GENE GARMAN WROTE:
REHNQUIST AND THE ESTABLISHMENT CLAUSE: HE WAS EITHER DISHONEST OR IGNORANT
Then - Justice William H. Rehnquist distorted, abused, and misused the good name of history in his attempt to justify his dissent in Wallace v. Jaffree (472 U.S. 38, 1985). There seems to be two explanations for Justice Rehnquist's abuse of the historical record: (1) Justice Rehnquist deliberately and dishonestly ignored James Madison's writings about the meaning of the Establishment Clause, which writings were written after the final version was drafted by the Senate- House conference committee, or (2) Justice Rehnquist is undereducated and his neglect of documentation from James Madison, as to the meaning of the Establishment Clause, was honest ignorance of the complete historical record.
Whatever the reason for Justice Rehnquist's distortion of history in Wallace v. Jaffree, he (1) continues, fifteen years later, to assert the same distortion by promoting his 1985 dissent regarding the meaning of the Establishment Clause and (2) has never acknowledged the existence of James Madison's definitions of the Establishment Clause ... One thing for sure, he is not an historian; thus, he should not assert use of history as if he were. Justice Rehnquist, nonetheless, is not the only American refusing to acknowledge James Madison's input to this issue. Justice Rehnquist shares the deliberate distortion or honest ignorance with other famous names, like Rush Limbaugh ...
It is indeed frustrating that the distortion about the wording and meaning of the Establishment Clause continues to be published and promoted all across America by justices and judges, radio and TV broadcasters, undereducated newspaper columnists, politically pandering politicians, and misinformed writers of letters to editors. Those persons who would establish religion through law and government could not care less about what James Madison or the other Founding Fathers at the 1787 convention said. It is common for those who would utilize government and its institutions to promote religion to be shameless in their abuse of constitutional principles and the facts of history. They are not strict constructionists; they are revisionists who change the wording in the Establishment Clause from "religion" to "church."
... unending repetition of the words "separation of church and state," words which are not in the Constitution ... (feed) the fire of those who assert that the Establishment Clause was meant only to prohibit a state church, as existed in England - Chief Justice Rehnquist's basic assertion! To the contrary, the word in the Constitution is "religion," not church. It is way past time for historians and defenders of the Establishment Clause to start using constitutional terminology: "Separation between Religion and Government" - James Madison's words. It is "religion" which is not to be established by law, not just a church. It is way past time for Justice Rehnquist, the other Justices on the Supreme Court, and judges throughout America to be taken to task for their continued abuse of the wording and history of the Establishment Clause. Thus, it is no surprise that the Supreme Court's recent applications of the Establishment Clause are marked by complete disagreements, inconsistency, and a misunderstanding of the facts of history.
Unlike today, the nine justices in the 1947 Everson v. Board (330 U.S. 1) school bus transportation decision were in complete agreement--a unanimous precedent about the facts of history relating to the Establishment Clause; but, they did divide five to four about the extent of its application. One thing is for sure, no student is required to attend a private school; and, beyond the public transportation bus door, none of the nine justices in Everson approved of public financial aid to students who of their own free choice attended private parochial schools. The four dissenters in Everson would not have allowed the parochial school children even the bus transportation from Ewing township (which did not have a public high school) ...
Jefferson's ... sovereign reverence for the Establishment Clause which he said had "built a wall of separation between Church & State" at the national level ... Jefferson's choice of wording was unfortunate because the words "church and state" are not in the Constitution and the erroneous concept is regularly used by accommodationists to distort the actual wording of the Establishment Clause. Justice Rehnquist has it both ways when he chooses to accept and use Jefferson's incorrect wording in order to emphasize a suggested limitation upon the broader understanding and application of the principle of separation, that is, to just the establishment of a church; yet, on the other hand, Justice Rehnquist chooses to reject Jefferson's wording in terms of his use of the word "wall." Fortunately, it is the wording of the Constitution which is authoritative; and, that is the wording which the Court should uphold.
Further, the Supreme Court of the United States in 1879 (Reynolds v. U.S., 98 US 145) and in 1947 (Everson) established, in both cases, a unanimous precedent which accepted Jefferson's letter to the Danbury Baptists as an authoritative understanding of the meaning of the Establishment Clause. Justice Rehnquist acknowledges the Court's past acceptance of the Jefferson letter, but he dismisses Jefferson's "wall" as a "misleading metaphor." More significantly, Justice Rehnquist deliberately chooses to reject these two unanimous Court case precedents, including the use of James Madison's "Memorial and Remonstrance" and his essay "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments," as referenced in Everson (330 U.S. at 12, notes 12 and 13).
If Justice Rehnquist is going to use the record of history as a means for establishing his position, he should at least be honest and accurate in his use of history, including the unanimous opinions expressed in Reynolds and Everson. Instead, Justice Rehnquist not only attempts to discredit President Jefferson's letter as a mere letter of courtesy written by someone whom he falsely asserts as not being in America during the time when the Establishment Clause was being debated in the states; but, he also questions the credibility of the eighteen Supreme Court Justices who wrote the Reynolds and Everson decisions which unanimously recognized President Jefferson's letter as an authoritative expression of the constitutional principle of separation.
Furthermore, in regard to the use of history, Justice Rehnquist erroneously uses the Annals of Congress as if they were the final word in understanding the intent of the First Congress and the meaning of the Establishment Clause. The fact is that there is information about the Establishment Clause which Rehnquist did not use in his dissent. As recorded in the Annals, after several and various versions to deal with religion and government in the Bill of Rights, a joint Senate-House conference committee was appointed to produce an acceptable wording. Rehnquist did not even mention that committee.
The joint committee consisted of six persons. The three House members were cochairman James Madison, John Vining, and Roger Sherman. The three Senate members were cochairman Oliver Ellsworth, William Paterson, and Charles Carroll. No one who reads the biographies of these men can accuse this committee of being anti-religion. Justice Rehnquist does not point out that this committee rejected all of the variously worded proposals which had been offered previously on the floor of the House, and in the Senate, including Justice Rehnquist's preference for the word "national" prior to religion. The Committee instead simply agreed (and the members of the First Congress accepted) that it was "religion" itself which could not be established by law or Congress, and "religion" itself is the only word that makes sense out of the following Free Exercise Clause word "thereof" which gains its entire meaning from the preceding wording in the Establishment Clause. Just try to make sense out of "thereof" if it means national religion, denomination, or state church.
There is more to what Justice Rehnquist did not mention in his minority dissent about the conference committee which worded the final draft of the religion clauses. Of the six members only one of them left specific and deliberate statements, after ratification on December 15, 1791, as to what the religion clauses meant in terms of application and understanding. Justice Rehnquist never mentioned James Madison's veto messages of February 21 and 28, 1811 (Writings of James Madison, 8:132-33), which applied the Establishment Clause and vetoed unconstitutional bills passed by Congress. Justice Rehnquist never mentioned James Madison's undated essay "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments" (William and Mary Quarterly, 1946, 3:555) in which Madison wrote "strongly guarded . . . is the separation between Religion and Government in the Constitution of the United States."
In other words, Justice Rehnquist failed to use all of the record of history in his attempt to justify his dissent. The father of the Constitution, James Madison, was in Congress in 1789, was on the conference committee which drafted the final wording of the religion clauses, and left subsequent definitions in writing as to the meaning of the religion clauses. Justice Rehnquist's omission of this significant part of the historical record is an unacceptable abuse of history. Justice Rehnquist was joined in this distortion and abuse by two other constitutional revisionists, Justice Warren Burger and Justice Byron White.
There is one more unacceptable omission in the Wallace v. Jaffree decision. Not only did Rehnquist, Burger, and White fail to use the complete record of history regarding the Establishment Clause, neither did the other six Justices. Not one of the other six refuted or corrected the obvious historical inaccuracies in Justice Rehnquist's dissent. They were all guilty of abusing the historical record. Therefore, I must rest my case with a conclusion that the Court and its staff of law clerks in Wallace v. Jaffree were perhaps not dishonest, apparently just undereducated and ignorant of the complete historical record.
Unfortunately, fifteen years later, the current members of the Supreme Court have not only rejected Everson; but, they have thoroughly distorted the Establishment Clause from meaning what it says. The Court has effectively rewritten the Establishment Clause from "no law respecting an establishment of religion," to "no law respecting establishment of an excessive entanglement with religion." The distortion approved in Lemon (403 U.S. 602, 1971) should be rejected, but that is another essay ...
Baltimore Sun: Brown's demotion
Informative story in the Baltimore Sun today that answers some of the questions we've been asking. Highlights:
*Retired Adm. James Loy, who until February was acting secretary of the Homeland Security Department and helped write its catastrophic emergency plan, says the agency was too hesitant in executing it in the wake of Katrina.
*Loy said the National Response Plan, completed last December, makes the secretary of Homeland Security the top authority in a catastrophic emergency. Loy said the plan, which he still believes is a "very good product," was supposed to resolve the question of who's in charge. But "turf protection crap" got in the way, he said.
*An internal memo obtained by the Associated Press shows that FEMA head Michael Brown waited until after Katrina was striking Aug. 29 to ask his boss to send 1,000 Homeland Security employees to the region and suggested that they be given two days to get there.
*Brown's boss, Homeland Security Secretary Michael Chertoff, also did not act with great urgency. He waited until Aug. 30 - a day and a half after Katrina hit the Gulf Coast - to invoke the National Response Plan to take control of the disaster. In doing so, Chertoff declared the situation an "incident of national significance," which put him in charge of the overall effort - trumping the authority of state and local officials and FEMA.
*The plan allowed Brown to call the shots on how state and federal resources should be used, including the Defense Department.
*MOST IMPORTANT: In response to the criticism of a lack of control on the ground, Chertoff has quietly designated Vice Adm. Thad Allen, chief of staff of the Coast Guard, to run the effort in New Orleans, (moving Brown to a lesser role as best I can tell.) Loy called Allen "one of the most capable officers" he has worked with and one who doesn't wait for an invitation to act.
Sharon Grigsby in Dallas Morning News
RIGHT CITY, WRONG STATE
FEMA accused of flying evacuees to wrong Charleston!
(CNN) -- Add geography to the growing list of FEMA fumbles.
A South Carolina health official said his colleagues scrambled Tuesday when FEMA gave only a half-hour notice to prepare for the arrival of a plane carrying as many as 180 evacuees to Charleston. But the plane, instead, landed in Charleston, West Virginia, 400 miles away. It was not known whether arrangements have been made to care for the evacuees or transport them to the correct destination.
A call seeking comment from FEMA was not immediately returned ...
New Orleans & Decadence
Decadence feeds on itself until you discover, too late, that it has permeated the neglected physical infrastructure and the collective psyche and the will to order. Rome didn't crumble in a day or from a single blow. Do we seem more or less likely to suffer a fatal blow to our Republic, the end of the American Way of Life, another Great Depression, or a grinding, punishing, continual war for Empire? Will the demise of our once-great democratic experiment be caused by physical disasters or institutional failures?
James Kuntsler presents a series of "What ifs?" He begins by asking, "Is this the start of the Long Emergency?"
It is certainly an event of great significance. The effects of damage to our oil and gas infrastructure in the Gulf of Mexico is already being felt in rocketing gasoline prices and a burgeoning supply crisis, especially in the southeast. The home heating situation is becoming a crisis before householders even turn their furnaces on. Half the houses in America are heated with natural gas, which is now clocking in at $12 a unit (1000 cubic feet). It was $3 a unit in 2003. It could go to $16. Connect the dots.
The crisis at the gasoline pumps will thunder through the economy, most ominously in the bubble suburban sprawl-building sector, which adds up to over 40 percent of business activity in the US. How many people will now contemplate buying a new McHouse 32 miles outside Atlanta (or Dallas, or Kansas City, or Washington), and what will happen in the production home-building industry as a result?
What will happen in the financial sector when the no-money-down-interest-only mortgage racket ceases to generate ever more hallucinated tradable debt? What will happen to Fannie Mae and Freddie Mac, the two federal governments sponsored entities at the center of that racket, and to their sponsor, whose treasury certificates are held by nervous foreign investors? And finally what happens to a dollar hammered by high energy costs and repatriated treasury certificates? Clusterfuck Nation