Constitutionally Speaking: We’ve Got It All Wrong!

Bill of RightsOK, I admit. That’s just a fun, “grab-your-attention” kind of headline.

But it’s not far from the real truth. At least for many of us U. S. Americans.

The first amendment protection of free speech, and more specifically the part about freedom of religion was the central part of an interesting discussion the other day.

It began innocently enough with me overhearing a conversation about how the Constitution might be applied in a case regarding State versus Federal powers. The Constitution was written to limit the Federal government’s power over the People, and also over the individual States’ governments.

That’s not very well understood today, by my reckoning.

Back to the scenario that was unfolding. One party was trying to suppose what outlandish bill might be passed by a state legislation, which, in context might have had something to do with religious activities, perhaps in schools. The other party suggested that perhaps the bill might try to instate mandatory school prayer. At this, the first party scoffed, rigidly stating that the Constitution would clearly prohibit such a thing. To which the second party responded—though backing off, slightly—that it might be possible at the state level. Party One maintained his unyielding stance that it was a definite violation of the Constitution to require prayer in a public school.

So, I thought, Actually, the second guy is kind of right—though, no state would ever require such a thing—that the states are free to pass such bills and laws, if they so choose. The federal government can not interfere with this if a state would choose to do so.

This is where I decided to join the conversation.

At first, Party One stuck to the, uh, “party line” of zero allowance for anything which could be seen as religious being mandated by the states, because the Constitution prohibits such a possibility. I maintained that while I thought that was an awful idea that would never even be attempted, it was not unconstitutional.

Let’s examine the First Amendment:

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.

That’s it. Congress shall make no law regarding the establishment of religion, or prohibit the free exercise thereof. The only other mention of religion in the Constitution is that there would be no “religious test” for becoming a congressman.

Today we interpret that one sentence above to mean that any public institution, office, official, or representative—any entity with any connection to any level of government—can not in any way espouse, promote, endorse, or engage in any activity which might be construed as “religious”.

But that’s not what it says at all, really.

I’m getting off track here. We can revisit the First Amendment in tomorrow’s post. Let’s stick to the topic: Federal vs. State powers.

Specifically, can the Federal government overrule a State government’s law or proclamation, or any such legislation intended for its citizens?

Thomas Jefferson is an interesting example here. When he was Governor of the State of Virginia, he called for a day of thanksgiving and prayer on December 9, 1779, saying:

“I do therefore by authority from the General Assembly issue this my proclamation, hereby appointing Thursday the 9th of December next, a day of publick and solemn Thanksgiving and Prayer to Almighty God, earnestly recommending that all the good people of this commonwealth, to set apart the day for those said purposes… (signed) Thomas Jefferson” [ref]

But as the third President of the United States, he said the following on the same (similar) subject:

“I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises…Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. …But it is only proposed that I should recommend, not prescribe a day of fasting and prayer. That is, that I should indirectly assume to the United States an authority over religious exercises, which the Constitution has directly precluded them from…civil powers alone have been given to the President of the United States and no authority to direct the religious exercises of his constituents.” [ref]

Fascinating, huh? Doesn’t this seem to be two different ideas? Was Jefferson under duress when, as Governor, he wrote and signed that very religious-sounding proclamation of a day of Thanksgiving and Prayer for his state (the Commonwealth of Virginia)? Or did he just change his mind? I should think not the latter because he was the author of the Statute of Virginia for religious freedom, which is one of the three lifetime achievements he wanted inscribed on his gravestone at Monticello. (A list which conspicuously does not include being President of the United States.)

Well, as it turns out, that’s not all there was to it.

I dug a bit more, and read a bit more, and found the full text for that response to Samuel Miller, quoted incompletely on the Monticello website (and above). It would seem that context would give us a much more clear picture of why Mr. Jefferson did not think it was his place (nor that of the “General Government”) to be “intermeddling with religious institutions”.

I know this is a bit long already, but I’d really like for you to read the following in its entirety.

Washington, Jan. 23, 08

—I have duly received your favor of the 18th and am thankful to you for having written it, because it is more agreeable to prevent than to refuse what I do not think myself authorized to comply with. I consider the government of the US. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U. S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority. But it is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U. S. an authority over religious exercises which the Constitution has directly precluded them from. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion. And does the change in the nature of the penalty make the recommendation the less a law of conduct for those to whom it is directed? I do not believe it is for the interest of religion to invite the civil magistrate to direct it’s exercises, it’s discipline, or it’s doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting & prayer are religious exercises. The enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, & the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it.

I am aware that the practice of my predecessors may be quoted. But I have ever believed that the example of state executives led to the assumption of that authority by the general government, without due examination, which would have discovered that what might be a right in a state government, was a violation of that right when assumed by another. Be this as it may, every one must act according to the dictates of his own reason, & mine tells me that civil powers alone have been given to the President of the US. and no authority to direct the religious exercises of his constituents.

I again express my satisfaction that you have been so good as to give me an opportunity of explaining myself in a private letter, in which I could give my reasons more in detail than might have been done in a public answer: and I pray you to accept the assurances of my high esteem & respect. (Emphasis mine.)

Jefferson very clearly stated that (1) religious freedom, and the power to hold that, belonged with the people (and religious institutions) and the Constitution “deposited it” there, (2) that states “might” have the right to declare a public day of thanksgiving and prayer, but that (3) the general (federal) government, most certainly does not. So says the Constitution. (As well as one of the most ardent supporters of religious liberty.)

The main point for this first installment of Constitutionally Speaking is that the Constitution does not grant the Federal government supreme power. That is not and never was the intent. The intent of the Constitutional Convention of 1787 was to grant some limited power to a federal governement that represented all the individual States as the United States of America. It was a compact created by the People, and the authority remained with the People and their State governments and representatives.

We have lost that today, in my opinion. It seems more that we view the power residing in Washington, and doled out as those in charge from there see fit.

That’s not how our government is supposed to function, however:

James Madison said as much in Federalist No. 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” [ref]

That does not sound like a government over the People, does it?

No. And that’s where we came from, and who we still are.

It’s essential that we have a proper understanding of our founding documents, but too often we just think we do. It is more common to find that someone has a second- or third-hand understanding of American governement, learned through a long-ago high school history course, or perhaps (and far worse) learned from some partisan commentator on talk radio or the internet. (And even worse than that… on TV!)

Original sources are the only way we can truly know history. Thankfully, we have those original sources very readily available to us. It may take more time and effort, but it’s definitely worth it, and will preserve the freedoms we have going forward, generation to generation.

Tomorrow I want to explore the First Amendment more in-depth. I hope you’ll join me! And please do add your thoughts in the comments below.

AND, lastly, and paramount: please find, purchase, own, and read the original documents! (Many of them are free in digital version!)

See you here tomorrow!

Constitutionally Speaking: Freedom of Religion (not FROM religion)

Freedom From Religion? Or, Freedom OF ReligionToday 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.

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!

Constitutionally Speaking: The States Have It (as do the People)

Thomas JeffersonIf you are a fan of history, and perhaps also an American citizen—both of which I am—then I hope you’ve enjoyed this look at our Constitution, and the Bill of Rights, as seen through the eyes, words, and actions of the people who constructed it. It’s very interesting to see where we’ve come from, how it began, and even the direction we are going.

I am certainly no authority on this subject, but I’ve spent a good amount of time (even as I wrote these articles) studying original sources and commentaries upon those. I would definitely encourage you to do the same if you are made curious by what I’ve written, or find that you wholeheartedly disagree!

Regarding the pursuit of truth, even in regards to theology and religion, Thomas Jefferson advised:

“Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a god; because, if there be one, he must more approve the homage of reason, than that of blindfolded fear.”

It’s up to each of us to learn what we believe, and why we believe it. And never be afraid to question it.

In this series, we’ve looked at the initial question—whether or not the federal government has the authority to limit what laws an individual State can or can not pass—as well, we have considered whether the Bill of Rights grants rights, or protects them.

And now we come to the conclusion.

The central point to the current Constitutionally Speaking series (I, II, III) has been to understand the original intent of the Constitution. When it was written, the framers hoped to grant very limited powers to the federal government, while the states would each retain “numerous and indefinite” powers.

James Madison said as much in Federalist No. 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” [ref]

In the first part of this series, I quoted Thomas Jefferson several times as I feel that he was a great example of this strong conviction that the Federal government should not have powers over the States, other than any specifically granted to it. Jefferson was an anti-federalist: he was opposed to a strong central government. The Federalists were the framers of the Constitution (thus the Federalist Papers, explaining the reasoning behind the Constitution) but one of the hallmarks of the document was that all members of the Constitutional Convention made every effort to come to complete agreement—Federalist and Anti-Federalist alike; consensus, rather than just a majority vote. Thus was born a limited, central (Federal, general) government, designed to function as the representative of all the states in four areas: common defense, preservation of peace (domestic and foreign), regulation of domestic (interstate) and foreign commerce, and diplomacy with other nations. [ref]

In this last edition of this series, I have one last Jefferson quote for you. This one is from The Kentucky Resolutions of 1798, when Kentucky successfully brought a grievance against the General Government for overstepping its authority:

That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. [ref]

And all of that is to say: the States, and the People, still hold ultimate, final, and also primary power.

The Constitution was written to bring together several autonomous states under one “general government”. It’s purpose was to spell out the compact between those states, and those people, to be one entity—one people.

Somewhere along the way (many places, actually) we moved from a place where we were many states joined as one (e pluribis unum?) to one very large “state”, commanding and governing from the central head: Washington.

That’s not what we were designed to be. The Constitution allows for, or more accurately, attempts to preserve a government closer to the people. Local and state governments, comprised of neighbors. True representatives. (We are not a democracy. The United States federal government is a federal republic. It is a group of representatives from other states/entities.)

This was fundamentally lost during the Civil War. It was, in fact, the primary cause and reason for the Civil War. The south, as wrong as they were about slavery, believed strongly in states rights and autonomy. The north believed more closely what the Federalists believed: a strong central government was essential to a strong Union. The north was victorious (which was good for preserving our union, and of course for finally abolishing slavery) and thus was cemented the United States of America in its current form.

Prior the the Civil War, the country was refered to in the plural: “The United States are…” Following the War, that phrase became, “The United States is…” [ref] Hear the difference? We are no longer one from many, we are just one.

When one examines the way our country was first established, and the intended separation of powers, it’s rather fascinating to see how much we’ve changed over time. It seems now rather commonplace to think that Washington or the federal government is our supreme authority. As we’ve seen, power was originally supposed to be remain more with the state and local governments—and of course, the People. This allows for a much more diverse—and free?—people overall.

But, as the saying goes, “Give an inch, and they’ll take a mile.”

When we first saw the need as a nation to cede some of our autonomy to a central government in order to exist and survive as a society or a nation, we allowed for the possibility of ceding more and more power to that created entity. Our Constitution provides amazing checks and balances, and separations of power, and multiple devices for ensuring, as best as possible, that the power remains first with the People. And yet today, the People generally operate as though the government has primary power and authority, which it then grants to the People (generally bypassing the States entirely).

This has occurred, in my opinion, simply as a result of that first “foot in the door” of drafting and ratifying the Constitution—great as that document may be. But it has progressed thanks to the desire within Man’s spirit to be led, to have a King. (See here, and here for more on that.)

Also helping us toward a view of our federal government as the more centralized authority are several Supreme Court decisions as well as constitutional amendments throughout the generations.

The Supremacy Clause (Article VI, Clause 2) of the Constitution has often been interpreted to grant primacy to Federal law (power) when any conflict with State law might exist. The First Amendment has often triggered the use of this Clause to determine where the authority lies, as far back as cases in 1803. Subsequent cases and rulings [example], as well as the Fourteenth Amendment, followed by President Franklin Delano Roosevelt’s New Deal [ref], have all led us to a place where we see the Federal government as supreme, and continue to move it towards greater power, primacy and supremacy.

At some point we might discover that we have ceded too much power.

For now, we Americans are definitely one of the most free people and civilizations of all time. Our Constitution is still the basis for preserving and protecting that freedom. We are a people governed by Rule of Law, not a privileged class or other type of nobility. This ensures the opportunity of fairness and equal justice for all.

Many attempts are made to undermine that. (Lust for power is a strong force, as is the desire for comfort and safety.) Benjamin Franklin was asked, “Well Doctor what have we got—a republic or a monarchy?” His reply? “A republic, if you can keep it.” He is also credited with saying, “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

Freedom is our God-given right; unalienable. However, to coexist with others as a nation, as a republic—the United States of America—we must work to preserve that freedom. Knowledge of the original intent is essential, as well as a foundation in the understanding that neither we nor any government, whether of our own construct or forced upon us are ultimately in authority over us. God the Creator is our supreme authority, and one reason that our republic has survived is that He and the ways of his Kingdom were central to the worldview of the Framers.

But that’s for another series… 🙂

I encourage you to find the original sources mentioned or linked here. Own a copy if possible. Read, understand, and pass along.

And in that way, you can be part of perserving our liberties, from generation to generation.