My reply to Doug Indeap on the constitutional "separation of church and state"; Part 3

Doug Indeap has replied to my recent post on the Establishment clause and the relationship between church and state.

I should note that I appreciate Doug's detailed comments. My replies are a bit snarky, partly because this is a blog and that's what is done on blogs, and partly because Doug, however thoughtful and polite, is trying to censor me and several hundred million of my fellow Americans. That angers me. I employ sarcasm to make my point. Doug employs police and attorneys to force you to comply with his point.

Doug:

... your post is largely premised on a fundamental misunderstanding of the nature of constitutional law. The Constitution places certain matters beyond the purview of the normal electoral and legislative processes. Our individual rights, for instance, are not up for majority vote, as you seem to suppose.

I understand the premise of constitutional law as well as you do, Doug. We agree that the Constitution places certain rights beyond the legislative purview (the right to free expression of religion and the right to keep and bear arms, for example). We differ on what the Constitution places beyond the legislative purview.

I believe that the Constitution prohibits the establishment of a national church. In every other manifestation of religion it protects free exercise. It's the plain reading of the Establishment and Free Exercise clauses.

You believe that the Constitution empowers unelected judges to expunge religious expression from civic life, thereby establishing de facto atheism as our civic religion. You believe that the Constitution empowers judges to micromanage vast aspects of our religious life, including what our children are taught in schools and can say and see in schools, and what we citizens can put on our public property and what opinions that we citizens can express via our elected officials.

I see the Establishment clause as prohibiting a national religious establishment. You see the Establishment clause as a license for tenured judges and irreligious litigants to use the power of the state to suppress civic religious expression by American citizens.

I see the First Amendment as a charter for free expression. You see it as a cudgel to suppress religious expression that you hate.

Your post is premised as well on other fundamental misunderstandings. You seem not to appreciate the distinctions between (1) We the People, (2) the government, and (3) individuals.

I understand the distinction.

For instance, you proclaim that "We the People (i.e. the government)" have the right to say we trust in God.

Yep.

"We the People" and "the government" are not one and the same.

Right. We the People are sovereign, and we elect the government to express our will, with the constraints of the Bill of Rights.

"We the People," acting through a constitutional convention, created "the government" and, in the process, gave it certain powers, refrained from giving it other powers, and expressly limited some of its powers.

Indeed. Could you cite for me the section of the Constitution that empowers federal judges to censor students' prayers at high school graduations? Was that the Establishment clause, the Free Exercise clause, or the Freedom of Speech clause?

"We the People" could amend the Constitution and thereby change the government's powers; the government itself, though, cannot do that.

What hypocrisy, Doug. "Living Constitution" judges change the Constitution regularly, without formally amending it. Every day some batshit federal judge discovers a new right that nobody can seem to find in the Bill of Rights. The right to kill a child in the womb. The right of the government to take private property from citizens to increase municipal tax revenue. The right of atheists not to hear things they don't like. So you're finally admitting that when the Supreme Court or some loon federal judge discovers some "right" that's not in the Constitution and that no one else had noticed for two hundred years, they're acting unconstitutionally? I knew that you and I agreed on some things.

The government must act within the constraints established by "We the People" in the Constitution, including the separation of church and state.

Oh. What was that "separation of church and state" clause in the Constitution, again? Section and article, please. No fair using the KKK initiation oath as a reference.

Your disbelief that the Constitution might bar the government from saying anything that 312,529,476 Americans don't all agree reflects yet another fundamental misunderstanding--because it indeed does just that in certain respects.

Actually, the Constitution doesn't restrict what the government says. It restricts what the government does. "Congress shall make no law...", not "High school valedictorians shall say nothing about..."

The whole point of the government in a representative democracy is to express what the voters have elected it to express. The government represents the people. Elections aren't unanimous, so not everyone will agree with what government says. That's ok. Our elections are decided by majority vote. President Obama won the last presidential election, although I didn't vote for him. President Obama's speeches about the deficit don't violate my freedom of speech. I don't have a heckler's veto over what the president says.

You don't have a heckler's veto either. A high school valedictorian's speech about God doesn't violate your right to free exercise of religion, any more than the President's speech violates my right to freedom of speech. If you don't like the valedictorian's speech, don't listen. Bring your IPod to the ceremony, or hum a tune to yourself. Don't call the police. You've got to learn to suppress your totalitarian instincts.

Speech doesn't violate rights. The use of government force ("Congress shall make no law...") violates rights. You're the one who uses force, Doug.

The Constitution prohibits the Establishment of religion, which is the act of recognizing a national church. It does not prohibit any government official from saying something about religion.

The Constitution prohibits the government from making certain kinds of laws-- from using force. It does not prohibit government officials from saying things, like prayers. In fact, the Constitution is quite emphatic about protecting freedom of speech and free expression of religion.

That is what the constitutional guarantees of individual rights and constitutional limits on government power are all about. The government is constrained to act according to the Constitution REGARDLESS of whether those on one or the other side of an issue amount to millions or dozens or one.

You make my point. The government is constrained to act according to the Constitution. Where in the Constitution are judges empowered to censor civic religious expression? Why do you continuously use the constitutional constraints on government power to invoke government power? Why do you call the police when someone at a school graduation prays? Why do you incessantly use the First Amendment-- the charter of free expression-- to shut people up?

You and I appear to agree on one thing: The courts' explanation that the references to God in the Pledge of Allegiance and the National Motto are more about acknowledging tradition than promoting religion is "bull." As you say, when most Americans recite these references they "mean it."

Damn right.

If the courts acknowledged that and dealt with it forthrightly, they would then have to recognize that such governmental pronouncements are indeed unconstitutional. The courts, though, dodge that conclusion by the "bull" that it is all about tradition and not about religion.

The reason that the courts invoke tradition to insulate some religious expression from censorship is that "separation of church and state" is junk jurisprudence, not any part of Constitutional law, and has created a garbage heap of incoherent and unconstitutional judicial censorship. The transparent purpose of "separation of church and state" is to extinguish civic religious speech-- speech that is explicitly protected in the Free Exercise clause of the First Amendment, which makes no distinction whatsoever between private and civic free expression.

A teacher is no more prohibited by the First Amendment from stating a religious opinion than she is prohibited by the First Amendment from stating a political opinion.

If courts were to enforce your 'mandatory censorship' interpretations of the First Amendment consistently, federal marshals would storm the podium during the State of the Union Address and arrest the President for violating the Constitution when he implores God to bless America. The FBI would arrest the employees at the U.S. Mint for printing prohibited religious speech on our money, and the U.S. Army would dismantle countless national monuments that are slathered with invocations of God. No religion on public property! Klaverns of the godless would go to Arlington Cemetery and tear up those crosses and stars of David on the graves. Ecrasez l'Infame!

Censorship of civic religious expression is not prohibited by the Constitution-- the Constitution guarantees free exercise and makes no distinction between civic and private speech, but, heck, atheist ideologues with a totalitarian itch tell us what the Constitution really means. Who needs to read the document itself?

The reason that judges invoke "tradition" to protect some religious expression is that if they followed your junk logic consistently, they'd be arresting everyone from the President on down, and the whole "separation of church and state" scam would be exposed for the totalitarian project that it is.

You guys just hate Christianity, and you do what you can get away with, and call it law.