Constitution? More of a "Guideline" Really

The title of this post is loosely taken from Pirates of the Caribbean: The Curse of the Black Pearl:
"...the code is more what you'd call 'guidelines' than actual rules"

Readers of my posts here will know that I think the courts often get very far from the original intent of our Founding Fathers when they wrote the U.S. Constitution. There is a process for changing the Constitution (i.e. amendments), and that power is not supposed to be just in the hands of a handful of justices or a single judge, nor is it supposed to be in the hands of the legislature along.

The new "Bail-Out Bill" that just passed is a good example of losing sight of the basic theory of the Constitution. The bill authorizes the Secretary of the Treasury to "ensure the economic well-being of Americans." Well, I certainly with for all Americans to have economic well being, but the Federal Government was not originally empowered to do that so directly.

The Preamble of the Constitution says (boldface added by me):
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Looking at definitions of those bold-face words at dictionary.com, we see the following:

establish: to found, institute, build, or bring into being on a firm or stable basis

insure: to guarantee against loss or harm

provide: to make available; furnish

promote: to help or encourage to exist or flourish; further

secure: to get hold or possession of; procure; obtain

Of all those words, the weakest is "promote" because it does not offer assurance of a result; it simply encourages the result. So the Federal Government must assure us of several things, but should promote the general welfare. It should not try to guarantee the general welfare; it can not promise our general welfare; it will help and encourage our welfare (as many would say to the government, "Just get out of our way and let us do it").

But this bill tells the Secretary to "ensure the economic well-being of Americans." Dictionary.com says this means, "to secure or guarantee." Again, that's a nice idea, but such power is not given by the Constitution (if it is even possible).

Let's not forget the 10th Amendment, the last of the Bill of Rights, which says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Examples like this are why I am trying to show a more "originalist" side of the Constitution. My specialty is the First Amendment's religion clauses, but this Bail-Out Bill shows how our government so often goes beyond their given power in other area and in general. The Framers wrote this often-copied document to keep the central government from grabbing more and more power. But by ignoring inconvenient parts of the Constitution, and by our general lack of education about and knowledge of the Constitution, lawmakers and judges are able to claim more power than they are entitled to.

Read more on U.S. Consitution.net and U.S. History.org

Asking Candadates About Their Religion

The Arizona Daily Star publishes profiles of the candidates for office in the state. One caught my eye. It was for Libertarian Mark Phelps. Part of the standard list of questions asks the candidates religion. Mr. Phelps answered, "Since the Constitution clearly states a separation of church and state, I believe this is an inappropriate question when running for elected office." Most people, when referencing "separation of church and state," are talking about the religion clauses of the First Amendment. Certainly Mr. Phelps is within his rights to not answer such a question, but this is not a First Amendment issue. The clause in question states that "Congress shall make no law respecting an establishment of religion..." Mr. Phelps is probably thinking of Article 6 of the Constitution, which says that "...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

But this is not a "test" in the sense the Constitution meant. That "religious test" phrase comes immediately after the section requiring government members to state support for the Constitution:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

So no religious oath will be required. But asking a candidate his religious preference is not requiring an oath. Nor is the candidate required to answer the question. Voters can use that as a measure of his qualifications or not as they choose.

Most of all I wish Mr. Phelps and other candidates for office knew enough about the Constitution to not misrepresent what it requires and what privileges is allows.

See also Article VI of the U.S. Constitution

No Religious Club Announcements at School

Deer Valley Unified School District officials in Arizona's Mountain Ridge High School have been preventing one particular club from making announcements over its public address system, even though other clubs have the right to do so. What's so radical about this one club? They are Christian. The school argued that such announcement violate the First Amendment's Establishment Clause: "Congress shall make no law respecting an establishment of religion..."

The Alliance Defense Fund (ADF) is representing the club and has obtained a settlement granting the club the right to take part in the same way other clubs do.

Learn more on the Alliance Defense Fund website...

ACLU and School Prayer - Pennsylvania

In May, 2005, the ACLU filed a (successful) lawsuit against the Keystone School District in Clarion County, PA, to force them to stop using prayer to open school board meetings and at graduation ceremonies. According to the ACLU's Website:

"When public schools reserve time at a graduation ceremony for prayers, they put the power, prestige and endorsement of the state behind whatever prayer is offered," said ACLU of Pennsylvania Legal Director Witold Walczak, who is representing families who have asked to remain anonymous because of fears for their physical safety. "Officially sponsored prayers make students and invited guests who subscribe to different beliefs and recite different prayers, or no prayers at all, feel like outcasts or second-class citizens."

If this were an argument by a citizen appealing to the common sense of the school board, it is logical. But when you take it to court based on the First Amendment, it is stretching a point. The First Amendment says "Congress shall make no law respecting an establishment of religion..." Then the 14th Amendment carried people's rights from the Constitution to the states as well. But in PA this was not a law establishing a religion. It was a practice or a tradition. This is a long way from a state law establishing religion. The Constitution certainly does not guarantee that public actions shall not make someone feel like an outcast or second-class citizen. Otherwise, it could be argued in court that it is unconstitutional to elect a president or any other office holder without unanimous consent.

As I have said before in this venue, the Constitution was very carefully worded by literate men. If they wanted to prohibit a practice that involved religion they would have said so. But the second part of the quoted First Amendment clause above is "...[Congress shall make no law] prohibiting the the free exercise thereof;" If this case involves the First Amendment at all, then it seems to me that stopping the school board in court seems much more like a violation of the second clause than an enforcement of the first.

Rules Applied Equally?

Public schools often react in strange ways (it seems to me) about various forms of religious expression and accommodation during school or after hours on school property. They may be reacting to many of the cases that have been brought against schools because of the so-called "separation of church and state" (a metaphor used to describe an aspect of the First Amendment to the U.S. Constitution). That metaphor works well enough if you understand the Constitution, as Thomas Jefferson surely did when he penned the phrase in a letter. But without proper historic background, the same metaphor could lead one down the wrong path.

In any case, I would hope that schools would apply their rules and actions fairly and not just in one direction. But I ran across an interesting post on Townhall.com. It starts this way:

"Suppose your child's school announces a Christmas celebration - and your child, while subscribing to your atheistic beliefs, decides to participate. So he goes, dressed as Santa Claus.

"Uh-uh, say school officials. This is Christmas. Take off the red suit, and come back when you can wear something shepherd-y.

"Care to guess how fast the American Civil Liberties Union could whip up a lawsuit on that one?"

In the made-up example above, the author (Michael Johnson) tries to describe a case close to one that is in process, but in the opposite direction. He tells of a 10-year-old student at Willow Hill Elementary School in Philadelphia, PA. This youngster, who is Christian, had some conflicts in common with many other Christians about the school's Halloween recognition. During this day's activities he needed to come dressed in an appropriate Halloween costume or be isolated from the rest of the student body. Most kids would not want that, so he came dressed as Jesus.

Seems like a good idea? Not to the school officials, who said this violated their (unwritten) "religion policy." Yet the officials allowed costumes that imply other types of religious implication, such as devils and witches.

The article is written by a conservative columnist and covers more than I have summarized here.

Read more here: Taking God Out Of School Leaves A Vacuum Something Will Replace, by Michael Johnson