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Rev. Powell
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« Reply #15 on: October 21, 2010, 01:34:55 PM »

she's kind of right. It's saying that they governemnt can't form a state religion but it's not saying that religious assertations can't conceivably form the basis of law in a general way. You could argue this for quite a while but the way they are spinning this thast she just like doesn't know the consitution is wrong.


Debating how "separation of church and state" is implemented in particular instances is a subject of reasonable debate.  Saying that the principle of separation of church in state is nowhere in the Constitution (which seems to be what she was driving at) is just flat wrong.  She may know the Constitution, but she hasn't demonstrated it.  On another occasion she didn't know what the 14th Amendment was; she could have just blanked for a moment, but it's not encouraging.   
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« Reply #16 on: October 21, 2010, 03:33:06 PM »


"This is the way we've always done it" is a pretty poor justification.


I agree with that (though 'tradition' is sometimes worth defending), but isn't that what you are doing in this statement:

Quote from: Jim H

 it has been interpreted for 50 years as prohibiting government entities from promoting any religion over any other. 


Just because a court 50 years ago decided something, and based on THAT decision society has accepted the idea as "the way things should be" does NOT mean it is either right, Constitutional OR within the spirit the Founders tried to capture.

I'm not arguing the point one way or another...I'm purposefully not putting a dog in this particular fight...but your logic here is a bit circular.

Further, it could also be argued that the court 50 years ago (that would be the 1960's) was not the most faithful to the Founders on a TON of decisions. 

My point is not whether the Establishment clause really means "separation" or not but rather that no matter what side of this particular debate you are on, I think you have to admit that we are a LONG way from the US Constitution, both in content and in the spirit the Founders intended.

And what saddens me most of all is that group that acknowledges this and embraces it...those that seem to view the US Constitution as passe or outdated.
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« Reply #17 on: October 21, 2010, 05:06:33 PM »

Quote
Just because a court 50 years ago decided something, and based on THAT decision society has accepted the idea as "the way things should be" does NOT mean it is either right, Constitutional OR within the spirit the Founders tried to capture.

Well, to the best of my knowledge, there were no similar rulings before that point, and virtually all rulings after it are unified.  So, before that point, the exact meaning of the establishment clause was fairly hazy.  Numerous rulings in the past 50 years have clarified it.  That's an issue with such a vague document as the constitution.

Quote
I think you have to admit that we are a LONG way from the US Constitution, both in content and in the spirit the Founders intended.

As far as I can tell they deliberately made a lot of things vague in the Bill of Rights to allow interpretation and change.  Either that, or they were pretty terrible writers.  As a framework though, I do think it's a good system, for what that is worth.
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« Reply #18 on: October 21, 2010, 05:16:57 PM »

Quote
As far as I can tell they deliberately made a lot of things vague in the Bill of Rights to allow interpretation and change
strongly disagree. It was worded so they COULDN'T interpret or change it but they have.
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« Reply #19 on: October 21, 2010, 05:43:53 PM »

I'll take the middle ground between the two of you:
The Constitution, in places, was made a crystal clear as it possibly could be.  In other places, it was left in deliberately imprecise language.  That is where I have ENORMOUS respect for the wisdom of our founders.  To give just ONE example: In determining the grounds for impeachment of a President or other Federal officer, there are two VERY specific charges:  "Bribery", which has a clear legal definition, and "treason," which is actually defined IN the Constitution (and which, by that definition, both Jane Fonda AND the New York Times were clearly guilty of in recent history!!! But I digress!).  But then they included the maddeningly vague "and other high crimes and misdemeanors."  Why would they be so vague?  Because they were smart enough to realize that they could not foresee every possible circumstance which might warrant the removal of a President, so they left a clause that was somewhat open to interpretation ("Crimes and Misdemeanors") with a qualifying adjective ("High") to make sure that someone didn't try to remove a President or Federal Judge on trivial, politicized charges (although the sainted Thomas Jefferson did exactly that early in his Presidency when he did his best to remove a number of Federal judges for the crime of belonging to the opposition party!)
   I am glad to see my two students' recollection was not totally amiss, and, AHD, as far as wanting to "please me" - these two guys are more likely to try and bait me into a class-long debate that to score suck-up points for being rubber stamps to my opinions!  I still can't convince either of them that secession was illegal!  But they are a very impressive and opinionated pair of young men whose friendship means a great deal to me.

  My comments on "Engel vs. Vitale" is that the Supreme Court ruled in a completely new direction with no legal precedent whatsoever, and in so doing completely overturned longstanding, well-respected opinions expressed by our Founders and by the generations that succeeded them.  I have enough respect for the Constitution that I believe it should be changed by the legal amendment process rather than by the opinions of five men or women in black.

  All that being said, let me mention a couple of things, since I am one of the few Conservative, Christian Republicans on this board.  First of all, I have never met anyone on the right with any degree of education or credibility who believes that the state should be in the business of religious preaching or proselytizing.  Teachers in public schools should not be in the business of telling kids what to pray, who to pray to, or if they should pray at all.  But what I do see is school systems so eager to avoid being sued for violation of the Establishment clause that they are willing to bludgeon the Free Exercise clause in the process - ONLY if that Free Exercise is being practiced by Christians!  It is the selectivity of the repression that drives me nuts!  Student -led, voluntary  prayer during non-instructional time does not and will not ever threaten the Constitution.  What I would like to see is a simple ability for those in the public sector to occasionally tip their hats to the overwhelmingly Christian, Protestant philosophy that formed the intellectual background of our Founders' worldview.  They were equal part Locke and Luther,  Roussea and Calvin.

  One other note - as far as the restrictions I mentioned on public schoolteachers, and the issue of the valedictorian who was banned from mentioning the name of Jesus in his address to the school - I have several friends who teach in the Dallas Independent School district, and official policy bans them from using the phrase "Merry Christmas"  to their students , or in any holiday programming!  As far as the other case goes, David Barton, who actually filed an amicus curiae brief in that case, quoted the judge's words verbatim  in a seminar I attended a number of years back.  The judge later said that he was intending to be humorous, but the fact that he actually had a Federal Marshal seated on the front row when the young man spoke belies that statement.

  This is a very interesting discussion!
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« Reply #20 on: October 21, 2010, 06:36:37 PM »


 I still can't convince either of them that secession was illegal! 


Show me the phrase in the US Constitution that says once a state becomes a state, it can never leave.  There is a ton of language on becoming a state, and NOT ONE SINGLE WORD, on leaving the union.  I find that silence extremely relevant.

I respectfully disagree that secession was illegal.  Further, I think it would have been ENCOURAGED by the Founders (certainly Jefferson), what with their whole hating strong centralized government thing (except for certain, very well delineated, specific examples that ARE LISTED in the document).

Why would the Founders, who used as their basis for the very structure of our government the notion of individual liberty and sovereign, transcendental human rights, codify that "we the people" HAVE to remain a part of a country whose government we reject?  I, as an individual, am free to leave and find citizenry elsewhere (unlike some government systems of recent world history), but I wonder why, by extension, if a majority group of citizens of a given state decides the similarly, rejecting statehood would be so repellent.

On its face, the only reason I can think that secession would be illegal is that it represents a net weakening of the union, or more precisely, the union's centralized government.  If this is the basis for illegality of secession, it flies directly in the face of everything the US Constitution represents.

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« Reply #21 on: October 21, 2010, 06:57:09 PM »

  The Constitution of the United States begins with the phrase "We the PEOPLE of the United States of America . . ."  Not with "We the Thirteen United States of America."  The whole purpose of creating a more perfect Union was that it would be inherently unbreakable.  A Union whose member states could pack their slaves and leave any time they wanted would not be much of a Union at all.  That's is the guiding philosophy behind the Supremacy Clause in Article 6, and the whole idea of ratification in Article 7 - as soon as 9 states ratified the new Constitution, it would go into effect for those 9 and the other four would have to join up or be left out.
  I agree that Jefferson, in the Virginia and Kentucky Resolutions which he authored, did give a certain tacit support to the idea of secession by introducing the pernicious doctrine of nullification.  Once more, if the Constitution is the Supreme Law of the Land, then the laws passed by the Congress under its auspices must be respected by ALL the States, even those that disagree with them.  That Jefferson would promote the idea of one state, at a whim, being able to set aside the decision of the Nation's Congress is one reason why he is my LEAST favorite of our founding fathers.
  But, it was a SOUTHERN President, and a SOUTHERN Supreme Court, that took up the issue of secession in 1832 during the tariff crisis, when South Carolina threatened to nullify the Federal Tariff, and if not allowed to do so, to secede from the Union!  Both President Jackson and the Court reviewed the language of the Constitution and found the idea of secession to be Unconstitutional and invalid.  Lincoln refered to their decision in his first inaugural address, and South Carolina, which had wisely deferred to the decision of Jackson and Taney a generation before, pulled a nutter and withdrew from the Union altogether . . . triggering a War which killed 640,000 Americans and also killed the "peculiar institution" they seceded to protect.

  So yes, secession is illegal, and we should have hung Jeff Davis from that "sour apple tree!" in my opinion!
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« Reply #22 on: October 21, 2010, 07:30:08 PM »


  The whole purpose of creating a more perfect Union was that it would be inherently unbreakable.


I disagree with this completely.  The Union was, as I understand it, intended to be a LOOSE confederacy of States, joined only by those necessities that require working together to do well...common defense and commerce being the biggies.

The premise of the whole shebang was SELF governance...a genuine loathing of being "governed."  What you are describing is the essence of forced citizenry.

Let us suppose that, by whatever quirk of history this could POSSIBLY happen, I and every other person my State find the current federal government totally "wrong."  This may be a taxation issue, a moral issue or whatever principle you wish.  In your model, the only recourse we would have would be to LEAVE the US and seek citizenship elsewhere.  That would leave a state with no population, which it may or may not regain (but reorganization would then be required).

Why does it fly in the face of the spirit of the Constitution for this group to simply say, "let us self govern as a separate entity; we will ask nothing from you but the same recognition you give to every other nation on the planet (some of whom conduct themselves repugnantly)."

Quote

  A Union whose member states could pack their slaves and leave any time they wanted would not be much of a Union at all.  That's is the guiding philosophy behind the Supremacy Clause in Article 6,


I don't see where you get that...Article 6 states that the laws of the US are the supreme law of the US...okay.  What does that have to do with secession?  (Excepting the LATER Jackson issue you mention below).

Quote

  But, it was a SOUTHERN President, and a SOUTHERN Supreme Court, that took up the issue of secession in 1832 during the tariff crisis, when South Carolina threatened to nullify the Federal Tariff, and if not allowed to do so, to secede from the Union!  Both President Jackson and the Court reviewed the language of the Constitution and found the idea of secession to be Unconstitutional and invalid.  Lincoln refered to their decision in his first inaugural address, and South Carolina, which had wisely deferred to the decision of Jackson and Taney a generation before, pulled a nutter and withdrew from the Union altogether . . . triggering a War which killed 640,000 Americans and also killed the "peculiar institution" they seceded to protect.

  So yes, secession is illegal, and we should have hung Jeff Davis from that "sour apple tree!" in my opinion!


I'll give you that the war's outcome did trigger the downward spiral of the institution they were trying to protect.

But...ah, good old Article III...

The power of the Supreme Court's Constitutional Review was not inherent in the Constitution...that is a power the court gave itself (Marbury v Madison, about 15 years AFTER the document was written).  This leads to the question of the binding strength of precedent for setting enforceable law.  In other words, I might (for the sake of debate) reject the validity of your cited case since the Court has usurped a power not granted by the Constitution.

Within that framework, just because one President and a sitting Court had a certain view of secession does NOT mean, again, that that is the spirit of the Founders.  The problem with this is that any secession weakens said President and said Court, so it is self-serving to find it illegal.

(sorry this is rushed...gotta go...welcome your reply)
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« Reply #23 on: October 21, 2010, 07:52:59 PM »


 I still can't convince either of them that secession was illegal! 


Show me the phrase in the US Constitution that says once a state becomes a state, it can never leave.  There is a ton of language on becoming a state, and NOT ONE SINGLE WORD, on leaving the union.  I find that silence extremely relevant.

I respectfully disagree that secession was illegal.  Further, I think it would have been ENCOURAGED by the Founders (certainly Jefferson), what with their whole hating strong centralized government thing (except for certain, very well delineated, specific examples that ARE LISTED in the document).

Why would the Founders, who used as their basis for the very structure of our government the notion of individual liberty and sovereign, transcendental human rights, codify that "we the people" HAVE to remain a part of a country whose government we reject?  I, as an individual, am free to leave and find citizenry elsewhere (unlike some government systems of recent world history), but I wonder why, by extension, if a majority group of citizens of a given state decides the similarly, rejecting statehood would be so repellent.

On its face, the only reason I can think that secession would be illegal is that it represents a net weakening of the union, or more precisely, the union's centralized government.  If this is the basis for illegality of secession, it flies directly in the face of everything the US Constitution represents.


Ii is debatable whether of not secession was a constitutional act at the time of the Civil War.  (Today state secession would clearly be unconstitutional as it would violate the privileges and immunities clause of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...")  Clearly, Lincoln, Andrew Jackson, and James Madison thought secession was unconstitutional, but the issue was not settled.

If secession was constitutional and the North's invasion of the sovereign South unconstitutional, however, I am happy that the Constitution was disregarded in that instance.  Ending the atrocity of slavery as soon as possible was of far greater moral importance than preserving the constitution.  Transcendental human rights were certainly better served by Lincoln's actions, since the right to be free from enslavement is a more transcendent human right than the right of a majority of citizens to secede from a government they don't like (especially when they were seceding so to preserve a form of government built around violating other people's human rights).

(Sorry Ulthar, you two keep posting before I can compose my last response, so I don't address your arguments.  Doesn't matter that much for my point). 

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« Reply #24 on: October 21, 2010, 09:18:10 PM »


  Ending the atrocity of slavery as soon as possible was of far greater moral importance than preserving the constitution.  Transcendental human rights were certainly better served by Lincoln's actions, since the right to be free from enslavement is a more transcendent human right than the right of a majority of citizens to secede from a government they don't like (especially when they were seceding so to preserve a form of government built around violating other people's human rights).


The interesting point, though, is that slavery was on its way out anyway.  The Civil War hastened its demise by about 20 years at most.  So, one could argue that the moral impetus toward Emancipation had already begun and thus the Civil War did not really 'cause' the end of slavery.

The secessionists knew this, too.  They were largely 'fighting' to preserve their aristocratic way of life (which is  a deplorable reason to fight a war), but not everyone involved in the war was that self serving.  Still, seeing the handwriting on the wall the your entire economic foundation is crumbling can lead to desperate acts.  None of this settles the question of if, in the LONG run, preserving the Union at the expense of the Constitution's mandates for Strong States was a win for either the nation or mankind.
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« Reply #25 on: October 21, 2010, 09:49:38 PM »


  Ending the atrocity of slavery as soon as possible was of far greater moral importance than preserving the constitution.  Transcendental human rights were certainly better served by Lincoln's actions, since the right to be free from enslavement is a more transcendent human right than the right of a majority of citizens to secede from a government they don't like (especially when they were seceding so to preserve a form of government built around violating other people's human rights).


The interesting point, though, is that slavery was on its way out anyway.  The Civil War hastened its demise by about 20 years at most.  So, one could argue that the moral impetus toward Emancipation had already begun and thus the Civil War did not really 'cause' the end of slavery.

The secessionists knew this, too.  They were largely 'fighting' to preserve their aristocratic way of life (which is  a deplorable reason to fight a war), but not everyone involved in the war was that self serving.  Still, seeing the handwriting on the wall the your entire economic foundation is crumbling can lead to desperate acts.  None of this settles the question of if, in the LONG run, preserving the Union at the expense of the Constitution's mandates for Strong States was a win for either the nation or mankind.

Sure, but the South seceded in order to preserve the institution of slavery for as long as they could.  Had they succeeded they would have been a pariah state in the world and been forced to abandon slavery eventually anyway, but who knows when?  And even when they abandoned actual slavery, its probable it would have been replaced with an apartheid type system, something even worse than Jim Crow.

I wouldn't personally conflate the question of what is the proper power balance between states and the federal government with the issue of secession.  Federalism issues can be addressed by representative government: if people want more states rights they will elect representatives who will fight for that position, and presidents who will appoint judges who defend that position.  The fact is, people in the 20th century seem to prefer a powerful Federal government.  The states rights advocates are a vocal minority.

I agree with Lincoln, Madison, etc. that if states just seceded whenever they felt like it the result would be anarchy.  That's not a technical, legal Constitutional position, but a practical one.  I suspect if states were to secede, they would usually secede in order to form worse, less just societies (like the Confederacy).   

Glad we've been able to keep the discussion civil so far.  I've probably said all I have to say on the matter.
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« Reply #26 on: October 21, 2010, 10:56:51 PM »

OK, Ulthar, I thought I was  violating one of my Basic Rules of Life here ("Never attempt to have a rational discussion on the Civil War with someone from South Carolina"), but then I remembered that you are (I hope) from NORTH Carolina - an important distinction, to be sure!

You do raise many interesting points, but I think you began your argument with a flawed statement: "The Union was, as I understand it, intended to be a LOOSE confederacy of States, joined only by those necessities that require working together to do well...common defense and commerce being the biggies."   That was the purpose, not of the U.S. Constitution, but of the Articles of Confederation, our FIRST governing document.  What experience had demonstrated by 1787 was that the loose coalition of sovereign states created by the Articles was woefully inadequate.  With no power to tax, no power to regulate trade, no national court system, no national executive, and a mandatory requirement of a unanimous vote for any amendment, the Congress had, in effect, created a system that was broken from the start, and could not be mended.  That is why Madison and Hamilton and Washington decided that the only proper solution was to scrap the articles altogether and recreate the government from scratch.  Jefferson was not a part of that process and did not entirely approve the finished document, which is one reason I do not take too seriously his pronouncements on the Constitution.  Had he not been in France, he may well have joined the ranks of the Anti-Federalists.

As to whether or not slavery was on the way out:  The slave population of the U.S. grew in every single census from 1790 to 1860.  The South had grown more and more rabid and irrational in its defense of slavery, to the point of seeking to expand it into ALL the national territories, North and South, and endorsing a deeply flawed Supreme Court decision which declared ALL restrictions on slavery in the territories unconstitutional (the Dredd Scott decision).  In the end, the South decided to attempt the madness of secession because . . .  their candidate lost a Presidential election.  That's it.  Lincoln assured them time and again that he had no intention of touching slavery in the states where it already existed, but the fact that he believed slavery morally wrong and wanted to keep it from expanding into any new territories was ENOUGH for them.  The saddest part is, it was the Southern Democrats who deliberately split their party and insured Lincoln's victory!  The actions of the South in the secession crisis were so self-destructive and contrary to their stated goals you have to wonder what they were thinking!  Sam Houston summed it up best: "These damned fire-eaters are going to start a civil war in the defense of slavery, but they do not understand that the first shots of that war will be slavery's death-knell!"

Sam was a wise man!

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« Reply #27 on: October 22, 2010, 08:24:44 AM »


OK, Ulthar, I thought I was  violating one of my Basic Rules of Life here ("Never attempt to have a rational discussion on the Civil War with someone from South Carolina"), but then I remembered that you are (I hope) from NORTH Carolina - an important distinction, to be sure!


LOL...this was worth the path this thread took to get here.

I lived in SC for 12 years, but it is interesting that you say NC is an important distinction.  The area in NC where I grew up had people 'still fighting' the Civil War well into the 20th century...at least in their minds.

Quote

As to whether or not slavery was on the way out:  The slave population of the U.S. grew in every single census from 1790 to 1860.  The South had grown more and more rabid and irrational in its defense of slavery, to the point of seeking to expand it into ALL the national territories, North and South, and endorsing a deeply flawed Supreme Court decision which declared ALL restrictions on slavery in the territories unconstitutional (the Dredd Scott decision). 


I'll only address this part for clarification of my point.  Slavery was on the way out in a global morality sense; the trade was getting well to the point of being too expensive, and I believe other nations were rather aggressively attacking slavers with war ships so as to free the slaves (this had been going on quite some time, as I understand it).
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« Reply #28 on: October 22, 2010, 10:23:23 AM »

the civil war was totally unconstitutional and immoral. slavery was ended peacefully all over the world except for here. 600,000 people, most of whom had nothing to do with slavery or the slave trade, die...for humanity!! All so the slaves can live in NON equality??  A triumphant Lincoln has the first black guests to the white house and promptly tells them they should really go back to Africa!

Quote
With no power to tax, no power to regulate trade, no national court system, no national executive, and a mandatory requirement of a unanimous vote for any amendment, the Congress had, in effect, created a system that was broken from the start, and could not be mended. 

more like could not be manipulated by the elites for their own ends.

Quote
I agree with Lincoln, Madison, etc. that if states just seceded whenever they felt like it the result would be anarchy!

yes!!

Quote
suspect if states were to secede, they would usually secede in order to form worse, less just societies (like the Confederacy).   

this is the same rationale that got us into these war in the ME. If they want to be less just let them. It's their lives and communities. live and let live.

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« Reply #29 on: October 22, 2010, 01:05:04 PM »

the civil war was totally unconstitutional and immoral. slavery was ended peacefully all over the world except for here. 600,000 people, most of whom had nothing to do with slavery or the slave trade, die...for humanity!! All so the slaves can live in NON equality??  A triumphant Lincoln has the first black guests to the white house and promptly tells them they should really go back to Africa!



Sorry to hear you feel that way.  It is not factual, however, that "the Civil War was totally unconstitutional."  That's a matter of debate that constitutional scholars continue to this day; either position is defensible.  James Madison, considered the architect of the US constitution, said that he thought secession was unconstitutional.  We don't know what his opinion would have been had he lived to the time of the Civil War, but I'm guessing he would disagree with you.  The US Supreme Court held in Texas v. White (1869) that Texas' secession was unconstitutional; I'm not sure the reasoning is airtight, but a Supreme Court decision also disagrees with you, and that's the highest authority in deciding what is constitutional and unconstitutional.   

I wonder what would happen if we polled current Supreme Court justices on whether the Civil War was constitutional.  My guess is the vote would be 9-0 in favor of its constitutionality. 

You're an anarchist, Lester, so I don't know why you'd want to use the Constitution to support your opinions.  I'm sure if you had been around at the time of the founding you would have been a hardcore anti-Federalist who opposed the adoption of the Constitution and wanted to continue living under the Articles of Confederation.  It's a reasonable position but it lost a long time ago.   
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"The best parts are watching Sly go through the full range of emotions: deadpan, deadpan with raised eyebrow, deadpan with quivering lip. There's also a great sequence where Sly drives his VW Beetle down the interstate for about 20 minutes, staring dramatically through the windshield.."-Joe Bob on A MAN CALLED RAMBO
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