Scalia: It Is A Lie That Gov't Cannot Favor Religion Over Secularism

[happyslug]

42. That is Madison notes, not trusted by everyone...

Last edited Fri Oct 3, 2014, 12:59 AM - Edit history (1)

The official transcript of the working of Congress on the Bill of Rights still exists, no one knows what the transcriber was doing but it does have some interesting dottles.

Thus we rely on Madison's own notes written 30 years afterward and published is such a way to make Madison look in the best light possible (These were Madison's notes released by Madison himself after everyone else involved was dead).

If you actually read the First Amendment it is clearly aimed ONLY on the Federal Government, thus the language reflects a decision that the STATES could have State Churches if they wanted to (and most did at that time period, removal of Churches from the State started big time in the South, but more to remove widows and orphans off Government payments then any real desire to separate church and state).

In the 1790s it was NOT yet possible to separate Church and State, for the simple reason the State used the Church to get its message out to the people. What we called Newspaper is the product of Pulp paper (invented 1801), the invention of high speed presses (about 1850) and the Steam Locomotive (1830). Before those inventions (and their combination by the 1850s) if you wanted news you went to the State Church (or a Church recognized by the State and thus used by the state to send out notices to the people).

Thus the wording of the First Amendment reflected the technology limitations of the 1790s. By the 1860s those limitation were gone and you could actually have separation of Church and State. It is only in the post Civil War Era that you start to see a real push in that direction (they were cite Jefferson and Madison, but it is clearly a cite to show what they were doing was what the Founding Fathers wanted instead of what was wanted in the 1860s, when the later was the case).

In the 1790s and until the 1860s, Separation of Church and State kept running across and being blocked by those two functions of the Church:

First was Welfare for Widows and Orphans, such welfare was run through the churches even after their were disestablished (and continued to be so till the 1870) and,

Second, the ability of the Church to get a message to almost everyone, i.e. its ability to spread the news

Ending Welfare through the church was easy, the States started to do that in the 1790s and told all the widows and orphans to go west and steal lands from the Native Americans (Yes, in many ways Separation of Church and State included stealing lands from Native Americans). New York City shipped Orphans west till various Western States started to ship them back in the 1930s. Prior to the Revolution such orphans and their mothers would get relief from the established church (or in the case of Pennsylvania the Quakers, who were the de facto established church till replaced by the Presbyterian church when Pennsylvania kicked out the Quakers in 1758, both churches handled "Welfare" till the 1870s when the State took it over for both churches were found to NOT provide enough do to lack of funds AND often to the wrong people. i.e. Union strikers and their families).

Disestablishment of Churches started in the South in the 1790s (Massachusetts would not do it till the recession of 1837), but such disestablishment had little to do with separating church from state, and more to the concept of reducing costs to the state by' shifting welfare costs to the frontier as stated above.

As to the News Function, that continued till the Civil War (and in some states after the Civil War). During the Civil War, newspapers found out their could sell more papers if they report what was going on in the front AND if they could report about any local units and how they were doing in the field. This permitted daily papers to actually survive and thus provide daily updates (where the Church could only get weekly updates AND then through official channels, the papers sent their own reporters and told them to send messages by Telegraph NOT letter thus the papers could publish news from the front on the day after something happened, the Church could not get that news for maybe weeks since they relied on letters NOT telegraphs). Thus it was clear by the 1860s that the news function of the Churches was obsolete. Thus only in the 1860s could you have seperation of Church and State.

I bring this up for Madison's notes often do NOT reflect political reality of the 1790s. It does reflect political reality of the 1820s when their were published. The US did NOT yet have the technology to seperate church from state but the technology was clearly headed that way.

Thus Madison "notes" as to earlier versions of the Bill of Rights have to be taken with a grain of salt. i.e. remember it is questionable for we have NO official transcript AND no other notes for Madison only released his notes after everyone else who had been in Congress was dead (Thus no one could support them OR attack them).