Another Constitution question

[Boris]

OK - Since its so much fun to play Supreme Court Justice, I've got another one for ya.

In this month's issue of Hustler is an interview Christopher Hitchens. In the interview Hitchens makes the statement that US aid to Isreal is unconstitutional because it violates the Establishment Clause (Amendment I) of the Constitution. Basically he argues that settlers in the West Bank and Gaza have a messianic world view and believe it's their duty to god to reclaim the land for the Jews. Since it could be reasonably argued that US aid to Isreal greatly increases the probability of a settlement being established successfully, we are in effect supporting the establishment of religion.

Does anyone know the original intent of the Founders in this instance?

[Ragnar]

My historical reading indicates that the founders were concerned only with establishment of a national religion in this part of the First Amendment. In fact several states had established state churches at the time of the adoption of the constitution, and that continued after the ratification. The clause was originally interpreted as applying only to the federal government. This is supported by the text which reads, "Congress shall make no law respecting an establishment of religion . . ."

Hitchens' application of this to apply to aid to Israel is a stretch, and not just from an original intent standpoint. I know of no basis for it in the case law.

Ragnar

[MMMMMM]

Third Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.""

Interesting argument by Hitchens, Boris. If however his argument is as you describe we can clearly see that it doesn't hold water. In fact all we have to do is be good readers, as John Cole has suggested;-)

How so? Well, even if aid to Israel increases the chance of establishment of religion in the Mideast, that isn't specifically what the Constitution prohibits.

The Constitution specifically says that Congress shall make no law respecting the establishment of religion. Providing support to a foreign government is not making a law respecting the establishment of religion; it's providing support to a foreign government. Even if that government should use that money to make some law regarding religion, Congress is not thus making a law respecting the establishment of religion. Congress might be authorizing aid some of which is indirectly used for that purpose, but Congress clearly isn't making a law specifically regarding the establishment of religion.

There is also a related erroneous concept many people think is part of the Constitution: separation of church and state. Complete separation of Church and State is not required by the Constitution. All that is required in that regard is what that one sentence says:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..."

That's really all there is to it. It doesn't say Congress shall give no aid which might be used for religious purposes (and in fact ministers'/rabbis'/etc. salaries are generally tax-exempt, so that could be considered a form of religious subsidy, but without preference as to faith). It just says Congress shall not make laws respecting the establishment of religion, nor prohibiting the free exercise thereof.

Also, even if one has problems with the argument above, it can easily be seen that as long as aid is allowed to other countries, we cannot be 100% responsible for what they do with that aid. Since some of the aid given to ANY country is bound to be used for purposes we might not agree with, such an approach would unrealistically constrain us from giving aid to any country, period. That just wouldn't make sense as a reason for not giving aid or support (although if we cut off all aid to everyone we would save a helluva lot of money and be immune from criticism of supporting bad things, but that's another argument entirely).

[MMMMMM]

To say it's a stretch is an understatement.

[Boris]

[ QUOTE ]
The clause was originally interpreted as applying only to the federal government. This is supported by the text which reads, "Congress shall make no law respecting an establishment of religion . . ."


[/ QUOTE ]

Right. And since it's the federal government money that goes to Isreal then you might think that this clause applies.

[Boris]

The word "establishment" in this sense is generally interpreted to mean "promoting". If you don't read it that way then I'm not sure what exactly the First Amendment means. Here is how the Supreme Court has interpreted in the past:
[ QUOTE ]
''The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. http://caselaw.lp.findlaw.com/data/constitution/amendment01/02.html#2

[/ QUOTE ]

[ QUOTE ]
it can easily be seen that as long as aid is allowed to other countries, we cannot be 100% responsible for what they do with that aid.

[/ QUOTE ]

Of course we can't be 100% responsible. The question of providing foreign aid that may be used for undesirable purposes (such as promoting a specific religion) is then a matter of a) degree, and b) the extent to which we can control what the aid is used for. As for part a) I think it could argued that most of the aid to Isreal is for nation building and, although our choice of Isreal is somewhat arbitary, the purpose is secular. Now as for part b) we could, if we had the political willpower, demand that Isreal remove all settlers. So the question really boils down to whether or not the promoting of settlements constitutes promoting a specific religion.

[MMMMMM]

Ok I follow your arguments. To me though a key point also revolves around the word "law" in the sentence. Congress is not making a "law" respecting the establishment of religion by authorizing aid to Israel; therefore Congress is not violating the Third Amendment by this action even if it is indirectly contributing to the support of a religion. In other words, by this action Congress isn't making a law regarding the establishment of religion (which is specifically what that clause in the Third Amendment talks about).

[Boris]

FYI - just you don't make any embarrassing gaffes at a cocktail party, the Establishment Clause is found in the First Amendment, not the Third Amendment that you keep referring to. I know what your talking about so it doesn't matter to me.
Amendments (http://caselaw.lp.findlaw.com/data/constitution/amendments.html)

[MMMMMM]

Boris I too thought it was the first Amendment, but when I went to Google to copy the text of the Amendment, the page I pulled up happened to have it as the Third Amendment so I thought I must have been mistaken.

OK I just found the link. Take a look at this page and you will see what I mean.

http://earlyamerica.com/earlyamerica/freedom/bill/text.html

Also thanks for the heads up.

[Ragnar]

I think that the list of amendments in the links is as adopted by the Constitutional Convention, but not as ratified.

I know the listed second amendment in the link was not ratified until 1992, over 200 years later, and is now the 27th amendment.

I have no info as to the first listed amendment in the link.
The amendment we are discussing is the first, because it is the first of the amendments passed at the constitutional convention that was ratified by the requisite number of states.

[MMMMMM]

Thank you for the additional insight.