America interaction of law and religion constitutional history

-- Excerpted fromBerman (USA)"Faith and order", Central Compilation and Translation Press2011Years01Month1Version

The"Law"And"Religion"Two words together, often USA legal families today think immediately of America First Amendment to the constitution. It provides double protection for religious freedom: government interference in the religious right prohibited"Free exercise"The government shall not"Rikkyo". From the standpoint of current American constitution, religious belonging to individual citizens, groups. Indeed, in recent years, our courts in interpreting"Free exercise"In terms of the process, the citizen individual or group activities from the government (both the federal government and state government) control played a big role, regardless of whether the activities of people think these activities with religious nature; at the same time, the court according to the not"Rikkyo"Clause, almost banned government (both the federal government and state government) to any form of religion. Support, even indirectly support is no exception.

But theologians to"Law and religion"This topic will have a different reaction. He is often the first thought is not USA constitution, but the ten commandments, as well as the proposition implied the ten commandments, that all people are based on the divine law, the fundamental purpose is to help create the law of God's love and conditions on the neighbour love to flourish. From the standpoint of theistic belief, the mutual relationship between law and religion is a two-way street: legal activities, legal system is helpful to protect religious without government intervention; religious system, religious activities can provide power for the whole society, direction, including the legal system society.

I think, only from a legal perspective, it is fromReligionFreeLawBased on the relationship between law and religion, this is an ingrained error, but this error is It is quite common for. From theLawFreeReligionBased on the relationship between law and religion is also indispensable. Otherwise, we will not fair to American people's religious emotion. The vast majority of Americans say they believe in God, but most Americans (although less than the former, but still the majority) claimed that they follow some organized religious group, or Christian groups, Jewish groups, or Islamic groups. These religious believers metropolitan said, USA constitution exists even religion freedom, that is based on American people faith fundamentally--Many agnostic or atheist would agree that.

Undoubtedly, making America constitution, including the establishment of the first amendment, also hold such views. Thomas·Jefferson in the America you founding fathers might be religious thought one of the most open.1801Years in his first state of the union said the president:"The freedom of the people is the gift of God, this win support among the people of faith is free only solid foundation. If we destroy it, then a country free (not) have a solid guarantee."[1]Jefferson sincere support all kinds of freedom of opinion, but he also believes that, despite the myriads of changes, but all have a common core of a religion, this common core for maintaining social peace and order necessary.[2]For Jefferson, the separation of church and state, it is a great"Experiment",[3]In order to test the common kernel shared religious belief (not only him, America all the founding fathers were agreed, it for social existence and well-being is really indispensable) to leave the government support could flourish.[4]

In other words, America constitution drafters, including those of traditional religion truth skeptic drafters, all believe firmly: the legal system's vitality depends on the religious life, more specifically, the new United States of America depends on the prevailing Protestant faith vitality.

And, although there are a lot of people oppose, such as Jefferson, but most people are in favor of the government control and support of religion, but not in the federal level, but at this stage the state government. The first amendment to the Constitution by the behoove understanding is applied only to the federal government. It wrote:"CongressShall make the following matters: a legal or prohibiting the free exercise of religious rights."But did not say that the state government have any restrictions. In the tenth section of the first article of the constitution measures shall be taken of the state government, which is not included in a thing. As justice Storrie said:"Thus, all the rights related to religious affairs are reserved for the state government, the state government has the right to their own conception of justice and the state constitution."[5]

In the19The first half of the 20th century, most states do have enacted relevant laws, is actually made Christianity the state religion (more common is the Protestant). Therefore, we can find many such states the clause of the Constitution and laws, some of them are announced"Everyone has a duty to worship God, the great creator and the universe",[6]Some of the Christian Church, provisions, some provisions do not participate in the worship should be fined, some requirements of elected officials to take the oath of them"Christian, convinced of its truth",[7]There are provisions should start to spread"Religious, moral and knowledge"Public education.[8]

1811Years, the New York Supreme Court ruled in favour of a prosecution for blasphemy Christ speech. Chief justice Kent (KentOn behalf of the state Supreme Court said):"We are a Christian nation, Christian spirit deeply into the nation's morality......"[9].1821The decision has been recognized by the New York conference. It was announced, the state Supreme Court ruling, the Christian faith is the law of the land, should be more than any other religious beliefs favored, this is correct.[10]The declaration at1861In New York's case to be sure. In this case, the court said:"Religious tolerance and religious official admits no contradiction. In the limit, the Christian can be recognized as the official religion, and for all the other faiths, religious people, full civil equality and political equality, together with the freedom of conscience and education choice is free, also will be protected."[11]

The same,1822In Pennsylvania, a man was called"The Bible is a fictional","Content lies"Convicted of blasphemy.[12]The Pennsylvania state Supreme Court upheld, and said:"The Christian doctrine of Christian doctrine, is common, is a part of, the Pennsylvania state common law now, will forever......Not a Christian any special religious creed based; nor was established as the state religion, tithing and a religious court of Christian doctrine; but that everyone has the freedom of conscience of Christian doctrine."[13]

By the same token, prohibited from engaging in commercial activities in Sunday's legal in many states, got the support of the court. The Missouri Supreme Court stated in a related case:

Questioned the constitutionality of our Sunday decree people seem to think, the Constitution when viewed as a piece of paper, but by a group of strangers the country and develop, this group of people from the world come together from all sides, they all have the faith, no social link, is also a lack of sympathy for the historical memory;......Not so interpretation of our constitution. We should respect the constitution was awarded people. The Constitution clearly formulated by christian. From the perspective of the constitution, the makers of belief is the christian.[14]

A similar verdict can also be found in similar cases in other states, including blasphemy case, against Sunday law case and other religious crimes case.

In addition, the state also have no qualms about requirements in the State University and college, and prison reformatory, orphanages, soldiers' homes and shelters spread christianity. The States also demanded in primary and middle schools in reading the Bible, singing hymns and prayers.

1890Years, Iri Noiyushu Supreme Court case: a University of Illinois student was expelled for refusing to participate in school activities and daily worship of the church. The students argue, asked to participate in the worship activities in violation of the provisions of the Illinois constitution on the "Shall not violate other's will and request their participation in or support any Ministry of worship or worship places"Regulations.[15]The state Supreme Court decision, as long as the legitimate and reasonable requirements to participate in the worship activities, and allow for religious or other reasons to participants on the conscience of exemption from the obligation, University has the right to enforce the rules, students not only because he thinks that illegal and escape the obligation. The state Supreme Court said, the Illinois constitution without any provisions that by banning State University and other institutions of Education"Reasonable rules to teach students abide by the code of ethics and religious criterion".[16]

For primary and secondary school of religious activities and religious education, many state court even support the school requires students regardless of whether or not the religious objection shall participate in the worship activities, and offenders expelled. The Maine Supreme Court says:

A sect have banned or censored (version of the Bible) rights, will make all schools are subject to amendment to ban or the sect (version of the Bible)......If the claims that the students sects have banned right (she is a Catholic, and the Catholic Church against the Protestant versions of the Bible reading as a public course content), and by the church ban, any book shall be removed from the school, then the option actually give the church, just this kind of damage the indictment and to other people.[17]

The reason I enumerate these ancient precedent,Be notTo explore their legal significance today (in fact the case has been overturned), but because they are about the constitutional guarantee of religious freedom of religious origin.1835Years, Alexy·De·Tocqueville wrote:"Christian influence on the American psyche is huge, the world no one can and......"[18]1888Years, James·Bryce.James Bryce) wrote:"If we only look at the number of people affected, but also look at the effect on people's wisdom, then Christianity degree big influence on America, range is wide, it seems more than Western Europe, anywhere, compared with England may be roughly the same."[19]

I can testify, even in fifty years ago, if you ask America Is it right? A"Christian"Countries, the vast majority of Americans would say. I am a boy in Hartford, Connecticut, Noah·Webster.Noah Webster) school, the education indeed. The Wednesday night party, in addition to read the New Testament readings, and hymns"Christian soldiers forward"Some Jews, we this group of children will sing"Jewish men forward". America claims to be a Christian nation, we understand this better than the others.

At that time, if you ask the American legal system we come from, where is its foundation, the vast majority of people will answer is"The Ten Commandments","The Bible", may also be a"The law of God". John·Adams.John Adams) think, our law rooted in popular religious tradition and the moral tradition.[20]Whether Protestant descendants of slaves, and open up new British, or Catholic and Jewish millions of Western Europe, southern and Eastern European immigrants, this is their common ideas. Of course, the whole19Century and20In the early 20th century, USA legal research mainly from Blackstone, and he once wrote:

At any time and in any country......Dear God......Natural law......Must comply with the law; if no any effective against this; the effective method, all of its effectiveness and authority are directly or indirectly from the.[21]

By the two generation, changed America public philosophy, legal theory into a secular religion from legal theory, from moral theory into politics theory, instrumentalism, become individualism theory from the communitarian theory. It is now generally believed that (at least in the public discourse), law is used to achieve specific political goals, economic goals and social goals of a practical means of. The task of the law is limited, physicochemical, without personal emotional color--Is to get things done, let people to behave a certain way. Rarely heard the law is a reflection of objective justice, is a reflection of life or the fundamental purpose of the fundamental significance. Generally, the law to reflect the common understanding of the social for what good things; more commonly, people think, law reflects the legislators somewhat arbitrary will.

This view of law again18At the end of the century enlightenment movement, back to the product of the enlightenment--The French Revolution and the revolution in USA19Century America, this view of law especially strong support from the intellectuals. But it is important to remember, before the first World War and until the great depression, the United Nations has been convinced that USA constitution and law system originated from the God made with people around, and based on this, the country was lead in achieving its mission"Wanbang light".

Only in the last two generations there, the enlightenment view of law not only infiltrated the intellectuals' ideological consciousness, also penetrated into the people almost all walks of social consciousness. The Enlightenment of legal view, law is entirely instrumental, fully are made. And the enlightenment view of law before that, the law is established by God, half developed by man, half is from god. Similarly, only to the two people there, the enlightenment view of religion to dominate our words. The enlightenment view of religion, religion is entirely personal, completely is the psychological needs, and the enlightenment that before the religious view, religion is a matter of public, both psychological significance, social significance, also has the sense of history, of course, legal significance.

In the20Century Americans (I say is not only the constitution idea, and jurisprudence, philosophy of law, law and Religion) are completely separated, which brings serious harm, the law will no longer get respect. If the law is only useful standard or feasibility, instead of truth or Justice Standards Law, those who believe the law does not meet the interests of the people, the law will be difficult to implement. The law instrumentalism usually say, rely on mandatory sanctions deterrence, the law will eventually be implemented. However, this argument is not convincing. To ensure that the rules are followed, such as trust, fair, reliable, social factors such as, far more important than the compulsory.[22]It is in the law of trust without mandatory sanctions, the law in accordance with the law governing effective; it doesn't have to take the police everywhere. Now, it has been proved from the reverse side. In our city, the most severe punishment is legal department for criminal law, when it can not win respect in other ways, to awe. Now, as everyone knows, even if the use of more police also unable to curb urban crime. In the final analysis, have a tradition of observing party can prevent crime, and this requires people to believe or believe in, the law is not only the secular policy tool, or part of a life purpose and meaning.

Similarly, in the contemporary American thought of law and religion completely separated, but also to the religion seriously. Religion will be completely as a personal matter, as a psychological thing, without any social, historical and legal aspects of meaning. Jefferson's experiment is failing, because although the religion in the USA prosperity, but it is increasingly"Personal"Effect of which has no, how much power to overcome the social turmoil and strife.[23]

We emphasize the damage law and religion too out of touch, of course, also want to avoid the relationship between the two is too close and go to the other extreme. Indeed, the law is more directly related to the social action and social utility, but religion is more concerned with personal pursuit and a sacred significance. Therefore, there are some tension between the two, they can challenge each other. Religion is located outside the law, help to avoid legal system by the people prostrate oneself in worship. On the contrary, the law to maintain its secular, can let the religion in its own way free growth. Thus, the separation of law and religion provides the basis for the separation of church and state, on the one hand can prevent the government over the church, on the other hand, can prevent the emergence of theocracy.

However, law and religion completely separated in the system do not need them in the values are completely separated. The law without completely secular, religion without vulgarity. The two part company each going his own way in life, is now available to the disaster to describe. On the one hand, we have a lot of cult only because of its religious form and is not affected by the social control, such as"The Peoples Temple"(others can give many). On the other hand, our public schools to prohibit the dissemination of religious heritage of our common, just because they are secular schools.

Risk of any social organic theory are real, they may be abused, so that some of the current method in some of the existing social order and Orthodox faith became sanctified and loss of vitality. If the inner rule of law and religion itself does not have the change, the risk is still serious. And in our social, religious tradition and tradition of law based on the change of concept, the severity of the risk are much lighter. Indeed, in the Western tradition, a basic role of religion is to encourage legal reform, make the law become more humane, and a basic function of law is the incentive of religious reform, the religion becomes more rich sense of social responsibility. A theory of social organism if itself from the dynamic development process point of view, to understand the society, is not to protect status.

In USA, law and religion have dynamic characteristics, is also have the ability to change, development and even death and rebirth, this feature makes the two can interact and does not exceed the constitutional boundaries separating them. Although the"Free exercise"Provision has a broad interpretation, but I believe, our courts would be in favor of the government to take action to ban the use of coercion or religious groups of fraudulent means to gain support. Similarly, although not"Rikkyo"Provision has a broad interpretation, but apparently the legislature will also take some measures to protect the rights of the free exercise of religion, and that these measures would not necessarily lead to, result. For example, can allow religious groups enjoy duty-free treatment; allows the army recruiting chaplain; allows the objector exemption from military service on religious grounds; can provide indirect support for the church schools; can be arranged in a public school exemption class or class, so that students can accept the religious counseling in other places; though not in the public schools activity arrangement religious counseling or prayer, but can provide religious education--Arrange the history of religion, philosophy of religion, religion and literature courses. The promotion of religious development responsibility belongs to the people. That the law needs to be religious enlightenment, does not mean that should have the responsibility to the government or the legal system. It only contains such meaning, namely, the government should pass laws in the constitution authorized to cooperate, to provide an environment for religious prosperity.[24]

I have argued, our Constitution stipulates that religious institutions and political and legal system must be highly separated at the same time, also presupposes the religious values and political and legal values to have a high degree of interaction. It presupposes an important purpose of the guarantee of religious freedom is to purify and consolidate the religion to help create conditions; it is also the default, purification and consolidate the religious beliefs can provide the power for the development of the political and legal system, to guide the direction of. These default or assumed to be such a jurisprudence, it thinks, the law in general is to show something beyond the things, to witness some more sublime, guide a historical destiny.

In recent years, these assumptions have been seriously eroded. The law is no longer regarded as common to achieve higher desire and the fate of the indicator and the witness, and be regarded as an end in itself, is our country the meaning of existence, is that we as a nation be made one of the basic covenant. We start for the Constitution itself because of the belief of constitution--For the"Free exercise"Terms and not"Rikkyo"The clause itself because of the belief that they. We found that in matters of religion remain legally neutral moreAppropriateWe don't think that, in a"Diversification"Society, also is to follow the first amendment to the constitution of society with other standardsWorthy of acceptance. People don't think also need other justified reasons.

In my opinion, this in itself is a form of religious or secular idol worship. It is immersed in the worship of the principle of constitution, just for the sake of constitutional principle itself, but the only reason this is the God of the people in front of their own interests, both personal interests are collective interests, and for any other reason are highly skeptical.

It is the fundamental purpose and significance of the constitutional guarantee of religious freedom of doubt, weakened the basis of religious freedom. On the one hand, self worship gradually became the main religion our, the danger is that we might really be such a country, this country"Composed of strangers......They have different beliefs, no social link, the historical memory"And future prospects"Also lacking resonance".[25]Self worship have begun to form, it to all the associated with traditional religion gradually from public education and public discourse in the clearing, and gradually replaced by his delirious speech lying and program ritual, the moral belief system of their own. The danger comes, this new secular religion will make all other religions have succumbed to it, it will damage the action that in addition to other religions.[26]

On the other hand, the social worship (from the perspective of the development of it is the end result of self worship, although logically they are conflicting) as an alternative to hide behind the scenes. It will also bring a violation of the first amendment to the Constitution by the secular spirit, the national support--That is the whole society are involved, the unconditional support of patriotic religious.

Someone will say, will"Religion"The word for those I belong to"Self worship"And"Society worship"Personal philosophy and social philosophy, is the misuse of the word. However, it is this argument is used to support the national will this kind of Philosophy"Li"As the official religion, support the state intervention in the philosophical belief"Free exercise"Right. In this regard, the example of the Soviet Union is quite rich educational significance. The Soviet constitution and freedom of religion and secularism. In the Soviet Union, because almost all education is the state education, almost all publications are issued by national press, so missionary and issue of religious books were strictly limited. But, because religion is every citizen's privacy, the free exercise of religious rights be interpreted to include only the freedom of worship. On the other hand, all schools are required to carry out the public education of scientific atheism; the press and other departments to promote the education. Thus, although claiming to atheism is not a religion, but a science or philosophy, but in fact has been"Li"As the official religion, such as Christianity, Judaism and Islam in this kind of traditional religion out of public discourse.[27]

In my opinion, a good example, religion is not under the control of the government or support the protection of the constitution, itself can not automatically become the final means we protect religious freedom from oppression. It not only need the protection of the constitution, but also with the constitutional guarantee of intention: namely, to promote the establishment of such a society, in this society, political and legal values can freely interact with the religious values, so that the law can achieve the fundamental goal of justice, compassion, faith, and not become legalism, and at the same time, religion will stick to its social responsibility, and not to the person's religious fanaticism or pietism (Pietism).