The writers are simply confused. They think the Constitution requires government neutrality toward religion. In reality, it simply says that "Congress shall make no law respecting an establishment of religion" -- i.e., neither make a federal establishment nor interfere with a state establishment. No interpretation problem there.

Christians dominated the local governments of early America because the population of early early America was predominately Christian. The federal government isn't going to intrude with the status quo of localities unless there is a complaint. That the complaints didn't start happening until many years after the founding of the country does not change the clear intent of the founders in regards to the Constitution.



For the record, I am a libertarian and not a Christian.

PJ:



Isn't there something in the Constitution that reserves for the States & the people those powers not enumerated for the Federal Government? If so (and maybe not, my mental Wayback machine isn't what it once was), then if Congress may not do it, then the states may not either.



My perception may be blinkered by my atheism, but I can't think of a single case where commingling revealed truth and government power wasn't a certified bad thing. (Communism, Catholic Church and Ireland, Spain, South America, Islam and [insert list of failed countries here].



Sincerely, and, I hope, not too inflammatorily,

Jeff Guinn

Jeff:



The clause means nearly the opposite. The Congress can only do what is specifically stated in writing (that was the theory anyway). Everything else was delegated to the states.



As for your other point, the states at the Founding mingled religion and power and they seem to have done okay. By any objective measure--except perhaps religious--there was more freedom in the God-besotted America of 1789 than there is now.

Jeff - yes - known as 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."



The Constitution prohibits the states from "abridg[ing] the privileges or immunities of citizens of the United States" (14th Amendment); "privilege" is a synonym for "right" and "immunity" for "freedom". The natural interpretation is that states may not abridge anything the Constitution describes as a right or freedom -- e.g. free exercise of religion, freedom of speech, right to keep and bear arms. However, the establishment clause is not of this form. It appears to be a federalism clause, meant to stop the federal government from interfering with state establishments. An early draft barred Congress from "touching establishments of religion." Akhil Reed Amar's great book The Bill of Rights
has a good discussion of this issue.



Ann - There were plenty of complaints about religious establishments in early America. See Madison's Remonstrance.

Complaints, OK and yes. But what is actually in the Constituion?

In other words, what in the Constitution gives the adherants of one religion to make laws based on the tenets of their religion, over the rights of another religion to do the same thing?

Ann:



The Constitution is silent on that point precisely because that was done routinely in the several states. There were established religions and I believe at least one state had a tithe (or tax to pay for the church).



I believe, though we'll need some of the practicing attorneys here, that pj overstates the case a bit. All the Bill of Rights did was set limits on what the Federal Government could do. States were not bound to honor the enumerated rights by the U.S. Constitution. Instead they were bound first by their own constitutions, which typically included those same rights, and then by the ridiculous later Court rulings that ended up turning the 14th Amendment--which was clearly just meant to give blacks the same rights that whites enjoyed--into a catch all so the Court could extend all of those "Rights" to even the states.

Here's a good polemic from our pals at the John Birch Society on incorporation and substantive due process:



http://www.thenewamerican.com/tna/1997/vo13no08/vo13no08_supreme_court.htm

Orrin -



1. a personal question - do the Bros Judd advocate the right of states to establish a state religion, and



2. if the answer to the above is "yes", then how is it proposed that the concept of state religion be enforced?



3. Does your opinion about freedom of religiously-inspired law for localities apply even if the majority religion in certain localities happened to be some flavor of, say, Hinduism. Say, if adherents of the Ganapatya sect suddenly dominated Montana and began 'fixing' the laws there to be in their favor, would you feel the same way about all this?

I don't want to come off as flippant. The issue of religious freedom is very important to me.



I cannot understand a reading of the Constitution that sanctions one religion over another. Granted, I am not a scholar in any way (shape or form, etc). But I do know how to read ... and I see nothing in the document that states the superiority of one religion over another.

PJ:



Thanks for thoughtful and informative post. You are one of the reasons I enjoy this blog so much--I always come away knowing more than when I showed up.



Regards,

Jeff Guinn

Ann:



While I'd not support establishment of one religion, there's nothing in the Constitution that bars it, except on the Federal level. If folks want to change the meaning of the First Amendment the onus is on them to amend the Constitution, not to rely on what any given five Justices say at any given moment. Otherwise, when there five Mormons on the Court and they allow Utah to establish Mormonism, let's hear no sqwuaking.

oj - It's true that until the 14th Amendment was passed, the states were not bound by the rights in the federal Constitution. But the whole purpose of the 14th Amendment was to change that, by allowing the federal government to police the states to assure they did not usurp the powers of the people (and the original Constitution clearly asserted that the people, not the states, held certain powers; it merely didn't authorize the federal government to enforce that power distribution). Re the John Birch essay, the 14th Amendment did change the character of the union -- from one where the states were supreme, to one where power is explicitly divided between three groups, people, states, and federal government, and there are clear dividing lines about where the power is drawn (with the one exception of the line between states and people, as the 9th Amendment allows for unstated rights of the people, whose recognition would reduce the scope of state power).



Although the plight of blacks in the South gave urgency to the 14th Amendment sponsors, they crafted the Amendment as a general Amendment which they saw as completing the Constitution and perfecting it. I agree with them.



Ann - no state can inhibit anyone's free exercise of religion (or irreligion for that matter). Beyond, there is no Constitutional limit on the states (at least, that was the intention of the founders and authors of the 14th Amendment). One could construe this strictly and say that taxing Episcopalians to subsidize Catholics would infringe their free exercise of Episcopalianism - Akhil Reed Amar takes this tack. But there's certainly no limit on lawmakers being motivated by religious beliefs. For instance, on abortion, every lawmaker is free to vote his conscience, even if that's informed by his Catholic faith.

Its too bad, Ann, that you, and many others, believe that the Constitution cannot be understood without specialized training. This is one of the ways in which the odd jurisprudence of the last 50 years has served the country badly. The Founders knew that a democratic republic was obliged to make its basic laws accessible to the citizenry. Otherwise, in what sense is it a democracy?



Read the Constitution. It is clearly written, if a little archaic in places. The First Amendment's religion clauses are simplicity itself: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." If you know that, in 1789, some of the states had tax supported official churches, while others did not and that at least one guaranteed freedom of religion, the the Amendment makes perfect sense. Congress was not to interfere with the state's regulation of religion.



It is all the more remarkable that, free of any federal interference, by 1831 the last state chose to dissestablish its official church and all of the states guaranteed freedom of religion. It makes freedom of religion all the more American, I think, to know that it was not forced upon the states from above, but adopted by each state seperately.



Now, PJ is right that the 14th Amendment was understood to change the nature of the federal government substantially. But no one quite knows what it means. (For the first 60 years or so, it was not thought to mean very much at all, other than to recognize blacks as US citizens.) The doctrine of "incorporation", that the 14th Amendment incorporates the Bill of Rights, was adopted to limit
the scope of the 14th Amendment, which the Supreme Court was afraid would otherwise give the judiciary unlimited ability to come up with new rights to be protected.



As a result, lay people think that, when the read the Constitution, they can't understand it. They stumble over what seems like the perfectly clear word "Congress" in the First Amendment, which they know should read something like "No person paid or institution supported with tax revenues . . . ". Now this is, with respect to religion at least, perfectly sensible law. But I agree with OJ that it should not have been changed without express authority from people who understood to what they were consenting. Otherwise, in what sense is this a democracy?

David - I ardently that the Constitution is a logically simple document that can and should be known by all Americans.



On the establishment clause, it did have a dual purpose. In its first drafting it was intended solely to prevent the new federal government from interfering in existing state establishments -- thus the "touching" language. This was politically necessary, otherwise supporters of the state establishments would have blocked ratification. But Madison and others also wanted to prevent any federal establishment of religion, and this led them to the elegant language ("no law respecting an establishment of religion").



Re the 14th Amendment, there is a voluminous record telling us clearly what the intent of its authors and Congressional supporters was. It was, indeed, to enable the federal government to wield its power to secure against the states all the rights and freedoms of the people. In a speech on the Senate floor soon after ratification of the 14th Amendment, its author, John Bingham, said, "The priviliges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the Unitedd States. Those eight amendments are as follows. [Bingham then proceeded to read the first eight amendments word for word.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment." Similarly, while the Senate was debating the Amendment, Jacob Howard said, "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees [of the Bill of Rights]."



I urge anyone interested in these questions to get a copy of Amar's book. It is superb.

pj:



That argument crumbles though when you get to the "due process" clause. All a state has to do is provide a fair procedure for arriving at its actions and it's met the requirements of the text of the Amendment, whose sole purpose was to make sure that State actions applied equally to black and white.



And to go back a bit, the mere assertion that "privileges and immunities" means the rights in the Bill of Rights is wholly without merit. The drafters could easily have said that if that's what they'd meant.

Another good book to read is The Godless Constitution. It provides a detailed history of how we came to have a constitution utterly devoid of references to any God. Its one reference to religion is the clause prohibiting religious tests for office holders. (I have misplaced my copy of the constitution for the moment, so I can't provide the exact quote).



This is pretty remarkable, considering the time. Several states had established churches and tithes. Many more had religious tests for public office.



At the risk of parading my ignorance for all to read, the Bill of Rights makes utterly no sense to me unless it is viewed as a set of limitations that applies to all levels of government.



The religious limitations on Congress are meaningless unless they also apply to the States or, for that matter, to city governments.



The 1st Amendment has saved us from the sectarion strife inevitable in a country containing as many mutually exclusive revealed truths as does ours.



So I am completely with the Post on this one. Government must be completely neutral with respect to religious belief by staying out of it completely (Caveat here: given human nature, government support of faith based organizations makes sense, so long as there is no faith test).



Reading the 9th Circuit's Newdow decision (available on their Web site)--widely reviled at the time by a great many people who had no idea what it said--is very instructive. Whether you agree with the decision, it explains the tests behind the reasoning very clearly, and also gives some historical perspective. By the way, all three justices found the phrase "...under God..." violated the 1st Amendment. The dissenter felt the violation was technical rather than substantive.



Regards,

Jeff Guinn

oj -



The framers of the 14th Amendment thought that that was precisely what they were saying, and in the language of their time, they were. The use of "privileges" and "immunities" as interchangable with "rights" and "freedoms" was routine in the 19th century, and dates back to Blackstone's Commentaries on the Laws of England, in which he consistently described rights and freedoms and privileges and immunities.



As for the "due process" clause, Section 1 of the 14th Amendment had two parts. The "privileges or immunities" clause secured to citizens
all the rights and freedoms announced in the Constitution, plus unenumerated rights and freedoms. The "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" applies to the broader category of persons
, including foreigners. States must meet each of these clauses separately. Adhering to the due process clause does not exhaust a state's obligations.

I guess we need to explicitly disentangle two different issues.



The first falls under the general heading of religious freedom. It's a good thing. Having an official state church is a bad thing. Government interference with the church is a bad thing. Church interference with the government is a bad thing. Stopping people from worshipping as they would, or forcing them to worship when they do not believe, is a bad thing. I don't think anyone here is disputing this.



But that something is good does not mean that it is mandated, or even allowed, by the Constitution. America is larger and greater than the government and larger and greater than even the Constitution.



The First Amendment, as adopted, allocates to the states the power to regulate speech, religion, the press and the right to assemble. This power was inherited by the states from Great Britain, which had an established church that it had tried to impose upon the colonies. That the states voluntarily chose, for the most part, not to regulate in these areas was due, not to the Constitution, but to the idea of America that developed between the Revolution and 1850-ish.



It is to this idea of America that we owe our current freedoms, not to the federal government or the Constitution, as great a document as it is.



As for Newdow
, the problem is not that it is nuts. The problem is that it was a perfectly reasonable extension of the Supreme Court's First Amendment jurisprudence. It also shows how far that jurisprudence has come from the language of the First Amendment.



The words "under God" in the pledge in no way establish an official state church. Holding otherwise just demonstrates why these cases are so fundamentally anti-democratic: the citizen has no chance at all of simply reading the Constitution (legitimized only by her consent) and figuring out what it means. The citizen told that the pledge is unconstitutional can as easily be told that, for example, the Constitution mandates that applicants of a different race be given preferences in applying to college or getting a job or that it requires allowing woman unfettered rights to abortions.



Whatever the substantive merits of these issues, the citizen can read the Constitution from now until doomsday and never be able to figure out why these things should be true. She will, however, be used to this and not think it odd that she can't understand her own Constitution. What kind of democracy is that?

pj:



We'll never agree on that. You buy Amar's liberal activist reading and I'm with Bork and the originalists.



It is worth noting though that if that's what was commonly understood to have been introduced it's strange that none of the cases even tried to introduce such a reading for decades and, if even unenumerated rights are included then we don't have a democracy any more. The Court can simply declare something a right and proceed to do whatever it wishes. Only a legal professor, who likely expects to be on a court some day, would even pretend that legislatures ceded such power to the judiciary.

David:



I agree with most of that (though I'm unbothered by churches "interfering" with government), especially that the Constitution can really only mean what a sensible citizenry would understand it to say. judicial activism has turned our constitutional law into modern art, where there really is no underlying work, the entire point is a fancy and inherently ridiculous interpretation.



This should suffice:



http://www.house.gov/Constitution/Constitution.html

oj - Amar and Bork's positions are very close. Amar is a liberal, but he advocates an originalist interpretation.



Re unenumerated rights, they are referred to in the 9th Amendment, so they surely exist. The founding fathers were probably thinking of recognized common law rights, such as the right to pursue the occupation of your choice.



The important point is that acknowledging the existence of rights doesn't mean that Supreme Court is the body that gets to decide what they are. In fact, the 14th Amendment goes in the other direction, giving Congress
the power to make laws enforcing the 14th Amendment, which of course includes both unenumerated and enumerated rights. There's no textual warrant for judicial supremacy in Constitutional interpretation.



Don't throw out the baby with the bathwater -- in throwing out judicial supremacy, don't throw out also the "privileges or immunities" clause, which is the only part of the Constitution that will ever allow the federal government to defend the right to keep and bear arms against the states.

pj:



There we agree:



(1) The 9th, if it means anything, means that the Bill of Rights did not supercede rights that states and the common law had already granted to their citizens. Thus, the fact that the Constitution does not mention a right to breed hamsters does not mean that citizens in a state that had previously granted such a right would therefore lose it. The 10th then reserves to the states the entitlement to create more expansive sets of rights in the future.



(2) The Congress and the President should stop deferring to the Court on questions of Constitutional interpretation.

This is a perfect illustration of the wisdom of Scalia's point about statutory interpretation, original intent and legislative history. Because we value democracy, we must interpret laws as they were understood by the adopters, but the only logical and reliable way to do so is to take the laws as written. The views of individuals, even if they were intimately involved in drafting the law, are only their view and are irrelevant when compared to the language actually used.

David:



And what could be more meaningless than Thomas Jefferson's inane "wall of separation" phrase, a misinterpretation by a non-drafter which has been enshrined in our constitutional law.