-Caveat Lector-
MShrum wrote:
As for this not being a Christian nation - I refer you to
the Supreme Court's ruling in CHURCH OF THE HOLY TRINITY
v. U.S. ; 143 U.S. 457, 458 (1892):
"No purpose of action against religion can be imputed to
any legislation, state or national, because this is a
religious people...This is a CHRISTIAN nation...
MJ:
Officially called the "Treaty of peace and friendship between the
United States of America and the Bey and Subjects of Tripoli, of
Barbary," most refer to it as simply the Treaty of Tripoli.
In Article 11, it states:
"As the Government of the United States of America is not in any sense
founded on the Christian religion; as it has in itself no character
of enmity against the laws, religion, or tranquillity, of Musselmen;
and as the said States never have entered into any war or act of
hostility against any Mehomitan nation, it is declared by the parties
that no pretext arising from religious opinions shall ever produce an
interruption of the harmony existing between the two countries."
The preliminary treaty began with a signing on 4 November, 1796
(the end of George Washington's last term as president). Joel Barlow,
the American diplomat served as counsel to Algiers and held
responsibility for the treaty negotiations. Barlow had once
served under Washington as a chaplain in the revolutionary
army. He became good friends with Paine, Jefferson, and read
Enlightenment literature. Later he abandoned Christian orthodoxy
for rationalism and became an advocate of secular government.
Barlow, along with his associate, Captain Richard O'Brien, et al,
translated and modified the Arabic version of the treaty into English.
>From this came the added Amendment 11. Barlow
forwarded the treaty to U.S. legislators for approval in 1797.
Timothy Pickering, the secretary of state, endorsed it and John
Adams concurred (now during his presidency), sending the document
on to the Senate. The Senate approved the treaty on June 7, 1797,
and officially ratified by the Senate with John Adams signature on
10 June, 1797.
xxxxx
David Barton (The Myth of Separation, pp. 47-51) and others
claim that the Supreme Court determined that the United States was
a Christian nation in the 1892 case, Church of the Holy Trinity v.
United States, 143 U.S. 226 (1892). Unfortunately, their thesis
and the analysis of the case that accompanies it amounts to little
more than a manipulation of the language of the opinion to distort
the actual meaning of the case, its relevant facts and its stated
rule of law.
The facts of Holy Trinity concerned the application of an Act
of Congress titled "An act to prohibit the importation and
migration of foreigners and aliens under contract or agreement
to perform labor in the Unites States, its Territories and the
District of Columbia." Holy Trinity Church, a church located
in the city of New York, contracted with a minister in England
to perform services as rector and pastor at its church. At
issue in the case was whether or not the church's action
violated the Act which prohibited "any person, company,
partnership, or corporation ... to assist or encourage the
importation or migration of any alien ... under contract or
agreement ... to perform labor or service of any kind in the
United States."
The holding of Holy Trinity was based on an interpretation of
the purpose of the Act. The Court concluded that the purpose
of the Act was to prohibit the importation of foreign unskilled
persons to perform manual labor and manual services. A christian
minister, the Court reasoned, is a "toiler of the brain," not
a manual laborer; Holy Trinity Church, therefore, was found
not to have violated the Act when it secured a contract for
the holy man's employment.
The rationale in Holy Trinity contains several different parts.
First the court discusses how it came up with the idea that the
purpose of the Act was to slow down or stop the importation of
cheap, unskilled manual laborers which might compete with American
unskilled laborers for jobs. The Court says the title of the Act
implies its meaning, that only the importation of "laborers" will
be restricted. The Court then turns to the legislative history,
debates, and comments of the Congressmen involved in drafting the
Act to conclude that the Act was designed to regulate the domestic
unskilled, labor market.
Justice Brewer then writes in the opinion that "beyond all
these matters no purpose of action against religion can be
imputed to any legislation, state or national, because this
is a religious people." Several pages later, after presenting
a religious history of America, he follows up with the
statement: "These, and many other matters which might be
noticed, add a volume of unofficial declarations to the mass
of organic utterances that this is a Christian nation." Barton
splices together these two quotes and cites Holy Trinity as
establishing America as a Christian Nation.
To understand whether this last part of the Court's rationale
establishes anything at all, it is necessary to first understand
that an opinion written by the Supreme Court contains several
different parts. The holding of the case establishes the rule
of law as decided on by the court and as it relates specifically
to the facts of the case. The rationale of the case contains the
different reasons why the Court decided a case the way that it
did. Contained within these reasons can be comments by the Court
which do not have any bearing on the specific rule of law and
are not binding on future cases with similar facts. These
non-essential comments are called dictum, and unlike the holding
of the case, dictum carries no precedential value. The essential
comments, or the holding, becomes precedent which can then be
applied to subsequent cases with similar facts.
In the case of Holy Trinity the essential comments made by the
Court concern the scope of an immigration law. The rule was that
the Act did not prohibit foreign "toilers" of the brain from
accepting employment in this country. The foreign-born professional
worker, doctor, lawyer, businessman, or clergyman, would be able
to use the rule in Holy Trinity and the rationale regarding the
purpose of the Act to support his claim for employment in America.
Consider the "absurd" result if a doctor from Russia at the turn
of the century were to state that he could be hired by an American
hospital because Holy Trinity stood for the proposition that
"this is a Christian nation." It would not make sense for such a
person to cite the dictum concerning America's religiosity as a
reason for allowing him access to the American job market.
Whether or not America was a Christian Nation was not even at
issue in Holy Trinity. The actual dispute or controversy the Court
had to decide had nothing at all to do with religion. The parties
in Holy Trinity did not question whether the Immigration Act's
purpose was "for or against religion" generally or specifically.
So when Brewer begins his religious history lesson with, "no
purpose of action against religion can be imputed to any
legislation, state or national, because this is a religious
people," he refers to no particular statute, no particular actor.
He has moved outside the actual facts of this case and the statute
at issue to address the vague application of general principles
to law in general. His statements, therefore, create no rule of
law, and provide no useful precedent for future legal disputes.
As any basic Legal Research textbook will confirm, the legal
researcher will not find precedent in such language, but must look
for "the [legal] rules stated by courts [which] are tied to
specific fact situations" (The Fundamentals of Legal Research,
1994, Jacobstein et al, page 6).
Regard$,
--MJ
However the Court may interpret the provisions of the Constitution, it
is still the Constitution which is the law and not the decision of the
Court. -- Charles Warren, The Supreme Court in United States History,
vol. 2, chapter 38, pp. 748-49 (1932).
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