Route66Lovers@2LanesForever.com.invalid (Dusty Rhodes) wrote:
:|Seems as if the simple reading of the Constitution, which reveals the
:|words 'Congress shall not...' leads one to think that the document was
:|about limitation of Federal powers.
CONCERNING "ONLY" CONGRESS:
(3) It is rightly recognized that the First Amendment protection of
religious liberty was originally applied only to actions of the federal
government, specifically the United States Congress,' although presidents
such as Thomas Jefferson and James Madison also considered themselves bound
by the free exercise and non-establishment prohibitions. It was not until
Cantwell vs. Connecticut (1940) that the Supreme Court decreed that the
Free Exercise Clause applied to the states. In the 1947 decision Everson
vs. Board of Education, both the Free Exercise and Non-Establishment
Clauses were "incorporated" and applied to the states.
The application of the First Amendment to state actions was entirely
appropriate given the falsity of the compact theory of the national union,"
the adoption of the Fourteenth Amendment to the Constitution in 1868," and
the foundational and guiding character of the Declaration of Independence
and the natural rights of "life, liberty, and the pursuit of happiness" for
Constitutional interpretation."
(SOURCE OF INFORMATION: The Myth of Christian America, What You Need to
Know About the Separation of Church and State.. Mark Weldon Whitten Smyh &
Helwys, Macon, Georgia, (1999) p. 11)
***************************************
(3) B. THE FIRST AMENDMENT AS A RESTRICTION ON
PRESIDENTIAL AND JUDICIAL POWERS
This distinction between an abridgement of existing power and a
declaration of the nonexistence of power has important theoretic and
practical consequences, as will appear from time to time in this volume.
Here it may be sufficient to point out briefly one of these consequences.
The First Amendment, it will be noted, provides only that
Congress shall make no law respecting an establishment of religion
or prohibiting the free exercise thereof.
The amendment expresses no restriction upon action by the President or the
Federal judiciary. This omission has been emphasized by Professor Edward S
Corwin and others in defending the constitutionality of an ambassador to
the Vatican." The appointment of an American ambassador professor Corwin
argued, is an act of the President, and therefore cannot violate the
mandate of the First Amendment that " Congress shall make no law respecting
an establishment of religion."
The logic of this argument is predicated on the assumption that but
for the First Amendment the Federal government, in its legislative,
executive, and judiciary divisions, would have power to act in the area of
religion. It follows from this assumption that since the power was taken
away only from Congress, it still remains with the President and the
Federal courts. But, as we have seen, the power to deal with religion was
never delegated to the Federal government or to any part of it. Madison
used the terms " government " and " general government," not " Congress,"
in denying " jurisdiction " over religion and the right to " intermeddle "
with it. If no branch of the national government has any inherent or
delegated power under the Constitution to intermeddle with religion, the
fact that the First Amendment expresses a restraint only upon Congressional
action may not be construed as an implied grant of power to the President
or the judiciary.
It was the possibility of just such " a colorable pretext to claim
more than was granted " that Hamilton warned against when he asked " why
declare that things shall not be done which there is no power to do? " And
it was to meet this threat that the Bill of Rights included the Ninth and
Tenth Amendments, which provide respectively, that
The enumeration in the Constitution of certain rights, shall not be
construed to deny and disparage others retained by the people, [and] 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 Bill of Rights was added to the Constitution to satisfy the
demands of Jefferson and his Republicans, who above all else were fearful
and suspicious of a strong executive. It seems highly unlikely that they
would have agreed to an amendment which left the executive free to abridge
a right so carefully withheld from legislative interference. This becomes
even clearer when it is remembered that the First Amendment is not limited
to a prohibition on laws respecting religion; it provides also that
"Congress shall make no law ... prohibiting the free exercise " of
religion, " 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." If the President and the Federal courts are
free to disregard the prohibition of laws respecting an establishment of
religion, they must be equally free to disregard the other prohibitions.
Only the First Amendment mentions Congress; the other seven
amendments use passive verbs without limiting the subject of the restraint:
". . . the right to keep and bear arms shall not be infringed," " no
soldier shall... be quartered in any house," the right to be secure against
"unreasonable searches and seizures shall not be violated," etc. The First
Amendment as originally drafted by Madison was in the same passive form,
and it too did nor mention Congress. It read:
The civil rights of none shall be abridged on account of religious
belief, nor shall any national religion be established, nor shall the full
and equal rights of conscience in any manner or on any pretext be
infringed.
During the course of its travels until its final adoption the
grammatical structure was changed to the active and the word " Congress "
was inserted. There appears, however, to be no indication in any of the
debates or writings that the purpose of the stylistic change was to leave
the executive and judicial branches of the government free of the
restriction imposed on the Congress.
How this change came about can only be a matter of speculation. In
colonial days establishments of religion were effected by the colonial
legislatures; and, as we have seen, the Continental Congress, in the period
immediately preceding the adoption of the Constitution, busied itself with
religious matters. It was therefore natural that in restricting the
national government's activities in the field of religion, the framers of
the First Amendment in the form it was finally adopted thought in terms of
Congress. The change may also be explained by the fact that Madison's
original version contained a provision that " No state shall violate the
rights of conscience, or the freedom of the press, or the trial by jury in
criminal cases." When it was decided to eliminate this restriction on state
action, it was natural to change the sentence structure. This seems highly
probable when it is noted that the word " Congress " first appears in the
third version of the amendment, and that the second version read: " No
religion shall be established by law, nor shall the equal rights of
conscience be infringed." Retention of the passive style might have been
construed as an intent to encompass state action, and it was natural in the
third version to indicate expressly that " Congress shall make no laws,
etc."
Whatever the reason for the change, it is a reasonable assumption
that its purpose was not to confer on the President and the Federal courts
power to deal with religious affairs. As will be seen later," the Supreme
Court in 187 t ruled that under the Constitution the Federal courts have no
power to determine controversies of ecclesiastical dogma. The logic of that
decision, as well as of the history of the First Amendment, leads
necessarily to the conclusion that the President and the Federal courts are
as constitutionally incapable of engaging in acts " respecting an
establishment of religion or prohibiting the free exercise thereof " as is
the Congress. That the interpretation represents the view of the Supreme
Court would seem to be indicated by its use of the words " Federal
Government " rather than " Congress " in its carefully phrased explanation
of the meaning of the " establishment " clauses stated in the Everson case,
repeated in the McCollum case, and quoted later in this chapter. It is
clear that Jefferson and Madison, at least, so interpreted the First
Amendment, as can be seen from their stated reasons for opposing
Presidential Thanksgiving proclamations.'
SOURCE: Church, State and Freedom, by Leo Pfeffer, The Beacon Press,
Boston, (1953) pp 115-118
***********************************************************************
:|
:|But today, the constitution applies when ever, and where ever, a tax
:|dollar is spent.
A lot of that application is via the BORs, that is people are asking that
the BORs be applied to them just as it is other groups.
That is the way it should be.
:|How did 'public schools' become part of the federal government? From an
:|object that has no constitutional legitmacy to one that is the focus of
:|much of the efforts today.
:|
:|How did we get into this ridiculous situation?
Short General History of The Federal Government and Education
http://members.tripod.com/~candst/educ.htm
*********************************************
#1
Subject: religion/education/taxes/early America
Date: Tue, 20 Mar 2001 14:06:45 -0500
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