Jefferson's letter was not written as an analysis of the First Amendment. He had just been through a very bitter campaign for the Presidency, in which he was accused of being an atheist by, among others, Federalists and supporters of the Congregationalist sect in Connecticut. He was strongly criticized for not proclaiming days of national thanksgiving as his predecessor (also a Founder one present during the debate) had routinely done. He correctly anticipated that the letter would be widely republished, and he saw an opportunity to defend publicly his views and practices. He sought prior advice from others for this very purpose. It was a political letter in every sense.
As stated, the phrase "separation of church and state" does not appear in the Constitution, and I leave the reader to the Adamson book for a persuasive argument that even Jefferson would be quite shocked at the lengths to which his phrase has been taken. Or better yet, the 2005 dissent by Justice Scalia to McCreary v. ACLU, 545 U.S. 844, found at www.law.cornell.edu/supct/html/03-1693.ZD.html in which he describes the Lemon test as "brain-spun." Yet, as Justice Jackson observed in Brown v. Allen in 1953, "We [i.e., the Supreme Court] are not final because we are infallible, but we are infallible only because we are final." William J. Brennan once correctly boasted: "You can do anything around here with five votes." In the current era of more strict construction, I submit three possible legal conclusions of diminishing breadth: (1) the actual language mentions only laws by Congress not the entire government; (2) it says nothing about foreign aid; and (3) it should not limit how our government must fight a war on terrorism.
The argument I have, however, is not simply about how to interpret past decisions, all of which long predate the war on terrorism. It is also about whether the management of USAID, or other agencies of the USG, or the White House, should make an effort to overturn or reexamine the more conservative [read "brain-spun"] interpretations which clearly have the upper hand at present. This is as much a management issue as a legal issue perhaps even more so. The matter has not been litigated, and until recently, it has not even been broadly and seriously discussed at the highest levels of our government. Only management can make that occur.
A motion for summary judgment is not full litigation of a matter. Lamont v. Wood meant simply that the Second Circuit would not throw the plaintiffs out on legal arguments alone. It is one thing to say the First Amendment applies overseas; it is something else to say exactly what it means overseas in the context of a given proposed act of the Executive Branch or whether the First Amendment would be violated in a given instance. After the Wood ruling, USAID settled the case I called it preemptive capitulation without returning to the trial court as the Second Circuit expressly suggested, to have a trial on the merits. And in any event, it was almost two decades years ago, long before our current wars, and it did not/not involve the highest court of the land.
The War on Terrorism has changed things. We clearly are already excessively entangled with religion. If we are to get effectively un-entangled, we should not be shy about pushing this matter to the highest level of our judicial system or from having a real trial if necessary. We can build schools and roads and latrines, and we can promote democratic governance up every wazoo in the Middle East; but if we do not help moderate Islam spread an expressly religious message of moderation, we are not fighting on the most important battlefield of all: the mind and religious opinions of very religious enemies.
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