Standing For Silence

Today marks the annual Congressionally-mandated ritual of disrespecting the Constitution in the name of pleasing the pious.

As has been done every year for my entire adult life, the President has proclaimed a National Day of Prayer, politically-motivated and blatantly false urban legends to the contrary notwithstanding. The proclamation is authorized by 36 U.S.C. § 119, which reads in full as follows:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

The Establishment Clause of the First Amendment says “Congress shall make no law respecting an Establishment of religion.”

One way to look at this ritual is to ask what is an “Establishment,” notice that the law here only encourages and does not mandate prayer, and that it does not specify any particular kind of prayer nor even the identity of any particular god. An “Establishment” is a designation of a national church, the argument goes, and this law doesn’t do that. It’s just encouraging people to pray. There’s nothing mandatory about it; it uses the word “may” and not “shall.” No one is required to respond to the President’s proclamation in any particular way. So there’s no compulsion, no Establishment of an official national church. But this method of analysis isn’t the way the law has been interpreted or evaluated.

We’ve two principal ways in contemporary Constitutional law to look at this issue. The first is the Lemon test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an  excessive government entanglement with religion.” Seems to me that 36 U.S.C. § 119 flunks the first and second prongs. I can identify no secular purpose to this law. I can see no effect to this law other than that it advances religion.

Second is the endorsement test: “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.” Seems to me 36 U.S.C. § 119 flunks this test. This statute is nothing other than governmental endorsement of religion.

But it’s doubtful that anyone has standing to challenge the law. Hein v. Freedom From Religion Foundation, Inc. (2007) 551 U.S. 587. As far as I can tell, no taxpayer money is spent in compliance with it. The proclamation is an executive act despite its mandate by Congress. As I read it, there is no person or entity who can present a live case or controversy with which to challenge this law. So despite what seems to me to be the obvious Establishment Clause violation, the Courts have simply shut their doors to hearing any challenges to it.

That doesn’t sit right with me. Even if we were to use the deliberately narrow construction of the concept of “Establishment” to craft the clearly-deferential definitional test I described above, there still ought to be some meaningful way someone can have that test applied. If Congress and the President are not susceptible to review of whether their actions exceed the limits of the exercise of power placed upon them by the Constitution, then the Constitution as a practical matter is an empty, toothless, meaningless, and superfluous thing, and not the supreme law of the land in any way that matters to anyone. At a minimum, someone should be able to test the Constitutionality of this law.

If people want to pray, by all means let them. They need no encouragement from the government to do so, and it’s not the business of the government to be telling people to pray, any more than it would be the business of the government to tell people not to pray. The First Amendment mandates silence and neutrality by the government as to matters of personal faith. 36 U.S.C. § 119 is the opposite of that and it is repugnant to the Constitution.

No one has to tell me that as a nation we confront much more immediate and serious issues. We grapple with war and peace, with staggering governmental debt and abdication of the government’s obligation to provide for the general welfare. Something is deeply rotten within our collective political dynamic. So in one sense, this isn’t all that important. But in another sense, it is a symptom that as a nation what we claim to be our highest law, what we claim to revere as our highest cultural ideals, are things that we are ready to set aside when it simply pleases us to do so and that is something we should take seriously. Every year this continues is another year that our government and our political process engages in cognitive dissonance that an obvious violation of our fundamental law is somehow not only harmless but permissible.

Count me among the number who pray for standing to demand that the government remain silent.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. I take it you’d agree that neither the framers nor the founding generation would have objected to such a practice. If so, were they wrong, or did something change between then and now?

      • This is at best simplistic, misleading, and/or incomplete, and at worst simply not true.

        • Fine… then unsimplify it, clarify it, complete it, or demonstrate it to be false.

          Would you rather I say that the framers and founding generation didn’t object to slavery enough to make it illegal? Because, ya know, slavery wasn’t illegal at the time. And I’m pretty sure nothing has changed since then, at least with regards to whether or not we should enslave people. My money is that, collectively, they were wrong about slavery.

          Which is cool. It happens.

          • I explained this at some length here: An excerpt:

            the Framers used great care to avoid specifically legitimizing slavery in the Constitution. Moreover, slavery was not authorized by law when it was first introduced in the country. Instead, it was merely tolerated without any law. According to a decision of the King’s bench in 1772 and the colonial charters, there was no right of property in man. Even when slaves became so numerous as to require regulations, legislatures simply assumed the existence of slaves and still passed no laws legitimizing the practice. There was no law and no language in the Constitution defining which persons may be made slaves, and certainly no authority prescribing or defending enslavement on the basis of race. Thus, as Lysander Spooner concluded, “there was no constitutional slavery in the colonies up to the time of the revolution.”
            Even the three oblique allusions to the practice in the Constitution—Article 1, section 2; Article 1, section 9; and Article 4, section 2—do not acknowledge or sanction the institution as it existed. After a careful survey of these clauses, Spooner found:

            “There is in it nothing about color; nothing from which a liability to slavery can be predicated of one person more than another; or from which such a liability can be predicated of any person whatever. The clauses, that have been claimed for slavery, are all, in themselves, honest in their language, honest in their legal meaning; and they can be made otherwise only by such gratuitous assumptions against natural right, and such straining of words in favor of the wrong, as, if applied to other clauses, would utterly destroy every principle of liberty and justice, and allow the whole instrument to be perverted to every conceivable purpose of tyranny and crime.”

            There’s this also, from Thomas Jefferson’s “Draft of Instructions to the Virginia Delegates in the Continental Congress,” July 1774:

            “The abolition of domestic slavery is the great object of desire in those colonies where it was unhappily introduced in their infant state. But previous to the infranchisement of the slaves we have, it is necessary to exclude all further importations from Africa. Yet our repeated attempts to effect this by prohibitions, and by imposing duties which might amount to a prohibition, have been hitherto defeated by his majesty’s negative: thus preferring the immediate advantages of a few British corsairs to the lasting interests of the American states, and to the rights of human nature deeply wounded by this infamous practice.”

          • Tim,

            There is no doubt you know both the law and the history better than I. But let’s be serious… if they thought that slavery was the moral wrong that we recognize it as today, they would have outlawed it, full stop. They didn’t. I repeat… They. Didn’t. Outlaw. Slavery. Nowadays, it is outlawed. So, clearly there was a different opinion on the legality and morality of slavery then than there is now. Maybe not opposite, but different. So either something changed about the morality of slavery in that time or one of us is wrong. I don’t think it’s the folks that have stopped the practice.

          • Many did recognize it as a great moral wrong. Some recognized it as a moral good, e.g., John Calhoun and George Fitzhugh. Those were the two competing principles that I know of, but they could not both be said to comport with founding principles, as Abraham Lincoln said. A Civil War was fought and country was rededicated to the sentiments of the founding generation with the clarification that “all men” included blacks.

            I think your point is that we shouldn’t look to the founding generations’ sentiments of the ideas underlying the Constitution because they failed to eradicate slavery in their time. That’s true as it relates to 1787, despite the wishes of many, and in large part because, per the Jefferson quote above and per Daniel Webster’s The Constitution and the Union speech in 1850, slavery was a policy implanted and entrenched in American culture and economics well before the United States existed. Even still, Lincoln’s generation was also a founding generation, forged in blood and ideals, ideals that precisely echoed those from 70 years prior, only now making the correction that prior generation hoped could be made without war after it had been established it could not.

            In other words, the founding philosophy was reincorporated sans slavery in the Civil War. So the notion that we can reject that philosophy because it was founded while slavery still existed is a misguided one, in my view.

          • My point is not to reject anyone whole cloth.

            Instead, I’m arguing that your initial comment here was a pretty poor way to form an argument. To say that Burt arguing against a policy which you think the framers and founding generation wouldn’t have objected to means one of two things, either that they were wrong or that things have changed, is silly. As evidenced by the slavery example. Your argument seems to be that Burt is wrong because, if he isn’t wrong, that means the founders/framers were either wrong or things have changed. That ain’t much of an argument.

          • The claim that the framers took “great care not to legitimize slavery” seems pretty weak sauce to me. While not using explicit language may have assuaged some of the guilt a few framers were (hopefully) feeling, the fact remains that the practical legal structure they created recognized, at least implicitly, slavery as it existed.

            If state law allows a slave to be held to service or labor, a constitutional provision that requires the return of said slave does seem to legitimate the practice, at least to my eyes. And then you have Article 1, Section 2, which sets up a dichotomy for purposes of representation between those who are Free (including servants for a fixed term), and everybody else (excluding Indians), who are, presumably, not free. You can say that doesn’t acknowledge slavery, but it seems pretty clear to me that it does (as it did, funnily enough, to the framers).

            “Even when slaves became so numerous as to require regulations, legislatures simply assumed the existence of slaves and still passed no laws legitimizing the practice. ”

            Uh . . . I don’t know about that. Here’s one in I found in a quick google search. Horrifying stuff . . .

            “WHEREAS the only law in force for the punishment of refractory servants resisting their master, mistris or overseer cannot be inflicted upon negroes, nor the obstinacy of many of them by other then violent meanes supprest, Be it enacted and declared by this grand assembly, if any slave resist his master (or other by his masters order correcting him) and by the extremity of the correction should chance to die, that his death shall not be accompted ffelony, but the master (or that other person appointed by the master to punish him) be acquit from molestation, since it cannot be presumed that prepensed malice (which alone makes murther ffelony) should induce any man to destroy his owne estate.” Virginia Act I, 1669.


          • Even still, Lincoln’s generation was also a founding generation, forged in blood and ideals, ideals that precisely echoed those from 70 years prior, only now making the correction that prior generation hoped could be made without war after it had been established it could not.

            This seems a bit of a dodge to me. So does every generation that goes through some traumatic event that makes people rethink what the ideals of the country meant fall under “a foundation generation”? Would therefore the New Deal generation be considered the same, given that they lived through one of the most economically challenging times in history?

            And what parts of the Radical Republican agenda are considered part of this second founding and what aren’t? What about Reconstruction? The abandonment of Reconstruction and the acceptance of Jim Crow?

            This just seems very convenient.

          • Would therefore the New Deal generation be considered [a founding generation]?

            There are scholars who make arguments roughly along those lines, such as law professor Bruce Ackerman, and perhaps–depending on how you read him–political scientist Ted Lowi (Lowi’s argument would support such a conclusion, but it’s not a founding of which he approves).

          • Tim,

            I want to contrast two of your statements.

            1. “the Framers used great care to avoid specifically legitimizing slavery in the Constitution.”

            2. “Many did recognize it as a great moral wrong. Some recognized it as a moral good,”

            Note the difference between “the framers” (all of them) and “many” (some of them them). The second usage is precisely correct, and is the reason the first usage is highly dubious, in that it implies more unanimity of agreement among them than, as you show, actually existed.

          • Not a dodge at all, Nob. This view is quite common, particularly among Claremont and Hillsdale scholars, Harry Jaffa, Allen Guelzo also, I believe, etc. The issue of American ideals and philosophy and how they comport or don’t with slavery were widely and thoroughly litigated in the years prior to the Civil War. Lincoln was a diligent intellectual, historian, and advocate of the founding philosophy, and believed the Civil War did not supplant that philosophy but rededicated it. I don’t think it could be said that the mechanics of Reconstruction were part of that intellectual project, per se. They were just mechanics, an attempt to fulfill that project. But the mechanics themselves weren’t part of a wide and thorough litigation before the public. Same with Jim Crow laws.

            Same also with the New Deal, I would argue. The New Deal’s intellectual forebear, Wilson, acknowledged that the new “science of administration” was “not of our making; it is a foreign science, speaking very little of the language of English or American principle”; and that the founding philosophy – “[t]he abstract legalistic individualism of the Jeffersonian democracy” – contemplates that “[g]overnment was not intended to be the instrument of important popular social purposes.” The Study of Administration, 1886. I would argue that Wilson’s ideas were never fully and thoroughly litigated before the public and never ratified by the public on their merits. As just one piece of evidence, by the time FDR pushed Social Security, he acknowledged it would have to be sold under preexisting notions of what constitutes a “legal, moral, and political right” as opposed to simply Wilsonian administrative prerogative. Wilson, FDR, and their legacy, I would argue, failed to fully litigate their philosophy, and certainly did not succeed in replacing the “legalistic individualism of the Jeffersonian democracy.” Instead, they found ways to install an administrative state on top of that earlier philosophy.

            That’s just the outline of what would require a much longer and less convenient response to flesh out, of course.

        • The founders agreed (repeatedly) to the use of adultery as a diplomatic measure.
          I’m pretty sure adultery was illegal in both countries at the time.

    • To start off with, I’m not an originalist, so if the objection is, “Hey, the founding generation wouldn’t have minded a law like this at all,” my first reaction is, “So what?”

      But for the most part, I think your take is correct that a great number of people of that era wouldn’t have particularly minded this law and many would have supported it. The Framers and their contemporaries were as susceptible to cognitive dissonance as we moderns. At minimum, they were as willing to make unprincipled political compromises with one another as we moderns are today.

      Those who point to the Framers for historical succor against the raw words of the First Amendment often place particular emphasis on James Madsion as a principal, if not the principal Framer. (I note that Tim did not identify any particular individual.) It’s very hard for me to square the James Madison who wrote the Memorial and Remonstrance with the James Madison who used public money to hire clergy to serve as Congressional chaplains, at least as a principled and not as a political matter. And it turns out that Madison actually voted against hiring chaplains; he just plain lost the vote, and there is a strong argument that Madison in particular consistently opposed legislative chaplaincies among other kinds of prayers incorporated into governmental actions throughout his life.

      If nothing else, the links I’ve set forth here demonstrate that this discussion is an as-yet unresolved legacy from the Federal Era and at least some people back then raised similar objections to the ones I raise today.

      • I didn’t point to a particular individual founder or framer because I don’t think any individual view particularly matters unless it may be said that the view represented that of most of the founders. As Jefferson said regarding the Declaration, it “was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests on the harmonizing sentiments of the day, whether expressed in conversations, in letters, in printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.” (Emphasis added.) Authority does not lie in words on a page but in the ideas they represent. And ideas live in persons, who in certain conditions constitute a people, whose harmonizing ideas may be said to constitute a government. In this case, that people is the American founding generation, and the Constitution represents their harmonizing ideas. To reject those ideas means ultimately, it seems to me, to reject the true and legitimate authority of the Constitution.

        Then again, I may just be hijacking the thread!

        • But authority does lie in words on a page. That’s what law is: words on a page, not a nebulous concept in peoples’ minds. For instance, is it any less rape if a man impersonates a woman’s boyfriend rather than her husband to deceiver her into giving consent? The answer was a (reluctant) “Yes, because of the way the words were written back in 1872” according to a recent California case.

          A political document, like the Declaration of Independence, is readily susceptible of inquiry into its authors’ intent and the degree of consensus of others that formed the intent thus expressed. (And given that nearly a third of the residents of the colonies were Loyalists in 1776, Jefferson’s claim to have given voice to a harmonized statement of the sentiments of the day is a wee bit grandiose.) Don’t get me wrong: I like that we have political documents that aren’t necessarily legal in nature, and I like the Declaration of Independence in particular. But I don’t think the Declaration is law.

          The Constitution, however, is law. It says so, right there in Article VI, Clause 2. And since it is law, we should look at it like law: the product of politics, to be sure, but not the same thing as the politics which produced it.

          (Is this a threadjack? Maybe. It’s a pleasant one if it is.)

          • We should hope that the concept is not “nebulous” but instead is reasonably ascertainable. But how could the law be limited to “words on a page”? The meaning of words change all the time, but this does not mean that the meaning of our laws that use those words change — and it must mean that if laws are nothing but the words on the page. Take the rape case you cited. The statue in question prohibits “intercourse with a woman” under certain circumstances. There is a modern trend, still in its infancy, to regard the gender of persons based on their subjective state of mind — e.g., a person born male and with male genitalia may nonetheless use women’s restrooms and other facilities if that person subjectively identifies as a woman. If this trend takes hold in our language, such that “woman” comes to mean “any person who subjectively identifies as female,” then does that change the meaning of the “words on the page” of the rape statute?

            I think it ought not. The particular statute was designed to protect persons who are actually women from sexual aggression from people who are actually men. That’s not to say that this is the correct formulation of the statute, or that there shouldn’t be or aren’t other laws that protect people from sexual aggression more generally. But the legislature has the discretion to define different laws with different standards and definitions and carrying different penalties. And some of those legitimately protect biological women. Should the definition of “woman” change to have a psychological instead of a biological basis, the rape law still should not be deemed to change unless and until the legislature amends or replaces it to reflect that new definition (or some other definition, for that matter).

          • Maybe Dave can help me with this, but it seems to me here that Tim is bundling together original public semantic meaning with original public understanding of legal provisions’ overall meaning. IOW, he’s saying that the fact that because the generally understood meaning of particular terms by users of the language changes over time means that we (perhaps) have to set those semantic meanings in place from the time of enactment in order to have a reasonably stable body of law (barring textual changes to the actual relevant legal language), that therefore, logically, the understandings of the overall legal meaning of legal provisions of some critical group of stakeholders at the time of enactment (for example, “most of the founders”) must also be fixed as the broader meaning of those provisions, and even of the overall thrust of a legal or constitutional architecture from the time of its erection (sorry), viz: “that people is the American founding generation, and the Constitution represents their harmonizing ideas. To reject those ideas means ultimately, it seems to me, to reject the true and legitimate authority of the Constitution.”

            The response would be that it’s two very different things to say, on the one hand, that law is only stable if the meanings of words in law are fixed in their meaning to what they meant, as a matter of the public’s understanding of the meaning of the language itself (not the exact legal language, but simply the words themselves in any context), and on the other, that legal provisions as larger units mean only what some particular group of people who were around at the time of their enactment thought they meant, or apply in particular situations the way they would have thought them to. Tim starts with this latter claim, and then moves to the former, implicitly arguing that the latter one must be true if the former is, because if law is just words on the page, and the meaning of words change, then we have no stable body of law if we don’t take understanding of its meaning at the time of enactment as its permanent meaning. But it doesn’t follow from the fact that since words’ meanings change, some reference to time-bound understandings of them is necessary to get a stable body of law, that whatever understandings about the overall meaning of particular legal provisions we can establish existed, or even predominated, among some critical group of people at the time of enactment determine the meaning of laws. The problem for legal meaning of changing semantic meaning of terms can be solved more narrowly, by addressing such changes at a linguistic level – addressing changes in understanding of the terms by determining terms’ meaning among the whole class of language users that existed at the time of enactment. The idea would be that, while the meaning of particular terms or phrases can be fixed by reference to language use at a particular time, the meaning of statements as complex and historically and political contingent as legal provisions is consistently shown in history to be indeterminate even at or near the time of enactment (as James’ point about an even split on the meaning of the First Amendment on this question among the first four presidents shows). So that if, say, we were to say the term “abridge” has come to mean something somewhat different from what it did in 1789, while we can make reference to its overall meaning at that time to clarify that its meaning in the First Amendment means what it meant then not now, we can’t do the same thing with the First Amendment as a whole. That particular arrangement of text didn’t have a prevailing meaning in 1789 that pre-existed its own drafting – rather, its public meaning, only started to take shape when it began to be circulated as a proposed amendment to the Constitution. There’s no authority like “all the users of the language” to refer to to settle its meaning; in any case it’s too complex a statement to have an unambiguous meaning in language apart from the subjective understandings of various interpreters; and to privilege some particular group of interpreters is just that – to remove the meaning of the law from the language that was passed to the subjective understandings of some preferred group of interpreters.

            Even if there was unanimity in that preferred group of interpreters about the meaning of the provision (which, as James says, there was not), it still wouldn;t be the case that the problem of evolution in the meaning of terms in language over time would require us to adopt the understandings of a preferred set of contemporary interpreters as the permanent meaning of the text. It is possible to determine the meaning among all language users at the time of enactment of any terms whose meaning has evolved as a way of addressing the problem such evolution poses for maintaining stability in legal meaning. Adopting the understandings of a particular group of interpreters isn’t necessary to solve that problem. It may be that there is some other reason that we should adopt the understandings of a particular group of interpreters (such as “most of the founders”) as the legal meaning of provisions enacted at the time of the founding, but the fact that the meaning of the language itself, particularly of individual words, changes over time isn’t a sufficient one to say that doing so is necessary.

          • Tim,
            I’ll be looking forward to your argument as to why XXY humans are different from men, and ought to be treated as a rather nebulous concept with regards to a law that was clearly not written with them in mind.

          • Michael, I actually wasn’t setting out a full throated defense of original public meaning or the framers intent (two different ideas). I first asked if Burt agreed that under either of those ideas, there wouldn’t be an issue. I happen to adhere to original public meaning, which we haven’t really touched on here, but I do understand that there was a split of opinion among the framers and first presidents.

          • On second thought, why try my clumsy hand when Justice Sutherland already captured the point well in his West Coast Hotel v. Parrish dissent: “to say … that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”

          • Since roughly no one in either the 1780s or 1860s thought that the the Constitution provided a right to same-sex marriage, and since almost everyone does today …

        • In this case, that people is the American founding generation, and the Constitution represents their harmonizing ideas. To reject those ideas means ultimately, it seems to me, to reject the true and legitimate authority of the Constitution.

          But that begs the question of whether we can legitimately claim that a belief in the legitimacy of government involvement in prayer is “the harmonized idea” of the founding generation. When the author of the specific words in question says differently–when two of the four most notable founders, half of our first generation of presidents say differently–I would argue that we cannot honestly conclude that there was such a harmonized idea. There appears, by the same measure, to not be a harmonized idea that government involvement was illegitimate, of course. The point is that any claim of a harmonized idea on that particular point–either for or against involvement–is a demonstrably false claim.

          • Maybe we’re looking at it from different altitudes. I’m not suggesting we decide every case through the eyes of 18th century America. I’m suggesting that we ought to consider the context and more basic understanding, e.g., the “30,000 foot view” of how the founding generation understood it. (In this regard, the views of particular framers may be evidence but probably not dispositive evidence of what that understanding was.) So in the example of the national day of prayer, that 30,000 foot view might not tells us specifically how it should come out. But I think it could probably tell us with fair to strong confidence that the First Amendment doesn’t purport to chase every religious reference out of every corner of government.

            I could be wrong. But the question I was also curious about was, what if I’m right? Would that change anything? Some have suggested no, it wouldn’t, because the founding generation didn’t eradicate slavery so we spit on everything else they stood for. I’m not troubled by that because I just don’t think it’s a serious argument. But the other argument I often hear is that law is just words on a page, and thus all we need to do is change the concepts to which those words refer and voila, we have new laws, a new constitution. I find this troubling because I think it’s dangerously wrong and yet many serious people advocate it.

          • Tim,

            I believe in a type of originalism that focuses on the underlying purposes of the Constitution and its various elements, which allows for a recognition that the founding generation could have had a general purpose whose real functional parameters they didn’t fully comprehend themselves. Just as much of the Tu Quoque argument in the current mainpage threads seems to wrongly treat Pete Domenici’s infidelity as evidence that he’s not serious about the institution of marriage, I think a tight focus on the actions of the founding generation is the wrong way to interpret the intended purpose of the Constitution.

            As part of this approach I agree with Randy Barnett’s “assumption of liberty” approach to interpreting the Constitution. I’m also pretty strongly on board with the generally conservative argument that the Constitution being a grant of power, federal actions have to show not that they are prohibited, but that they are authorized. And I see clear restrictions on the federal government’s authority to promote religion, while not seeing anything that authorizes it to promote religion in any way. So I’d say that if some–even most–folks in the founding generation favored a proclamation in favor of prayer, they were wrong to do so.

            And of course we don’t think that majority rule is the appropriate method of constitutional interpretation today, so I’m beggared to understand why majority rule of the founding generation matters, either. When they ratified the Constitution, they didn’t ratify a particular interpretation of it, because that question wasn’t on the table. And they didn’t ratify particular actions, because at the time of ratification those weren’t on the table, either. Policies that came after can’t be said to have been authorized by the ratification, because they post-date the ratification. There’s no compelling basis that I can see for concluding that the founding generation was any less capable of violating their founding document than we are.

            I mean, if we’re going to take the founding generation’s actions as proof of what’s constitutionally legitimate, then arresting newspaper publishers (Sedition Act of 1798–never struck down by the courts; good law until it sunsetted) for criticizing the government must be constitutionally allowable. Do I believe that originalists who take that approach will agree to the constitutionality of Barack Obama having Rush Limbaugh and Glenn Beck arrested for criticizing him? No, I don’t. Which means they aren’t being consistent on the idea of looking to the founding generation’s actions as definitive evidence of what the Constitution allows the government to do.

          • It’s not as though the way words and phrases change over time is a sinister or intentional process. Phrases like “Speech” or “Press” include things like what we’re all doing here — although the Internet would have been beyond the imagination if the people of the Federal Era. But we have little difficulty understanding that communication, and the media in which communication takes place, are within the zone of what we understand “freedom of speech, and the press” to mean. I use a contemporary understanding of those words rather than a 1789 understanding to conclude that free speech principles apply to blogging.

          • Even under an approach that look at the “purposes”of the law, I think at 30,000 feet we can be fairly confident that few in the founding generation held the government or the law to be neutral towards religion in general, i.e., that government and society could take or leave religion and that it was a purely private affair. Again, does that mean that a national day of prayer proclaimed by the Congress would not violate the First Amendment? Not necessarily. I just think it means that our approach to the analysis would not involve notions that the law was designed to be religion-free. (That approach would be perhaps more legitimate with respect to the federal government, but even then, I think it may be taking things too far and putting too much stock in the iconic “wall of separation”language at the exclusion of all other evidence of Americans’ attitudes toward religion and the law.)

          • Also, just to tie this back to the text of the Constitution, what we’re talking about is how to apply the language of the First Amendment to something like a national day of prayer to the extent it’s ambiguous. In that respect, we’re talking about what “an establishment of religion”means. In my view, religion qua religion is not an “establishment.” To the contrary, religion is presupposed by the American founding.

          • Again, does that mean that a national day of prayer proclaimed by the Congress would not violate the First Amendment? Not necessarily.

            I still don’t see anything in the Constitution that authorizes the federal government to take any positive action toward religion, any more than it is authorized to take any negative action toward religion. The document as a whole is really unfavorable to government involvement in religion at all. Both religious establishments and religious tests are prohibited. The idea that government can take positive action towards religion seems like an attempt to shoehorn in authority to do something where no clear authority is granted.

            In my view, religion qua religion is not an “establishment.”

            Our views differ on that. I think a Catholic facing a clearly Protestant government (or vice versa) is no less disadvantaged than an atheist facing any kind of religious government. But let me ask this: How would you feel if the wording of the Day of Prayer statute was changed from “God” to “gods”?

            To the contrary, religion is presupposed by the American founding.

            That’s a deep and sticky wicket, on which we’re unlikely to achieve any substantial common ground. This ancient post of mine (a refutation of one of the false–or at least badly twisted–arguments from the religion and founding quarter) gives a good indication of my position. The heart of it is that political writings of the founding era, exclusive of actual sermons, made very little reference to the Bible, and notably the Federalist papers contained no references to the Bible, whereas 9% of the antifederalist writings did.

            To delve a bit deeper, I really don’t understand why some Christians are so desirous of getting government involved in politics. I’m in agreement with James Madison’s Memorial and Remonstrance on this issue (extrapolating from his point 7, about ecclesiastical establishments). I think any government involvement in Christianity corrupts the faith, and I think the desire for political influence represents a perversion of the faith (that point will be expanded in a front-page post, if Tod accepts it).

          • I’m obviously sympathetic to the “enumerated powers” doctrine. But I see something like a national day of prayer as more akin to printing “in God we trust” on currency than to taking “positive action towards religion.” It does not compel anything, it is only symbolic of one of the constitutional beliefs of the people. (Which gives you an idea how I’d answer your question about “gods.”) If it went beyond that, though, I’d share your concerns.

            I get the feeling that when I say “religion,” you and others read “the Bible.” I’ll have to think about how to correct this breakdown in how I communicate what I mean, but I don’t mean the Bible or Christianity. I refer more broadly to a metaphysics that makes universals laws of reason and morality evident to and binding on all of humanity. My hypothesis is that while many of the founders may have been suspicious about the particulars of religion, they recognized its necessity in establishing and sustaining those metaphysical principles among a people, as those principles were in turn necessary for the experiment in self-government.

            And it would put words in my mouth to suggest that I am “desirous of getting government involved in [religion]” (I assume you meant “religion” and not “politics”). I don’t care much about a national day of prayer for its own sake. What does have me concerned is what I believe to be a mistaken notion of a strict “wall of separation” between “religion” and “government,” where “religion” means a universal metaphysics as I’ve roughly sketched above, and where government means states, cities, towns, schools, public squares, etc., as it has come to be construed modernly. So I’m not desirous of getting “government” involved in “religion.” I’m just concerned about what I view to be growingly misguided understanding of what each of those terms are taken to mean.

          • I mean, if we’re going to take the founding generation’s actions as proof of what’s constitutionally legitimate, then arresting newspaper publishers (Sedition Act of 1798–never struck down by the courts; good law until it sunsetted) for criticizing the government must be constitutionally allowable

            1. Deliberation is an inherent part of elective and conciliar government.

            2. When you have a phrase of a character like the following “Congress shall make no law…abridging the freedom of speech, or of the press’, the burden of demonstration would be on the person who contended that a coercive act was not an abridgement under a proper understanding of the article.

            3. The notion that a presidential proclamation constitutes an ‘establishment of religion’ when actual state establishments were still extant and a host of quite serious legal disabilities had been laid on Catholics both in Britain and in a selection of the colonies within the memory of much of the adult population is less than obvious. That the 1st Congress appointed chaplains is salient.

            4. The Sedition Act was in effect for less than three years. Not much opportunity for the appellate judiciary to pass on the subject. Note also it was in effect at a time when plain statements in judicial opinions disallowing statutory law were a novelty.

          • I get the feeling that when I say “religion,” you and others read “the Bible.”…I don’t mean the Bible or Christianity. I refer more broadly to a metaphysics that makes universals laws of reason and morality evident to and binding on all of humanity.

            A) I believe you, but I don’t believe it’s generally true of those who advocate for a national day of prayer or for an emphasis on the claimed religious foundations of America. Too often those folks claim they’re just interested in something like a ceremonial deism, but when they’ve talked long enough, they reveal that it’s really Christianity that they’re motivated by, and that they’re driving for.

            B) If we’re going to have such a metaphysics, it need not be religious, and I think to emphasize a religiously based metaphysics is inappropriate for government. We obviously disagree on that.

            C) I also get squeamish–as someone who grew up in the church–when Christians push hard for this, then say it’s not really about Christianity. I once had a student give a speech on the “In God We Trust” on coins issue. A great student, and a wonderful person, I want to emphasize. Also a sincere Christian. She argued that it was really important to keep the slogan on the coin, and that it wasn’t really a Christian slogan, just ceremonial deism. My response then, as it is now, was: If it’s not really about Christianity, but just an a-Christian unscriptural ceremonial deism, why be so passionate about it; and if the passion really is driven by Christian motivations, and you’re publicly denying that’s what the phrase means to you, aren’t you like Peter denying Christ? From a Christian perspective I was highly offended by Scalia’s argument that references to God don’t actually mean anything important enough to be a matter of constitutional concern. This is exactly the kind of thing I mean when I say getting government involved in religion in any way corrupts it. (And, yes, you interpreted and corrected me properly on my substitution of politics for religion, although of course I’m tempted to cheekily claim that government corrupts politics, too.)

            Ultimately I find the concept of ceremonial deism empty, hollow, and as best I can figure, a copout for any person who’s sincerely committed to any particular faith. “Thou shalt have no other gods before me” should, I think be taken more seriously by Christians, who should not be referring to other unspecified metaphysical sources that are not actually God himself. If ceremonial deism iss suited for anyone, it’s only suited only for those people who say they believe in some higher spiritual power but don’t want to have to actually dedicate any meaningful effort to finding out what that higher power is, or what a true belief in it would actually mean.

          • I have mixed feelings about ceremonial deism, but mostly they’re positive. Its purpose is to be inclusive: it doesn’t establish a religion, in particular not Christianity, but by saying “prayer” and going no further, gives equal consideration to every one of the others. (Is there a religion which doesn’t have some notion of prayer, even those that don’t specifically worship a divine being? I can’t think of one.) A day of prayer isn’t a call to aggrandize any one religion or even religion in general. It’s a day to step back from day-to-day concerns, look at the larger picture, and concern yourself with things or more lasting importance. That’s all to the good, and I can’t see any criticism of it other than a reflexive “Who is the government to tell me what to do? If I want to spend the day reading about the Kardashians, that’s my business!”, which I don’t think needs to be taken seriously. What makes it contentious is that nowadays (unprecedentedly, I think) there are a significant number of people who are avowed atheists, and so feel excluded by the word “prayer”.

            So, to test this parsing, my atheist friends, how would you feel about a National Day of Contemplation?

          • “So, to test this parsing, my atheist friends, how would you feel about a National Day of Contemplation?”

            I haven’t thought it through entirely, but I would doubt I’d have an objection, certainly not as strong as the one I have for the NDoP.

            My school, a private, secular institution, is making a push to increase “mindfulness” as part of a new mental health program. I’m not super well versed on what mindfulness is, but as I understand it, it seems like an okay enough idea for us to encourage in children, especially because I think it touches on a variety of key things that are important for children, such as self awareness, emotional intelligence, self-control, and the like. The problem is, the woman tasked with leading the program is doing so with a certain religious bend. There are sometimes references to “higher powers” or “inner spirits”, which I am not comfortable with. I think this goes too far, even if they are unnamed and theoretically inclusive of a variety of view points. But with young children, who lack nuance in understanding faith and the like, if they do not come from a place where these phrases are of common usage, they may feel lost or excluded from the process (and this includes kids who might come from faiths that do encompass these believes but which have not been articulated as such to them).

            So, if a NDoC is articulated via the President and other government institutions as a truly areligious time to simply step back, consider perspective, be better aware of one’s self and those around him, and all that crap… the only objection I could must would be in line with broader discomfort with the government telling us what to do, which I tend to carefully pick my battles about. But if an NDoC becomes an NDoP in disguise… I’d still object. But I would only consider it as such if it was obvious that that is what the intent was (e.g., asking people to reflect on “higher powers” and “inner spirits”).

          • “So, to test this parsing, my atheist friends, how would you feel about a National Day of Contemplation?”

            San Francisco still holds a Fleet Week once a year, doesn’t it?

          • I’m not a true atheist, but if I’m still allowed to answer, I’d not object to a national day of contemplation. I have no problem with moments of silence in school, so long as it’s not meant as a way to try to pressure students into praying. Heck, I kind of wish we could have a really secular sabbath. I think Jesus made a wise point when he said the sabbath was made for man, not man for the sabbath.

          • @MikeShilling-

            So even the most liberal city in America approves of Naval gazing.

      • against the raw words of the First Amendment

        Hmmm, I think this is an exaggeration. The raw words are “Congress shall make no law respecting an establishment of religion…”. I don’t see how the raw words support your cause — there’s a lot of daylight between suggesting that people take a day to pray or meditate and establishing a national religion.

        I do agree with you that it doesn’t seem to pass the Lemon test or to comport with Black’s Everson opinion.

        • We all seem to agree that 36 U.S.C. § 119 is a suggestion, an encouragement, a recommendation by the government that Americans pray. Do you at least agree with me that this suggestion, this encouragement, this recommendation is the government favoring religion over non-religion?

          • Sure, see my (very short) second paragraph. Obviously I’m no expert, but I think you’re correct that per current 1st Amendment jurisprudence, this shouldn’t be allowed. But the raw text doesn’t say anything about not encouraging religion over non-religion — that’s Hugo Black’s language.

      • I actually think that many of the Founders would have minded the National Day of Prayer. Most of them were deists rather than more conventional Protestants even if they did belong to a church. Many Americans would have supported it though. Ever since America was founded, a large number of Americans have seen this country as being a Protestant one even though it isn’t.

        • According to Wiki, there’s a wide variety of beliefs about prayer among deists. They don’t believe in supplication, obviously (because He’s not listening), but some

          still find value in prayer as a form of meditation, self-cleansing, and spiritual renewal.

    • Fwiw, I think President Jefferson declined to proclaim a national day of Thanksgiving and Prayer, even though he had issued such a proclamation twenty years earlier as war-time governor of Virginia.*

      It appears that Jefferson wrote a letter to a Rev. Samuel Miller in 1808, during Jefferson’s last year in office:

      I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises…Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. …But it is only proposed that I should recommend, not prescribe a day of fasting and prayer. That is, that I should indirectly assume to the United States an authority over religious exercises, which the Constitution has directly precluded them from…civil powers alone have been given to the President of the United States and no authority to direct the religious exercises of his constituents…

      So, that’s one founder (though not a Framer, strictu sensu)…

      * Jefferson was acting well before the Fourteenth Amendment or the incorporation doctrine.

      • Thanks for the quote. That does seem to be the spirit of the National Day of Prayer, doesn’t it? A “recommendation,” not a “prescription”?

        • I think you may be misreading the quote. Jefferson’s point is that even the recommendation is a bridge too far.

          • You’re right. I was probably reading through the lens of the perhaps apocryphal story of Jefferson’s reply to Reverend Ethan Allen’s query why he would attend church if he didn’t believe: “Sir, no nation has ever yet existed or been governed without religion. Nor can be. The Christian religion is the best religion that has been given to man, and I as chief magistrate of this nation am bound to give it the sanction of my example.”

            That sentiment is also in line with Article III of the Constitution of Massachusetts, 1780 (“the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of GOD, and of public instructions in piety, religion and morality”), the 1789 Northwest Ordinance “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged”), and of course with the views of Adams (“I know not what to make of a republic of thirty million atheists” and “if you want the good order that comes from instruction in religion, particularly the Jewish and Christian religion, then you have to pay for it”) and of Washington in his Farewell Address.

            To clarify again, I acknowledge differences among some of the framers. But didn’t the majority of them regard a day of prayer unobjectionable? And more importantly, didn’t the people on whose behalf the Constitution and Bill of Rights were ratified?

          • the perhaps apocryphal story of Jefferson’s reply to Reverend Ethan Allen’s query

            The Jefferson researchers at Monticello have this to say:

            This quotation appeared in a handwritten manuscript by the Reverend Ethan Allen (1796-1879). The story was related to Allen by a Mr. Ingle, who claimed to have been told a story that Jefferson was walking to church services one Sunday… The story comes to us third-hand, and has not been confirmed by any references in Jefferson’s papers or any other known sources. Its authenticity is questionable

      • James Madison, also.

        Religious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed.
        Altho’ recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.
        The objections to them are 1. that Govts ought not to interpose in relation to those subject to their authority but in cases where they can do it with effect. An advisory Govt is a contradiction in terms. 2. The members of a Govt as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot form an ecclesiastical Assembly, Convocation, Council, or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people. In their individual capacities, as distinct from their official station, they might unite in recommendations of any sort whatever, in the same manner as any other individuals might do. But then their recommendations ought to express the true character from which they emanate. 3. They seem to imply and certainly nourish the erronious idea of a national religion. The idea just as it related to the Jewish nation under a theocracy, having been improperly adopted by so many nations which have embraced Xnity, is too apt to lurk in the bosoms even of Americans, who in general are aware of the distinction between religious & political societies. The idea also of a union of all to form one nation under one Govt in acts of devotion to the God of all is an imposing idea.

        So that’s 2 of our first four presidents, and includes both the author of the Declaration of Independence and the “Father of the Constitution”/author of the Bill of Rights. They’re pretty much as “founding fathery” as you can get.

        That’s not to take anything away from the equally founding fathery two other of our first four presidents, Washington and Adams, who did issue proclamations. But it does point out the very fundamentally fallacious nature of phrases like “that neither the framers nor the founding generation would have objected to such a practice.” This on-going effort by the religious right to lump all the Framers together into a unanimously pro-government-favoritism of religion is a shallow and dishonest* effort to use tin-plate patriotism to bully people into intellectual submission. This is an example of Samuel Johnson’s accuracy in calling patriotism “the last refuge of a scoundrel.”

        It also makes me righteously angry because in my quarter century as a Christian I was repeatedly told that Christians were supposed to be honest, that it was a sin to bear false witness. Now it seems as though lying has become a primary technique of American Christians. And there is no getting around the fact that there is no New Testament support for this idea of using the temporal powers to promote their religious activities. Jesus’s “my kingdom is not of this world” has been implicitly reviled by Christians for a majority of Christianity’s history, and the American religious right is as egregious a set of blasphemers as the world has ever known.
        *For example, pseudo-historian David Barton regularly uses fake “quotes” from the Founders.

        • I’d be delighted if someone corrected my failed block quoting.

          • Re: blockquoting — Matthew 7:6.

            IMO, patriotism is the penultimate refuge of the scoundrel. The true last refuge of a scoundrel is piety. (And the step that gets taken right before “patriotism” is often enough “bashing Wal-Mart” although I think that might be a bit anachronistic from Dr. Johnson’s perspective.)

          • Re: blockquoting — Matthew 7:6.

            That’s cold.

        • Seems there’s some baggage here. Rather than take upon myself the slings, arrows, and “righteous anger” meant for others who done you wrong in the past, I’ll take this chance to bow out of the convo.

          • Tim,

            My point is that you’re an intelligent guy, so don’t fall for the lies. You’re repeating what you’ve heard from other people who are in fact lying. My point was not my own baggage from my past, but that I eventually recognized just how much lying was going on, and how much lust for temporal power there is in conservative American Christianity. It’s a perversion of their own faith, and I hate seeing good people get trapped in that.

          • If Qub is James, you gave a similar “you’re too smart for these lies” thing before on another subject. I then read two books on the subject and found they weren’t lies at all. I’m not sure what to think of your repeating the approach, but for now I’m just not going to engage.

          • In a few more pseudonyms and you’ll have this sock-puppet figured out.

    • That’s not entirely true, Washington thought it was OK, but both Madison and Jefferson were opposed to the government declaring days of thanksgiving or prayer.

    • “I take it you’d agree that neither the framers nor the founding generation would have objected to such a practice. If so, were they wrong, or did something change between then and now?”

      Tim’s claim seems undeniably true. And although I wouldn’t have put it the way Kaz did, I think he’s at least barking up the right tree. Which is to say, that our presuppositions as to the extent of the freedoms granted by the founders has evolved and (in many areas) greatly expanded. I would also argue that in many cases they have evolved to greater practice what the founders put on paper than what the founders themselves practiced, or even considered wise.

  2. The use of the word “may” is curious. People “may” pray any day of the year. Making a point to say that the people “may” pray on this particular seems to give the impression that they are somehow denied this ability on other days. That’s not the case, last I checked. You tend to tell people that they “may” do something if they otherwise think they can’t. Do people think they can’t pray?

    • The obvious problem seems to be the way Standing works in US courts, which has always been a little weird to me. Maybe I’m just out of touch with the practicalities of the justice system, but what’s the reasoning for demanding an explicit victim before we can challenge an unjust law?

      Also, does the president have standing to challenge this?

      • Oops. Sorry to hijack, this was meant as a main comment.

      • I don’t know how to “promote” your comment to make it a primary comment, trizzlor, or I would do it for you.

        Article III limits the jurisdiction of Federal courts: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority,” etc.

        This gets interpreted as requiring an actual “case or controversy.” There are no advisory opinions. There must be two parties with an actual dispute, with something at stake, so that the Court’s order resolving the case will actually accomplish something. A case where everything that’s happened already and a court’s order is going to change nothing (the person who is to be enjoined from doing action X has died) is “moot.” A case where the parties think they’re going to disagree in the future but there isn’t a problem yet (the will says “My Ming vase shall go to my child born on August of 2004, on his or her eighteenth birthday,” and the decedent actually had twins, but they aren’t eighteen yet) is “unripe.” And a person with a generalized complaint about something that doesn’t tangibly or directly affect her (Kazzy’s house was granted a building permit despite the fact that two of his exterior lights are out of code; how does this affect Burt?) is a person who “lacks standing to sue” because for that person, nothing is at stake in the litigation.

        Critics of cases resolved on standing grounds like these (like me) claim that these doctrines are used by a Court to avoid answering hard questions that will come up again and again, and in that manner turn a blind eye to lawless behavior that the judges privately either approve of or at least don’t care all that much about. Defenders of the standing doctrine say that if an abstract violation of the law that doesn’t really directly harm anyone is so important, then there will be political pressure to change it and it is sufficient to leave the matter to Congress and the President to address — the courts exist to resolve real disputes brought before them by actual litigants, not to address all cosmic wrongs.

        • I think either reading is problematic, for different reasons.

          What’s the point of “can”? Do we need to have a day in which people are reminded that they can drink water and breathe air? No. It’s silly.

          Should? Well, that’s obviously a real problem.

          • Clearly, not everyone thinks that “should” is a problem. At least not Art Deco below or KenB above. And in the OP I did acknowledge the existence of a school of thought based upon the narrow understanding of the term “Establishment” upon which those Honorable Gentlepeople have based their thoughts.

            If that’s right, and the only thing the Establishment Clause prohibits is the legislative enshrinement of a particular sect as the National Religion, then my objection to 36 U.S.C. § 119 is not founded on the Constitution, and the Lemon test and the endorsement test are massive judicial misadventures. I submit, however, that “Establishment” means something more than just what this narrow reading of the term suggests. A bit impishly for someone who relies as heavily on text as I do, I look to the other writings of a guy like James Madison (he who actually wrote the words) to deepen my understanding of that word’s proper definition. Doing so gets me to “endorsement.”

          • If someone is a pure textualist, I don’t think “should” should be considered a problem. Given the English context, the most natural reading of the term “establish” is heading towards something like the CofE.

            But riffing from the plain text is SOP, so I also wouldn’t call Everson and Lemon “judicial misadventures”, and I’m not arguing for rolling back the various protections that have been built up. All I was objecting to was your appeal to the raw text as somehow plainly supporting your side.

        • You could simply delete the comment then repost it in the proper place.

          I admit this isn’t very elegant, but it works.

          • I’ve tried this before and it shows up as a comment from me, not from the author. It’s no big thing.

    • Reminds me of people who claim prayer is banned in schools. My wife — the teacher — uses the old joke that obviously they’ve never seen students on test days.

      Prayer is plentiful. Coerced prayer is not, and…implicit coerced prayer is less common.

      • Sort of like Carlin’s comment that at least when people pray at the racetrack, they mean it.

    • This is an interesting point, the more I reflect on it.

      You’re interpreting “may” to mean “can”:

      The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may can turn to God in prayer and meditation at churches, in groups, and as individuals.

      But I think (can’t know for sure) the intended meaning in context is closer to “should” than “can” in context. The whole point of having a law like this is to encourage people to pray:

      The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may should turn to God in prayer and meditation at churches, in groups, and as individuals.

      Of course, neither “can” nor “should” is the word that was used. “May” is the actual word. So it gets interesting to me because “may” is susceptible of many interpretations in this context.

      The reason I think the interpretation skews closer to “should” than “can” is because, as you point out, there was never any restriction on prayer at all; if you wanted to pray, you could have done it without the proclamation. The proclamation is intended to accomplish something. And the only thing that I can understand its intent is to get more people to pray.

      • I suspect it’s more that this was written during the Red Panic *BUT*, at the same time, was written at a time when the President would not have been assumed to have the levels of power that they enjoy today. A President who did this all on his own, without the force of Congress behind him, would be seen to be exceeding his authority.

        Since Congress is saying that the President do it: hey. It’s the voice of the people rather than something that the Executive just ups and decides to do on his own… but since Congress also knew that saying “should” would violate the First Amendment, they said “may” because, hey, such doesn’t establish *ANYTHING*.

        And we have yet another example of laws written by people long dead for people long dead staying on the books.

        • This particular law was introduced to Congress by Strom Thurmond during the Reagan Administration. There were similar predecessors to it dating back to the time of Truman, which were different from what’s on the books today mainly in that they were not specific about what day of the year the President should choose to designate as the National Day of Prayer.

          • And we have yet another example of laws written by people long dead for people long dead staying on the books.

            This particular law was introduced to Congress by Strom Thurmond during the Reagan Administration.

            The “long dead” part was just wishful thinking.

          • The when I fiddled about, the dates I saw went back to 1952.

            I can only assume that those laws were just as unconstitutional, given that I doubt that the day picked is the dealbreaker there.

  3. Burt, you are not being fined for recusancy and the federal government is not collecting tithes for the Evangelical Lutheran Church. Give it a rest.

    Some of us might suggest that having gym teachers give demonstrations on how to make use of condoms and IUDs is rather injurious to the sensibilities of many and not congruent with the proper purpose of compulsory public education. Not that we have any recourse to the courts. That’s for Tutsis only.

      • But at least the Federal Courts will hear you out first, and decide your arguments on their merits,


    • “…compulsory public education…”

      If this is the case, how am I employed by an independent school?

      • Search me. I would not hire you.

        Where I grew up, about 89% of primary and secondary enrollment was in the district schools, which were no longer under effective local control. That was prior to the collapse of the economy of parochial schooling. You have homeschooling now, which was rare then, but the opportunity costs associated with that mean homeschoolers are paying the jizya along with the clientele of the private schools. The state schools are a monopoly as effective and thorough as the Bell System, ca. 1975. As Ernestine used to say, “We don’t care. We don’t have to. We’re the phone company”.

        Schooling is distinct from public works or the military inasmuch as the provision of services can be had through voluntary exchange. You have public schools as a means of common provision. The thing is, you have vested interests who are exceedingly resistant to alternative means of delivering these services, such as voucher programs. Neither parents nor taxpayers have the autonomy to direct their contributions to common provision to institutions of their preference. Instead, it goes to the issue of teacher training programs and ‘doctoral’ programs in ‘educational leadership’ (and gelatinous union stewards like Karen Lewis).

          • Because I cannot resist skewering people.

            That aside, Mr. Kazzy can submit his application to the head of the English department or the Science department or the Language department and they can confer with the vice principal about it.

            If Mr. Kazzy wishes to be hired as a history and geography teacher when I am doing the hiring, he should be able to understand that when you have truancy laws in effect, large numbers of empty pantsuits employed by the county welfare department happy to second guess your decisions, a service provider with a 94% market share conjoined to a labor market controlled by monopoly unions and occupational licensure, and effective financial penalties assessed on people who make their cider at home or favor the farmer’s market, your choices are somewhat…constrained.

            Advocates of enforced secularization might enlarge on the possible meanings of ‘establishment of religion’ when juxtaposed to the presence of a chaplain on the staff of the legislative body that composed that phrase.

          • he should be able to understand that when you have truancy laws in effect, large numbers of empty pantsuits employed by the county welfare department happy to second guess your decisions, a service provider with a 94% market share conjoined to a labor market controlled by monopoly unions and occupational licensure, and effective financial penalties assessed on people who make their cider at home or favor the farmer’s market, your choices are somewhat…constrained.

            Compulsory education is not the same as compulsory public education.

  4. More on language…

    “Shall” implies that the President must issue a proclamation. Suppose we had an atheist President or one who otherwise was uncomfortable doing so. Would his refusal constitute the breaking of a law?

    • “Shall” is mandatory language. “May” is discretionary language.

      So the President must issue the proclamation; her hypothetical refusal failure to do so would contradict Congress’ instruction that she make the proclamation and thus would violate the statute.

      This would be for the good if my Establishment Clause analysis is correct, but if I’m wrong and 36 U.S.C. § 119 is in fact Constitutionally valid, then the President would be acting lawlessly were she to refuse fail to issue the proclamation.

      • That might in fact be the only way to challenge the constitutionality of the statute. The President refuses to issue the proclamation, on the grounds that they consider it unconstitutional. Someone in congress sues the President to force them to comply with the legislature’s direction.

        • And the President could do so by giving a short public address in which he emphasizes his constitutional duty to “protect and defend the constitution,” and quoting James Madison, the father of the Constitution, and Thomas Jefferson, the author of the Declaration of Independence. And I think most of the public would go along with it (although we’d hear the screeching from certain quarters quite loud and clear).

          Alterantively (more fun, less politically savvy), the prez could issue such a proclamation, and go into detail about which “God” capitalized, people may turn to. Specifically,

          “I hereby declare May 3 as a national day of prayer in which people may turn to God. As God is infinite, and beyond human understanding, it is not possible for any of us to command others to define God as we ourselves do. And if I did attempt to do so, I would be establishing one religion’s definition of God as the official definition of the United States Government, which is forbidden by the First Amendment. I thereby encourage all Americans to pray to God as they have defined him for themselves, whether it be Yahweh, Allah, Vishnu,

          • If I’m elected President, I’m calling for a national day of prayer to Thor or Cthulhu, I’m still deciding which.

  5. Considering how offensive a ‘national day of prayer’ is to a non believer, I’ve been making a point over the past few years to wish people a happy ‘Walpurgis Nacht’ or ‘Beltane’ on April 30th. Better to celebrate a real holiday than some dopey made up nonsense like the day of prayer.

    • i’m like, real super duper unreligious, but this is so milquetoasty and beige that i’m having a hard time as seeing it as “offensive”. it’s ecru religiosity, which is probably the best thing you can get out of a national day of anything.

    • I prefer the holidays that have been made up by complete strangers thousands of years ago to the ones made by people I know.

      • Eh… I go the opposite way.

        Kwanzaa (an oft-cited “made up” holiday) came about because of a pressing contemporary need.
        Christmas, if you trace back the full lineage of a winter solstice celebration, came about because people didn’t understand how basic astrological and geological principles worked.

        • wouldn’t every holiday come about because of pressing contemporary needs? i mean stuff like widely celebrated holidays, not take your bus driver to kentucky and buy them a single serving packet of oreos day (july 17th).

          • Sure. But if those needs are no longer pressing or contemporary, than the need for the holiday ceases to be.

            I have this argument with my family. It is *VERY* important to my mother that we get together for Thanksgiving. Guess how much of our time together is spent giving thanks or talking about the founding ideals of this country or harvesting? None. Literally, none. So, for my family, Thanksgiving has sort of run its course. Now, it does serve another purpose of bringing the family together, which remains a pressing need. But I argue that we can do this on days other than the 4th Thursday of November. And, in fact, we can do it more often than that. But my mom is married to the idea of that special day, which often presents a hardship to some folks based on schedules and travel and ultimately takes away from addressing our need of family togetherness. So my family doesn’t really need “Thanksgiving” as much as we need “Family Together Time”. But when we use the former to achieve the latter, the results are sub optimal.

          • sounds like you and your mom need to…talk turkey.


            seriously though that does suck but holiday “stickiness” takes a lot of forms, for better or for worse.

  6. Odd argument coming from this site. Unsurprising argument but still odd.

    On the one hand, when it comes to “the right of the people to keep and bear arms SHALL not be infringed.”, then the constitution should be a living document.

    When it comes to “Congress shall make no law respecting an establishment of religion”, then the constitution should be a document carved in stone.

    • I don’t recall saying that the Constitution was a “living document” when discussing Second Amendment rights, Pyre. Perhaps you can point me to a post or comment I’ve made that illustrates what you mean?

      I suppose my vision of textualism is akin to a Brennan-like “living document” school, though, because my esteemed colleague Tim Kowal is exactly right upthread to point out that the meaning of words and language does change over time. I don’t think that the meanings change so dramatically as to cause us significant worry — but yes, language does change and therefore I don’t subscribe to the idea as Mr. Kowal does that certain concepts that would have been thought to be in the law generations ago are necessarily still a part of the law today. (I do, however, subscribe to the idea that the law articulates concepts and some of those concepts are rights — “rights” being ways that the power of government is legally circumscribed.)

      Words and phrases are often susceptible to a variety of interpretations. With respect to an example like the National Day of Prayer, I see a number of commenters who seem to want to adopt a narrow definition of the phrase “respecting an Establishment of religion.” Others, like me, adopt a broader definition of that phrase. One way to underline what that means is to say that I think that for a law to “respect an Establishment,” the law need not “be an Establishment.” The First Amendment does not say, “Congress shall not Establish a religion.” We are guided by the phrase to think expansively about the limit on governmental power.

      Similarly, one can take a narrow or a broad interpretation of “the right of the people to keep and bear arms.” Are felons people? Do they therefore have rights to keep and bear arms? Yet only a vanishingly tiny number of commenters would argue that convicted felons should be allowed to keep and bear arms. Would the Founding generation have adopted ex-con laws? I’m not aware that they had any such laws at all, but again there are surely scholars who can educate me on this point. But surely preventing any person from owning a weapon is an infringement upon the right to keep and bear arms.

      And I doubt that, at least as an abstract proposition, it is particularly controversial to say that rights are not absolute, there are limits and reasonable balances that have to be made. Congress (and by extension the rest of the government) need not pretend government does not exist. I’ve argued elsewhere that it’s proper for a government to take notice that this or that religion is dominant in the area and to accommodate employees and citizens who will be taking religious holidays by scheduling governmental services accordingly, or drafting accreditation standards that can apply to secular and religious schools and having religious schools participate in intermural activities like sports and academic competitions. Or, for that matter, not prohibiting students from voluntarily praying when the prayer does not disrupt class activities.

      What I’m suggesting is that textualism does require an understanding of the meaning of phrases, but those phrases are enshrined within law. The law is malleable. To the extent that the law no longer serves us, we can change it. We can certainly look to find clues about what was meant when certain words were used in the past, and that’s interesting and sometimes persuasive information. But the law has to work for us, today, and that’s why we don’t have a council of oracles and augurs whose job is to commune with the dead to learn what they would have willed. We get to, and have to, decide things for ourselves, in light of our own problems, our own circumstances, and yes, our own language.

  7. The law fails the strict tests, but it reflects more on the arbitrariness of the some aspects of our civic religion and the infallibility of the Supreme Court as mystical oracle of the People, since it’s just as clear that the law does not really violate the 1st Amendment as written and ratified. The not always consistently expressed reticence of some of the Founders about religious expressions or recognitions in relation to a pure concept of the state is a different matter than what they or “we” managed to put together in the Constitution and a range of laws from then to now. Doesn’t the recognition of oaths – especially utilization of the words “so help me God” in oaths of office and for other important purposes, next to an option of affirmation – already represent a widespread recognition of religion as old as the Constitution, and isn’t it as much an “endorsement” of religion, and a much more practical and important one, than a National Day of Prayer that likewise includes an option, in this instance probably utilized by the great majority of Americans, to ignore the whole thing?

    • I don’t agree that it is so clear that the First and Fourteenth Amendments don’t prohibit these things, but I do agree that the much more routine practices you mention would seem to violate those prohibitions (in particular, the endorsement test, as Burt lays it out) just as much as this law does. Opening each session (day?) of Congress with a prayer; having the routine oath in court be to swear to tell the truth “so help me God,” etc. “In God We Trust.” These all seem just as problematic to me. I don’t think Burt is right in suggesting that things get more problematic whenever the president accords himself to this particular law (besides which, it;s on the books 24/7/365 in any case).

      To say that the rest of that is okay – or even just not to raise similar objections to all those similarly proscribed (under the arguments used to raise the objection Burt raises here) practices – but then to raise an objection to this particular event each year is, to my way of looking, an example of accepting the idea that constitutional disobedience is, in practice, to a large degree how we make this whole merry-go-round go round in this country. We can’t both rail against that idea and make use of it as a way to make getting along a little (or a lot) easier (or just possible). We should account for our use of it, and be receptive to constructive insights of those who make positive attempts to understand and reckon with the way it shapes our society politically and legally.

      • As I’ve already noted elsewhere, thanks for the thoughtful demurral (and for the book recommendation), Mr. Drew. I havn’tt read Seidman’s book, but it appears that his argument glosses over the actual and necessary workings of the Tinkerbell principle in the functioning of mass democracy: democracy being a magical entity that lives exclusively because we believe in it and so signify with our sufficiently enthusiastic applause, because enough of us in the audience enough believe our belief matters when it’s time to raise the fairy up. So, even if Seidman is right that we need to disobey the Constitution and treat it as poetry or as something like poetry, a significantly broad acceptance of the notion that we could and should do so, and recognition that what we were doing was that, would ruin it even as poetry or as something like poetry. It would become a dead letter, the epic of a vanished tribe, or, in terms I consider more on point, the myth of a dead religion.

        I’ll skip the theory and cut to the chase: Thoughtful dogmatists of our living and reigning civic religion, typically its lawyer-priests and pre-eminently its arch-judges and most learned scholars, pursue as their highest calling the rooting out of blasphemies and other depraved acts and statements seeming to threaten the core of the belief and its institutionalized Order. These efforts include the zealous rooting out of competing expressions of faith, so that the sacred essence of essential non-sacrality can be protected. What is most important is that the effort is made, and with the highest seriousness, but what is equally important is that it must never succeed more than symbolically or partially, since its complete triumph would, or perhaps will because it someday must, be its complete undoing.

  8. IF I conceed your points, there still is a hell of a lot of stuff this gov’t needs to do and stop doing before I’d even worry about this. You know, the illegal stuff. Torture, killing US citiczens, rendering folks, kidnapping, sucking up every email and telephone call generated in the US, etc.

    • Certainly I’d agree that torturing people (for instance) is a hell of a lot more urgent a need to address than the President inviting people to pray.

      But consider this: you’re conceding arguendo that the National Day of Prayer is a Constitutional violation (I realize you’re reserving your right to say that the NDP is not a violation at all), so that means you’re conceding that the NDP is, in fact, illegal. The Constitution is law and indeed the highest law of the land; the NDP violates the Constitution; hence, NDP is illegal.

      If we are willing to casually disregard our supreme law for a day of prayer because the NDP is pleasant enough to people who like it and practically harmless to those who don’t, then we’ve put in play the idea that if enough people like something and it doesn’t really directly affect those who have only a sort of cosmic dislike for it, then what is the principled difference between that and sanctioning the violation of the Eighth Amendment that torture represents? A shockingly large number of people like the fact that we torture certain prisoners. And as long as we don’t torture you, you really don’t have cause to complain about a personal harm resulting from our practice of torture.

      In both cases, we’re allowing the popularity of a practice to determine whether we’re going to actually do anything about its contraposition to law. I conclude the OP by conceding that NDP is not the most morally urgent thing out there. But it’s also a symptom of a willingness to treat the law casually when a significant number of people like the result. And that sort of thinking does, can, and has led to moral catastrophes, including a third or more of the electorate demanding that the government torture people.

      • Excellent. I’m going to hope that you wrote that in a single draft, with no revisions.

        • “then what is the principled difference between that and sanctioning the violation of the Eighth Amendment that torture represents?”

          i think i get what yer drivin’ at here but my first response is that one actually harms people and the other actually doesn’t harm anyone. and that’s an incredibly important difference. one is cosmetic blah blahs and the other is actual brutality. comparing the two is, while i get the rhetorical cha cha cha value addition, seems flippant.

          that said, damon’s argument is incredibly unconvincing. “but what about thiiiiiis???” is not an excuse to ignore that, as it were. yer cheesed off about the national day of prayer, which has nothing at all to do with the plight of the bald eagle or whatever.

          • My admiration sores to even greater heights.

      • “… if enough people like something and it doesn’t really directly affect those who have only a sort of cosmic dislike for it…”

        Framing it this way is interesting. If the *ONLY* dislike is “cosmic”… this doesn’t sound like a terrible way to do things, to be perfectly honest.

        Of course, I’d argue that in this particular case the dislike is, or risks being, more than “cosmic”.

        • Kazzy, do you disapprove of the government torturing people? If you do disapprove, is your disapproval “cosmic” or “material”?

          • Both? I guess it depends on how we define “cosmic”. Torture is wrong because it does material harm (I hope I’m using that phrase right) to people.

            But if people simply don’t like the idea of something happen, but it does no harm to their person (and I would consider emotional harm beyond a certain point) and a whole bunch of other people really like the idea… I might be convinced we should go with it.

            On this case, I think there is real harm done, because the seeming preference for religion over non-religion indicates certain folks as “less than”, which is real.

      • It would take all the reserves in Saudi Arabia to make the slope from saying nice things about prayer in a studiously non-denominational fashion to torture slippery. It’s like comparing using the office Xerox machine to make a copy of your insurance card to embezzling. One is harmless except to those who choose to be offended by it, and the other is a serious crime.

          • One will. The other can, under unlikely circumstances, if they were looking for a reason to fire you already.

  9. I’m not up on US constitutional law / theory, so maybe this is long settled, but:

    How is it that a National Day of Prayer so Vaguely Defined as to be Ecumenicalized into Meaninglessness a potentially problematic “establishment of religion”, but having a national holiday on Christmas day is fine?

    Surely declaring an actual holiday is a much stronger endorsement than a no-effect proclamation, and Christmas is much more closely linked to a specific family of religions (that of 44 consecutive US presidents, by sheer coincidence), than a mealy-mouthed support for the act of prayer?

    • You make the National Day Of Prayer into a feast day where everybody buys presents and gets drunk?


    • Perhaps I should note, as a Canadian, I wish we had anything like the separation of church and state the US does.

      Canada protects freedom of (lately interpreted as including freedom from) religion – but our head of state is still the head of the Anglican church, we have statutory holidays not only on Christmas but also Easter (plus Boxing Day in Ontario and St. John the Baptist’s day in Quebec), and constitutionally protected, public funding of Catholic schools, among other things.

    • I’m not certain that Christmas is a national holiday. My parents, government workers, were quite capable of working and being paid for working on Christmas, and they were not given overtime to be in on that day.

  10. I would think the president has standing to challenge it since it orders him to make an illegal proclamation but watch the fox news fundietards howl if he did

    • Since making the proclamation does not conflict with any constitutional provision, it is not unlawful.

    • I was thinking that the prez might, since it is essentially compelled speech on his part. OTOH, not a lawyer, so don’t know if that’s even in the same zip code as correct.

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