Saturday, July 25, 2009

Congress Is the Only Correct Defendent

We see lots of lawsuits by various "remove-religion-references-from-government" groups. There have been examples on this very blog of city councils being attacked by some of these groups because they open meetings with prayer; or of schools being harassed because they allow a See You At The Pole day; or attacked a city because their seal contains a religious icon; or...

These suits are always based on the so-called "separation of church and state" in the Constitution. Of course, that phrase is not in the Constitution. The concept is there, but not in the one-sided sense these groups are selling. But what does the First Amendment of the Constitution really say regarding religion?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

So who is constrained by this Amendment? Congress. What may they not do? Make a law. There are no hidden meanings. The Constitution is beautifully written, but it is in language that is intended to be understood by any literate citizen.

Doesn't that seem clear? How then do we get from the First Amendment to a lawsuit demanding that a school not program any Christmas music on the "Winter Concert?" The answer is judges who are willing to insert their own philosophy into their decisions instead of relying on the origin of laws and Constitutional rights.

Sadly, these lawsuits are not by any means the only place where officials are ignoring the Constitution. Read that document, especially the 10th Amendment, which says that any authority or right to act not expressly given to the Federal Government belongs to the states or the individual citizens. In other words, the Federal Government may not do anything that is not specifically prescribed in the Constitution. Virtually all our elected officials in Washington seem to have forgotten that very fundamental concept (including members of both major parties).


Doug Indeap said...

This brief post leaves out much--including the obvious answers to the issue it poses.

I say answers because there are many. First, Congress itself cannot make any law whatsoever without the approval of the President, except in the instance of overriding a President's veto, so to read the language as simplistically and literally as you suggest would actually do violence to the intent of the establishment clause. As laws in the ordinary course are "made" by actions by both Congress and the Executive, the establishment clause is reasonably understood to constrain both branches of government. By your reading, it would, I suppose, only stop Congress from overriding a veto to make a law establishing a religion--a manifestly silly result.

Second, as the Constitution designs the Executive to carry out laws that have been passed by Congress and does not give the Executive any independent power to establish religion, the establishment clause is reasonably understood to constrain the Executive in its carrying out of laws that Congress passed. That is the way Madison understood the clause; in his Detached Memoranda, he explained that "[r]eligious proclamations by the Executive recommending thanksgivings and fasts" are not consistent with it.

Third, if the clause were interpreted to leave the Executive free, by proclamation or some such, to establish a religion, what really would be the point of the clause? No, such an interpretation would enable the Executive to eviscerate the purpose of the clause.

Fourth, with respect to application of the establishment clause's constraints to states and their political subdivisions, as you no doubt know (but omitted from the post), the right to be free of government establishment of religion is among those fundamental rights protected against infringement by states under the Fourteenth Amendment.

History Matters said...

1) It is Congress that writes laws. Yes, the President may veto ("pocket" or otherwise), but Congress is still the origin. If I were writing a Constitutional provision to stop a type of law, I would target the restriction at Congress.
2) Many, including the first, days of prayer declared by the President were done so at the request of Congress, correct?
3) We just plain disagree about the meaning of "establish a religion." For one thing, the word "law" is usually attached to such discussions and President proclamations of days of fasting and prayer are not a law and hold no power over a citizen to comply.
4) And I'm sure you know, but did not include, that the 14th Amendment is not understood by everyone to include a carry-through of the establishment clause. There is no universal agreement that an Establishment Clause applies to the states. But I have not had a need to defend a state's religious establishment in this blog. Jefferson himself declared a state day of prayer as governor of Virginia. Was he establishing a religion? You clearly would know how he would object to a state establishing and supporting a religion. I suppose he did not consider a state day of prayer to be an infraction.

But look at a broader point. The last of the Bill of Rights' Amendment is the 10th. It, and the Constitution itself, limit the power of centralized government. If you were to assess many of the cases I bring up (follow the tag for discrimination), they generally involve a central authority limited that which should be an individual freedom. That would include the right for prayer at a graduation ceremony. Does the tone of the Constitution and Bill of Rights seem like it would want the Supreme Court to step in and say "no"? Since you apparently have studied the Founders, I'm sure you know what Jefferson thought about the courts assuming too much power.

History Matters said...

Doug (2),

I apologize, but the comment above may be the last of your comments that I post. I do welcome opinions or corrections, but you clearly disagree with the entire premise of this blog. I just don't have time to argue at length about posts on a regular basis (although I do enjoy it!).

However, I thank you for your well-stated opinions to this point. You try to justify your opinion with quotes from the Founders, which I appreciate. I wish more people today would simply learn more about the intention of the Constitution and the actions of the Founders. That is especially desirable for elected and appointed officials!