… the constitution and the laws made
in pursuance thereof are supreme; that they control the constitution and laws
of the respective States, and cannot be controlled by them. From this, which
may be almost termed an axiom, other propositions are deduced as corollaries,
on the truth or error of which, and on their application to this case, the
cause has been supposed to depend. These are, 1st. That a power to create
implies a power to preserve. 2nd. That a power to destroy, if wielded by a
different hand, is hostile to, and incompatible with these powers to create and
to preserve. 3d. That where this repugnancy exists, that authority which is
supreme must control, not yield to that over which it is supreme . . .
Thus, in being
able to define what constitutes a church the position of the state effectively
becomes supreme. Since the state can create a church it can take steps to
preserve it, but it can also take steps to destroy it; at least as a recognized
subordinate trust infrastructure. It then becomes of interest to understand how
the state is different from the church? It would seem that the defining control
of government over religion constitutes a social organization that is, at best,
only mildly distinct from the religions over which it exerts control. Indeed,
for many religious devotees the characteristics of this control constitute a
new religion in its own right; secular humanism is a term sometimes used for
this perceived quasi-religious social structure. Certainly government within
the United States has many of the trappings of religious organizations, with
defining documents that establish a core set of beliefs or dogma along with the
rationale for their application and the consequences of their action; in other
words, a theology. It effects a governing organizational structure, and a means
of enforcing adherence to dogma. Moreover, it establishes the equivalent of a
clergy to act as arbiters of policy and to help adherents to understand the
paths to righteousness.
While we proudly
proclaim that we are a nation of laws, we also consider the Constitution, our
primary source of dogma, a living document subject to evolving interpretation
according to the prevalent social environment of the time. As we noted in the
Prologue, this is an artifact of language based on metaphorical understanding adapted
to context. As we also observed in the Prologue, the resulting interpretation
and re-interpretation can result in huge swings in applicable policy. Our
understanding of the physical world suggests a characteristic of immutability
for laws that minimizes subjectivity. However, social systems are predicated
upon the subjective interpretation and application of policy. Thus, while our
societal laws are there to ostensibly guide the actions of everyone, should a
problem of interpretation arise we must resort to some form of consequence
resolution. Our mechanism for such resolution, the judicial system, is so
complex and arcane as to require representation from a “clergy” for guidance in
navigating its treacherous shoals. Moreover, we are admonished that “one who
represents himself in legal proceedings has a fool for a client.”
The assumption
is that the actions of attorneys, through the protocols of the judicial system,
are in fact required to render the final interpretation of applicable policy.
Even in these situations, it seems that most litigating attorneys will assert
that they can never predict what a given jury will decide. The end result is
that one might well anticipate more assurance in handicapping a horse race than
in predicting how a particular social law will be interpreted and applied. While
the interpretation and application of socially derived policy might not be
quite as arbitrary as our words have implied, in fact virtually no company
would think of issuing a public proclamation without running it by the lawyers
first. The fact that we must all rise when the judge enters the courtroom seems
as clear an act of contrition and supplication as genuflecting upon entering
the sanctuary or making a cross of ashes on our foreheads on a certain
Wednesday of each year. However, there are perhaps no more revealing
illustrations of the parallels between religious and
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