Tuesday, October 26, 2010

The Importance of Choosing the Best Words

What does the Constitution more firmly guarantee: freedom or religion, or separation of church and state? That wording is, of course, somewhat unfair because is uses common phrases rather than the actual wording of the Constitution. The general principle of "freedom of religion" is not stated that way in the Constitution's Bill of Rights, but it's a reasonable paraphrase of "Congress shall make no law... prohibiting the free exercise [of religion]." But is "separation of church and state" as reasonable (or clear) a paraphrase of "Congress shall make no law respecting an establishment of religion..."?

The "separation..." phrase was used one time by Thomas Jefferson in a letter, and was intended to assure the recipients that the Federal Government would not interfere with their religion. But Jefferson, who was not in the USA during the debates leading up to the Constitution and Bill of Rights, wrote to those drafting it appealing for the inclusion of the Bill of Rights (which was intended to clarify the Constitution, not to actually change it). In Jefferson's letters he used the phrase "freedom of religion" to explain the right that the First Amendment would help clarify.

If you look at the wording of the First Amendment next to either "freedom of religion" or "separation of church and state" the words all seem compatible. It does guarantee freedom of religion, and it separates church and state in that it prohibits the government from making a law respecting an establishment of religion. But it is important to understand the context of "respecting" in the First Amendment. Many of our states had official state religions at the time of the Bill of Rights' ratification, and those states needed reassurance that the federal government would not interfere with those establishments. So the Founders wrote language that would prohibit the Congress from making a law that either establishes a national religion OR limits the power of the states to have their own religions. So their language was not vague by accident; it was vague so that it would cover both situations.

But if you do as our courts have done and look at the phrase "separation of church and state" (which is not contained in the Constitution or Bill of Rights), especially if you do so without also looking at the actual wording of the First Amendment and without looking at the actions of the Founders, you could distort "separation" into much more than was intended. And they have done so. They have used it to remove religion from aspects of public life, a removal the Founders would not have approved.

Suppose a court used "freedom of religion" without regard to the actual words of the First Amendment? That phrase is also from Thomas Jefferson and was used more often by him. If you rely on "freedom of religion" as the main guidance, you could justify much more license for religious actions than the Founders wanted. A court could reverse the current situation, which I believe has caused too many restrictions on religious expression, into a situation where churches and believers had more license than the Founders ever intended.

If courts are going to interpret the Constitution in making decisions, then it seems reasonable to expect that at the very least they will use the document's words. It would also seem smart to gain more guidance from the actions of the Founders and the decisions of early courts (which were much closer to the Constitution's creation).

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