Vail Daily letter: Bornstein rebuts Cacciopo
Reply to Michael Cacioppo’s attack letter Aug. 22:”Better to remain silent and be thought a fool than to speak out and remove all doubt.” Abraham Lincoln Michael Cacioppo wrote a letter personally attacking me for a response that I made to a letter Dick Gustafson submitted to the Vail Daily. I found his response to be offensive, juvenile and factually and legally wrong, which I will cover in this reply. This is not an uncommon reaction by Cacioppo, as he replied similarly in response to an earlier letter I wrote also critiquing a letter written by Gustafson. I chose not to respond the first time, but this time I felt it was necessary. Cacioppo’s last paragraph states: “Mr. Bornstein, why don’t you personally attack me instead of my friend Mr. Gustafson? I am ready, willing and capable of verbally taking apart your nonsense any day of the week. Bring it on!”I believe that I am ready willing to bring it on. Let me compare my education and knowledge obtained from my extensive readings on these subjects during high school, college and law school, and my legal experience that I have had in federal courts and state courts on issues directly involving the Constitution and the related statues. If you choose to respond to my “nonsense,” with contradictory information, please do so using knowledgeable, credible and verifiable sources, not your personal attack opinions. Personally, I find Cacioppo’s description of Mr. Gustafson rather insulting. I was not aware of any of Gustafson’s physical ailments, but this is irrelevant. I may not agree with most of Gustafson’s letters to the Vail Daily, but I find them written with intelligence and are far superior to Cacioppo’s rants, and I enjoy sparring with him. Cacioppo states in his letter: “Once and for all, Mr. Bornstein, the First Amendment of the United States Constitution does not call for a “separation of church and state.” Any eighth-grade-level reader can understand the plain-meaning words of the First Amendment.” Maybe an eighth grader can understand the “plain-meaning words of the First Amendment,” but after reading your letter, it is obvious that you do not.Your comment that the words “separation of church and state” do not appear in the Constitution; therefore, the concept and principle does not exist is an absurd and ignorant canard, often repeated by too many Republican politicians. In the “Virginia Act For Establishing Religious Freedom,” written by Thomas Jefferson, in 1786, a year or so prior to the Constitution being signed, he stated in part: “that our civil rights have no dependence on our religious opinions, more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to the offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right …” This is a precursor to the First Amendment written by James Madison, with input from other sources. In response to a letter from Connecticut Danbury Baptist Ass. President Jefferson wrote: (1802) “Believing with you that religion is a matter which lies between a man and his God, that he owes account to none other for his faith and worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that of the whole American people which declared that their legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man his natural rights, convinced he has no natural right in opposition to his social duties.” This is where the phrase “wall of separation comes from. Generally the “between church and state” is left off. No one who has ever read the Constitution (have you?) claims that the phrase “separation of church and state” expressly appears in the Constitution, but the concept surely does, to wit: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first portion “Congress shall make no law respecting an establishment of religion” is the “wall of separation between church and state.” The “wall” prevents Congress from establishing a national religion or interfering with one’s personal religious beliefs. This language also prevents citizens, including any organized religion from forcing their religious beliefs upon anyone else through the government. Which, during the state ratifying process, many “religious persons” tried to do, without success. (Read Pauline Maier’s book “Ratification,” which is considered to be the definitive work on this subject.)Despite the numerous attempts to create a state religion even today, the reason it has not yet been created is because of this “wall of separation.” The Constitution is 12-13 pages long and the first 10 amendments (“Bill of Rights”) another one-two pages. The words, phrases, concepts, etc., that do not appear in the Constitution are limitless. The Constitution is over 220 years old. And the Supreme Court, the appellate courts, the district courts as well as the state courts are still interpreting these 14-15 pages in thousands of cases. Only a fool cannot understand why this constant review and interpretation is necessary and required.Here are a few examples of specific words and phrases that are not in the Constitution, but if a case comes before a court raising a constitutional issue, those 13-15 pages will be applied to the facts presented even though the issue does not appear expressly in the Constitution: The right to vote, the separation of church and state, “We hold these truths to be self-evident,” the Air Force, congressional districts, The Electoral College, executive order, executive privilege, freedom of expression, God, Christianity, immigration, innocent until proven guilty, judicial review, jury of peers, “life, liberty and the pursuit of happiness,” marriage, martial law, “no taxation without representation,” “of the people, by the people, for the people,” paper money, political parties, primary elections and maybe the most important “missing” item, the right to privacy. I have never stated or suggested that the irrelevant examples you cite such as “prayer in school,” “in God we trust,” “under God,” etc., are somehow prohibited. You have made these false claims up. I suggest that you research the history of these two phrases. The ability to use a school to pray in is limited by constitutional decisions to private non-school acts. In other words, a public school cannot impose any prayer, even a neutral prayer on its students. Forced prayer by school officials (Engel v Vitale – 82 S. Ct. 1261-1962) and religious instruction by school officials (McCollum v. Bd of Ed -33 US 203 -1948) are prohibited; Bible reading over an intercom (Abington School Dist. v Schempp – 37 US 203 -1963) is prohibited; a state law banning the teaching of evolution is unconstitutional (Epperson v Arkansas-89 S. Ct. 266-1968). Maybe you should consider reading these cases. With respect to your alleged non-existence of the concept of the separation of church and state in the Constitution, let me provide you with a few examples: Jefferson on the separation of church and state. See also the two Jefferson quotes above.”History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance of which their civil as well as religious leaders will always avail themselves for their own purposes.” (Letter to von Humboldt, 1813). “Christianity neither is, nor ever was a part of the common law.” -Thomas Jefferson, letter to Dr. Thomas Cooper, February 10, 1814″A professorship of Theology should have no place in our institution” (the University of Virginia). (Thomas Jefferson, letter to Thomas Cooper, October 7, 1814 “The clergy, by getting themselves established by law and ingrafted into the machine of government, have been a very formidable engine against the civil and religious rights of man.” Quotes from James Madison, who is commonly called the father of the Constitution and the author of the First Amendment. “The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries. … If Religion be not within the cognizance of Civil Government how can its legal establishment be necessary to Civil Government?” (Memorial and Remonstrance) “Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together.” (Letter to Edward Livingston, July 10, 1822). “Practical distinction between Religion and Civil Government is essential to the purity of both, and as guaranteed by the Constitution of the United States.””The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State” (Letter to Robert Walsh, Mar. 2, 1819). Here are three more contemporary quotes and then I will stop, even though I have pages of similar quotes:James A. Garfield, our 20th president: “The divorce between Church and State ought to be absolute. It ought to be so absolute that no Church property anywhere, in any state or in the nation, should be exempt from equal taxation; for if you exempt the property of any church organization, to that extent you impose a tax upon the whole community.” John F. Kennedy, in his Address to the Greater Houston Ministerial Association on 12 September 1960, stated: “I believe in an America where the separation of church and state is absolute – where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote, where no church or church school is granted any public funds or political preference , and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.”Justice Sandra Day O’Connor, “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served others so poorly?” The following quotes were in my response to Gustafson’s letter. It appears that these quotes were either ignored, not read or not understood by Cacioppo. So I am repeating them here. Chief Justice Waite (90 years after the Constitution was ratified) quotes from and recognizes the concept and applicability of the separation of church and state from its creators Jefferson and Madison. If I had to choose between these two and Cacioppo arguments, I think I would know who I would select. In this case, Reynolds was a Mormon with several wives. This violated a federal statue making bigamy a crime. Reynolds defense was the bigamy was permitted under his religion therefore permitted under the First Amendment. In Reynolds v. U.S.; 98 U.S. 145 (1879) P162, the court held in part: “Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The First Amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition. The word ‘religion’ is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.” At page 163, Chief Justice Waite discusses a 1784 bill proposed to the Virginia Legislature to pay for teachers of the Christian religion. The court stated: “This brought out a determined opposition. Amongst others, Mr. Madison prepared a ‘Memorial and Remonstrance,’ which was widely circulated and signed, and in which he demonstrated ‘that religion, or the duty we owe the Creator,’ was not within the cognizance of civil government.” On page 164, after quoting from Jefferson’s letter to the Danbury Baptist Church (see the quote above), Justice Waite states: “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment [1st] thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” In 1879, the US Supreme Court recognized Madison’s separation of religion and civil government and Jefferson’s “wall of separation” without reservation; i.e., the separation of church and state. Thus the unanimous decision that civil law takes precedence over religious law. The other issue that Cacciopo raises is that he accuses the courts of using powers that they do not actually possess: “Bornstein actually believes that court precedents, which are not described in our Constitution or granted to our courts by the Constitution (a power that many courts have wrongly usurped), grant them the ability to overturn, willy-nilly, the plain-spoken words of our Constitution….” “Article 5 of the Constitution, which requires that any amendments to the constitution be ratified by three-fourths of the states to amend the Constitution. No, Mr. Bornstein would much prefer to have lawyers and judges of his ilk strip our Constitution by wrongly usurping that power.” Cacioppo’s interpretation of this amendment is 100 percent wrong. The Supreme Court does not amend the Constitution with its decisions. To assert this is absurd. It is the Supreme Court’s, etc., legal duty to interpret the Constitution and apply it to the facts and law that come before it. Sometimes the courts are wrong, usually for political reasons, and sometimes they make up the law. The Citizens United case is a perfect example, but despite my disagreement, the Supreme Court decisions are the law of the land. Justice Sandra Day O’Connor said: “The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.” I doubt that this will happen, but Cacioppo should very carefully read Marbury vs. Madison (5 US 137-1803). This case is one of the most well-known cases in our history. It appears in most American history books at all levels of education. What makes Marbury vs. Madison so significant is that it created and established the following two principles: First, the Supreme Court is equal to the executive and legislative branches; and second, that the Supreme Court has the exclusive right to interpret and determine if any law or action violates the Constitution. Unless the Constitution is amended to change this authority or to change a decision, their decisions are the law of the land. This case has never been challenged since it ruling in 1803.The following are a few portions of the Marbury vs. Madison case (19 pgs.) which are most relevant to the court’s authority to interpret the Constitution and rule on same: “The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States.” In the distribution of this power. it is declared that: “The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” (P. 173-4)”The Legislature may ordain and establish, then enumerates its (Supreme Court’s) powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction.” [P.175] “Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.” [P.177] “This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.” [P.177-8] “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” [P.178] “So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” “If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”The judicial power of the United States is extended to all cases arising under the Constitution.” [P.178-9] Henry Bornstein Edwards
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