Today, the Court divides the religious clauses of the First Amendment into what it terms “The Establishment Clause” “Congress shall make no law respecting an establishment of religion” and “The Free Exercise Clause” “nor prohibiting the free-exercise thereof ”. It is very obvious that no portion of the phrase “separation of church and state” appears in either part of the First Amendment nor in any other part of the Constitution. It is not surprising, therefore, that the recent reliance by the Court on this non constitutional phrase has prompted complaints by many constitutional jurists.
For example, in Baer v. Kolmorgen, Judge Elbert Gallagher complained: Much has been written in recent years to “a wall of separation between Church and State”. It has received so much attention that one would almost think at times that it is to be found somewhere in our Constitution. Supreme Court Justice Potter Stewart similarly observed: I think that the Court’s task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the “wall of separation” a phrase nowhere to be found in the Constitution.
And Supreme Court Justice William Rehnquist, after describing this phrase as a “misleading metaphor,” then noted: But the greatest injury of the “wall” notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. The “wall of separation between Church and State” is a metaphor based on bad history a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.Regrettably, the public’s current understanding actually, misunderstanding of the religious provisos of the First Amendment has been shaped primarily by a phrase which does not even appear in the Constitution a phrase almost totally unknown in constitutional jurisprudence for well over a century-and-a-half before the 1947 Everson case.
Yet, while all must truthfully concede that the separation metaphor is not actually found in the Constitution, many today nevertheless argue that the phrase as applied today accurately captures the intent of the Framers that the concept of a complete separation (i.e., an enforced secularization of the public square) was practiced by them during the Founding Era. Is this assertion correct?
For example, in Baer v. Kolmorgen, Judge Elbert Gallagher complained: Much has been written in recent years to “a wall of separation between Church and State”. It has received so much attention that one would almost think at times that it is to be found somewhere in our Constitution. Supreme Court Justice Potter Stewart similarly observed: I think that the Court’s task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the “wall of separation” a phrase nowhere to be found in the Constitution.
And Supreme Court Justice William Rehnquist, after describing this phrase as a “misleading metaphor,” then noted: But the greatest injury of the “wall” notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. The “wall of separation between Church and State” is a metaphor based on bad history a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.Regrettably, the public’s current understanding actually, misunderstanding of the religious provisos of the First Amendment has been shaped primarily by a phrase which does not even appear in the Constitution a phrase almost totally unknown in constitutional jurisprudence for well over a century-and-a-half before the 1947 Everson case.
Yet, while all must truthfully concede that the separation metaphor is not actually found in the Constitution, many today nevertheless argue that the phrase as applied today accurately captures the intent of the Framers that the concept of a complete separation (i.e., an enforced secularization of the public square) was practiced by them during the Founding Era. Is this assertion correct?
No comments:
Post a Comment