Monday, December 14, 2009

Dr. Kalivas Responds

The following is a detailed response from Dr. Kalivas to the assertions of myself, Tom Van Dyke, and Dr. Gregg Frazer that when the Constitution was ratified that it "left religion to the states":

"My understanding of Article VI is there does not have to be a conflict for Article VI to be “invoked.” The relevant clause of the Article is quite specific:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

It says the National Constitution and all laws of the country are the supreme law of the land. It further states that each state’s judiciary is bound to the national constitution and to the laws of the national government. The clause then goes on to stipulate that anything in the “constitution or laws of any state” that are contrary must conform to the laws of the land. In short, the US Constitution and the laws of the national government must be adhered to by the states, no matter if there is or is not a conflict, but a conflict naturally creates conditions for court challenges of state law. There is no provision for when this clause will be or won’t be “invoked,” it is always in force. However, when a conflict between state and national legislation does occur then state laws are subordinate to the national law and Constitution. That being said, if the States began legislating to institutionalize or impede religion or religious worship, then such state laws would be un-Constitutional and subject to nullification either through state legislation or through a judicial ruling, which can happen in a variety of ways. Religion was not left to the states, if the establishment or interference of religion was exercised at the state level then it would be in violation of the spirit and wording of the Constitution. The intent of many founders varied, but regardless of those multiple views, what came out of the constitutional convention and the wording of the actual First Amendment in conjunction with Article VI have some relevance here. To cite those few state constitutions from the Pre-Federal Era that lingered into the first decades of the 1800s as examples of how religion was left solely to the states plays with the chronology of events as well as under appreciates the context of the times and the time it took to effect changes. However, the fact remains that those changes to state constitutions did happen and those examples were gone by the 1830s.

Further, the spirit and intent of The First Amendment section on religion, as first proposed by Madison can be gleaned here from one of the original proposal for that amendment: “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 pretense, infringed.” This was not the specific wording that was later ratified as the First Amendment, but it does provide a window on Madison’s (and his friend Jefferson’s) views that matters of religion were not to be left to regulations or infringements by the government. And, as it was the national government that made laws for the country, and Article VI made those laws supreme over the states, then it suggests that it was not the states that should regulate or legislate on matters of religion, but that religion should be left up to the free will of the individuals per their individual “conscience” and not up to either national or state governments.

This was not a Republic founded as a Christian or Religious Republic, nor was it godless as there are references to the Divine Creator, Providence, and other iterations of god used by the founders. However, it is clear in the Constitution and the Declaration of Independence that sovereignty, the authority to govern at the national and state levels emanated and rested with the people and their elected governments. It is also was quite in keeping with the tenor of the late 18th and early 19th centuries to pay homage to the Divine Creator, or Providence without subscribing to a view that the government was ordained and guided by God and Biblical sources -- such reliance on God is not evident in the language or authority structured by the US Constitution for the new society it created over the past two centuries."

I will leave the abstract arguments over the Constitution to the others who know way more about this than I do.  What jumped out at me was the last part of the last sentence when Dr. Kalivas states, "such reliance on God is not evident in the language or authority structured by the US Constitution for the new society it created over the past two centuries." I responded with the following comment:

"That is the rub it did not such much create a new society as it built upon the "British Liberal Traditon" that is founded on natural rights and common law rights. The DOI is a legal document that presents the Christian case for interposition. Up until Parliment attempted to nullify their rights as Englishmen the representatives of the colonies argued from their rights as Englishmen. When those were taken away they appealed to natural rights. 

See my post above on Gary Amos."

It seems the debate about the American Revolution "creating some new society" it just beginning to heat up!  Feel free chime in on the "religion left to the states" thread as well as it seems we have two threads going at once. 

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