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http://www.intellectualconservative.com/article2583.html
Courts, Churches and the Constitution
by Bruce Walker
The Establishment Clause was never intended to apply to the states in the
first place.
Americans have been trained well by Leftists. Relentless propaganda has
created myths about American government which conceal critical facts.
Seldom has this propaganda been more effective than in spinning the odd
lie
that the United States Constitution requires that religion and government
must be separate.
The Leftist argument is based upon the First Amendment to the
Constitution,
which says: "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof..." What did this
term --
establishment of religion -- originally mean?
The history of the late Eighteenth Century, the period in which these
words
were penned, and the voluminous and clear writings of our Founding Fathers
make the meaning clear: Congress, the intended repository of nearly all
federal power, was prohibited from establishing a specific national
church.
Most European nations in 1791 had an established national church. The
United Kingdom of Great Britain included two distinct nations, England and
Scotland, and this polity had two established national churches --
Anglicanism in England and Presbyterianism in Scotland. Our Revolutionary
War allowed us to break from Britain in all the ways that vexed us.
Pointedly, this prohibition did not prevent -- and it was never intended
to
prevent -- the governments of the sovereign and several states of the
United
States from establishing particular religions within those states. In
fact,
half of the original thirteen states not only had established state
churches
but continued to have these established state churches after the
ratification of the Constitution and after the adoption of the Bill of
Rights.
The Founding Fathers viewed a national church, just as they viewed a
national government, as an inherent danger to liberty. The Bill of Rights
itself does not limit the powers of state governments at all. Ratification
of these first ten amendments was insisted upon by the Antifederalists
(which included a number of our Founding Fathers) as a protection against
the power of the new, national government.
The Tenth Amendment provides that powers not given the government of the
United States were reserved to the states or the people. The Ninth
Amendment -- the "forgotten Ninth" -- goes even farther, saying that the
enumeration of certain rights shall not be construed to deny or disparage
others retained by the people.
This amendment is especially important because the United States does not
enumerate or create any rights for state governments, which were at the
time
sovereign, and because the language "shall not be construed" was a check
upon the judicial branch of the federal government, whose fanciful powers
have come through the artifice of "construing" the Constitution.
There are no longer any established churches in state governments, but
this
has nothing at all to do with the First Amendment. The states that had
established religions in 1791 gradually ended these established religions
over the next four decades (much like all those northern states that had
slavery in 1791, ended slavery by state, not federal, action in those same
succeeding decades).
Assume that the First Amendment never had a clause prohibiting the
establishment of a national church -- remembering that the Constitution
did
not have this prohibition, and only the amendments to that document
prohibited Congress from establishing a national religion -- would this
have
been a calamity?
While that was a reasonable assumption in 1791, it was not a reasonable
opinion at all by 1945. England, Sweden, Scotland, and Iceland --
nations
which had resisted the monstrous horrors of racial and religious
genocide --
all had established national churches.
Indeed, those nations which acted most honorably during the Second World
War -- England, Sweden, Scotland, Iceland, Norway, Denmark and Finland --
were notable for continuing to have an established state religion long
after
this had been fashionable in the salons of Paris or the populist beer
halls
of Berlin. If experience is any guide, nations do not act monstrously
until
God has been made an "unperson."
The First Amendment is directed only at Congress, not at the federal
government generally. "Congress shall make no law..." What if President
Bush issued an executive order declaring that the Judeo-Christian faith is
the national religion of American government? What would the Supreme
Court
do? The First Amendment is clear: it limits only the power of Congress.
It does not restrict actions by the President or the Supreme Court. Could
the Supreme Court itself pronounce that the Christian faith or the
Judeo-Christian faith is the national religion of America. Absolutely!
In
fact, in 1892, over one century after the Bill of Rights that created the
illusory "wall between church and state" was adopted, the Supreme Court in
its Church of the Holy Trinity v. United States stated, "Our laws and
institutions must necessarily be based upon and embody the teachings of
The
Redeemer of mankind. It is impossible that it should be otherwise, and in
this sense and to this extent our civilization and our institutions are
emphatically Christian"
If the First Amendment was never intended to restrict state government
power, then how was this amendment ever construed as limiting the power
of
state governments -- particularly considering that state governments had
the
power to establish state churches after the Constitution and the Bill of
Rights were adopted?
The judicial flim-flam for this fraud is called "incorporation." It
refers
to the Supreme Court's determination that the Fourteenth Amendment to the
Constitution "incorporates" most of the Bill of Rights into state
governments. The Fourteenth Amendments prohibits state governments from
denying anyone their life, liberty or property without due process of law
and requires that state governments give each person within the state
equal
protection of the laws.
Was this what Congress and state legislatures intended when they enacted
the
Fourteenth Amendment? No -- not only did those men who passed this
amendment not intend that incorporation, but the Supreme Court itself has
specifically held that the purpose for the Fourteenth Amendment -- like
the
Thirteenth Amendment and Fifteenth Amendment -- was to protect recently
emancipated slaves in the South.
And it long used this reasoning to refuse to extend the protections of
Bill
of Rights to state government actions. In 1925, the Supreme Court rejected
the argument that the Fourteenth Amendment "incorporated" the protections
of
freedom of speech in the Bill of Rights to state governments, but then
magically discovered that this federal protections were incorporated in a
1931 decision. In 1940 and then again in 1947 the Supreme Court
determined
that the establishment provisions of the First Amendment did not apply to
the states, but then reversed itself in 1948.
Why? Was it because the citizens of the various states had no other
rights
except those in the Bill of Rights? No. In fact, the various rights
which
we rightly consider indispensable to a free nation were first granted to
Americans by state governments, not the federal government.
State constitutions did not include these rights as "amendments" because
these rights were spelled out in the original state constitutions
themselves. State governments have proven better, not worse, protectors
of
individual liberties than the federal government.
Was it because the threat of established religion had proven so dangerous
to
the modern world? In 1948, precisely the opposite argument could be made.
It is now obvious, from the example of those decent and tolerant nations
which have formally established a particular Christian denomination as the
state religion, that the horrors of holocausts, gulags and persecution
were
not caused by established churches in nations.
Was it because state governments were threatening to create some sort of
theocracies? No. More than a century after state governments had
voluntarily -- without any pressure from any of the branches of the
federal
government -- ended established state churches, there was virtually no
sentiment to make non-denominational New Hampshire into a
Congregationalist
state.
The real cause is as simple as it is awful: Leftists loath the concept of
a
Blessed Creator of the Universe. No one, no one at all, may be superior
to
the ideology of man. This Deiphobia is the salient fact of all Leftists:
Stalin, Hitler, Castro, Mao, Mussolini and every other thug on the radical
Left recoils in horror at the image of a Lord of the Universe.
Ironically, the very purging of religion from state governments hurt,
rather
than helped, those religious minorities whom it was ostensibly intended to
protect. When each state is allowed to approach religion in its own way,
then people faithful to one region can choose to live in a particular
state
or region or city.
The Mormon migration to the Rocky Mountains insured that Utah was not
hateful toward Mormons. Jewish immigration to New York and other big cites
insured that these state governments were not anti-Semitic or hostile
toward
Judaism. Catholics immigrants and voters -- Irish, Italian and Polish
voters, among others -- made anti-Catholic bigotry political poison.
The consequences of federalizing religion and government insures that the
spirit of toleration which naturally flowed from each state retaining
authority over these issues and each citizen having the power to move from
state to state will become testy, tense and, perhaps, totalitarian.
As bad as the federalization of this issue has been, the judicialization
of
the issue is worse. The First Amendment addresses what Congress may do.
When the Fourteenth Amendment was adopted -- that very hook used by
Leftists
to bring the unnecessary and redundant protections of the Bill of Rights
into state government -- does the Fourteenth Amendment give any inkling of
how the federal government is supposed to implement this amendment?
Yes, it does. Section Five says exactly how the Fourteenth Amendment is
supposed to be implemented, and it says: "Congress shall have the power,
by
appropriate legislation, to enforce the provisions of this article."
Here is a novel concept: why not have Congress, and not the Supreme
Court,
determine how to enforce the provisions of the Fourteenth Amendment? When
the Constitution, when the Billl of Rights, when the Fourteenth Amendment
were adopted, the American people presumed that Congress -- who has the
exclusive authority under the Constitution to make laws -- might...make
laws!
What if Congress passed a law, pursuant to the power which the Fourteenth
Amendment places in Congress alone, that allows reasonable, clear,
tolerant
and respected policies toward religion and government? To some people,
that
would be a nightmare. To other people -- to all of us serfs -- it would
be
liberation.
--
"The Declaration of Independence... [is the] declaratory charter of our
rights, and the rights of man."
-- Thomas Jefferson (1743-1826), 3rd President of the United States
(1801-1809)
.
