Amendment I, to the United States Constitution
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first amendment is part of the Bill of Rights which was necessary to get the states to ratify the Constitution. It was intended as a way for the people to check and balance excesses of government and to legally constrain what the federal government can do. Amendment I, while short, deserves close examination.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ”
This part says nothing about the common doctrine of a separation of Church and state to the point that prayer can be forbidden in school nor does it bar the display of Christmas manger scenes on public property. It does say that the Congress cannot make laws to establish a national religion or do anything that would prohibit the people from exercising/practicing their chosen religion (or lack thereof) freely.
“ . . . or abridging the freedom of speech, or of the press . . . “
This freedom of speech and of the press is important. It was and continues to be violated at every turn. No law can abridge or curtail free speech of a free press. Why is this hard to understand?
“ . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances . . . “
Yet you have to get a permit to assemble, the right is already curtailed. The last part states that we can petition the government for a redress of grievances. This is a contentious issue. For more information on this go to http://wethepeoplecongress.org
The Supreme Court of the United States has refused to address the issue. Some have decided that yes the people can petition but there is nothing that compels the government to respond to the petition and if the government refuses to respond the people have no lever or mechanism by which to punish or force the government to respond and/or correct their behavior, other than voting of course. To date the Supreme Court of the United States of America has failed to grant certiorari for a case brought before them to address this issue. There are some that believe that it is legal and proper to withhold taxes from the government until the petition for redress of grievances is addressed. “No answers, No taxes” is a slogan for that movement.
Opinions?
You are right. A handful of people won't be able to make the difference. To make these fights one has to be ready for a marathon, not a sprint. Unfortunately there will be several that will end up in jail if not prison. The simple solution would be for the government to just ante up and do their jobs. I don't expect that to happen right away either.
ReplyDeleteSeparation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.
ReplyDeleteWhile the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.
Personally I agree with you completely. We enjoy the benefits of a secular government in that it has no say in the beliefs and practices that we may or may not have.
ReplyDeleteThe most unfortunate thing is that a Mormon or a Catholic would have to explain that their religion would have no effect on their ability to hold office. More dear friends in CFI would be having a fit if a candidate was brought to task for being an atheist. Clearly their belief in freedom is not as profound as I had hoped. In their defense that has never been the avowed purpose of that organization.
Legally, no matter what others say until there is another amendment, there is no ability or legal authority of the federal government to have an official religious opinion on anything that carries weight.
Doug, what role should religion play (if any) in our federal system?
I'm not sure what you are asking.
ReplyDeleteIt is important to distinguish between the "public square" and "government" and between "individual" and "government" speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square--far from it. Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views--publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.
The constitutional separation of church and state does not prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.
The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.
Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx
Doug, where have you been my whole life.
ReplyDeleteOf course we should resist any government intrusion into religion. We should also resist the intrusion of organized, subversive groups in their attempts to codify into law their own religious ideas that can then be forced on others.
Religious arguments in legislation hold little weight with me.
John,
ReplyDeleteI appreciate the kind words and generous offer. It seems I have commitment issues though. I am more comfortable mouthing off on other folks' blogs than committing to maintain one of my own.
Feel free to mouth off here at will. I don't edit or control the posting here.
ReplyDelete