Friday, September 28, 2012

Original Meaning Versus Founder's Intent As To The First Amendment ( Updated )

Update- A comment to this post wanted me to bring forth a point of qualification and clarity. While often this discussion is framed as to what the founders thought or meant it goes beyond that. It also goes to all those changes to the document and all the other amendments. So from the Post Civil War amendments to the amendment that guaranteed a females right to vote this same discussion would occur

Interesting set of article at two big religion law blogs that deals with the those that advocate original intent ( What the Founders meant ) which seems to be going out of style in some areas , and original meaning or what some call public meaning originalism .

See Drakeman on Original Meaning, Original Intent, and Religious Liberty ( and go to the link provided ) and original intent -- and why law is not a "message in a bottle" at Mirrors of Justice.

I have to admit I am more of a original meaning guy. Echoing Scalia's frustration as noted here , I agree that "it’s often easy to find some Framer whose policy choices are the same as yours, thus allowing too much results-driven analysis".

Part of the problem is most folks universe of the Founder's is three or four people . This bleeds over to the pundits and to politics which I don't find helpful. I am not sure why they get veto power over everyone else. I love Thomas Jefferson but I an still not sure why everything he wrote in this area his the Holy Writ over others about intent

Also who exactly are the Founders? The folks at the Convention ? Do they include people in the State Conventions that ratified it ? What about the role of the Declaration of Independence ?  What weight should the Federalist Papers be given versus other work etc etc etc .

Further as I observe matters in politics I am more wary of being able to find Legislative intent.

Still like most people I am a tad of heretic in these matters , and I sprinkle some Founder's intent in because I think at times one has too.

As was noted by Prof Drakeman notes at Things I Haven’t Figured Out — Part 3: Where’d the Framers Go?

What I find perplexing is that people believe that the hunt for objective public meaning avoids these problems. Let’s look, for example, at the system of town-based taxes for Protestant ministers that existed in New England at the time of the Constitution. The Massachusetts courts called it an “establishment,” whereas the New Hampshire courts said that the same system definitely was not an establishment.

So, when we look at the First Amendment, which is the objective public meaning of “establishment,” the MA version or the NH version? There are two perfectly good choices that happen to be inconsistent with each other. Wouldn’t it be useful to know what the actual people who adopted and ratified the establishment clause thought it meant?


APOV said...

I don't understand "oringal meaning versus founder's intent" as those seem to be the same to me. And "public meaning originalism" is just gobblety-gook. The intent of the delegates to the convention at Philladelphia is irrelevant, because if I remember American History correctly, they refused to include the Bill of Rights in the Constitution of 1789, and it was added as 10 amendments a couple of years later.

As to Scalia being frustrated, he is frustrated because he is trying to establish his own Catholicism as the established religion and force it upon the rest of us, in violation of the First Amendment. Americans had better wake up and realize that our free secular government is in grave danger.

I am sure that the non-establishment clause of the First Amendment was looked at from many different viewpoints among the Representatives and Senators who passed the proposed Amendments of the Bill of Rights, and certainly there were many different viewpoints in the States which ratified it. Mass. was Puritan, Penn. was Quaker, Virginia was Anglican, Maryland was Catholic, and so forth. There must have been a variety of interpretations and explanations of this clause from the beginning, as people naturally want protections from every religion other than their own.

The main reason that original intent is not very relevant today is that the Bill of Rights only provided protection of rights to so-called "white" men in original intent. If we are going to go by original intent, then women can shut-up and ask their husbands what their rights are, and people of African ancestry can be chained up and stripped naked and whipped into submission and servitude to "white" masters, and indigenous Americans can be slaughtered in one masacre after another, with survivors confined to reservations, and forced to sign one treaty after another with the putative government, which is never going to fulfill even the frivolous obligations which they put upon themselves in any of these treaties which they dictate themselves.

No, original intent is not relevant to the non-establishment clause, because it is impossible to live in the past. Today is the first day of the future. Today is the day to make sure that Scalia and every other politician in the government knows that we are not going to tolerate an establishment of religion in the United States of American. Not your religion, my religion, Obama's religion, Romney's religion, or anyone else's relgion. The wall of separation between church and state must not be breeched in any way.

APOV said...

And as to Scalia saying that he can not serve without forcing his own Catholic "ethics" on others, then he is signally unqualified to serve in the USA. He can go serve in one of those nations from which our ancestors fled from Catholic persecution.

James H said...

I think its hard to make that case as to Justice Scalia. It should be recalld that he seems to shut down any sort of Natural Law analysis ( which I disagree with) and indeed it needs to be recalled that he autheored the one case that so many cite as to the HHS Mandate that it does not violate First amendment freedoms. I disagree witht that anlysis but the result was a lost of people were upset at that opinion.

Scalia might think ROE was wrongly decided but I suspect also he would think the Congress had no power to ban all abortions either. That its a matter for the states. That is not a theocracy viewpoint.

It should be recalled that as to original intent we are to be more precise dealing with more than what the founders said which I guess I should be clearer on. As to the bill of Rights and other areas we are dealing with drafters. Which includes the people that did that Civil Rights amendments and the amendment giving women the right to vote.

So you might be more invested in original intent more than you think when you look at what the drafters, what the Contgress, what the states meant with all those amendments they passed long after the Founders had passed

APOV said...

I was making reference to Scalia saying "Catholicism is at the core of my judicial ethics." That statement if very different than the statement of JFK, and it disqualifies him from serving as a judge in the USA. Before the Affordable Care Act ever came before him, he had already painted himself in a corner by ruling against people of other religions in employment law--the indigenous American who claimed that his employer could not fire him for use of peyote because it was part of his religion, and the Amish who refused to pay FICA on their employees. It would be hard for him to justify allowing the Catholics to refuse to compensate their employees with medical insurance benefits after that.

Rather than looking back at founders, even Madison and Jefferson, to see if we want to tear down the wall of separation between religion and government, I suggest that we look at a comtemporary state where no such wall exists--Iran. That Bishop Malone that you posted about sounds similar to the Ayatollah Khomeini if you just substitute the word "Islam" for the word "Catholic".

Most Americans do not read all of these blogs, and they do not realize what grave danger we face. They think that JFK settled it in 1960 with his own committment to be loyal to the Constitution of the United States of America over any loyalty to the Pope, and they don't realize that there is a whole new generation of Catholics like Santorum saying that JFK's statement made him vomit.

APOV said...

BTW, I am hoping, against all hope, that this issue will boil to the surface during the vicepresidential debate on television. Awhile back you blogged about a Catholic woman at a townhall meeting in Florida asking Ryan if he will ask Biden how he reconciles his Catholicism with the Democratic platform, but you did not say whether he gave an honest direct answer to the question. I certainly hope that he asks that question, but I don't expect it. The Catholics like yourself, and Ryan, and Santorum, and Bishop Malone, are subversive. You don't want it argued out on national television as to whether Catholics in American government are in service to the citizens of the USA, without regard to their religion, or in service to the Pope in Rome.