I have read the constitution, so again, I ask my question, where in the constitution does the phrase "separation of church and state" appear?
Now you are back pedaling and citing interpretations of the constitution by courts as well as quoting a letter Thomas Jefferson wrote.
I didn't realize that private letters by presidents automatically became law. We should alert CNN and let President Bush know that asking congress to submit a bill is overkill, he needs only to write a letter.
I understand the role of the Judiciary branch in determining if a law is constitutional, but they do NOT have the power to change the constitution, period.
A subsequent court can re-interpret law and decide. In fact, the case you cite (Marbury v. Madison) is an example of the court addressing taking powers not explicitly enumerated. Specifically, they call into question the wisdom of the legislature allowing the supreme court to issue writs of mandamus and declared it null and void in light of the constitutional, specifically Article III.
The majority opinion further stated that it has the role to interpret law in light of the consititution, and if I read correctly, they argue that the constitution is the ultimate law of the land, and all laws passed by normal means (I.E. not amendments to the constitution) are inferior to the constitution and subsequent amendments that are successfully ratified.
Quote:
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
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. [5 U.S. 137, 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 he 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.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
So the court establishes that it has the right to strike down laws that are unconstitutional, and do this by striking down the portion of a law that gives the court more power.
Ok, let's go look at a more recent case, as you cited, Everson v. Board of Education
A summary of the majority opinion in that case...
Quote:
Paying for the busing of parochial school students does not breach the Establishment Clause. Even though the assistance might make parents more likely to send their children to such schools, the authorization does not unduly assist the schools. The policy is general because it applies to public and private school students and does not single out those attending religious schools. The funding of busing is similar to the public payment of policemen and firemen who protect parochial school students.
and
Quote:
Using the Fourteenth Amendment, the Court applied the Establishment Clause to the states. However, it was not violated so long as money was not given directly to religious schools or gave them specific benefits.
I see nothing in this that prevents the president or any elected official from holding religious beliefs or promoting policy based on those beliefs. They simply cannot hand government cash to churches or other religious organizations.
But nothing I've read indicates that the separation of church and state you cite is consitution, but rather is a matter of precidence and may still need some interpretation as it is misunderstood by so many.
TB 
