You seem to be overlooking his larger points though: 1. Government actions like Congress’s appointment of chaplains for the House and Senate and army and navy and the Executive’s religious proclamations recommending thanksgivings and fasts are NOT CONSISTENT with the Constitution. 2. They should NOT be regarded as legitimate precedent of what the Constitution means or allows. 3. If we somehow fail to end or prevent such actions, RATHER THAN let them have the effect of legitimate precedent, it will be better to confine their ill effects by resort to some handy Latin legalisms–observing that the law does not concern itself with trifles or classing the actions as faults proceeding either from negligence or from the imperfection of our nature. He is not suggesting a way to legitimize these and similar government actions–exactly the opposite. He is suggesting how we can hold our noses and allow these particular unconstitutional actions to persist without according them any legitimacy or precedential effect–so they should have no influence whatever on how we regard future government actions, except perhaps to stand as examples of mistakes to avoid.

The courts have become a much bigger deal than the Founders ever intended. On issues of this sort, no one can ever work out a perfect compromise. Yet compromises are what is required, and courts perform poorly on issues such as these.

It is much like using a hammer to kill a fly. Until you start putting holes in the walls and busting the furniture, the fly is a trifle. After that, the trifle becomes a symbol of bad judgment.

With respect to issues like this, the appropriate instrument is a legislative body, which on occasion serves as a worthy flyswatter. At least, when they start poking holes in the walls and busting the furniture, their constituents can vote them out of office.

Most people really don’t like discrimination based upon creed, and judges are just like most people — except we do not elect them.

Among the checks and balances is the Constitution’s establishment of individual rights (e.g., freedom of speech and religion) and government limitations (e.g., no establishment of religion) to check the power of the majority. Under the Constitution, a majority of 51% or 99% is barred from abridging those individual rights or using government to establish religion.

While the prohibition against government establishing religion is simple in the sense it can be expressed in few words, the complications arise in applying that simple principle to a thousand and one different situations in the real world. For instance, some argue that it means only that government cannot enact a statute formally proclaiming a particular church to be the official church of the state. By this view, I suppose the government could provide religious training in public schools, subsidize religious activities with tax funds, and do all sorts of things to promote this or that religion as long as it stopped short of tying a bow around an official proclamation of a state church. Recognizing that such a “prohibition” would be a joke, the courts have found it necessary to look at the actual intent and effect of government actions rather than merely to some formality. If an action is intended or has the effect of establishing religion, it falls within the proscription of the amendment. So, for instance, appointing chaplains for Congress or proclaiming days of religious thanksgiving are, according to Madison (there he is again), contrary to the proscription. The line needs to be drawn somewhere, and the trick is figuring out just where.

What does the First Amendment say about about freedom of religion? Does it say the people cannot practice religion in public? Does it say the church must separate itself from the state?

What I read in the First Amendment is a prohibition. The Federal Government cannot establish a religion. Why make it more complicated? Where is the problem?

To protect the civil rights of each individual, we have a republic. We have a system of check and balances to prevent anyone or any group from becoming too powerful. Nonetheless, the majority still rules.

From time to time, on one issue or another, we are in the majority. Then we have the probability that our preferences will prevail. From time to time, on one issue or another, we are in the minority. Then, if our peers find our wants too disagreeable, they have the option of negating our desires. What protects us? Our protection is the civil rights accorded the citizen of a republic, and that is all. Such is why limited government has its advantages.

That government is best which governs least. — Henry David Thoreau.

I’m struck by a couple paragraphs in your last comment:

“The Constitution is the invention of imperfect Christians within an imperfect society. So the Constitution reflects the values of a Christian society. Because they were Christians, the Founders understood that that could not claim to speak for God (Read the Book of Job.). The Founders understood they had no business using the government to expound and promote Christianity, and they did not. In fact, as time passed, the State governments, which still retained that option, gave it up.

Nonetheless, the People still put up Christmas displays, Christian religious art, and Christian memorials on public property. Public officials still expressed their religious beliefs, and the Bible remained in public schools. Just because such might offend a few people, most saw no need to give up hundreds of years of religious heritage.”

While I would quibble that the founders were a little more diverse in their views than your brief summary allows, by and large I agree with your characterizations of what happened.

Our difference, it seems, may be in how we would have our government and ourselves proceed under the Constitution from such beginnings. My preferred approach is to focus on the Constitutional principles (in this instance, separation of church and state) and endeavor to remain true to them and conform our government and ourselves to those principles as best we can, recognizing the imperfections of the founders and their society and their inability to immediately change old habits and so striving to improve on their efforts when and as we can, and perhaps (in keeping with Madison’s counsel) grudgingly accepting less than that only to the extent societal or political realities compel.

Your preferred approach, it appears to me, is to focus on societal religious practices, or some favored ones at least, and endeavor to remain true to them and conform our constitutional principles, our government, and ourselves to those practices considered custom, heritage, or tradition. Where I reluctantly would recognize that societal and political realities limit our ability to adhere to sound constitutional principles, you would enthusiastically embrace those societal and political realities as honored tradition to be nourished and even expanded, trimming away or interpreting away the constitutional principles accordingly.