Saturday, June 04, 2011 "Madison and the Courts"

Saturday, June 04, 2011

"Madison and the Courts"

Doug,
First, let me address Madison and the courts.

You stated, “Indeed, as I understand it, he (Madison) would have preferred that the Constitution and First Amendment apply that principle to the states as well as the federal government, but that view did not prevail at the time.”

Doug, you may be correct in that assessment, I would have to look more fully at Madison’s specific writings and wording during that time. But remember, he also argued against the Bill of Rights understandably, as those rights would have protected the States from that principle had it prevailed.  I would hate to see where are Constitution would have led us without it ( I doubt we would have a Constitution without it). Your statement that it did not prevail at the time in itself gives us some insight into the original intent which is the desired knowledge.

On June 12, 1823, in a letter to Justice William Johnson regarding the method of determining the meaning of the Constitution, Jefferson wrote: “On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the Probable one in which it was passed.”

Jefferson said "On every question" This is why, as you say, I am a proponent of the simpler interpretation. If we apply the actions described above by Jefferson to the 14th or any Amendment it becomes much simpler. In doing so we find an effort towards voting rights for African Americans. In the deliberations of the 14th Amendment, nothing addressed religious rights, that had already been addressed, deliberated, and ratified in the 1st Amendment.

But doing what Jefferson warned us not to do, finding that we did not like the original intent of the 1st Amendment, the courts found ( let me emphasize found) an application in the 14th Amendment to squeeze out of the text a new meaning instead of conforming to the probable one in which it was passed. ( Though Madison may have agreed with this view ) agreement by Madison does not change the meaning of the original intent.

Madison also supported Jefferson's view as he stated, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.  In that sense alone it is the legitimate Constitution.  And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers." - - - - James Madison, The Writings of James Madison, Gaillard Hunt, editor (New York and London: G. P. Putnam's Sons, 1910), Vol. IX, p191, to Henry Lee on June 25, 1824.

Justice James Wilson and Justice Joseph Story concurred likewise in their views of interpretation.

We have come to a place in our history where the Judicial rule goes almost unchallenged and if the courts say so, then it must be so. I don’t say that with disregard or disrespect to the courts, I appreciate our Judicial system to the highest degree. It is the best in the world, but that does not leave it without scrutiny.

James Madison declared:  “[T]he meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority.”

Thomas Jefferson declared:  “[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal.”

I am aware of the Religious Freedom Restoration Act passed by Congress in 1993 which drew upon the 14th Amendment, but had the courts not been so un-friendly in their rulings toward religious issues as a result of their interpretation of the 1st Amendment and coupling it with the 14th, I don’t think Congress would have used that approach. We should be very cautious when setting presidencies.

This coupling of these two Amendments has had revolutionary results that were never intended by the framers of those Amendments.  Justice William Douglas explained that although the Court had incorporated a portion of the 1st Amendment into the 14th as early as 1940, it was not until Everson in 1947 that the Establishment Clause was incorporated into the 14th.

The Constitution of the United States begins with "We the People" but the Courts took one Amendment that was deliberated and ratified for one purpose, coupled it with another Amendment that was deliberated and ratified for another purpose, the result being the meaning, protection, and purpose of both being altered and changed. 

Doug, you stated concerning the use of the 14th Amendment: “( . . . the Supreme Court later ruled) the religious liberties protected by the First Amendment, liberties that include freedom from government efforts to establish religion.” This infers again ( they later ruled ) the squeezing out of the text that Jefferson warned us about. Congress passed the 14th Amendment without any debates as to how it would relate to the 1st Amendment. Then the Supreme Court (later ruled) how it does.

I’m not saying anything can be drawn from the 14th Amendment other than what was specifically addressed at the time. I am saying for 9 un-elected people to draw from an amendment something that changes the thought of interpretation of another amendment that affects the populous, without the oversight and deliberations of the other branches is as Jefferson stated, dangerous.

Now on to the Executive order question:

Doug, you asked, “How, then, do you respond to the questions I posed earlier about possible actions and statements of the Executive?”

Those actions and statements you are referring to are as you stated, “First, by a literal reading, do you suppose the First Amendment's reference to "Congress" and "law" means the President could, by proclamation, establish a national religion? Or could the Executive declare the views of a particular sect of Christianity to be true, but stop short of officially declaring that sect to be our national religion? Or could the Executive direct all federal agencies to use stationery bearing statements touting the virtues of Scientology? Simple semantics may lead one astray.”

I am assuming you are asking this because of my reference to the 1st Amendment being addressed to Congress and lawmaking, and by my simple interpretation, it would not apply to the other branches. First let's note there is no precedence for such Executive orders, even though there have been some controversial ones.

But let's assume as you say the President were to issue an Executive order for any or all of the above-mentioned scenarios. ( It seems unproductive to debate hypothetical situations that never have or possibly may never arise but for the moment )

Very simply, the Executive Orders of a President are merely the means for him to implement his own personal philosophy throughout his Branch. While such Orders are often controversial, (especially when they reach beyond the Executive Branch, usually they are legitimate-provided they do not contradict any statutory law enacted by Congress. So, the President could pronounce I suppose any of the aforementioned orders.

What could be done to reverse such Executive Orders? Three things have previously been done concerning Executive Orders. First, Congress can pass a law to reverse an Order. That was the problem with President Obama’s Executive order on abortion in the health care issue, it was just too weak. An Executive order cannot stand over the power of Congress in its law-making.

But because of the religious nature of these orders, you might argue the 1st Amendment would prohibit Congress from addressing such issues.

Then there is the second means, to set aside an Executive Order. To do so is simply by a refusal to implement it, this also has been done in Executive order cases.

Then there is the third means which is to negotiate an agreement between the White House and Congress to rescind the Order, this also has occurred in previous cases.

Let me reaffirm, that the First Amendment is addressed to Congress and law-making, from the deliberations of the Convention we can assuredly conclude as Jefferson would suggest, that the spirit manifested in the debates was directed toward the establishment of a state religion.

Notice Justice Story's clear articulation that is conducive to the record of the Constitutional debates, "We are not to attribute the prohibition [speaking of the 1st Amendment] of a national religious establishment to an indifference to religion in general, and especially to Christianity . . ." 

He then continues by saying, "Probably, at the time of the adoption of the Constitution, and of the Amendment to it now under consideration, the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the State . . ." - - - - Joseph Story, A Familiar Exposition of the Constitution of the United States. p. 259-261.

If the Executive Branch attempted to establish a State religion with Executive orders, there are means in place that would restrict and prohibit it from doing so without damaging the intent and object of the 1st Amendment.

May God bless each of you,

David