Study Guide for "Original Intent" here

Clear Intent?

Be careful of people who use such words as clear, obvious, etc.. If things truly were so clear and so obvious, they wouldn't have to point that out to anyone, all would see it.

§15:41 MODERN CONSTITUTIONAL LAW

Neither the Supreme Court nor legal scholars should be very dogmatic in asserting the intent of the Framers on any aspect of constitutional law. For one reason, the ratifying conventions are reported in such meagerness as to throw very little light on the intentions of these persons who were primarily responsible for the adoption of the provisions. A long study into the intention of the persons responsible for the First Amendment should encourage caution and humility in asserting what they meant in anything other than the broadest perspectives.(13)

Again, after monumental research into the intent of those responsible for the Fourteenth Amendment, as requested by the Supreme Court, the court could but observe: "Although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive . . . ."(14) So, indeed, will be most attempts to psychoanalyze "the Framers." The Constitution will always operate on many matters on which the Founding Fathers could have had no intent.

FOOTNOTES

(13) Antieau, Downey and Roberts, Freedom from Federal Establishment (Chicago, 1965).

(14) Brown v Board of Education United States (1925) 276 US 394, (1954) 347 US 483, 98 L Ed 873, 878, 74 S Ct 686, 38 AIR 2d 1180, SUPP op 349 US 294, 99 L Ed 1083, 75 S Ct 753.

Source of Information

Modern Constitutional Law, The States and the Federal Government, Volume II, by Chester J. Antieau, Lawyers Cooperative Publishing, Rochester, New York (1969) pp 716

AND

RELIGION

An Overview

Madison's original proposal for a bill of rights provision concerning religion read: ''The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.'' The language was altered in the House to read: ''Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.'' In the Senate, the section adopted read: ''Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .'' It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some what more indefinite ''respecting '' phraseology. Debate in Congress lends little assistance in interpreting the religion clauses; Madison's position, as well as that of Jefferson who influenced him, is fairly clear, but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

Another view of so called "original intent," and church state separation.

Establishment and Free Exercise Clauses only Reinforced Separation of Church and State.

No Power to Congress over Religion: The "Elastic Clause" and the 1st Amendment

Article VI, Section III: The No Religious Test Ban Clause (Separation clause)

• Part I: Introduction
• Part II: The Constitutional Convention
• Part III: The Pennsylvania State Ratifying Convention
• Part IV: The Connecticut State Ratifying Convention and The Massachusetts State Ratifying Convention
• Part V: The Virginia State Ratifying Convention
• Part VI: The North Carolina State Ratifying Convention

Original Intent? Introduction

Original Intent? Part II

Original Intent? Part III

Original Intent? Part IV

Congressional Debates: Religious Amendments, 1789

Representative Thomas Tucker on Church and State, September 1789

Madison's vetoes: Some of The First Official Meanings Assigned to The Establishment Clause

Some Thoughts on Religion and Law

James Madison on Separation of Church and State