Constitutionally Speaking: Freedom of Religion (not FROM religion)

Estimated reading time: 7 minute(s)

Today we often think of the First Amendment as restricting all forms of any religion in the public forum; it being essential to our freedom of religion—that all may worship, or not worship, as they see fit, without being forced to do so by any government hand.

A simple reading of the actual amendment will clearly show that this was not its intent; rather it was included in the founding documents to allow unrestricted practice of any and all religion. So, the federal government can not say you can’t pray in schools. That’s the part we have backwards… it’s meant to allow greater freedom, not provide more restriction.

Let’s look at the Amendment again, focusing on the first sentence:

Amendment I

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.

Now, to the point of yesterday’s initial question: while a state would almost certainly never propose a bill mandating prayer in schools, a local, smaller community might? And the First Amendment protects them in that, at least, as I read it.

The words, “Congress shall establish no religion” do not prevent any religious symbol or words or ceremony from being present in any federal or state (or local) government event or edifice. So much the opposite. If the People want to express a religious belief or sentiment, they are protected in doing so by this First Amendment.

The biggest thing that so many of us have completely backwards in our general opinion of government today is where the power rests: with the People.

The federal government is granted very specific and limited powers by the Constitution. When the framers of the Constitution were determining the structure of our government, it was entirely without any “rights” specifically assigned to the People. That’s because, the government can not grant rights to the people.

Some argued that putting any rights in such a document implies that they do originate with the government, but in the end, the majority wanted to ensure that they were present in our foundational documents. The first ten amendments were added in 1791—two years after the ratification of the original Constitution in 1789. [ref]

James Madison warned against the idea of including a Bill of Rights in the Constitution thusly:

It has been accurately noted that bills of rights began as an agreement between a king and his subjects that limited the king’s powers in favor of privileges of his subjects; or in other words, they were a defense of the rights which had not been surrendered to the prince…

In this country the People surrender nothing, and since they retain everything, they have no need for a Bill of Rights. ‘We the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America’: this is a better recognition of popular rights than all the many truths which represent the bulk of our state bills of rights… Federalist No. 84

Again, the Constitution which established the US Federal government can not grant rights to its citizens, since it is the People in the first place who hold the rights, and grant any power at all to their federal representatives.

Each state and local community should be free to establish their own laws (or, to have fewer laws) without the federal constitution limiting that.

It is really very interesting—so fascinating—how our thinking about government has changed over the two hundred plus years since our founding, and yet, the Constitution is still in place, and still holds us together; protecting all of our rights, at least for now.

We’ve all heard and seen the stories about guns. One side wants to eliminate senseless killing by removing the weapon (through legislation and even, in some cases, by government force), while another fights to protect a right which was spelled out by these amendments. (Maybe the framers were on to something with this hesitation to list specific rights?) Often the anti-gun people will allow for gun ownership for hunting, but the Second Amendment was written—as was most all of the entire Constitution—to greatly limit the powers granted to the Federal government, and ensure that it remained with the People.

That really can’t be stated too often, nor too strongly.

An interesting side note here involves a post-Civil War amendment to the constitution, which has been the grounds for many Supreme Court ruling which would seem to reverse the initial intent of Madison and the other framers of the Constitution. I will discuss more of the States vs. Federal powers application tomorrow, including how much of that was greatly—perhaps “officially”—shifted following the Civil War.

It is essential to remember that the Bill of Rights does not establish rights of the People; rather, it calls out some specific rights which are not to be abridged, abrogated, or breached. The emphasis was and must always be on the rights being inherent to We the People, not granted by any government or authority other than our Creator.

Also, proper context is always important. From our modern perspective, we must reconsider the definition of “religion”.

Today we hear that word and think of world religions like Christianity (in all of its forms, as one), Islam, Buddhism, etc. However, at the time of its writing, the first amendment was speaking more toward the various Christian denominations present in the individual States of the Union. (Though, not to the exclusion of any religions other than Christianity.) The amendment states that Congress (federal) was prohibited from establishing any one religion, thereby restricting in any way the “free exercise” of religion by the peoples of the States, whom were of many different “religions”; meaning, denominations.

Today we are quick to sound the alarm if any government representative does or suggests anything that smells like religion. However, it’s probably more of an affront to the Constitution to restrict such things, including prayer in schools.

Mandating is definitely a step beyond allowing, and, fourteenth amendment precedent would probably rule in favor of individual States not having the authority to mandate school prayer on the grounds that it might appear to be “establishing” one “religion” over any others.

Such was not the original intent of the Constitution.

Tomorrow will conclude this series, looking more in-depth at the separation of powers between State and Federal governments, and how it has changed over the two centuries of our existence. It’s quite a striking contrast, and very interesting to see what factors have pushed us more toward a centralized, more powerful federal government, and one that grants rights to People, rather than the other way around, and how that affects the way we view and interact with our government today.

A straightforward reading of the First Amendment should lead one to conclude only one thing: it exists to preserve the extant, natural rights of the People; rights that were never, and are never to be breached by the government established by the Constitution: the US Federal Government.

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Note: The modernized version of the quote from Federalist No. 84 was taken from The Original Argument: The Federalists’ Case for the Constitution Adapted for the 21st Century., a book we highly recommend!