Constitutional Originalism and Religious Fundamentalism — Two Sides of the Same Coin

By Steve Snyder

“Originalism” has arguably been the most prominent theory of legal interpretation of the U.S. Constitution since Antonin Scalia became an associate justice of the Supreme Court some 30 years ago. Scalia has been a regular lecturer at conservative legal conferences of organizations like the Federalist Society, where he advances the originalist point of view. With the addition to the court of other conservative justices, especially Samuel Alito, he has found others with whom to make common cause.  (It should be noted that this way of thinking about the Constitution is not a new one.  Chief Justice Roger Taney, was not only a strict constructionist, but also the first theoretical originalist of note). (1)

“Originalism” is the idea that we should follow the original intent of the Founding Fathers in interpreting the Constitution (2), but it is carried out in a manner that can only be described as fetishizing the text and its authors.  It may or may not focus on the static text as its starting point (which is why one finds at least two significant originalist schools), but it is worth noting that only two of the people who were in Philadelphia, in 1787 — James Madison and Alexander Hamilton — left detailed records of their respective lines of thought, via the Federalist Papers.  Also noteworthy is the fact that Madison changed his mind on quite a number of things in the years after that, most significantly, on the issue of states’ rights.

This fetishistic commitment to one unchangeable text and a set of idealized authors suggests a parallel between Constitutional originalism and religious fundamentalism — and especially Christian fundamentalism. (3)   A second parallel lies in there being two sub-schools, which we find in both ideologies, one focused on the original intent of the writers of the text and the other on the original meaning of the text itself.   A third lies in the selectivity with which the originalist claim is applied.  As illustrated by Scalia’s work on the Second Amendment, in which he ignores George Washington’s frustration with non “well regulated” militias, Constitutional originalism can be as selective as Christian fundamentalism in its conception of originality and literalness.  Christian fundamentalists, for example, tend to ignore the admonition in Romans 13 to submit to governing authorities, choosing instead to defy the state, when it does things that they don’t like.

The question of selectivity arises the most strongly, when one confronts what appear to be contradictory points in the text.  What portion gets more weight?  Any choice that one might make simply begs the question as to why it is better than that which was not chosen.  The only way that one can choose between contradictory passages, found in a text viewed as sacred, is if one holds on to certain ideas that are regarded as even more fundamental than the texts, themselves.

On the constitutional side, for example, how does one balance the clauses of the Second Amendment?  Which clause gets precedence?  And on the religious side, we have the example of John 6, in which Jesus tells his followers, “Very truly I tell you, unless you eat the flesh of the Son of Man and drink his blood, you have no life in you.” But, seven verses later, the author of the gospel says this: “On hearing it, many of his disciples said, ‘This is a hard teaching. Who can accept it?’”

Both Constitutional originalism and Christian fundamentalism have “hard texts” like this and the difficulties involved typically are resolved by making choices that reflect some underlying and overriding idea.   What is never admitted, however, by either variety of fundamentalism, is the idea that the sacred texts, especially the “hard texts,” might simply be anachronistic.

Beyond its theorists and theories, Christian fundamentalism is given popular expression through a network of popular writers, something that we also see in the context of the Constitutional originalist program.  Joseph Ellis’ latest book, “The Quartet,” about four of the American Founding Fathers, is a good example of this sort of popularization of the originalist message. (4)

Ellis’ quartet of Hamilton, Madison, George Washington and John Jay, is squarely within the original intent camp of Constitutional originalism. His thesis, typical of the genre, is that by looking at the original intent of the Founders, we should recognize the Constitution as sitting on a very high plateau, and if it is not quite as perfect a text as the Bible may be for Christian fundamentalists, it is very nearly so.

But, of course, the effort to popularize subjects like this is not the exclusive province of originalists and fundamentalists.  Their opponents have also been getting into the game, one of the most prominent, with respect to the constitutional question, being David Lazare and his book The Frozen Republic.  (5)

Given that, unlike Christian scriptures, any textual issues in the Constitution are quite minor, and given that it is a single document, not a compendium of several dozen books, the battle is joined primarily on the issue of original intent, or, to make it a bit more nuanced, original authorial mindset.

Lazare starts in on this when he notes the Founders themselves fetishized a certain interpretation of relations between various elements of British government, from the end of the Elizabethan era through the period of the Stuarts, as a general ideal of the unwritten British constitution.

The tripartite division of powers, as Lazare notes (along with many others), doesn’t owe as much to the essays of French philosopher Montesquieu, as is commonly thought, but stems largely from siding with the “Country” half of the Court-vs.-Country division of British politics. (6) This division partially preceded, and partially led to, the Whigs and Tories.   As Lazare notes, the Constitutional authors had one interpretation of this history, or more specifically, one interpretation of one slice of this history.  He shows that this interpretation came with the American colonists from Britain, and through a mix of their political mindset and their separation from the mother country, became ever more encased in amber.

Beyond the question, then, of whether we can determine what the mindset of the Founders – or the Biblical authors – was, there is the further and more important question of why we should be so concerned with it.  After all, why should we think that the states of mind of people in the 18th century – in the case of the Founders – or the 1st century – in the case of the Biblical authors – will be of much use to us, given the very real likelihood that more often than not they will be anachronistic, given how much civilization has changed.  Lazare makes precisely this point, by referencing something Ross Perot said in the 1992 presidential campaign.

“Keep in mind our Constitution predates the Industrial Revolution. Our founders did not know about electricity, the train, telephones, radio, television, automobiles, airplanes, rockets, nuclear weapons, satellites, or space exploration. There’s a lot they didn’t know about. It would be interesting to see what kind of document they’d draft today. Just keeping it frozen in time won’t hack it.” (7)

Admittedly, the idea of Ross Perot offering pearls of constitutional wisdom is interesting.  But what he says here is true, and it forces us to realize that the idea of “original intent” is time-constrained.

Unfortunately, Constitutional originalists essentially pretend that books like Lazare’s, or writings of the likes of Akhil Reed Amar on constitutional theory, simply don’t exist.

All varieties of fundamentalism must face heresies. The first way of doing this may be simply to ignore them. With the constitutional version, if ignoring doesn’t work, the next step is to try to prove the heretics wrong, by way of a political version of religious dogmatic theology.

Heresies are typically divisible into two major types.   There are heresies against the text, like Montanism, which allowed for future revelations by the Holy Spirit, and heresies against founding figures, like the many Christological heresies. (8) (9)

Constitutional heresy typically involves questioning the motives and character of the Founding Fathers.  A common way of doing this is to raise questions about the Founders’ detachment or disinterest.

For Ellis, Charles Beard is one of the heresiarchs of this type of heresy and one that he cannot ignore. Beard’s magnum opus is “An Economic Interpretation of the Constitution of the United States.” (10)  His thesis is that the Constitutional authors were not disinterested patriots, but rather had a vested economic interest in writing a conservative Constitution.

Beard’s thesis has been somewhat discredited, since the time of the publication of “An Economic Interpretation of the United States,” but while he and his followers among progressive historians may have overstated the importance of class issues, whether in the American Revolution or the Constitutional Revolution, they weren’t all wrong, regardless of what the Ellis’s of the world would like to think. Indeed, there’s been a resurgence of a more moderated version of Beard’s thesis, as noted by historians like Pauline Maier. If not for personal economic interest, it is arguable that for group economic, or perhaps socioeconomic, interests, the Constitutional movement was indeed conservative, self-interested, and not disinterested.

The other great heresy for Constitutional originalists is when historians question how well the Founders handled the issue of slavery.

Above, I mentioned “hard texts.” The interpretation of the Second Amendment is hard in a text-critical way. There are Biblical texts like this, whether in the New Testament, Old Testament/Tanakh, Mishnah, early Jewish targums, early Christian commentaries, etc.  But in the case of slavery, what is hard is not so much the text – though the text is also hard on this front – but rather, the attitudes of the people who wrote it.  The fundamentalist approach to this sort of situation is twofold.

The first approach is to ignore hard texts – and hard attitudes — whenever possible and as much as possible.  The second approach is to do a reversal on the idea of “presentism” and argue that not only shouldn’t our current moral standards be applied to the people of earlier eras, but that contemporary ideas and solutions should not be applied either.

This is the approach that Ellis adopts with slavery. He maintains that the Founders had no options while wrestling with slavery and that they did not conceive of the moral issue in the way that we frame it today.  Other defenders of Constitutional originalism have employed similar tactics in dealing with this issue.

However, given that Britain ended slavery, with the landmark Somerset vs. Stewart decision, in 1772, and given that a number of historians have cited this as having contributed to the American Revolution, it is not presentism, but realism, when we look at the issue of slavery, in modern terms.  (11)

Ellis ignores several books that point out how deeply slavery was entrenched in the American economy, and which make explicit reference to the role that Somerset played in the Revolution. Gerald Horne’s The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America is a very good starting point, discussing the role of the Somerset  decision and other slavery-related factors in the American Revolution.  (12)  (That said, author Gerald Horne does stretch some points too far, I think.) Edward E. Baptist’s The Half Has Never Been Told: Slavery and the Making of American Capitalism takes the story from the Revolution, through the Constitutional Convention, and into the 19th century, in much more detail.

These three heresiarchs thus connect with earlier progressives in noting that not only did the Founders not handle the issue of slavery well, but the way they handled it was at least partly out of self-interest.  Thus the two heresies regarding the Founders – involving economic self-interest and bad faith on slavery — connect.

The point is that all of these authors note that slavery is indeed a “hard issue” for U.S. history in general and Constitutional history in particular, and it’s one that cannot be swept away with fundamentalist approaches to political sacred texts.

It is in their responses to heresies like these – responses that either involve a disingenuous appeal to historical relativism or simply ignoring the heretical claim altogether — that Constitutional originalism and Christian fundamentalism are revealed as being little more than exercises in hagiography.  Ultimately, it is hagiography that lies behind American exceptionalism, and the enshrinement of the Constitution as an immutable text; a hagiographic treatment of the text, following a hagiographic treatment of its authors and their intentions.

Steve Snyder is a newspaper editor and blogger with interests in matters philosophical, and the arts and nature, among other things.

Notes

  1. See James Simon, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (New York: Simon & Schuster, 2006).
  1. Originalism: https://en.wikipedia.org/wiki/Originalism
  1. Fundamentalism: https://en.wikipedia.org/wiki/Fundamentalism
  1. https://www.goodreads.com/review/show/1371647400
  1. Lazare review: https://www.goodreads.com/review/show/437559920
  1. Court vs. Country party background brief on Wikipedia: https://en.wikipedia.org/wiki/Country_Party_(Britain)
  1. Perot quote here: http://www.dailykos.com/story/2009/04/19/720644/-All-This-Has-Happened-Before
  1. Montanism: https://en.wikipedia.org/wiki/Montanism
  1. Major Christological heresies: https://en.wikipedia.org/wiki/List_of_Christian_heresies#Trinitarian.2FChristological
  1. Charles Beard explainer: https://en.wikipedia.org/wiki/An_Economic_Interpretation_of_the_Constitution_of_the_United_States
  1. Somerset decision: https://en.wikipedia.org/wiki/Somerset_v_Stewart
  1. Horne review: https://www.goodreads.com/review/show/1348310441
  1. Baptist review: https://www.goodreads.com/review/show/1228420550
  1. Empire of Cotton review: https://www.goodreads.com/review/show/1275888543

13 Comments »

  1. America *is* a religion – pretty much as de Toqueville described 200 years ago. Individualism is part of it, a faith in the conformity of the community is also part – are these not contradictory? Yet a resolution is obvious, individual desire realized through submission to community standards. Resolutions of such like occur across every class; but class, too, is a function of this religion. To transcend one’s class requires complete comportment to the expectations of the class one wishes to ascend to, requiring complete detachment from the class one leaves behind. Part of the myth of ‘the frontier’ is the hope of leaving one’s point of origins so completely behind, one has no history, only a future one constructs oneself (which is not really possible).

    Even before this idea glossed onto the religion, the notion of class was embedded within it – this may have been why the myth of ‘the west’ became so attractive in the 19th century.

    In Madison’s private papers, he reveals explicitly that the bicameral Congress was structured so that the landed-property class could dominate the Senate, while the House would belong to the commercial classes. No amount of historian apologetics will undo this. However the hope thus embedded in the Constitution was doomed to failure, once commercial interests found it possible to elect their candidates into the Senate (which was rather early in our history). It was also undone by a series of historic events (like, the Louisiana Purchase) which altered the structure of landed property distribution; and a series of court decisions which reduced landed property to the fluidity of wealth per se, making it roughly indistinguishable from commercially acquired wealth.

    Then there was the Civil War.

    The myths surrounding the War, slavery, economic differences between North and South, are so thick and so desperately entangled that one hesitates an opinion, knowing that a complete book would not do it all justice. But I have seen convincing arguments that “the United States” that we know today did not originate in the 1790s, but is a consequence of that conflict. If so, so much for originalism!

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  2. EJ, I would agree very much on your first comment, that America IS a religion.

    Otherwise, contra Ellis, and to a more nuanced version of Beard, what you note about things like Madison’s private papers is quite true. And, before 1865, what was the most valuable property in the United States? Well, you know that, and that’s where Baptist’s book goes into much more detail.

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  3. Steve when I first opened this essay up, I knew that I would either agree with it somewhat, or else do so fully. Yes the latter did turn out to be the case. Still I think you know me well enough by now to expect that I’d have my own spin to present as well. I will nevertheless make this brief:

    Heuristics such as the US Constitution, as well as documents such as The Ten Commandments, can indeed help a given society function better, but not one of them should be considered accurate descriptions of reality. To understand reality we instead look to the scientific community to take what it thinks it knows (evidence), and then use this to assess various practical ideas that are more speculative. When science develops an idea that continues to stay consistent with what it thinks it knows, it does tend to become accepted. Unfortunately however the modern scientific community has achieved virtually no accepted theory regarding how we might “properly” lead our lives, nor structure our societies, and I think largely given that it does not yet theorize that which is ultimately “good/bad” for us in the first place. Once it does so, however, this should not only provide our mental and behavioral scientists with an esoteric foundation from which to theorize our nature, but also instruct individuals and societies regarding their function, given the amazing abilities that science has provided our species with in recent centuries.

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  4. Philosopher Eric:

    Perhaps you missed Hume’s Is/Ought distinction.

    Science — by way of observation, experiment, and theorizing — can tell us what *is* the case. It cannot tell us what *ought* to be the case.

    To wait for scientists to tell us what ought to be the case, then, is to wait for a bus that will never come. I suggest you join the rest of the human race in the very difficult, but essential, activity of civil discourse, where we all try to work out the best way for us to live together. It is a conversation that is carried on in ordinary language — which, presumably, you speak — and which employs many modes of reasoning and many sources of information and insight.

    Don’t turn scientism into an even bigger caricature than it already is.

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  5. Hi Steve (and all), finally got a few moments of freedom so I can join the party by replying to something (particularly sad I missed the window to the first article on Quine).

    In general I agree with the points made in your essay.

    So I guess I will raise a challenge to such criticism (which I happen to agree with) by pointing out that at least with the Constitution judges are forced into a position of having to decide what the meaning is of any particular statement. They may be faulted in claiming they use Brand X style of interpretation, as it is not perfect like you’ve shown and most judges (even Scalia) apply their claimed criteria only when convenient. However, each judge still has to make a decision of how to interpret, and I think trying to figure out intent of the author is not an intrinsically wrong approach, even if it is hampered by the practical problems you mention.

    I think it is more problematic when members of the legislature use this kind of “immaculate” conception of the US Constitution. They are the ones who should not be caring about original intent, and focus on their/our own. We are the ones living and should be reviewing it and revising it with our interests in mind. In fact, if there is wording which is not explicit enough regarding intent of the author, we ought to be revising it so that the meaning is clear and so debatable on merit of the rule itself and not whether so-and-so Founding Father might have thought it was great.

    To Eric, I will second Dan’s response and add that as a scientist the reason why…

    “… [science] does not yet theorize that which is ultimately “good/bad”…”

    …is because scientists know our methods can’t deliver on that question, and any “esoteric foundation” would be just that; esoteric… as well as arbitrary and likely self-serving.

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  6. I think it is a terrible analogy. US democracy was the first of the modern versions of democracy and was never going to be perfect. The US Constitution stands at its basis and represents the fruits of a rational, intellectual process, employing the best of enlightenment thinking on politics, philosophy and jurism, and with the intention of establishing a practical and stable, but nontheless real, democracy.

    It fulfilled that task and has helped form the basis for many other democracies since. And it has proven flexible in that the abolotion of slavery and the institution of practical civil rights never required any major tinkering with it.

    To compare arguments about it with arguments over the interpretation of religious scriptures just seems to be poisoning the well. Certainly there are some who have an overly religious awe of the ‘Founding Fathers’, but their original intention would seem to be very important since they were pulling together some of the finest thinking that we have seen in all of those fields.

    On the other hand there will be cases where we can see that the intention was wrong or that the wording no longer honours the original intention.

    I have to agree with labnut that the tension between originalism and revisionism is an important and necessary dynamic.

    But the scripture analogy is misleading.

    I would say that the reactionary tendency, where people adhere to older ideas, not because they are good, or tried and tested, but just because they are old – is an unfortunate characteristic of human psychology. We can see it in the IT field where people insist on principles which can have no possible utility or use in the modern technological environment, but just because they are foundational dogmas of computing and technology.

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  7. Yes Daniel, I did miss Hume’s “is/ought.” But then if I had caught it, should that inerhently change my position? I’m sure that you’d tell me “Well no, not inherently…” Yes I do reserve the right to believe whatever it is that makes sense to me.

    Nevertheless, this whole thing does happen to be a non issue — I have absolutely no use for fundamental definitions like “scientism,” “philosophyism,” and so on. If you, as one of the owners of this site, do find it most useful to define reality study regarding matters of “ought” to reside exclusively under the banner of “philosophy,” then that is indeed how I shall define the concept here as well. Thus it shall be philosophers who take what they think they know, and then use this to assess the validity of ideas that they aren’t so sure about. When philosophers develop ideas which continue to stay consistent with what they think they know, these ideas do tend to become accepted by the philosophy community in general.

    Ah but as things stand, I’m not just some potential passenger waiting for a late philosophy bus. Instead I consider myself to be a driver who means to help the ancient field develop generally accepted understandings of reality. As discussed recently over at Massimo’s site, I seek to bring it “instrumental” rather than “moral” understandings regarding this concept of “ought.” I do very much hope for your engagement on the matter, and yes my apologies — I shall now consider this “Philosophers Club” exclusively.

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  8. Dan gets bonus points for mentioning my hero, Hume!

    DB, speaking of immaculate conceptions (nice riff on the theme) and Hume, that’s why I disagree with Hume’s “The History of England,” when he talks about the Constitution after the Glorious Revolution. Even a revolutionary constitution has empirical antecedents. Hume, if anybody, should have known that.

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  9. Robin,
    I think it is a terrible analogy.

    Yes, exactly, the two are entirely disanalogous. Gadfly is comparing two, wholly unlike things subject to two, wholly unlike processes. Moreover his forced comparison is based on a faulty metaphor, the coin better represents bicameral politics while the crucifix represents religion.

    – Politics is an expression of the struggle for power and resources, religion is an expression of society’s moral needs,
    – The arbiter of political issues is the vote, the arbiter of moral issues is the truth.
    – Politics is pragmatic, religion is principled.
    – Society’s political needs change, morality should be protected from the forces of change.
    – Political needs are negotiable, morality is not negotiable.

    Religious fundamentalism is a reaction against attacks on religion and what they see as the forces of moral decay. They protect themselves by retreating into what they see as fundamental, non-negotiable tenets.
    Political conservatism is a struggle to preserve what they conceive as organic and orderly change in the face of what they fear is damaging, radical change. These are two entirely different processes.

    Society is always in a state of flux and has many components with competing interests. Preserving orderly and useful change in these circumstances requires the tension between conservatism and liberalism. This tension exposes the issues, subjects them to proper debate, recognises the interests of the many stakeholders and assures change that all parties can live with. It is a process that leads to accommodation between competing interests and not victory of one interest over all other interests. Neither conservatism nor liberalism own the monopoly on truth and the pretence that they do is one of the most damaging forces in politics because it results in the dictatorship of dogma.

    From this it can be seen that political conservatism and liberalism are the two necessary sides of the same coin.

    Thus to argue for originalism or revisionism is to miss the point. We need both, in dynamic tension. Religious fundamentalism is something else entirely with a merely superficial resemblance. This forced comparison is an expression of Gadfly’s well known antipathy to religion and only serves to poison the well of an important political debate.

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  10. Labnut …

    My “antipathy to religion” is certainly not well-known to myself. On Massimo’s blog, I made it repeatedly clear I was not a Gnu Atheist. Ergo, there’s no well poisoning.

    But, I shan’t try to dissuade you in the future, just as I eventually stopped trying to dissuade Coel.

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  11. I think Robin and Labnut are coming down a bit too hard on the essay.

    I would agree (as I wrote above) that there is a legitimate role and context for seeking original intent of the authors. And I actually do like the Enlightenment and think some of the founding fathers not only had cutting edge ideas but were interesting people as well (even if flawed). I even agree there is some utility in a tension between original intent and current desires.

    That said, Steve has pointed out valid pitfalls in trying to find what original intent was, and using that concept to judge between conflicting “rules”. What’s more, the people claiming originalism (Scalia is a great example) don’t seem interested in this dynamic tension Robin and Labnut advocate for. It is one thing for someone to say let’s take a look because these guys had good ideas and so it would be worthwhile, and so legitimate the tension, and another to say that is the one and sole measure (caveat yes judges have some better reasons to say that).

    Finally, I have yet to see an originalist not do exactly what most fundamentalists do, which is shed their holy criteria when it doesn’t serve them (Scalia being a prime example). Steve did not argue they were identical, but that there are significant parallels. That a tension is important (between original intent and revision) and that originalism and fundamentalism may emerge from different processes aside, I did not see arguments undercutting his discussion of originalism’s limitations and the parallels he mentioned between those claiming originalism and those claiming fundamentalism.

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  12. Gadfly,
    there’s no well poisoning.

    In that case why even draw a parallel with religious fundamentalism? There is a large literature in constitutional law and philosophy of law regarding originalism vs revisionism. In all this literature the matter is considered on its own rights, which is exactly as it should be.

    What value does this defective analogy provide? What additional insights does it make available that are not available in the constitutional literature? Why should we not discuss originalism vs revisionism on its own merits, without muddying the water with religious issues?

    I have searched your essay in vain for additional insights or clarity provided by the analogy. I have found none, so why make the analogy? What I have found is that you assembled some pejorative terms that you associate with religion(fetishism, selectivity, fundamentalism, heresy, hagiography, holy criteria)(but you have no antipathy to religion) and used the analogy as your reason for applying the same pejorative terms to originalism. Now that is exactly the definition of poisoning the well.

    A central issue in the debate is one of the role of the legislature vs judicial activism. Should our elected representatives modify the law or should activist judges modify it? It is a complex and an important debate but I won’t weigh in on it now. What is notable is that you say nothing about it although it is one of the central issues. Why is that?

    Moreover you say nothing about the important role of the dynamic tension between originalism and revisionism.

    The omission of these two important matters is a consequence of using a faulty analogy since neither plays a role in religion.

    Thus I reject your analogy on five grounds – it is artificial, it uses a false metaphor, it disregards an important dynamic, you use it to justify the application of pejorative terms to originalism(fetishism, selectivity, fundamentalism, heresy, hagiography, holy criteria) and your analogy eliminates one of the central issues in the process.

    I have no dog in this fight. My own country has a recent and highly regarded constitution. I am sure the time will come to modify it in the light of changing circumstances. When the time comes, committees will frame the changes, a consultative process will involve the the electorate, our legislature will debate the changes and finally it will be passed into law. That is how it should be and it has no possible connection with religious processes, unless of course, some wish to poison the well.

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