Quote:
Originally Posted by Ferd
The interesting thing about this is that it nullifies the notion that the intent of the Framers of the Constitution wanted to completly seperate all forms of relegious activity from the public square.
If for 40 years there was no federal challenge to state law on the subject, then one cannot argue that the intent of the constitution is to keep the 10 commandments out of state houses or manger scenes off the court house lawn.
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I'd rather disagree with that. It took 14 years after the Constitution was ratified before the first case (Marbury v. Madison, 1803) was argued that established the Supreme Court could perform judicial review and actually declare something "unconstitutional." Since then, great legal minds have been arguing about "intent."
Additionally, it should be noted that you have to have a case and a lower court judgment in order to bring an appeal to find something constitutional or not. A lot of stuff gets taken care of at the lower court levels; much of the time, the Supreme Court is trying to sort out differences made at the appellate court level in the cases it takes for review.
Also, I really don't think that you should want to rely on the laws as they existed just after the end of the Revolutionary War. In addition to establishing state churches and requiring payment to same, some colonies also required church attendance and proscribed celebration of certain holidays, such as Christmas. (The Puritans thought Christmas - Christ Mass - was too Catholic for their tastes and expected everyone to be up and working on Dec. 25.)
Finally, sometimes it takes a very long time for things that are wrong to be straightened out. Slavery and the subsequent Jim Crow laws are but one example.
I should note that I am an ardent church-state separationist, an attitude that was honed in the seven years I lived in Utah. People who don't understand why church and state should be separate should be forced to live a few years in Provo, Utah, and then they'll get it.
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