Settled is relative, or at least temporally delimited. At one point  
separate but equal was settled law (Plessy v. Fergusson). At one  
point the return of fugitive slaves was settled law, as was slavery  
itself. Just because the Supreme Court has ruled in a particular way  
doesn't mean that they have correctly interpreted the Constitution,  
or we would never have precedents overturned. There are many who  
would argue that the Supreme Court has gone way too far in its  
interpretation of the establishment clause. There are many who would  
argue that they have not gone far enough.

James Brothers, RPA
[log in to unmask]



On Feb 22, 2007, at 0:57, [log in to unmask] wrote:

> You are welcome for the history lesson.  I hope it was useful
> to you.
>
> While it is certainly the case that each and every United
> States citizen should read and learn the United States
> Constitution, it is emphatically not the case that you are
> entitled to make it mean whatever you chose it to mean.  As to
> activist judges, the jurisprudence of which I am talking is
> quite well established in Supreme Court precedent.  Until the
> Supreme Court judges otherwise, or until we amend the
> Constitution through the normal, established procedures, you
> and I and every other United States citizen has a moral
> obligation to abide by it.  That is what it means to live in a
> Constitutional democracy.  Upholding the law as established is
> something that you and I have a moral duty to do.
>
> Since I take the president of the College of William and Mary
> to be upholding the law, I think he is to be commended for
> removing the cross from the chapel.  Until the law changes, I
> would hope that you, and every other conservative on this
> list, would agree with me.
>
> Roe v. Wade is irrelevant to this conversation, and I guess I
> don't see why you bring it up?  What does that have to do with
> Virginia history?  Nor do I see the relevance of bringing up
> the laws of the European Union, since to my knowledge no
> serious person here has proposed that we adopt them, nor is it
> germane to Virginia history.
>
> Separation of Church and State, however, *is* a topic that is
> quite germane to Virginia history.  Here, I will refer you to
> the controversy in 1784 and 1785 over Patrick Henry's
> accomodationist proposal to pass a law providing for state
> support for "teachers of the Christian religion."  That law
> was defeated, in large measure because evangelical Christians
> in the state perceived, correctly, that such a law was not at
> all in their best interests.  As Patrick Henry himself said,
> in a somewhat different context, we would all do well to
> profit from their example.
>
> The most cogent defense of the doctrine that Thomas Jefferson,
> some years later, called "a wall of separation" between Church
> and State, was provided by James Madison, in a document
> entitled "A Memorial and Remonstrance against Religious
> Assesments."  James Madison, you will recall, is the fellow
> who, just a few years later, was resonsible in large measure
> for drafting the Constitution of the United States.  More
> importantly for our purposes here, it was also Madison who in
> 1791 drafted and secured ratification of the first ten
> amendments to the United States Constitution.  Supreme Court
> justices, reasonably enough, have tended to defer to Madison's
> interpretation of the Constitution, and have cited his
> Memorial and Remonstrance in their interpretation of the
> religion clauses of the first amendment.  This strikes me as a
> quite plausible strategy for interpreting the meaning of the
> first amendment, in as much as Madison's view of the right
> relation between Church and State is spelled out with great
> clarity in the 1785 document.  Madison's Memorial and
> Remonstrance is much more tightly argued than Jefferson's
> letter to the Danbury Baptists, and thus is the superior
> source for understanding his thinking.
>
> If we use the docrtine of original intent, in other words, you
> can make a strong case for the contemporary interpretation of
> the religion clause of the first amendment.  Indeed, it is
> those who seek to over turn this interpretation who are
> "activist."  The traditional position is the one Madison and
> Jefferson staked out in 1784 and 1785.
>
> In my earlier post I argued that it would be deeply unwise and
> imprudent for evangelicals to tighten the connection between
> church and state, and that those evangelicals who argue for
> that misunderstand their own history.  Were it not for the
> evangelicals in the 1780s, we would not have the first
> amendment as it is currently construed.  Without their
> political support, Patrick Henry's bill would have passed.
> Religious establishments have proved to be bad for the
> vitality of religion, precisely as pious and observant
> founders like Edmund Randolph predicted they would be.  We
> should be grateful for the wisdom of the founders in this
> regard, and it would be quite foolish for us to turn our back
> on their insights.
>
> I have now added to that argument, in suggesting that the
> Constitution as written and as intended to be interpreted by
> Madison and Jefferson supports the contemporary interpretation
> of the religion clauses of the first amendment.
>
> Thus, conservatives are doubly obligated to support this
> position--first because it is the right thing to do, if we
> care about the vitality of religion; and second, because by
> the standards of conservative jurisprudence, this is the
> constitutionally correct interpretation of the intent of the
> founders.
>
> All best,
> Kevin
> Kevin R. Hardwick, Ph.D.
> Department of History
> James Madison University
>
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