“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.”
This is the First Amendment to the US Constitution. One of the things I find most wonderful about this document is the language with which it was written. You can understand what it says there, can’t you. It’s simply yet elegantly written.
For comparison, have you ever actually read the United States Code? I randomly picked a snippet for you to see how bureaucrats get paid.
United States Code, Title 11 Bankruptcy, Chapter 1 General Provisions, Section 109 Who May Be A Debtor, Subsection e:
“Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title.”
Our constitution can be read by regular people, whereas the Law has to be read and interpreted by attorneys. You can, right now, read the US Constitution and understand what it means, even over two hundred years after it was written. It’s an amazing document. Imperfect, of course, but still the most wonderful treatise on self-government ever created.
Let’s break down just the first part of the First Amendment for kicks.
Congress – Congress one of the three branches of the federal government: Executive, Legislative, and Judicial. The legislative branch makes the laws. Thus the combined House of Representatives and the Senate is Congress.
Congress shall make no law – Ah, we are limiting the power of the federal government here. The federal government shall NOT be permitted to make a law that does… what?
Congress shall make no law respecting an establishment of religion – Congress cannot establish a religion. They cannot create a religion. Gotcha, simple.
What would happen if…
“I, Representative Snugglebuns, do hereby submit this request to the Congress: we should create the Church of America!”
Can that happen? No. The congress is specifically prohibited from establishing a religion, thanks to the First Amendment.
How about…
“I, Representative Snugglebuns, do hereby submit this request to the Congress: we should create the Church of America! Attendance is not mandatory. No public funds will be allocated to the Church of America. No records of its members and leadership will ever be kept. It’s just a document that says that there exists a Church of America as established by the federal government, that’s it, muchachos!”
Can that happen? Again, no. Congress is specifically prohibited from establishing a religion, regardless of anything else.
That’s the Federal Government. Can the states themselves establish State Religions? Unfortunately, that’s a tricky question.
For about one hundred fifty years, yes indeed the states could have their own religions. Virginia had a state religion until 1786. Connecticut had a state religion until 1818. Massachusetts had laws until 1833 that required every man to belong to a church.
Did the constitution’s First Amendment prohibit states from having state religions? No, it didn’t. Could each state have in its own state constitution prohibitions on state religions? You’re darn tootin’ they could! However, as the founders of the USA wished, the powers of the federal government were minimal. The federal government was created by individual states, and those states did not wish to have an overarching federal government created just to suppress the liberty of the people who created it.
Simple, easy, fun to do, yes? And that’s it, right? We can move on, can’t we?
No. We can’t.
See, back in 1946, a man named Everson brought a case to the Supreme Court, arguing that the state of New Jersey was, through circumstance of law, advocating a state religion which he believed violated the New Jersey constitution and the US First Amendment.
He fought all the way to the New Jersey Supreme Court and lost. But he continued fighting, all the way to the US Supreme Court.
Everson lost there, too. But an interesting (and many say awful) thing happened: Justice Hugo Black decided to interpret the First Amendment.
Everson lost 5-4, but the majority opinion of the court, written by Justice Black, included this:
“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. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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.”
What Justice Black did was to take a simple section of the First Amendment, that for one hundred fifty years meant exactly what it said – Congress cannot establish a religion – and make that restriction on federal government apply to state and local governments.
So while the First Amendment reads, “Congress shall make no law respecting an establishment of religion,” Justice Black wrote that what it MEANS is, “Neither Congress, the States, nor local governments shall make law respecting an establishment of religion.”
Justice Black interpreted the First Amendment and told the entire country what it REALLY meant. And by doing so, he took a restriction placed upon the federal government and placed it upon the states. This act has a name, by the way. It is called, “Incorporation”.
Justice Black incorporated the First Amendment. Although the constitution NEVER grants the Judicial branch the right to interpret the constitution, they have done so, changing the meaning behind the language to fit their particular agenda. This is why, today, potential Supreme Court justices are no longer qualified by their ability to APPLY laws to disagreements, but instead are tested to see their views allow them to INTERPRET laws, and if they are more like to interpret them in ways in which Congressmen agree.
So if you live in Oregon and the people elect state representatives to establish a Church of Oregon via the Oregon state constitution, they will suddenly have a federal lawsuit on their hands because, thanks to the incorporation of the First Amendment, the people of Oregon will be in violation of the incorporated First Amendment.
But remember this: the constitution and the Amendments were written to limit Federal power, not the power of the States. Remember that the founders also wrote the Tenth Amendment:
“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.”
That’s pretty simple; the federal government has no powers other than those specifically granted it in the first nine Amendments to the constitution. But magically through the powers of incorporation, the federal government now had the power to regulate the establishment of state religions, something the founders expressly forbade it via the First and Tenth Amendments.
Every Amendment save the Ninth has been incorporated, which means that the simple, beautiful language of the Constitution no longer means what it says, but only means what men in robes SAY it means. And what they say it means can change based upon the political leanings of the justices at any given time.
When the simple language of the constitution is twisted, manipulated, and employed in ways that it was never intended, we are no longer a government of laws, but a government of men. And while you may at times have men in power who agree with what you believe and interpret and incorporate laws in ways you think are good and just, there will also come a day that someone with whom you violently disagree suddenly has those same powers.
It is therefore my belief to never vote for a political party of for or against a specific issue. I believe in the rule of law, not the rule of men, and thus attempt to vote for people of a similar belief, regardless of their personal religion, gender, race, ethnicity, monetary success, age, or personal habits.
I stand with the Constitution, inasmuch as there’s anything left of it.
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Going on a business trip next month and I am finally breaking down and getting an iPad 2. This has been an easy decision; that hard one is finding the right case.
