"Originalism" means different things to different people - but
"originalism" in the sense of viewing the original meaning of a document (or
the original intent of its drafters) as highly significant is not, I think,
modern. See, e.g., Grosjean v. American Press Co. (1936); Pollock v. Farmers'
Loan & Trust Co. (1895); Cummings v. Missouri (1866); Barron v. Baltimore
(1833). West Virginia cases of the early 1900s likewise asked what the framers
of the federal and the state constitution intended.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Monday, August 08, 2011 8:11 AM
To: Law & Religion issues for Law Academics
Subject: Re: Interesting early W. Va. Att'y Gen. opinion on released time
programs
What I think Mr. Ritter is missing is that the WV AG was not construing the
Federal Constitution, but the West Virginia constitution, whose religion clause
was a much more detailed paragraph than the First Amendment's. The AG mentions
the First Amendment, but seems to do so in a way that does *not* consider it
binding on the state, merely illustrative of a mode of analysis he favors. My
point was that he completely neglected the text before him (which, as I
understand it, is a large part of what Originalists like to focus on) and
jumped in like Rosie Ruiz just before the finish line of his argument. An
Originalist would have started with the text and then tried to ascertain what
its drafters thought they were saying with the words they used. One
consideration in that might be that if all they wanted to do was copy the
Federal First Amendment, why did they indulge in such relative prolixity?
But as I said, Originalism is a modern doctrine, and I'm not faulting the AG
for not being an Originalist avant le lettre. I do fault him, though, for
assuming his conclusion.
Vance
On Mon, Aug 8, 2011 at 10:29 AM, b...@jmcenter.org<mailto:b...@jmcenter.org>
<b...@jmcenter.org<mailto:b...@jmcenter.org>> wrote:
Vance,
I'm not sure that I understand your comment on Originalism.
The principle of separation of church and state is a bona fide original intent
view of the Establishment Clause, notwithstanding David Barton's revisonist
book Original Intent: The Courts, the Constitution, & Religion, 3rd., 2000. The
problem understanding the scope of the E.C. is that there are (1) no
contemporaneous (1789) records explaining what "respecting an establishment of
religion" means and (2) the phrase itself (not individual words) is original,
meaning that it had not been previously used. (It is my understanding that the
3 Senate members of the joint House-Senate Committee agreed to James Madison's
insistence that the wording of the First Amendment be retained in exchange for
some changes in the wording of other amendments. See Founding Faith by Steven
Waldman, 2008.) Indeed, the phrase, like most of the Constitution and
amendments which followed, a political compromise.
But a compromise of what? One House proposal would have withdrawn Congress's
power on any matters "touching religion". Clearly, this would have meant
separation of church and state. Over the years, I've continued to wrestle with
the question is "respecting" equivalent to "touching"? As a separationist, I
don't see any significant difference. Rather, I see the difference as mere word
choice -- that respecting sounds more legalistic than touching. However,
accommodationists and those of the Christian Nation persuasion take a radically
different view.
In the final analysis, in my view, the West Virginia A.G. opinion got it right
on the basis of Originalism.
Bob Ritter
On August 6, 2011 at 9:28 PM "Vance R. Koven"
<vrko...@gmail.com<mailto:vrko...@gmail.com>> wrote:
What I find interesting is that the AG did absolutely no parsing of the
constitutional language, in which I couldn't find anything that spoke to what
released time is. He jumped immediately to the extra-statutory concept of
"separation of State and Church" without so much as a case citation to support
his reading. The US Constitution gives one a lot of room to maneuver with its
rather vague language, but the WV one doesn't seem to do. Oh well, I guess back
in the 20s they didn't have modern doctrines like Originalism.
Vance
On Sat, Aug 6, 2011 at 8:53 PM, Volokh, Eugene <
vol...@law.ucla.edu<mailto:vol...@law.ucla.edu> > wrote:
I just came across this 1926 opinion, which I hadn't heard, and which I thought
might be of interest.
Eugene
31 W. Va. Op. Atty. Gen. 344
Office of the Attorney General State of West Virginia
March 15, 1926
SCHOOLS-Pupils Cannot be Excused During School Periods to attend Religious
Instruction.
Hon. George M. Ford
State Superintendent of Schools
Charleston, West Virginia
Dear Sir:
You submit to this office for opinion the following question:
"Can we constitutionally excuse children from the regular work of the school
during the school periods, to attend classes conducted by religious
denominations for religious instruction?"
Your question was prompted by a communication which you enclose, from Mr.
George H. Colebank, of Beckley, Superintendent of Schools of Town District. It
appears from his letter that the school officers and ministers of the churches
in the City of Beckley have under consideration a plan of introducing religious
instruction at the beginning of the next school year for the children in the
public schools whose parents would give permission to be excused from the
schools for one or two periods each week, to attend various churches for
religious instruction.
This presents a question which must be approached with some trepidation because
it relates to religious instruction, and the sacred rights vouchsafed in our
State Constitution, superinduced by the experiences of the past by a people who
cherished liberty and religious toleration, namely, the separation of State and
Church; and because an opinion, though it be well considered and supported by
constitutional and statutory law which does not coincide with the views of
those who may be somewhat narrow and intolerant in their beliefs and practices,
may be criticized and misunderstood. It is not intended that this should apply
to the parties here in question, as we believe the question to be presented in
good faith by those who have the purest motives and most sincere desire to
foster religious instruction, so much needed among the youth of our State.
Our Bill of Rights, embraced in Article III, of our State Constitution, has
among other things, the following under section 15 thereof:
"No man shall be compelled to frequent or support any religious worship, place
or ministry whatsoever, nor shall any man be enforced, restrained, molested or
burthened, in his body or goods, or otherwise suffer, on account of his
religious opinions or belief, but all men shall be free to profess, and by
argument, to maintain their opinions in matters of religion; and the same
shall, in no wise, affect, diminish or enlarge their civil capacities; and the
Legislature shall not prescribe any religious test whatever, or confer any
peculiar privileges or advantages on any act or denomination, or pass any law
requiring or authorizing any religious society, or the people of and district
within this state, to levy on themselves, or others, any tax for the erection
or repair of any house for public worship, or for the support of any church or
ministry, but it shall be left free for every person to select his religious
instructor, and to make for his support, such private contract as he shall
please."
This provision was superinduced, no doubt, by the same spirit which prompted
our forefathers to brave the passage of the Mighty Deep, and land in a country
inhabited only by the Red Men of the forest, in order that they might worship
God according to the dictates of their own conscience, and by the spirit of
freedom inculcated in the hearts of their posterity. History repeats itself,
and these brave "Pilgrim" fathers remained tolerant but a short time when they,
too, became intolerant and practiced persecution such as they themselves had
previously suffered. This intolerance upon their part resulted in founding the
colony of Rhode Island and the city of Providence, by Roger Williams, upon the
principal that civil authorities should have no control over spiritual matters
thus wholly divorcing the church from the State.
The first amendment to the Federal Constitution prohibits Congress from
enacting any laws respecting the establishment of religion, or interfering with
its free exercise. So it is apparent that under both law and reason the church
should be separate and distinct from the State, and those who are its members
should exercise their rights under and within the State, as individuals, and
not as a church.
This is supported by the teachings of the Bible as contained in what we call
the New Testament. One who has a proper conception of the church must look upon
it as the body of Christ of which He, Christ, is the head, each and every
member of which having experienced the regenerating power of the Holy Spirit
are incorporated into His mystical body.
The Great Apostle Paul, through the revelation of the Holy Spirit, has
wonderfully distinguished in his epistles, the Church from the world and
worldly things, (including governmental organizations); in other words, the
complete separation of State and Church. Christians are those who have been
born again through the atoning blood of the Lord Jesus, and are commanded to
separate and to keep themselves unspotted from the "world" used here is a very
broad term, and includes every thing which is not Christian in character. A
believer , although in the world, is not of the world, but, in the sight of
God, is seen and looked upon as in His very presence. The word religion is a
very broad term, and in our common parlance may include Christianity, but all
religions are not Christian, and Christianity should never be confused with
religion.
The principle of State and Church Separation, having been inculcated into the
minds and hearts of those who stood for religious freedom, and a complete
divorcement of Church and State found its way into our Constitutions, Federal
and State; a principle supported by Holy Writ.
This being true then, we cannot see wherein school authorities can enter into
any kind of an arrangement whereby the children of schools supported by the
State can divide their time between the State and Church within the time
required by statute to be in the public schools for instruction. Furthermore,
it may be that facilities are not at hand for all religious creeds.
History reveals a constant conflict between religious creeds and beliefs, from
which the present generation is not free, followers of which are conscientious
and sincere. These creeds and beliefs relate to man's relationship to the
Deity, and cannot be changed by statutory laws or administrative regulations,
nor by forms or ceremonies but, in the opinion of the writer, only as the Lord
Jesus Christ makes the contact between God and Man.
We are not unappreciative of the fact that this effort upon the part of
ministers, and the school officers, of Beckley, was prompted by the purest
motives, having only in mind proper religious instruction and betterment for
the youth, but no doubt this arrangement is not authorized by the law, and its
sanction might be a step in the direction of an encroachment upon a well
established and much desired principle, which we hope may continue, namely, a
complete divorcement of Church and State.
For these reasons, I would hold that such an arrangement as is contemplated is
not warranted by law.
Very truly yours,
Howard B. Lee
Attorney General
By R. A. Blessing
Assistant
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Vance R. Koven
Boston, MA USA
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