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Old 08-25-2010, 07:25 AM   #31
XavierP
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Quote:
Originally Posted by moxieman99 View Post
<snip> So when one says "unfavorably about government," one encompasses a historical scope that individuals today cannot really grasp.
I dunno, the whole Prop 8 thing harkens back to the law that black people and white people couldn't marry. It took years and years after being signed into law for every state to accept and legalise inter-racial marriage. 1967, if memory serves, was when it was accepted US wide.
 
Old 08-25-2010, 10:30 AM   #32
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We sorted out the divine right of kings issue in 1649, with an axe.
 
Old 08-25-2010, 12:04 PM   #33
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Quote:
Originally Posted by brianL View Post
We sorted out the divine right of kings issue in 1649, with an axe.
Didn't last long though. By 1653 we were ruled by "Oliver, by the grace of God, of the Commonwealth of England, Scotland, and Ireland, etc., Protector."
 
Old 08-25-2010, 01:09 PM   #34
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Yeah, but the Cromwell dynasty didn't last very long, did it?
 
Old 08-25-2010, 01:23 PM   #35
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True. And then we were back to monarchs ruling "by the grace of God". The point is that it's the Commonwealth that didn't last.
 
Old 08-25-2010, 02:37 PM   #36
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The monarchy was weakened after the Restoration, and more so after 1688. They couldn't get away with that divine right crap any more.
 
Old 08-27-2010, 09:09 PM   #37
mjolnir
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"Don't even attempt with citing the modern court. Read some older documentation(s) or

references during the times of the founders. Look at the founders diversity as related to

religion and law." - onebuck

I have to admit that "that" is exactly what I have been doing the last three or four days. I

hate to admit that I waited till now to do it.

"You still haven't shown me where in the Constitution the statement of 'Separation of Church

from State'." - onebuck

That's because he or no one else can!

"I asked a simple question; How does one not respect an establishment of religion, nor

prevent the free exercise of religion, without a separation of church and state?" - moxieman99

A simple question with the "answer" still in flux.

From what I can read we would be better served if instead of "separation of church and

state" we instead thought "separation of church and 'General Government'" taking those two

words from Jefferson's own mouth:

http://etext.virginia.edu/jefferson/...s/jeff1650.htm

"I consider the government of the United States as interdicted by the Constitution from

intermeddling with religious institutions, their doctrines, discipline, or exercises. This

results not only from the provision that no law shall be made respecting the establishment

or free exercise of religion, but from that also which reserves to the states the powers not

delegated to the United States. Certainly, no power to prescribe any religious exercise or

to assume authority in religious discipline has been delegated to the General Government. It

must then rest with the states, as far as it can be in any human authority." --Thomas

Jefferson to Samuel Miller, 1808. ME 11:428

"It must then rest with the states, as far as it can be in any human authority", excerpt mine, and as near as I can tell that was the situation as it existed at the time

of the writing of the Constitution:

http://www1.apsu.edu/oconnort/3000/3000lect02b.htm

"Nine out of the original thirteen colonies had established state religions. The

predominant religious groups back then were Puritans, Anglicans, Calvinists, Presbyterians,

Congregationalists, and Baptists. The predominant minority groups were Jews, Quakers, and

Catholics, although a few Amish and Mennonites existed in Pennsylvania, and Methodist and

Baptist sects didn't really proliferate until the Second Great Aw akening. Prior to the

Constitution, only two states - Maryland and Rhode Island - allowed religious freedom. The

remaining eleven states had various laws restricting the practice of minority religions, and

almost all states, even the most tolerant, required holders of public office to profess

faith in God the Father and Jesus Christ His Only Son. Eventually, most of the states

abolished these oppressive laws. Those that did not, or were slow to do so, and banned

creationism in the classroom became part of what was to be called the Bible Belt."

I should add that I don't know what this persons definition of oppressive is and I am proud

to have grown up in the so called "Bible Belt".


I also found indications that as many as six of the states were collecting taxes from the

established churches and that fear of loss of revenue not humanistic reasons fueled their

opposition:

http://www.blavatsky.net/newsletters..._and_state.htm

"At that time, at least six states supported their own religions: Connecticut, Georgia,

Maryland, Massachusetts, New Hampshire, and South Carolina. Those states taxed their

citizens to support those religions and required conformance in various ways. Those states

refused to ratify the constitution unless language would be added in an amendment that

insisted that the new federal government would not establish its own national religion that

would override their own state religions."


"None of the other Members of Congress who spoke during the August 15th debate expressed the

slightest indication that they thought the language before them ... would require that the

Government be absolutely neutral as between religion and irreligion. The evil to be aimed

at, so far as those who spoke were concerned, appears to have been the establishment of a

national church, and perhaps the preference of one religious sect over another; but it was

definitely not concerned about whether the Government might aid all religions evenhandedly."

(Rehnquist,
dissenting opinion, Wallace v. Jaffree)
 
Old 08-27-2010, 10:16 PM   #38
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Quote:
Originally Posted by mjolnir View Post
From what I can read we would be better served if instead of "separation of church and state" we instead thought "separation of church and 'General Government'" taking those two words from Jefferson's own mouth...
Up until the 14th Amendment was passed (it applied the Bill of Rights to the states in order to protect the newly-freed slaves) one could argue that state establishments of religion were okay under the US Constitution. Once the 14th was ratified, states have had the same limits that the federal government has.
 
Old 08-28-2010, 07:50 AM   #39
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Protecting newly freed slaves was certainly a worthy reason for the amendment.

Quote:
Originally Posted by moxieman99 View Post
Once the 14th was ratified, states have had the same limits that the federal government has.
As determined by 9 people wearing black robes extrapolated from: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;...".

Certainly words and intentions that almost all of us would espouse except that the road traveled to get from here: 14th Amendment -(no mention of the word religion) to here: can't display the Ten Commandments on public lands (example only) is a path that would have been abhorrent to the Founders and certainly to Jefferson:

http://etext.virginia.edu/jefferson/...s/jeff1030.htm


"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson to Abigail Adams, 1804. ME 11:51

Not only despotic but some would say demonic.
 
Old 08-28-2010, 08:23 AM   #40
moxieman99
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Quote:
Originally Posted by mjolnir View Post
As determined by 9 people wearing black robes extrapolated from: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;...".
No, as determined by the Congress and the state legislatures. Read the debates leading up to the passage of the 14th Amendment. The entire point of the 14th was to limit the powers of the states, since they could not be trusted to safeguard the liberties of the people. The 14th Amendment was NOT created by the Supreme Court.

If anything, the Supreme Court has limited the application of the 14th Amendment. The concept of "selective incorporation" was made by the Supreme Court -- not the Congress -- to smooth over those areas where application to the states didn't really work. Felonies can only be charged through indictment by a grand jury, for example. The federal government must use a grand jury. States can use grand juries or other means (a prosecutor's "information" for example). The default position, however, is that the federal right is applied to the state via the 14th amendment unless the Supreme Court deems otherwise through the doctrine of selective incorporation.
 
Old 08-28-2010, 10:22 AM   #41
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Quote:
Originally Posted by moxieman99 View Post
The 14th Amendment was NOT created by the Supreme Court.
I never said that it did. I also did not say that wrongs perpetrated by various states did not need to be addressed. I do not pretend to have all the answers.

What I do say is that "selective incorporation" is just a "bump and grind" away from judicial activism and is therefore way to much power to put in the hands of a judiciary which we the people have no practical way to affect.

I feel this is especially true because in my opinion they were never meant to have such power to begin with.
 
Old 08-28-2010, 11:25 AM   #42
moxieman99
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Quote:
Originally Posted by mjolnir View Post
What I do say is that "selective incorporation" is just a "bump and grind" away from judicial activism and is therefore way to much power to put in the hands of a judiciary which we the people have no practical way to affect.

I feel this is especially true because in my opinion they were never meant to have such power to begin with.
Those judicial activist founding fathers stated that it is the province of the Court to state what the law is back in 1804 -- Marbury vs. Madison. Sounds like "judicial activism" has been around longer than those opposed to it.

Besides, "we the People" do have a powerful say over the judiciary and judges. We elect the president who appoints them and the Senate that confirms them.

As the old saying goes: "The Supreme Court is not final because it is infallible. It is infallible because it is final."
 
Old 08-28-2010, 12:01 PM   #43
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Quote:
Originally Posted by brianL View Post
The monarchy was weakened after the Restoration, and more so after 1688. They couldn't get away with that divine right crap any more.
I'm not so sure that the PMs have done any better than the monarchs did. I doubt if the Queen would have invaded Iraq.

I'm reminded of my old history master. He was an anarchist, but he said that if he could only abolish one House of Parliament, he'd get rid of the MPs and keep the peers, saying "I'd rather be ruled by people chosen by accident of birth than by those who push themselves forward, claiming to know what's best for me."
 
Old 08-28-2010, 12:19 PM   #44
Hangdog42
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Quote:
Originally Posted by moxieman99 View Post
Besides, "we the People" do have a powerful say over the judiciary and judges. We elect the president who appoints them and the Senate that confirms them.
It is also worth pointing out that Congress does have the authority to propose laws and Constitutional Amendments if they truly believe that a Supreme Court decision has gotten out of hand. The Supreme Court is only as powerful as the people allow it to be.
 
Old 08-28-2010, 12:23 PM   #45
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Elena Kagan could conceivably be handing out decisions 40 years from now,or Roberts could live to be a doddering 110. Do you really feel you have any power over a body of people who once appointed can do virtually anything they want short of treason. I am sorry but I don't share your confidence.

As for "judicial activist founding fathers" I am sure there probably were some but I would like to see some quotes attributable to such people. I am not trying to be antagonistic but I think this topic is important and is becoming more so each day.

I propose a new saying: "The Supreme Court stole home when nobody was looking."

Last edited by mjolnir; 08-28-2010 at 12:25 PM.
 
  


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