Ed Darrell wrote:
There is a key difference between penumbral rights and structures the Constitution protects without direct mention, and an official recognition of God. The Constitution has provisions that directly protect rights of privacy, for example, even though the right itself is not named. There is little that could be interpreted to say there is not a right to privacy.Article VI, on the other hand, is quite clear that there is to be no religious test for any office in the nation (it isn't written to limit coverage to federal offices). Madison was clear that the government could not act in areas where there was no delegation of power, especially with regard to rights citizens had. The positive affirmations of the rights to privacy in the Third, Fourth and Fifth Amendments, for example, did not change any delegation of a power of the government to override such rights. They were reiterations of rights.The language of the preamble probably was not an accident. The new government and the constitution are "ordained" by the people. This was a delivery on the promise of the Declaration and the Mayflower Compact before it that just governments derive their powers from the consent of the governed -- not from God. The Mayflower Compact is particularly instructive, because while it establishes a compact form of government without appeal to a deity for authority, it explicitly stated that those actions were done for "in the name of God."It was a civil government being created at the Philadelphia convention. To the extent that even the warring Christians rejected the idea of prayers to open sessions, we shouldn't be too quick to presume that the founders were so absent minded that they forgot to spell out a Christian bias in 1787, in 1789, and ever after. Had the founders felt a need to state that our government should have religious bias, they probably would have said so somewhere.I'm still looking, but there is a letter from Madison to Jefferson in the fall of 1787 in which he describes his reasons for not including a bill of rights. The chief reason was that it was late, and he feared he'd lose a working and workable majority if they delayed to write one. But he also noted that each state charter, by that time, provided protections for rights, especially freedom from religious oppression (each colony had started disestablishment by 1778, so the trend was nearly a decade old by then). He argued that a national bill of rights was unnecessarily redundant. I think I see some assumption that states had contrary ideas; but the facts remain that after 1778 states had either disestablished or started down that path uncontrovertably. By 1787, only four states still had vestiges of establishment. Several of the old charters had calls for religious oaths or recognition left in them, and some of these clauses survived mo! re rounds of amending -- but I have never been able to find any case where such clauses were enforced, nor where they were considered workable. It's significant to note that the clauses were not tested until 1960, and then it was a test case brought by the ACLU -- and the Supreme Court ruled the First Amendment made such clauses inoperable, without having to get to the Article VI argument.After 1778, there was an unbroken trend to religious freedom, to getting out of government documents and structures any entanglements with religion. In that light it's rather an insult to the founders, I think, to claim that they somehow meant to do the opposite of what they did. They were not so careless, I think.States have powers not rights. As for Capra, “Mr. Smith Goes to Washington” tells it all. :-)
Frank
On 1/30/05 2:28 PM, "Paul Finkelman" <[EMAIL PROTECTED]> wrote:
I would not presume to understand what was in Frank Capra's mind but I some of these issues -- like states' rights were discussed at the Convention and are built into the structure of hte Constitution. As for religion, I offer this from my forthcoming article in Fordham Law Review:
Indeed, many of the delegates to the Philadelphia Convention made statements during the debates expressing the view that religion should be left to the private sphere. James Madison noted in one debate that “[r]eligion itself may become a motive to persecution & oppression.—These observations are verified by the Histories of every Country antient [sic.] & modern.” South Carolina’s Charles Pinckney described “[o]ur true situation” as “a new extensive Country containing within itself the materials for forming a Government capable of extending to its citizens all the blessings of civil & religious liberty—capable of making them ! happy at home.” Similarly, George Read of Delaware declared, in a debate over the power of Congress, that “the Legislature ought not to be too much shackled. It would make the Constitution like Religious Creeds, embarrassing to those bound to conform to them & more likely to produce dissatisfaction and Scism, than harmony and union.” This illustrates how the framers believed that minimizing the connection between religious law and civil law was integral to American liberty.
Francis Beckwith wrote:
Re: God in the Constitution It seems to me that being concerned about the absence or presence of the term “God” in the Constitution assumes an overly textualist view of the Constitution. After all, the absence in the Constitution of terms like “right to privacy,” “separation of church and state,” “religion is a private matter,” “states’ rights,” “substantive due process,” “trimester breakdown,” or “incorporation” has never prevented people from saying that one can find them in the Constitution. Yes, the term “God” is not in the Constitution, but it’s impossible to understand the justification of the principles that are behind the text without understanding the worldview from which they are derived, one which affirms a cosmos with moral purpose grounded in a theological understanding of the order and nature of things. It was the air the Founders’ breathed. The same reason why the Constitution doesn’t mention logic, reason, or gr! ammar is the same reason why it doesn’t mention God.
The words “providence” and “telos” are nowhere to be found in the script of Frank Capra’s “It’s a Wonderful Life,” but they are there nonetheless.
Frank
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-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
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