Who says we have religious freedom anyway?

Last time out, we examined the foundation for religious freedom in America by looking at the writings of Jefferson himself. It was clear that the Jeffersonian idea of separation of Church and State was never intended as a restriction of the right of the individual to practice their faith in the public arena. From the adoption of the 1^st amendment until 

McCollum v. Board of Education, School District 71 (1948) this remained the primary and I dare say correct interpretation of the Constitution. 157 years after the 1^st amendment was put in place Justice Hugo Black and 5 other men (the decision was 6-1) took it upon themselves to rewrite the very meaning of the single most important concept in the whole founding of America.

The case in question revolved around a partnership between clergy of various faiths, (protestant Catholic and Jew) and the school district in Champaign County Ill. These clergy would once a week make available to students, but only with their parents permission, religious classes. Those students whose parents so chose were excused from their regular classes at this time, no specific denomination or sect was the “chosen” faith of the school and no one had to send their kids. Since nothing was compulsory except school attendance and no one was ever compelled to make a statement of faith as a grade of performance, the school argued that no establishment was taking place.

Let’s read again the first amendment: 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.

The wording says Congress shall make no law respecting—the text of the first amendment does not deal in any way with restricting the manner in which schools may conduct studies on religion, unless congress should mandate a law establishing, for example, Secular Humanism as the only teachable religion and that its precepts must be taught as fact. So the first thing the court should have looked at was the actual wording of the law. This was clearly in favor of the school district.

Second, after reading the law in context an attempt must be made to determine original intent. a few quotes from the founders, in addition to the writings of Jefferson from last week should provide insight:

 Without religion, I believe that learning does real mischief to the morals and principles of mankind.” BENJAMIN RUSH, SIGNER OF THE DECLARATION. Benjamin Rush, Letters of Benjamin Rush

“Religion is the only solid basis of good morals; therefore education should teach the precepts of religion and the duties of man towards God.” GOUVERNEUR MORRIS,PENMAN AND SIGNER OF THE CONSTITUTION. 

“You have . . . received a public education, the purpose whereof hath been to qualify you the better to serve your Creator and your country. . . . Your first great duties, you are sensible, are those you owe to Heaven, to your Creator and Redeemer. Let these be ever present to your minds, and exemplified in your lives and conduct.” WILLIAM SAMUEL JOHNSON, SIGNER OF THE CONSTITUTION

“As piety, religion and morality have a happy influence on the minds of men, in their public as well as private transactions, you will not think it unseasonable, although I have frequently done it, to bring to your remembrance the great importance of encouraging our University, town schools, and other seminaries of education, that our children and youth while they are engaged in the pursuit of useful science, may have their minds impressed with a strong sense of the duties they owe to their God.” SAMUEL ADAMS.  

Just a few quotes but it clearly establishes that the founders did not believe that faith should be excluded from education. Original intent therefore seems also to have been with the school district.

The problem was that the Court did not like the wording or intent of the constitution so they decided to redefine it. This is how the liberals work and have worked since the days of FDR, “if we don’t like the constitution we simply reinterpret it.”  as much as I hate to admit it at times the framers, brilliant though they were made mistakes. Let’s look at one to see the proper way to change the US constitution.

Once upon a time in America ladies couldn’t vote or more specifically the individual states had the right to determine who could and could not vote. The founders had reasons for their position on voting privileges but in the end allowing states to limit rights to vote was not the correct decision. As early as 1869 some states and territories began granting suffrage to women. In 1872 a case was filed before the Supreme Court (Minor vs Happersett) that argued that the 14^th amendment could be applied to women’s suffrage. Suffrage was the morally correct choice but the wording of the 14^th amendment (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.) and the review of the constitution’s original writing and the clear intent of the framers the court ruled unanimously that voting was not intended as an immutable right of citizenship. To change this fundamental deficiency an amendment to the US constitution was proposed in 1878. it took 41 years to get this through congress but in 1919 2/3 of both houses approved a joint resolution amending the constitution which was then sent to the states for ratification on August 18, 1920 2/3 of the state legislatures voted to ratify the amendment and “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.”  became the permanent and indelible law of the land.

That is how it is done; it is slow and difficult because it is supposed to be slow and difficult. The founders in their wisdom knew that sometimes changes would be necessary but what they did not want was a fundamental structural change to take place based on a whim of a congress elected in two year increments. What Hugo Black and the court did in 1948 was to take into their hands the power of fundamentally changing the basic definition of the 1^st amendment and redefine it to meet a political goal. Why the liberals did this and do it now is not hard to understand, could you convince 2/3 of both houses and 2/3 of state legislatures to approve a change to the constitution that says “the free exercise of religion shall be defined as the secretary of Health and Human services shall determine”

The constitution was written to defend individual liberty, and guarantee our inalienable rights. As long as the President and congress ignore the constitution then all rights are in jeopardy, indeed we are not free men and women at all.

More on this administration’s assault on the constitution next time.

Keep on the Firing line.