Michael, obviously the Constitution does not contain the phrase "separation of Church and state." It's an interpretation of the Establishment clause. It's impossible to interpret the Constitution without developing these buzz-phrases, they are short-hand for very complex holdings. Rather than go through the entire rationale for the holding, every time, buzz-phrases are used, and a case is cited. It's part of stare decisis, that a prior holding is controlling law, until and unless reversed, which doesn't happen all that often.
I don't suppose that you studied Constitutional law, even as an undergraduate? It was probably available to you, it's taught as a subject in political science classes. Even now, you could probably study it as an auditing student, if there is a university convenient to you. If you are interested in the topic, why not take a class in it? The interpretation of the Constitution is, of course, something we can all do, but there is a way that the Supreme Court does it, and that's what I've been trained to do. I studied it as an undergraduate, making "A"s, and I studied it as a law student, again making "A"s in every course I took that required interpretation of the Constitution, and there were several. Constitututional Law, Constitutional Criminal Procedure and Federalism, "A"s in all three. Not too shabby, if I say so myself.
Which doesn't mean that I am always right, of course. But it does mean I at least understand the framework, just as you understand the framework of what you do better than I do.
Everson was decided in 1947. But it wasn't the first Supreme Court case interpreting the Establishment Clause, nor is it the last. The holding may be narrowed, but it's not likely to be reversed.
The reason is that the intepretation of the Establishment Clause that you understand, wherever it is that you get your information, and I have a pretty good idea, is not accepted by the members of the Supreme Court. Even Scalia, Rehnquist, and Thomas, who disagree with the most sweeping language in Everson, don't believe that there should be NO separation between Church and state.
The way you estimate your chances of winning is to count the Court. Read the opinions by all nine justices on the topic you are interested in, and then tally up who would vote for your argument if it was presented. The day you have a majority, go for it. Since you don't specify what it is you want, I can't count the votes for you. But if you want to establish a theocracy in this country, my count of votes for you is zip.
The reason, IMO, is that this country may have been founded by Christians, but it was founded by Christians seeking religious freedom. And Jerry Falwell doesn't tolerate the Pope, and vice versa, even though they are both Christians. Remember, I am Catholic, and I have reason to believe that in a Protestant theocracy, my rights would not be tolerated, look at Cromwell and Ireland. You are Protestant, does the word "Inquisition" mean anything to you?
BTW, the phrase "wall of separation between church and state" was coined, not by Jefferson, but by Roger Williams, a minister. Jefferson feared church interference with government, Williams feared government interference with the church. A good article from Baylor U.:
baylor.edu |
