If you ever do respond directly to the
matter, I’ll forward it to Mr. Garman.
Larry Darby
-----Original Message-----
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Wednesday, November 23, 2005
11:25 AM
To: Law & Religion issues for
Law Academics
Subject: RE: Madison on Abridge
and Prohibit
The post below, although
it claims victory, is utterly nonresponsive to Madison's express rejection
of any distinction between "respecting," "abridging," and
"prohibiting."
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341 (phone)
512-471-6988 (fax)
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gene Garman
Sent: Wednesday, November 23, 2005
8:25 AM
To: Law & Religion issues for
Law Academics
Subject: Re: Madison on Abridge
and Prohibit
Professor Laycock,
The First Amendment eviseration of national congressional or governmental power
over both religion and speech in terms of either establishment of religion
or prohibiting of the free exercise thereof and the abridging of speech
is not questioned. Madison's point was Congress had no such power under the
religion commandments of the Constitution.
Regardless, let the record show, my question which stands unanswered is the
meaning of the two different words "prohibiting" and
"abridging." I rest my case.
Your effort was admirable, but I will continue to promote my position, which I
consider supported by examples I routinely use, such as, Jefferson's letter to
the Danbury Baptists, Madison's "Detached Memoranda," and the
unanimous decision in Reynolds v. U.S.,
as well as others.
I will not pursue the point further on religion.law. It has been a pleasure
discussing the issue. Thanks to the attorney who encouraged me to join your
listserv and to all of you for allowing my input. You have helped strengthen my
position, but I now need to use my time in other ways.
Gene Garman, M.Div.
americasrealreligion.org
Douglas Laycock wrote:
You can't
duck by pointing to the Article I part of Madison's argument and ignoring the
First Amendment part. The structure of his argument was that speech and
religion were equally protected by the lack of any Article I power to regulate
them, and that the First Amendment could not be read to reduce the equality of
that protection. So his premise
was equal lack of Article I power, but his conclusion
was equal treatment in the First Amendment.
We now know the premise was wrong; exploring the full implications of Article I
powers led Congress to discover many ways to get at speech and religion under
powers that did not mention speech or religion explicitly. But the
premise was widely assumed when the First Amendment was drafted, and the later
failure of the premise does not do much to undermine Madison's contemporary
interpretation of the First Amendment.
And he did speak directly to "abridge" and
"prohibit." He argued that the difference between
"prohibiting" and "abridging" is entirely parallel to the
difference between "abridging" and "respecting," which the
Federalists claimed enabled them to make laws "respecting" freedom of
speech, including the Sedition Act. He was rejecting the
Federalist distinction, so his parallel plainly requires him to reject
both distinctions, and the appeal of his argument at the time is precisely that
he thought it would be unthinkable to much of his audience to distinguish
between "prohibiting" and "abridging." Quoting
just the most specific part now, without the larger argument that gives it
context and inadvertently gave a means of avoiding the issue:
Fourth. If the words and
phrases in the amendment are to be considered as chosen with a studied
discrimination, which yields an argument for a power over the press under the
limitation that its freedom be not abridged, the same argument results from the
same consideration for a power over the exercise of religion, under the
limitation that its freedom not be prohibited.
For if Congress may regulate the freedom of the press, provided
they do not abridge it, becuase it is said only "they shall not abridge
it," and is not said, "they shall make no law respecting it,"
the analogy of reasoning is conclusive that Congress may regulate and
even abridge
the free exercise of religion, provided they do not prohibit it; because it is
said
only "they shall not
prohibit it," and is not said, "they shall make no law respecting,
or no law abridging
it." (emphasis in original).
The General Assembly were governed by the clearest reason, then, in
considering the Sedition Act, which legislates on the freedom of the press, as
establishing a precedent that may be fatal to the liberty of conscience; and it
will be the duty of all, in proportion as they value the security of the
latter, to take the alarm at every encroachment on the former.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341 (phone)
512-471-6988 (fax)
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]
On Behalf Of Gene Garman
Sent: Tuesday, November 22, 2005 7:59 AM
To: Law & Religion issues for Law Academics
Subject: Re: Discrimination
Professor Laycock,
James Madison did discuss the establishment and free exercise clauses in his
Report on the Virginia Resolutions and explained the obvious, that is, the
First Amendment was a limitation on the power of the national government, specifically
Congress. Regardless of any wording of the First Amendment in respect to
abridging or prohibiting, the First Amendment specifically restricted
the national Congress and did not give Congress a power to legislate or
regulate on the subject of religion or the press: no power over the press
and no power over the exercise of religion.
Madison specifically argued the First Amendment was unnecessary because the
national government had only delegated or enumerated powers. As Professor
Leonard W. Levy asserted, Black magic and only that can turn the First
Amendment into a repository of government power (The Establishment Clause,
second edition, p.140). In fact, both the 1788 Constitution and the 1791 First
Amendment restrict federal government power in respect to religion. As recently
as 1947 Justices of the Supreme Court (Everson v. Board of Education)
unanimously agreed on the historical question and the constitutional
restriction of governmental power over religion.
Therefore, the question I asked of you was not about history or the power of
the federal government in respect to religion. The assertion I made and the
question I asked was:
Madison did not leave specific commentary as to the significance of the use of
the different words "prohibiting" and "abridging" in the
same First Amendment. I guess he figured most Americans would understand the
meaning of the words used or would use Webster's. The fact is the word
"abridging" (which means reducing) is not the word used in regard to
the free exercise of religion, but it is the word which accommodationists
prefer and promote as if there is no difference in meaning between
"prohibiting" and "abridging." I welcome your input as to a
definition of "prohibiting" having a meaning different from totally.
Gene Garman
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