a science, which is why good Constitutional lawyers are worth their weight in gold.

[sirs]

The problem H & Tee have in this whole debate is the flawed notion that tax $$ = establishment.  It doesn't.  We have tax dollars going to all kinds of things I don't agree with, and we have prayers taking place before legislative sessions in congress.  NEITHER equate to establishing anything.  Nothing of the above mandates that anyone has to follow any specific or even general reliigion.  THAT is the foundation of the 1st amendment

Not quite, genius.

And yet again, with the xo style snark technique of debate.

The problem I have is that I am forced, by law, to pay taxes. I object to being forced, by law, to support religion, which is exactly what is happening when my tax money is spent for religious purposes.

Yet, according to the Constitution, you are not legally madated to follow ANY religion or to recognize any religion as some official religion of the U.S.  What your tax dollars go to is a plethora of things that you both support and don't support, just like mine.  But you be sure to get back to us when there's pending legislation ESTABLISHING the Church of America.....which again, is what the founders clearly were referencing when they put together that awesome piece of parchment. we refer to as the Constitution and its 1st amendment

[Xavier_Onassis]

(I think the Supreme Court in its wisdom decided then that a black man was only three-fifths of a man)

=====================================
Actually, this was not  Supreme Court decision at all. This is in the Constitution.
When they were deciding how to apportion representatives, the slave states had fewer free white males than the northern states, but if slaves were counted, then there were more people in the South. So they pragmatically declared that 3/5 of a male slave equalled one whole non-slave, and the two halves of the Union were once more equal to one another in Congress.

 
They figured that a free White male would vote in the interests of his wife and minor children (and those who didn't have the property to be qualified to vote), and a Southern slaveholder would vote in the interests of his slaves. Slaves were most often referred to as "servants", and were seen as big dumb children who were not qualified to act on their own behalf. In return for their salvation, this was seen as a fair deal. "For what should it benefit a man if he gaineth the world and loseth his immortal soul?" 

Indians counted as a full human being if they paid taxes, but those who were untaxed didn't count for squat.

The idea of declaring that a (male) slave was equivalent of 3/5th of a White freeman for the purposes of representation is generally seen as symbolic of American pragmatism.

Of course, in the Constitution, we were all seen as big dumb children, and not qualified to elect our leader without adult supervision, and the Electoral College was the result of that. That is how we came top get a big, dumb child as president as opposed to the much smarter Al Gore, who got more votes.

Turns out the people were wiser than the flipping Electoral College, which needs serious abolishing.

[Michael Tee]

Thanks, XO, for setting me straight on this.  My error probably arose in our American history class, when we studied the Dred Scott case, I probably conflated the text-book's report of the decision with its commentary that blacks were considered to be 3/5 human, and mistakenly remembered the case as being the source of the 3/5 rule.

In any event, from the Wikipedia article on the decision,

<<The only relevant question, therefore, was whether, at the time the Constitution was ratified, Scott could have been considered a citizen of any state within the meaning of Article III. According to the Court, the drafters of the Constitution had viewed all African-Americans as

<<    "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." >>

It's still a good illustration of the idea the Constitutional concepts can start out very narrow, and then broaden over time.

[_JS]

(I think the Supreme Court in its wisdom decided then that a black man was only three-fifths of a man)

=====================================
Actually, this was not  Supreme Court decision at all. This is in the Constitution.
When they were deciding how to apportion representatives, the slave states had fewer free white males than the northern states, but if slaves were counted, then there were more people in the South. So they pragmatically declared that 3/5 of a male slave equalled one whole non-slave, and the two halves of the Union were once more equal to one another in Congress.

 
They figured that a free White male would vote in the interests of his wife and minor children (and those who didn't have the property to be qualified to vote), and a Southern slaveholder would vote in the interests of his slaves. Slaves were most often referred to as "servants", and were seen as big dumb children who were not qualified to act on their own behalf. In return for their salvation, this was seen as a fair deal. "For what should it benefit a man if he gaineth the world and loseth his immortal soul?" 

Indians counted as a full human being if they paid taxes, but those who were untaxed didn't count for squat.

The idea of declaring that a (male) slave was equivalent of 3/5th of a White freeman for the purposes of representation is generally seen as symbolic of American pragmatism.

Of course, in the Constitution, we were all seen as big dumb children, and not qualified to elect our leader without adult supervision, and the Electoral College was the result of that. That is how we came top get a big, dumb child as president as opposed to the much smarter Al Gore, who got more votes.

Turns out the people were wiser than the flipping Electoral College, which needs serious abolishing.

That's why the unwritten constitution is vastly superior.

[Xavier_Onassis]

That's why the unwritten constitution is vastly superior.

======================================
The US has no "unwritten constitution", but the UK does.

There are advantages and disadvantages to both types. The Electoral College is an undemocratic anachronism that seems impossible to get rid of.
On the other hand, a simple majority in Congress could allow torture, or even make it compulsory if there were no written Constitution.

[_JS]

An unwritten constitution is not equivalent to a complete lack of rights, at the same time a written constitution is no guarantee of the protection of said rights.

Quite clearly the unwritten constitution of the UK failed the Guildford Four (and many Irishmen during the Troubles). At the same time the U.S. written constitution was nothing but paper & ink to the blacks in the South from Reconstruction until well after the Civil Rights Movement (and arguably still today).

Yet, at least the UK has come to terms with her Empire (though there are still a few small elements that dream of the "glory days"). The United States is still full on in imperial mode, denying it publicly, but living it in reality - constitution notwithstanding.

[gipper]

You ignore the common law tradition based on binding precedent. If the British system was satisfactory to establish private rights vis a vis each other in contracts, civil wrongs (torts) and property, there was at least a mechanism in place to do so in the arena of private rights vis a vis government power. The conceptual problem of limiting an omnipotent (sic) sovereign is not as difficult as recognizing that Parliament could change the "constitutional" rights with legislation. This is where tradition played a large role. Indeed, the Magna Carta, to the extent it reached, was considered a core set of principles, so core that it was relied upon during the Revolution as a claim of right.

As for America's written constitution, it is clear that it was struck as a compromise over slavery, deferring the day of reckoning. One lesson from the American Revolution stands starkly in construing even the most pertinent (which the original constitution was not as to slavery) written constitution: the anthropological truths of an era (the way people actually lived) play a large role in how rights vis a vis the government are understood. That is, once they debarked on the new land distant from the king and began arranging their own affairs, the colonies were destined to try the road of freedom, gradually implemented. Thus, as to slavery and a written constitution, the inertia of the way life was actually lived -- and in a sense its tradition -- played a huge role in the interpretation of our core document, to the extent it addressed the issue at all.

[Plane]

And yet  " Human  " and " Person " remain poorly defined  ,in cases where ambiguity grants convenience.

[Brassmask]

So let's say there is a village green. And some folks want to get married on that green. And as part of that ceremony they have a minister officiate.

Is that

1. Offensive
2. Establishing
3. Unconstitutional use of public lands?

Clearly, no, as I have done exactly that.