My previous post on the “In God We Trust” lawsuit inspired the following exchange of views on Twitter (thanks to Twitlonger) between Adam4004 and myself – which is probably fairly representative of the kinds of disagreements that these cases invoke:

Adam4004: So you reject originalism & wish judges to legislate from the bench?

I am not a lawyer but to the extent that one can unambiguously determine original intent I do not believe that we should be absolutely wedded to it. Since circumstances and perceptions change over time the original intent may no longer be completely desirable. Interpretations of the Establishment Clause have been expanded over the years but I do not see that as a detriment to either the Constitution or our society. I prefer a broader meaning to the ‘establishment of religion’ than the original intent because that to me seems to make more sense today.

What is certain, however, is that I am completely and utterly unimpressed by some of the specious arguments propounded to shield such things as the national motto and the Pledge of Allegiance – like the notion that either are not religious or merely ceremonial. If they were either of these things then religious people would presumably not care in the way that they do when these things are challenged. I can see straight through such arguments – so should you.

Adam4004: So then really the Judicial Branch can simply decide as unelected personages to create new laws based on what they feel should be our country’s focus & ideals correct?

Those arguments are irrelevant. They don’t violate the intent of the establishment clause & thus aren’t unconstitutional. If judicial activists want a different meaning we have a process & way to create that which the founders put into place.

Well, no, of course not. The complete opposite extreme does not follow from my comments.

It is not a different meaning. It is an expansion of that meaning. “Establishment of religion” can be read narrowly or broadly.

Adam4004: It can be read to claim atheism is a religion. Anything can be read broadly to mean whatever anyone wants. The problem is that the authors clearly didn’t intend the meaning that is now being shoehorned in under the guise of being broad etc. Here’s the deal. Reading the constitution broadly to say something clearly not the actual intent is legislating from the bench & neither the right or left should be engaging in it.

Heres the problem. The idea that they would have meant this to be applied to something like in god we trust is clearly silly. If this is something we need to add they gave us the procedure to do so. Simply declaring…oh well…times have changed & what those dead guys actually meant really isn’t important or relevant do let’s simply expand it to mean something the constitution actually didn’t mean because a handful of unelected people think it’s time it meant that. Let’s not go through any actual process. Let’s just say this is what it should have meant.

Not at all. See, to go back to your original question, what I do not agree with is an interpretive inflexibility that is too overly strict to not allow any room for expansion or refinement if deemed necessary. Sure, the framers did not want the United States to establish an official state religion akin to what England has. But religion can be “established” in other ways that they may or may not have originally agreed with or even conceived – the fact that those 200+ year dead people did not view the world exactly the way that we do now is not a good argument for narrowly limiting ourselves to their intent. Nothing that I have argued for violates the spirit of that intent to keep the state out of the religion business, so in my opinion you are being completely unreasonable. An atheist motto is no more acceptable to me than a theist one.

I suppose my general point here is that something can be in the spirit of the original intent even if it is not, strictly speaking, the original intent as literally conceived. While this may be a fine line, I believe it is one that is worth treading. The founder’s idea to separate religion and government in the physical sense was a great one – but I also believe that separating religion and government in the symbolic sense is a reasonable application of that great idea.

Adam4004: Also. Those same guys you argue wanted to keep state out of the religion business appointed a chaplain to open each session of congress with prayer among other things. To say they would have intended this is to do damage to any intent.

Except if they had actually intended that they would have actually done that in practice. Clearly they intended that no denomination be established as the state religion. Arguing that the very people that based their argument for freedom on the existence of a creator in a foundational document would be against havig the term God on the money etc is silly.

Yes, I am well aware of that. But the meaning of “establishing religion” today and for us is not the exact meaning of “establishing religion” as it was then. And that is clearly (to me) for the better, not for the worse. Yes, it is completely silly to argue that the founders would have been against putting “In God We Trust” on money. But that is not the argument. I don’t care if they would have objected because that alone does not make it right. The founders are not paragons of virtue. The argument is that we need to and can formulate an arguably superior interpretation of that original meaning that takes into account the interests of a much broader segment of the population that the founders would (presumably) not have cared about. I have no doubt that they did not have in mind the interests of atheists. The principle they established was sound but needs to be applied in a broader way to truly and fairly live up to it. So long as that application remains reasonably within the bounds of the spirit of that intent then I see that as a good development, not a bad one.

Adam4004: Once again. You are admitting that the establishment clause clearly was not meant to be interpreted in the way you want. You are basically saying we create a new meaning by sime declaration. Of course the founders weren’t paragons. That’s why they created the process by which we can change the constitution. Don’t like the 3/5 idea? Change it. Etc. But we are saying we no longer need the ammendment process. Within the existing ones 9 people can create a right not even remotely intended when written by simply reinterpreting…even when everyone knows they most certainly didn’t mean or would have wanted that.

What I concede as historically accurate is that the framers probably did not interpret the clause in as broad of form. However, I disagree with you that that means that it cannot and should not be interpreted in that way.  I agree that the judicial branch should not be engaged in applying the constitution in ways that were “not even remotely intended.” I disagree that what I am arguing for is “not even remotely” related to that original intention. It is not the exact intention, but it is still related to it. As I already argued  it is not only within the spirit of the that intention but a superior application of it that recognizes that today’s society should not confine ourselves to the same prejudices as our forefathers. It is neither an entirely new meaning nor a simple declaration (once you start reading the case law you will realize that it is anything but simple).

The courts have worked this way for a long time. A fact that is often overlooked is that the due process clause in the Fourteenth amendment to the Constitution opened the way for the Bill of Rights to be applied directly to the states. The original intention was that the Bill of Rights applied to the federal government only. Any particular state within the union could, in fact, establish a state religion! The idea that only “Congress can make no law” has been superseded by that very process you cite. Given the broader applicability of the Bill of Rights as interpreted through the Fourteenth amendment, it should then become no surprise that since the 1940s the Establishment Clause has indeed been more broadly applied. Did the founders originally intend for the Constitution to prohibit state legislators from banning the teaching of evolution in public schools for religious reasons? No. But the Supreme Court ruled (1968) that the First and Fourteenth amendments combined now means that it does.

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In retrospect it seems that we are both employing a philosophy of constitutional application that happens to be most beneficial to our desired ends – I don’t know if there is any way past that fundamental point. As an historian, I recognize that meanings change over time and what was sensible for the founding fathers may no longer be strictly desirable in today’s society. After all, we are talking about the Bill of Rights and interpreting the Bill of Rights in a way that expands rights to greater numbers of people (like the non-religious community).

What do you think? How should we handle Establishment Clause cases?