Tuesday, October 19, 2010

Does The First Amendment Mean Separation of Church and State

I had a discussion the other day with a conservative who insisted that the Constitution does not provide for the “separation of church and state” because those exact words are not in the Constitution.

I asked him what the First Amendment’s religion clause actually says.

He didn't know the exact language, (see below) but asserted variously that it means (i) the government can’t make you follow a particular religion and (ii) the government can’t tax churches and (iii) the government can’t create a church.

I pointed out that none of those words appear in the Constitution either, so, by his logic (that the First Amendment doesn’t call for a separation of church and state because it doesn’t use those words) then it wouldn’t call for his propositions either because it doesn't use the words he used.

My logic fell on deaf ears, even when I pointed out the description of the First Amendment as providing for a “separation of church and state” came from Thomas Jefferson, one the most influential of the “Founding Fathers.” (See also, this Wikipedia article.)

Ah well.

When you stop to consider it, the idea that the explanation that (aka explication, or, in legal terminology, 'construction of') the First Amendment can’t mean it calls for a “separation of church and state” because it doesn’t use those exact words displays, to me, a fundamental misunderstanding of what an explanation can and can’t possibly be. (Or perhaps just a failure to think through what the argument actually is.)

By definition, an explanation has to use words other than the exact words used.

If you insist that an explanation has to be identical with the clause itself, you are left with:

The phrase in the First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” means that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Which is, of course, no explanation at all, our knowledge and understand remains unexpanded.

1 comment:

  1. The First Amendment was ratified w/the understanding that Congress would not establish a church of republic (one single form of Christianity from which legislatures could draw authority from to legislate) like England established (abhorrent to the people of America). It was also ratified w/the understanding that Congress could not infringe on anyone's free practice of their chosen religion (as long as it did not infringe on anyone's natural rights and protections). Again, this amendment applies to Congress, not the States. Several States had established religions well into the 19th century. Whether you agree or not, those are the facts.

    Jefferson wrote a letter to the Danbury Baptist Association in 1802 to answer a letter from them written in October 1801. These individuals were a religious minority in Connecticut, and they complained that in their state, the religious liberties they enjoyed were not seen as immutable rights, but as privileges granted by the legislature — as "favors granted."

    Jefferson's reply did not address their concerns about problems with state establishment of religion — only of establishment on the national level. The letter contains the phrase "wall of separation between church and state," which led to the short-hand for the Establishment Clause that we use today: "Separation of church and state."

    From the letter: "...the whole American people which declared that their legislature (i.e. Congress) should "make no law respecting an establishment of religion..."

    Thus the incorrect interpretation that the First Amendment applies to the States and that Jefferson supported this notion.

    The First Amendment means what it says.