Establishment Clause -- noun or verb.?

You are dealing with a historical text, in which the use of 'establishment' from that time is almost certainly a noun. Yes, it changes the way one would read the clause.

In this amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...

The word 'establishment' seems to mean an 'institution' of religion. Therefore it appears to us that it is not talking about the 'setting-up' of a faith, which conceivably leaves a little loophole there.

However, I think the noun here has a historically specific meaning. There appears to be a special meaning of the word which refers to the church-state relationship. Look at the Oxford English Dictionary entry for 'establishment':

" 2. esp. The ‘establishing’ by law (a church, religion, form of worship). (See ESTABLISH v. 7.) a. In early use, the settling or ordering in a particular manner, the regulating and upholding of the constitution and ordinances of the church recognized by the state. b. In 17th-18th c. occasionally the granting of legal status to (other religious bodies than that connected with the state). c. Now usually, the conferring on a particular religious body the position of a state church.

a. 1640-1 LD. DIGBY Sp. in Rushw. Hist. Coll. (1721) IV. 172 A Man..that made the Establishment by Law the Measure of his Religion. 1706-7 Act 5 Anne c. 5 Securing Ch. Eng., Acts of Parliament now in Force for the Establishment and Preservation of the Church of England.

b. 1731 E. CALAMY Life (1830) I. v. 401 The allowance of the law is of necessity a sufficient establishment [of dissenting worship]. 1792 COKE & MOORE Life Wesley II. iv. (ed. 2) 355 Mr. Wesley's great desire to remain in union with the Church of England..would not allow him to apply for a legal establishment.

c. 1662-3 Addr. of Commons to King 27 Feb. in Cobbett Parl. Hist. (1808) IV. 262 In time, some prevalent sect will..contend for an establishment. 1788 PRIESTLEY Lect. Hist. v. lvii. 449 There is no place where there are more forms of religion openly professed, and without the establishment of any of them than Pennsylvania. 1792 BURKE Let. Sir H. Langrishe Wks. VI. 318 The perpetual establishment of the confession of Faith, and the Presbyterian church government. 1813 MRQ. LANSDOWNE in Ho. Lords 8 Mar., They [Catholic Petitioners of City of Limerick] asked for no establishment of their own Church. a1832 MACKINTOSH Causes Revol. Wks. 1846 II. 227 Toleration..was sometimes sought by Dissenters as a step to~wards establishment. 1886 EARL SELBORNE Def. Ch. Eng. I. iv. 77 All such relations of the Church to the State as those which are summed up in the term ‘Establishment’."

It might do you some good to check a late 18th c. American legal dictionary. I hope this helps, this is such a refreshing change from the usual questions one sees on Yahoo answers.

Yes and no.

In your first case, one could interpret the gerendive clause to mean that Congress could make any law they wanted about religion, as long as they didn't start any new religions. Even though that COULD make sense, being that Henry VIII "created" the Church of England in 1534, that was probably not foremost in the Founding Fathers' minds, being as it was the 1770s and more than 200 years removed from that occasion. What was probably of greater concern was that Europe had a long history of creating state religions and subsequently persecuting those who were not of that religion. I would submit that the primary reason for this entire clause was to prevent any chance of the federal government naming a particular faith to be "Church of the United States," thus opening a large portion of the population to persecution. Unfortunately, there were many cases of states requiring people to be of a particular religion, Massachusetts and New Hampshire being unfortunate examples. (http://en.wikipedia.org/wiki/State_religion#fn_3_b...

However, if you treat religion as a single establishment, of human origin, then whether it is a verb or noun becomes irrelevant. In other words, you could restate the verb clause as "respecting religion," which is functionally identical to the noun clause of "respecting a religious organization."

As a principled libertarian (small l), I believe that any federal laws, and possibly state laws, which have the word "religion" in it is automatically unconstitutional. Similarly, any law with the words "gun", "firearm", etc would be as well for the same reasons.

While I like your question, I am not sure we even need to tear it apart(so to speak) that far to question the Court's interpretation of that particualr clause.

The court, in my opinion, has destroyed this clause and have interpreted it so liberally that is no longer has any meaning. I cannot believe that the founders of this country wanted religion to not be part of our government, but yet it's our motto, printed on our money, the legislature opens session with a prayer and many of the country's oldes buildings have religous based carvings and writing in the walls/columns, etc.

I think the court needs to apply the text of the Constitution as it is wirtten and only if it is ambiguous should the court "interpret" what it says.

Congress shall make no law...the way I read that, it says that congress can pass no law...congress can not make a statute...congress cannot tell people what they can and cannot do regarding religion.

Simply allowing people to particiapte in their particualr faith is not establishing a law. It is not supporting a religion, it is not promoting or denying relgious freedom.

Understand, my faith is pretty weak on these matters, so my comments are not based out of my desire to strengthen "The Church", my comments are based out of the belief that the US Supreme Court needs to stop legislating from the bench.

Another angle I think you guys are missing here, is that it says CONGRESS shall make no LAW. It says NOTHING about the Executive Branch, Judicial Branch, and certainly it says nothing about the State Legislatures doing so. In fact, in stating that this is NOT a power of Congress ( the Federal Govt ) the Tenth Amendment would clearly indicate that this is a power of the States.

So atheist bellyaching about religious trappings outside courtrooms, like the Ten Commandments, or crosses on public property, or schools groups holding religious meetings or using religion in their graduation speeches, does not run afoul of the First Amendment because none of these things are there because of a LAW that CONGRESS made.

It says CONGRESS.

Shall make no LAW.

Period.

None of this is on the bar. Get back to work, don't forget the ethical angles on the essay questions and good luck.