Thanks Joe, but I don't think I am in favor of continuing THIS fight. If nothing changes, the result will not change. The majority of the courts are still in favor of a big federal establishment and all that means. Real change will take time and will require the people of this country to turn away from the Democrats and make substantial changes to the Republicans.

Big government advocates continue to do all the thing they must do to turn the people of the nation away from them.

Change will come but it will take time.

Thank you Ed.

I thought it was right to the point and very well written myself...

Let's read yours Small Change so we learn how to be "more effective"...

I, for one, am always willing to learn.... (even at my age)...
...

I appreciate your remarks SC! I will endeavor to fit in better in the future! :-)

The intellectual elite have spoken.

JTP, I am not sure what you mean?

Joe-
I'm sure you are aware that my post was to applaud your excellent, thoughtful article and the effort you made to make it about substance and an objective discussion of fact. Unfortunately on this subject The Patch has become a sounding board for endless non-constructive pointless rhodomontade, whether from groups of atheistic 'outside agitators' in a feeding frenzy or, (a relative handful of) belligerent Christian locals.
Though I may (respectfully) add that the 'too much respect for your audience' joke wasn't that much of a joke about one or two people, apparently.
I would further note that those who carry on ad nauseum in puerile 100 post threads don't seem to be making their presence known in an actual discussion of the facts of the case.

Thank you SC.

You show too little respect for the intelligence of the reader. Obviously you think yourself superior to the average Joe. Additionally, I for one appreciated the citing of actual facts. It was helpful to the agenda to be refreshed in knowledge areas that have faded due to dormancy- I also believe the only discourse possible, is one that includes facts, rational behavior, and no name calling. To JR. I liked what you wrote and have a question. Why is the majority opinion regarding the banner being ignored to cater to the atheistic agenda of one student?

Helene: Many people don't understand why the prayer banner isn't up to a local popular vote. There is a resson - our US Constitution and Bill of Rights are not up for a popular vote. It's just that simple.

This isn't an 'atheist agend' item, Helene. It's the law.

There isn't much else to it. If that's beyond you ability to comprehend, then there's nothing left to say, other than "Happy trails...".

Hi Helene, I believe it's a simple matter that employees of the Federal government (many judges) and advocates of a large federal establishment (like the ACLU) need to believe the the US Government has sovereign power over more than just the handful of powers that the people delegated to it in the Constitution.

Please read the Constitution for yourself. Don't let me, or anyone else, interpret it for you until you've done that.

Helene Messina: Our Constitution is designed to protect the minority from unreasonable majority mindsets such as yours.

No matter what Helene believes, or you, or me...we are left with what's written in the Constitution not what you want it to say.

Fair enough.

I agree that the main purpose of the Federal Constitution is to defend the freedoms of the people of the nation. Which freedom is being threatened by the banner and how does the US Constitution allow the federal government to tear it from the wall of the people's school?

"Social Justice" is a pernicious term. It includes activities that are critically difference from individual justice. The term, in most political circles, is accepted to include concepts like "take from the rich to give to the poor." So yes, there is something wrong with social justice. Using the power of the government, which is wielded with force, to take from one free person to give to another free person is a tyranny.

I believe my views - including maximum individual liberty and minimal federal interference constitute the fabric that have held this great nation together since before it's fouding in 1776.

Also, the law clearly does not permit people to threaten rape, murder, and curb stomping...but you knew that.

Additionally, Harry Ward - an early leader of the ACLU was also the leader of a prominent communist organization and took on their causes with great relish. Please note, there is nothing wrong with that but it helps to solidify the "big government" attitude of the ACLU.

Joe, I have agreed with you until now. But to say "there is nothing wrong" with someone being "the leader of a prominent communist organization" is where I believe you are wrong.

While it is legal in the Untited States for someone to lead a communist movement, that does not mean it is right. Communism is the exact opposite of everything our country and our Constitution stands for. As a defender of the Constitution, you should know that.

Hi JTP, I agree with you. Let me clarify. There is nothing wrong constitutionally with being a communist, so long as you set out to change the government in a constitutional manner. I trust, so far, in the people of this country to defeat any such measures.

In the words of Richard Nixon, "let me make this perfectly clear". Communism is the ultimate revocation of human rights. It is manifestly wrong and should be fought at every turn.

Mary-
I would have been absolutely the ACLU's biggest fan in , say, the Scopes Trial, where of course they took the lead and really brought the whole affair about.
They are often right.
The difference is that that was about something that meant something- teaching science in the schools. The banner is not.
People can rail away about 'The constitution is NEVER a triviality!', but some matters are indeed trivial, compared with having a functional society. That banner is well within the style of language used in both the Declaration of Independence and Rhode island Constitution, it was not imposing religious beliefs in any way. The ACLU is causing disruption and pushing people around simply because it can.
It is very difficult to get people to work together to build a well functioning society. I do not applaud those who work to polarize, to mudrake, and to rip apart the fabric of that society merely because they can.

Joe R: I have a question regarding your comment/statement: "Social Justice" is a pernicious term. It includes activities that are critically difference from individual justice. The term, in most political circles, is accepted to include concepts like "take from the rich to give to the poor."

Question: Is “social justice” in and of itself pernicious or just the term used to describe something like “social justice” – however you may perceive it? How is it different from individual justice in the examples below?

Was eliminating slavery in this country “social justice”? If so, how was that pernicious? Was eliminating child labor in this country “social justice”? Pernicious?
Was extending the vote to women in this country “social justice”? Pernicious?
Was eliminating Jim Crow and Segregation “social justice”? Pernicious? I could go on and on. Your comment is confined to a very limited economic (not social) category and a strawman not proven by history nor the facts.

Economic justice is likely important in places where there are political systems dominated by those with money who influence those in power (corruption it's called and you've noted it here...). And those without money can go pound sand. Which is more pernicious? Massive economic inequality or the desire to level the playing field? JTP: You've said in this country majority rules. If so, why do the majority of Americans without enourmous wealth also have no political power?

Hi Stoney,

First, I take it your questions are rhetorical and you don't belive that I find the things you've mentioned pernicious. YOU made those connections not I - and I don't think that's a very nice way to make an argument. It's a personal attack on me...is it not?

But let me answer your question. Our current president often uses the term Social Justice and he typically means it within the context of taking from one person to give to another using the force of government as an inducement to that justice. I never read of Abraham Lincoln using that term during our lamentable Civil War (lamentable in that politicians talked past one another rather than with one another and failed to resolve the issue at the cost of as many as 800,000 lives). That is part of my problem with the term social justice. In the end, they are only words without context. I can accept your point of view regarding your definition...and respect it...without making it my view.

Look you've said some other interesting things that I would love to talk to you about. Who does not have a "fair go"? Why do you think that is?

I agree corruption is a huge problem at every level of government. Less federal government will mean less corruption.

Sorry you took my questions as a personal attack. They were questions designed to make you uncomfortable with your notions of 'social justice' - nothing more. YOU offered the original opinion and example - not me. So calm down. Your statements of opinion need some data and fact. Corruption seeks its own level and goes where the power is. When power is at the State/Local level, that's where you'll find corruption - and abuse of power - recent example: The Prayer Banner. You need to provide proof that taking power out of the national level will reduce overall corruption in our system. Again, this opinion is not supported by history or facts.

Just so you know who you're sparring with: I am college educated with a degree in Finance/Accounting and a minor in Economics. I live and work in the deep Southeast of the US of A. I have worked as an IT technical lead and manager in Banking, Aerospace, Medicine, Sports (Olympics), and Telecommunications. Combined work experience exceeds 40 years. I make 6 figures and have done so for more than a decade. I'm not some green out of college kid who doesn't have a clue about making a sustained living, nurturing a marriage of nearly 30 years and raising children. Hope that helps set some context.

JR - I'd be happy to continue this discussion. But please try to limit your opinions to things which can be backed up with data and fact and not supposition, dogma or libertarian political talking points. Thanks!

Hmm, I am perfectly calm, and not upset in the least. You seem to have your dander up...perhaps not. It's best not to read emotion into text I guess.

I suggest you read my original post again and reference my direct reference to specific language of the US Constition.

If you wish to challenge my statements. Please do so and use facts of your own to do so.

Do you think your Democrat rhetoric contains more factual information?

I am also a highly educated 6 figure professional. That does not make my opinion or yours more or less valid.

Do you posit that the larger and more powerful a government becomes...the LESS corrupt it is. I would argue that history is on my side. Our government is more corrupt than ever with bribes to corporations and the poor from both sides controlling the process. A smaller government, controlled by its constitution, can wield less power and is therefor less subject to corruption. You don't bribe an official who cannot provide what you are asking for.

If you cannot accept this premise...we will have to agree to disagree.

With regards to your Constitutional analysis, the facts are simple – the ‘prayer banner’ in question is an unconstitutional State endorsement of religion. There is no need to twist yourself or others into pretzel logic like loops over this. I bypassed your comments on this matter in my previous posting for that reason… It’s why I confined my questions to your concepts of ‘social justice’ in a reply – pointing out your argument against economic justice as government policy.

I agree that my opinions do not carry any more or less weight because of my income, education, work experience, life experience or background. Just thought it would help to provide some background/context to my comments...

Please don't confuse me with a Democrat. I’m not a Democrat or Republican. I'm stanchly Independent – as in “on my own”. The political rhetoric and pandering by both parties and others with agendas driven by ideology or an axe to grind is not only painful to my ‘American’ soul, if you will, but is damaging to our national soul.

Corruption does not depend on the size of government. It only depends on good people allowing it to continue without challenge – for then it becomes de rigueur.

It’s a testament to our once secular system that even though I’ve been politically disenfranchised all my life, I have not suffered educationally, economically nor socially. There are millions of other Americans, however, who can’t say the same thing.

Stoney-

Out of respect for the admirable Mr. Richer I will leave this to him. I just hope you realize just how bad you look when you travel 2000 miles to a small community blog to trumpet about how pleased you are with yourself.
For what its worth, I have a doctor in front of my name, and a back window on my car that reads 'Boston U School of Medicine, Tufts, Cornell Veterinary medicine, and Yale' and i have NEVER , once in my LIFE, lectured people that they should listen to me because I am better and smarter than they are.
To your credit, thank you for making it clear who you are and why you are here. I wish LibertyJ and her ilk would be similarly honest.

==Just so you know who you're sparring with: I am college educated with a degree in Finance/Accounting and a minor in Economics. I live and work in the deep Southeast of the US of A. I have worked as an IT technical lead and manager in Banking, Aerospace, Medicine, Sports (Olympics), and Telecommunications. Combined work experience exceeds 40 years. I make 6 figures and have done so for more than a decade. I'm not some green out of college kid who doesn't have a clue about making a sustained living, nurturing a marriage of nearly 30 years and raising children. Hope that helps set some context.

JR - I'd be happy to continue this discussion. But please try to limit your opinions to things which can be backed up with data and fact and not supposition, dogma or libertarian political talking points. Thanks!==

What's your point Small Change? Do you have one or are you just the salad preceeding the 'main course'?

Stoney-

I appreciate that this is all quite the joke to the out of state atheists who have descended en masse looking for sport and 'sparring'.
Its somewhat less amusing to the people of the community.

SC: This is NO joke to anyone who values their birthright as an American citizen. Just because I don't live in your quaint little theocratic town (assumed to be in the U.S of A), doesn't mean that I don't have a voice when MY rights are violated - yes MY rights, sir. I'm an American citizen. This is my country and the government is supposed to be neutral with regards to religion. And when it is not, we will complain and will do so loudly!

I haven't descended upon Cranston or anywhere for that matter - I'm still firmly located in the deep Southeast. Thankfully, the internet and modern technology has enabled me to connect with people all over the world - including Cranston. And, SC, there are many in Cranston who are mightily peeved at people like you. Make no mistake.

We atheists (and others - many of faith and goodwill) will continue to work to preserve, protect and defend our rights under the Constitution and Bill of Rights against all enemies - foreign and domestic. You sir, and those who would supplant the rule of law for a theocracy, are in the domestic enemy category. Deal with it.

==I haven't descended upon Cranston or anywhere for that matter==
Actually, that is exactly what you and the rest of the out of state atheist gangs are doing here.
Obviously.
Now perhaps if you would care to discuss the point of the blog- that the federal government is being intrusive here FAR beyond its powers enumerated in the constitution, perhaps we can get back on topic.

SC - your postings are just one non-sequitur after another. It's like having a conversation with a person in another language who barely understands a few words and is only able to parrot back some nonesense they learned back in the day.

Intrusive Federal Govt, my arse. The local government has established a theocracy,. What, that isn't intrusive enough? State sponsored religion? Then local people complained and a local Civil Rights group agreed to take their case.
The rest is history.

You - and people like you are impervious to logic and unencumbered by the 'thought process'. You are unmoved by the rule of law. You wish to relieve us of our birthright – to be replaced with ‘pie in the sky’. You wish to supplant a secular nation for one that reflects their own religious ideology, because you are in the local majority. You are a tyrant and theocrat. Your desire to supplant the Constitution and Bill of Rights with your 'holy scripture' is treasonous. You belong in the dark ages when religion ruled the world.

The notion that a passive banner pasted on to a wall establishes a theocracy is patently absurd. I will grant you that it does represent a small RI community expressing it's wishes for a higher power to intervene on behalf of students who are helping themselves and therefor is counter to a notion of "separation of church and state". That concept is potentially referenced taken into account by our state constitution (not part of the suit).

SC is right. You have yet to address the meat of the blog entry which challenges the court's popular but IMHO biased view.

Which part of the federal constitution outlaws the banner and why?

Look, I see why you want it to...but the people of any community must have some latitude in determining the sense and identity of the community.

Secondly - I would ask you to argue like a gentleman. Your remarks are intemperate and therefore unconvincing.

JR: You and all theocrats of Cranston - who still don't get it - are intemperate ones. You all should be ashamed of yourselves, but instead - you still act as if you're the aggrieved parties. What kind of people are you? Threatening a 16 year old person for standing up for her rights against local theocratic tyrants. Shame on you all!

Don't give me this "Look...the people of any community must have some latitude in determining the sense and identity of the community" rubbish. What you just stated is that local communities have the right to impose majority local religious beliefs on those local citizens who don't agree with them? Really? What's next - each town will have it's own religion? Some weird American Yankee-stan? I don't think so. Yes, each town in this country has its own local flavor. But don't equate that with placing illegal prayers in public schools and laying 40+ years of groundwork over which lead up to this very shameful chapter in Cranston (and US) history.

Frankly JR, I've had enough of your self-serving holier than thou sanctimonious crap. Happy trails....many miles from here...

Good bye, then.

@ Stoney... You have some serious issues and it appears if people don't buy into your ideals then you're going to "take your ball and go home..." Lighten up bud, we have professionals here to help you through this...

Ed - Waste of time. Not going to continue to have a battle of wits with unarmed opponents. Back to the dark-ages with you, vile rat.

Mary the ACLU (being very kind) is rooted in communism. For our president to bypass the Congress of the US in telling the insurance companies to pay for Catholic employees abortions is an EXAMPLE of ACLU outing itself. The King of yesteryear made LAW, under the US Constitution The president PROPOSES and CONGRESS disposes. Executive and Legislative branches of American government. ACLU's silence is deafening!

I always cringe when I hear the term "social justice," especially in modern times. It suggests certain groups (usually whites) are too privileged (no matter their economic situation) and that they need to hand over there "fair share" (more liberal lingo) to other groups. The use of this lingo has become perverted over the years.

Yes...but why is that? There is an answer. The founders intended MOST of our government to be local government. The states could have very different characters...as did the colonies. The best government is local government because it's the only real government that the people can oversee.

I was going to say that the founders trusted us to rule ourselves but that's not true. We trusted them to leave us to govern ourselves.

But with both Republicans and Democrats growing the federal government at a relentless pace and pandering to both corporations and individuals to buy their votes...my hope for a reversal that does not involve a period of darkness wanes.

Indeed, thanks SC.

After the complaint, Lakeland instituted a new policy of annually inviting every church and congregation in the Yellow Pages and known to local chambers of commerce to deliver invocations, and during 2011 scheduled a Muslim and two Jewish speakers, after eight previous years of exclusively Christian invocations. Judge Kovachevich found that the city had not intended to violate the Establishment Clause and advance Christianity over other religions.

You can read the court order dismissing the case at https://docs.google.com/file/d/0B1V7-59gBxhEMTE2YmQxNzctNGQ2Ni00ZmJhLTk1Y2ItNmUxZjQ2MmRmYmUz/edit?pli=1

Atheists of Florida will appeal this decision.

(Incidentally, the city's attorneys fees came to $145,000.)

Right , so does the ACLU or the atheist have to pay that bill?

No, they do not.

So the y actually get to say the prayer aloud, every meeting and Cranston can't even hang a banner in an obscure place.

So, this Judge interpreted the U.S. Constitution differently than Lageux did.

hmmm.

This Judge said that in a predominantly Christian community, the atheists are so insignificant in numbers that what they think does not matter to the point of even having merited a hearing in court.

Yup... I like this judge. She's got more brains and fortitude below the waist than Laguex did.

@Joe the Liar

No, Judge Kovachevich did not say “in a predominantly Christian community, the atheists are so insignificant in numbers that what they think does not matter”, nor anything like that. You made that up.

Robin, according to your atheist cohort in Florida:

Wachs said that the city remains opposed to atheists.

"They may be inclusive of other religions but not ­atheists," Wachs said.

And the Judge apparently agreed with the Town.

Seems to me that could be tested by an atheist trying to get on the invocation schedule. If the city refuses, then Wachs case will be made.

We'll still have to see how the appeal plays out, but you have to keep in mind that there is a much stricter Establishment Clause standards that is applied to public schools as opposed to other government areas. This is because children are involved, who are more impressionable, and also their attendance is mandatory. See Edwards v. Aguillard.

The 3rd Circuit Court of Appeals recently ruled in Doe v. Indian River School District that even school committee meetings cannot open with prayers no matter how diverse or inclusive they attempt to be. The Supreme Court refused to hear an appeal of their decision.

How ironic for you to ask atheists arguing on the side of religious pluralism, if they want to live in a homogenized nation.

States and communities may not ignore civil liberties. They are not optional.

No, federal employment does not make anyone wiser. Indeed, our current Chief Justice of the Supreme Court has shown himself to be a partisan hack. But the Supreme Court doesn’t have enough partisan hacks for your School Prayer to prevail.

So long as your personal liberty is not the one being gored. You seem very vigilent of your liberties and dismissive of everyone else's.

So back to the root - which liberty was jessica being deprived of?

The right not to be prosthelytized by her school. The right to be left alone by the state, in matters of religion.

This ruling did not diminish your personal liberties, Joe. Nobody involved has done a single thing to stop you from practicing your religion. This ruling just means a minor government building must repaint a wall, because it was illegally showing favoritism to your religion over others, and over nonreligion.

So please, again, explain to me which precise words in the Constitution cover this civil right.

So, far as my personal liberties go - my right to live in a community that can govern itself to the extent possible is indeed impacted. We don't need the federal government our people from outside our town telling us how to live.

BTW, I think seperation is a good idea - it's the use of perceived federal authority (not written into the Constitution to which I am opposed).

Convince me of which words in the Constitution allow this power to the Feds and I will be with you.

(continued)

The 14th Amendment incorporates most of the Bill of Rights against the state governments. This is what has changed since the Civil War. The states no longer have the power to establish religions, or restrict free speech, or deny you a right to a trial by jury, etc. etc. This doctrine is called "incorporation" and it was not invented by the District Court. It is a well established legal doctrine that has been accepted by the Supreme Court for some time now. The Establishment Clause was incorporated against the states by Everson v. Board of Education. The District Court must follow all Supreme Court precedent as it is binding on it.

Every action by any governmental body must be able to trace its authority to some point of law. You are correct that the RI State legislature did not pass a law regarding prayer banners: so then where did the City gain an authority to post one? The answer is that the City has no such authority, and that such authority is expressly denied to them through the 1st and 14th Amendments. Governmental actions that take place outside the law are given the same amount of scrutiny as the laws themselves. (to be continued)

(continued, part 3)

Despite the rant at the end of your post, the 1st and 14th Amendment actually *restrict* the powers of the government. They take away several powers from the government: the government cannot establish a religion or deny any person the protection of the law. People have the right to practice a religion, not the government or its buildings.

I should also add that this decision was not long at all (only 40 pages double spaced, big font) and was definitely on the short end when it comes to trial court rulings. It took me about 30 minutes to read it through.

I also want to add that the judge ruled that the Supreme Court decision in Stone v. Graham compelled his decision. This decision struck down a Kentucky law requiring the display of the 10 Commandments in public schools. The District Court must abide by the decisions of higher courts, no matter what the judge personally may think of them. This is a legal doctrine known as "stare decisis."

BillS wrote-
=Mr. Ritcher:
Your understanding of the law is not quite accurate. Federal courts are nearly always used to adjudicate these matters and have jurisdiction to hear them as they implicate a federal question under the 1st and 14th Amendments to the United States Constitution. =

If you reread the arguments proposed by the author at the beginning of his thread i think his understanding is fine. We agree that federal courts 'are nearly always used.' That does not mean that they SHOULD be, which was Mr. R's argument.
Reread it - it is well argued.
Basically the federal Gov gets the last say in deciding what is federal and what is in the state purview, and the argument here is that they have taken to saying . 'We don't care that the constitution so explicitly limits our powers , we're taking all the powers we are prohibited from assuming anyway.'

Tim, the defendant (the City) in this case had the right to file for a "removal jurisdiction," a petition to the federal judge to remand the case to state court. The City did not file for this and accepted the federal court as the appropriate venue to hear this case. Both parties were in agreement that this was the proper court to hear this case.

Tim, I should also add that Section 5 of the 14th Amendment does give the federal government the power to abrogate the sovereignty of the states when they are in violation of the other sections.

This actually wasn't applicable here because a state wasn't sued, the city was. Cities are not sovereign entities and have no claim to immunity from suits at law (see Lincoln County v. Luning).

Sorry, I got a point of law wrong. A "removal jurisdiction' works in the opposite direction: in state court case, the defendant can file for a removal jurisdiction to transfer it to federal court (which can be either accepted or denied by the federal judge), but this doesn't work in reverse.

If a case is filed in a federal court in which the federal courts do not have jurisdiction to hear the case, they will then dismiss the case for want of a federal question or lack of jurisdiction. The City never contended that the District Court did not have jurisdiction to hear the case.

Indeed, probably because they realized that ground was less fertile for their cause.

Exactly Joe. Any lawyer, conservative or liberal, wants to win the case for their client. This is hardly an unusual phenomenon. If both a federal court and a state court have jurisdiction to hear a case, the party filing the action gets to choose where to file its suit. The ACLU (correctly) felt that their case would be easier won in federal court, so that is where they filed.

I don't where your response comes from. I still contend that the ACLU (who brought the suit) did so in Federal Court though their chance of victory was reduced - because they were motivated to create a nationl case and add another brick to the wall of federal supremacy.

It's true that that the city did not argue a lack of jurisdiction - they did not make their case well, and the ACLU did...I am more than willing to grant that.

One of these rights is a right to a government that does not establish a religion. We also have a fundamental right to a primary and secondary education (Plyler v. Doe). You cannot use the argument that "something is not a right if it is not written in the Constitution" because the 9th Amendment expressly prohibits the judiciary from using this rationale in adjudicating cases.

We are a common law county, therefore what is and is not the law is not as meticulously codified as in, say, a civil law country like France. The case law of our courts are the binding interpretations of the law, including the highest law in the land (the Supreme Court) and for a full understanding of this issue you need to read these decisions (I would recommend notably: Everson v. Board of Education, McCollum v. Board of Education, Lemon v. Kurtzman, and Stone v. Graham).

Our "legally constituted school committee" does not have the ability to choose whatever it may wish to do. It could not, for example, put crucifixes in all public classrooms nor could it separate white and black students in segregated classrooms, etc. They have a very limited authority and must work within those boundaries.

I made an error: "The case law of our courts are the binding interpretations of the law, including the highest law in the land (the Constitution, not the Supreme Court).

I should also elaborate: We have a right to a secular government and we have a right to a public primary and secondary education. This means we have a right to a secular primary and secondary education. The Supreme Court ruled in Abington School District v. Schempp that public schools must "maintain a strict and lofty neutrality as to religion."

There are two debates we can have here: what the law is, and what the law should be.

The fact of the matter is that the Supreme Court has ruled that the Establishment Clause is binding against the states. Was this a correct decision by the Supreme Court? This question is entirely irrelevant when arguing in court because, as I explained before, lower courts must follow the binding rulings of higher courts. It's not that their careers are at risk, because they have lifetime appointments: it is the law. The judge in this case had no choice but to accept the Supreme Court ruling that the Establishment Clause is binding agains the states, even if he personally disagreed with it.

So now to answer the question if the Supreme Court was correct in deciding that. I believe that it is, because if the federal government establishes a state religion, it violates our rights. The 14th Amendment added the provision that not only can the federal government not violate our rights, but now neither can the state governments. ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Freedom from government-endorsed religion is a liberty we enjoy, and now neither the federal government nor the states can take that away from us. (cont'd)

Public schools, under normal circumstances, can have a Bible or Quoran in the library because they have a primarily secular purpose for providing students access to these works of literature. Now if they treated the Bible differently from any other book, say by having it out on a special gilded podium with a poster above it saying "Read the Bible!" this would be unconstitutional because the primary purposes of displaying the Bible in such a manner would be to endorse Christianity.

There was a Constitutional problem then, but it just wasn't until the 1960s that someone bothered to bring the issue to court. The courts cannot pre-emptively rule on issues. Someone must bring the issue to them and then they rule on it. The Supreme Court's decision in Engel v. Vitale, which banned *school-sponsored* prayers did not overturn any prior Supreme Court decision. The Supreme Court never affirmed that schools could lead their students in prayer.

I am not speaking about arguing in court or what the courts say...I am talking about which words are in the Constitution and the generally accepted meaning of those words.

Look, the words of the RI constitution prohibit the banner. I don't think the banner is very good idea - nor do I think it's hurting anyone. My main point is that since the Civil War the Federal Government as co-opted more and more power unto itself without regard to the Constitution. The pace at which certain people and organizations are racing to make the Constitution irrelevant is increasing rapidly.

I don't think it's a conspiracy. It's human nature to want to increase your power, especially if you think it's in the name of good.

So which tyranical government ,starting with Athens and the aftermath of the Peloponesean War, did not begin with "the good of the people at it's heart"?

The Federal Constitution was designed to limit the size and power of the federal establishment and empower the states and communities.

This is still our wisest course.

Alas...all is lost.

Joe: I explained to you what the Constitution says and how the Supreme Court has ruled. If you disagree with this, then your disagreement doesn't rest with me, or the ACLU, or this District Court; it rests with the Supreme Court.

The fact of the matter is that the 14th Amendment did radically change the dynamic between the federal and state governments. I am with you in favor of greater states' rights, but one right the states do not have is to violate the rights that are listed in the federal constitution. Section 5 of the 14th Amendment allows Congress to abrogate the states' sovereign immunity if they violate these rights. Remember that the states themselves ratified this amendment and it is probably the most important aspect of our Constitution.

The ACLU didn't file this action in federal court because they want to advocate for a more powerful federal government, but because, like any legal group, they wanted to win the case for their client. There is simply more federal case law that already exists that they could draw from, whereas there is very little regarding the state constitutions' various establishment clauses. An establishment clause challenge will usually only be raised under the state constitution if that state's clause is more strict than the federal one, and a certain action would be valid under federal case law but not valid under the stricter state-level case law. (to be continued)

(cont'd)

I recently looked at the Rhode Island Constitution and our state constitution actually does not appear to have an Establishment Clause (perhaps I missed it? can you point it out?) It guarantees the free exercise of religion, but it does not prohibit the state government from establishing a state religion. Therefore, I don't think there would be any grounds for the ACLU to file an action in state court.

The person filing a suit has the choice of which venue it will be heard in. The plaintiffs thought their case would be best successful in federal court and the court concluded that it had proper jurisdiction to hear the case, which the defendants did not disagree with.

Filing this action in federal court did not expand the powers of the federal government in any novel way: this was not a "landmark" or first-of-its kind case.

Bill, your detailed elucidations of law and judicial precedent greatly enrich this discussion. Thank you.

I saw that, but that isn't an establishment clause it is a free exercise clause. The State can't force anyone to worship in a certain faith. I guess if you consider putting a prayer banner in a school transforms it into a "religious place" the ACLU would have had action to bring a suit under the state constitution but that would be a much tougher case to argue and they might not have won. It doesn't look like there is an *establishment* clause in the RI Constitution that prohibits the government from endorsing certain religions over others.

What the Founders intended regarding the states and their handling of religion is irrelevant since the ratification of the 14th Amendment, which *amended* the original constitution. Many things the Founders intended in the original document have been changed by amendment. They knew that sometimes this would need to happen, which is why they put in a process to amend the Constitution in the first place.

The 14th Amendment does not change the meaning or language of the 1st Amendment but it does apply those restrictions against Congress to the state governments. States also cannot violate the Free Speech Clause (see Gitlow v. New York). Falsely yelling "fire" in a crowded theater has never been considered a valid exercise of free speech. Every constitutional right has some limitations.

What difference does it make what YOU call the clause?

And the clause in the Federal Constitution only prohibits the Congress from making laws regarding establishment. Again...no law was made by anyone and the school committee and administration draw their authority from a law that makes no mention of establishment.

GITLOW vs New York makes my point. New York had the authority to make such a cry illegal. The feds do not since the Constitution bars it from creating laws abriging the right of free speech.

I understand the amendment process as well.

I would amend the second amendment since it permits citizems to own any form of arms they choose. Under the current constitution the government should not be able to stop citizens from owning tanks or nukes...which makes no sense at all. Yet, our government simply ignores the Constitution and makes such bans anyway.

The powers of the Congress are enumerated within the Constitution and yet Congress feels they can nebulously use the commerce clause to force citizens to buy commercial products since they can "regulate" interstate commerce. Something most state constitutions would permit their governments to do.

I am not arguing with you about establishment.

What we are arguing about is whether the words of the Constitution are to be taken literally or whether politicians or community busy bodies can simply ignore those words in the name of their declared greater good.

So you admit that the words of the 14th don't modify the words of the 1st - It's just that it transforms the meaning somehow so that the original words "Congress shall make no law" now mean "School departments will hang no banners". There is plenty of room for legal argument in between and I will continue to maintain my contention that...

The ACLU is motivated by a desire to increase the size and authority of the federal establishment in order to futher their notions of social justice (IE Socialism) and many officers of government consciously or sub-consciously strive to increase the power and influence of their organizations in order to further their own notions of "goodness".

The founders clearly intended the federal establishment to be small with a primary role in protecting the individual freedoms of citizens as well as their rights as members of communities and states.

They wisely made the Constitution open to modifications.

If you want to change the structure of government, it must be modified...not ignored.

(con'td 3) The ACLU's actions are rarely, if ever, to advance the power of any government body as their lawsuits almost (if not always) involve suing a government body that has overstepped its authority, demanding that they scale back. I still fail to see how raising this case in federal court grants additional power to the federal government. It took away a power from a city (that didn't legitimately possess this power to begin with) but in so doing it didn't give additional powers to the federal government that it didn't already have.

As for "Congress shall make no law..." I already explained that now that this same restriction applies against the states, the state could not have possibly passed a law granting schools the power to post prayer banners. The State of RI has passed a law allowing for the formation of school committees who have a wide range of authority regarding the maintenance of public school grounds (they certainly don't need to pass a law for every single poster the school wants to put up) but the State of RI could not possibly have included the power to post prayer banners within this wide range of authority given to school committees because it isn't a power RI has to begin with. You can't give someone a power you don't possess. (to be continued)

(cont'd 4) The structure of government was modified by the 14th Amendment, which granted Congress the authority to abrogate the states' sovereignty if the states violated the Equal Protection Clause or Due Process Clause (or other clauses) of the 14th Amendment.

The Constitution is not as rigid as you think it is. It does not, nor could not, take into account every single possible scenario or define each and every word so exactly such that in every single possible scenario there would be no question as to how a section would apply. If our Constitution were written like this, not only would it be millions of pages long, but the drafters would need a crystal ball. It is for this reason that we have a judiciary to interpret the Constitution. This interpretation is done along the lines of the principals of the Common Law, as we are a common law country. This means that past judicial decisions from higher courts create a set of binding case law on lower courts that must be used when examining a present case.

First - Your name's (or anyone else's) for clauses don't mean anything. Only the words in the law have meaning.

The Federal case is on shakey ground as I have established. The RI Constitution also clearly states RI interests in concepts around separation strenthening that case.

Thanks for admiting your error and therefor my understanding of Constitution issues through Gitlow.

How did you establish that Congress has the right to bad ownership of Nuclear devices? Oh yes...because the courts have upheld that right. You continue to fail to understand that it's this activist interpretation of the Constitution that I am against. The people's rights and obligation trump the perquisites of the court - this is why court's can ignore precedent if they like - ther is only the tradition of common law restricting them. By the way, I like those ideas but to claim that judges cannot overturn decisions from higher courts under any circumstances is simply not true.
...

I accidently transposed my responses above. My apologies.

BTW, you argue better than most of your fellow travellers. It's a pleasure discussing this.

Joe you are under the mistaken conception that we are having a debate here: that I am sharing with you my personal opinions on the law. This is not the case. I am telling you, on a very basic level, how United States law operates. I did not invent the names for the clauses in the Constitution. They are simply given names so the courts don't have to keep repeating the language in their decisions.

I said that your reading of the Gitlow case is incorrect, not mine. The Gitlow case involved a New York state law that prohibited advocating for the violent overthrow of the government. The Supreme Court upheld this law, not because the Free Speech Clause is not binding against the states (they expressly found in this case that it was), but that the speech prohibited by the statute was able to survive the "clear and present danger" test and was within the authority of both the federal and state governments to regulate.

I stress that saying that the Constitution "should be taken literally" is easier said than done. The courts understand that in the Constitution "every word must have its due force and appropriate meaning; for it is evident from the whole instrument, that, no word was unnecessarily used, or needlessly added" Wright v. United States, 302 U.S. 583 (1938). However...(to be continued)

(cont'd 2) However, "The Constitution is not self-explanatory, and answers to knotty problems are inevitably inexact. All that an individual judge can do is to apply the legal precedents as accurately and as honestly as he can, uninfluenced by personal predilections or the fear of community reaction, hoping each time to disprove the legal maxim that "hard cases make bad law" Fricke v. Lynch, 491 F. Supp. 381 at 389 D.R.I. (1980).

You are correct that there are some instances where a lower court can "overturn" (and I use the word loosely, I think "disregard" is more appropriate) binding precedent. "District courts are not governed by earlier appellate precedent that has been 'undercut by higher authority to such an extent that it has been effectively overruled by such higher authority'" Golinski v. Office of Personnel Management slip op. at 15 N.D.C.A. 2012 quoting Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003).

In the above-cited example, the District Court for the Northern District of California decided that an earlier ruling by the 9th Circuit Court of Appeals (which sets binding precedent against that District Court) called High Tech Gays v. Defense Industrial Security Clearance Office that found laws targeting gay people to be subject to the deferential "rational basis test" was no longer valid because the High Tech Gays case relied on the Supreme Court case Bowers v. Harwick which upheld laws criminalizing gay sex. (to be continued)

(cont'd 3) But the Supreme Court overturned Bowers in the case Lawrence v. Texas, thus overturning the very foundation that the 9th Circuit's High Tech Gays case was founded on.

So the District Court in Golinski found that the 9th Circuit's holding that laws targeting gay people were subject only to rational basis scrutiny was no longer valid and it contradicted the High Tech Gays case by saying that such laws were subject to heightened scrutiny (a much harder test). But it could not make this decision unilaterally: the Court had to point to doctrinal developments in higher case law that supported its findings.

The point is, however, that a lower court cannot simply take it upon itself to disregard binding precedent. It must be able to point to other binding precedent that has effectively undercut it.

This court found that Stone v. Graham, a Supreme Court case from 1980, compelled this decision. What Supreme Court cases since 1980 can you point to that undercut the decision in Stone v. Graham? 1992's Lee v. Weisman (banning school-sponsored prayers at graduation ceremonies)? 2000's Santa Fe Ind. School District v. Doe (banning school-sponsored prayers at extra-curricular activities)? The Supreme Court precedent since Stone regarding the Establishment Clause and public schools does not support such a notion.

Courts of equal power can over-rule its own precedent but lower courts cannot overrule precedent set by higher courts. Lower courts can disregard precedent from higher courts if they can point to still higher precedent that effectively undercuts that precedent

The Supreme Court can, as it indicated in the quotation you cite, overrule its own precedent. If the composition of the Supreme Court were to change, they could possibly overturn Roe v. Wade. Being the highest court in the country, they can also overrule any precedent established by any other federal court as they are all inferior to the Supreme Court.

Panel decisions by Circuit Courts of Appeal (in which an appeal is heard by 3 randomly selected judges from the Circuit Court) cannot overturn prior panel decisions within the same circuit, but a Circuit Court sitting en banc (an appeal in which all members of the Circuit Court hear the appeal) can.

District Court decisions set no binding precedent, even within the same district.