Tuesday, May 12, 2009

First Amendment - Founders vs. 20th-Century Court

As I have said, there is a lot of conflict over the meaning of the Religion Clauses of the First Amendment. My belief is that we need to look at the words and actions of the Founders to understand the meaning. In fact, Thomas Jefferson, who gave us the metaphor "separation of church and state" that we hear so much today, believed the same thing. He was also very suspicious that courts would gradually grab more power and change their co-equal role under the Constitution. Jefferson would not be happy about where we are today. If you look at many current issues, especially religious issues like graduation prayer, displaying the ten commandments, etc., how did those become restricted? It happend at the hand of the courts, not the voters or their elected representitives.

Compare the three statements below, all of which relate to the Religion Clauses. The first two are by Founding Fathers. The third is from a court decision in 1947 that was the first time Jefferson's metaphor "separation of church and state" came to be used in a decision at the expense of the actual words of the First Amendment.

In the words of Richard Henry Lee (Founding Father) in 1784, advising how the Bill of Rights should be written:

"And he must be a very inattentive observer in our Country, who does not see that avarice is accomplishing the destruction of religion, for want of a legal obligation to contribute something to its support. The declaration of Rights, it seems to me, rather contends against forcing modes of faith and forms of worship, than against compelling contribution for the support of religion in general. I fully agree with the presbyterians, that true freedom embraces the Mahomitan and the Gentoo as well as the Xn [=Christian] religion."

In the words of James Madison (Founding Father), after the First Amendment was drafted:

"The First Amendment was prompted because the people feared one sect might obtain preeminence, or two combine together and establish a religion to which they would compel others to conform."

In the words of Justice Black in the 1947 Everson decision:

"The establishment of religion clause of the First Amendment means at least this: neither a state nor the federal government can set up a church [no argument here]; neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. No tax in any amount, large or small, can be levied to support any religious activities or institutions whatever they may be called or whatever form they may adopt to teach or practice religion. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"

So what does "wall" mean? If you live in a gated community, for example, a wall surrounds you and your neighbors. That wall could be there for any of three reasons:

1) to lock others out
2) to lock you and your neighbors in
3) both the above

Which is correct? I suspect most who live in a gated community believe it is #1. However, if you live in a prison, the wall is primarily for #2, but also for #3. Concerning the Constitution and religion, a wall could be for any of:

1) to keep the government out of religion
2) to keep religion out of the government
3) both the above

It would appear from the Founders' statements above and from many others on this blog that the reason is #1. But Justice Black sees it as #2 only - he does not talk about disallowing government restrictions on religion (#1).

Learn more about the Founders' intentions in some of these great books: The First Amendment and the U.S. Consitution

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