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Real0ne -> RE: Do you agree or disagree with the statement (2/26/2012 7:01:29 PM)
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quote:
ORIGINAL: jlf1961
John F. Kennedy said in Houston TX that he believed in an America where the separation of church and state was absolute.
Rick Santorum said he does not believe in an America where the separation of church and state is absolute.
Considering that the founding fathers made it clear that there was to be a separation of church and state, where do you fall in the two statements? When you figure in that all nine Supreme Court Justices have stated there is a wall of separation between church and state in the US, how can Santorum make such a statement that is clearly defying the Constitution of the United States?
there is nothing to agree or disagree with since your premise is completely fucked.
The purpose of the establishment clause was to prevent the establishment of a state religion as it was in england.
That means the state making laws such that everyone has to be muslim etc.
Beyond that the idea that law is somehow detached from religion is completely absurd and you do not need to go beyond wiki to find that out.
English jurisprudence
Heinrich A. Rommen has observed "the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476).[44] Bracton's translator notes that Bracton "was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind"; but Bracton adapted such principles to English purposes rather than copying slavishly.[45] In particular, Bracton turned the imperial Roman maxim that "the will of the prince is law" on its head, insisting that the king is under the law.[46] The legal historian Charles F. Mullett has noted Bracton's "ethical definition of law, his recognition of justice, and finally his devotion to natural rights."[47] Bracton considered justice to be the "fountain-head" from which "all rights arise."[48] For his definition of justice, Bracton quoted the twelfth-century Italian jurist Azo: "'Justice is the constant and unfailing will to give to each his right.'"[49] Bracton's work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson.[50]
Sir John Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly influenced the course of legal development in the following centuries."[51] The legal scholar Ellis Sandoz has noted that "the historically ancient and the ontologically higher law--eternal, divine, natural--are woven together to compose a single harmonious texture in Fortescue's account of English law."[52] As the legal historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law (also found in Accursius and Bracton), after all, was 'a sacred sanction commanding what is virtuous [honesta] and forbidding the contrary.'"[53] Fortescue cited Leonardo Bruni for his statement that "virtue alone produces happiness."[54]
Christopher St. Germain's Doctor and Student was a classic of English jurisprudence,[55] and it was thoroughly annotated by Thomas Jefferson.[56] St. Germain informs his readers that English lawyers generally don't use the phrase "law of nature," but rather use "reason" as the preferred synonym.[57][58] Norman Doe notes that St. Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated."[59]
Sir Edward Coke was the preeminent jurist of his time.[60] Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason."[61] [62] Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things."[63] For Coke, human nature determined the purpose of law; and law was superior to any one man's reason or will.[64] Coke's discussion of natural law appears in his report of Calvin's Case (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.[65]
As early as the thirteenth century, it was held that "the law of nature...is the ground of all laws"[66] and by the Chancellor and Judges that "it is required by the law of nature that every person, before he can be punish’d, ought to be present; and if absent by contumacy, he ought to be summoned and make default.".[67][68] Further, in 1824, we find it held that "proceedings in our Courts are founded upon the law of England, and that law is again founded upon the law of nature and the revealed law of God. If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it."[69]
American jurisprudence
The U.S. Declaration of Independence states that it has become necessary for the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them". Some early American lawyers and judges perceived natural law as too tenuous, amorphous and evanescent a legal basis for grounding concrete rights and governmental limitations.[3] Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements.[70] Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common law, in turn, rests on a classical natural law foundation.[71]
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