Does the First Amendment Mean What It Says?

The first amendment to the United States Constitution reads as follows:

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; of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I was considering the arguments about separation of church and state the other day and thought it might be helpful to review what the first amendment actually said. I know this may seem a little simplistic but the amendment specifically prohibits Congress from passing a law establishing an official religion for the country or a law that prevents people from practicing their religion preference. The amendment specifically does not mention the executive or judicial branches, or anyone else, for that matter. Of course, one must remember that the founders would not recognize the current federal government. The original theory was that the Congress would basically run the country in times of peace but the President had large powers for emergency situations and war because the Congress worked too deliberately in a crisis situation. George Washington felt he would only veto a bill if he believed that the law violated the Constitution. Today, Congress sits on its hands and even is currently trying to pass laws ceding power to the executive branch. I find that pretty interesting since when George W. Bush was President, there was much gnashing of teeth about too much executive power from Democrats but with Barrack Obama as President, Democrats are giving unilateral power to the Treasury Department, for example.

The founding fathers were acutely aware of the history of Europe and the Middle East where untold millions had died as a result of religious wars over the centuries. In Britain alone, the conflict between the Catholic Church and the Protestants had caused war, government upheaval and tension for centuries. Therefore, in order to avoid those types of conflicts, no official religion for the country would ever be established. Some modern advocates try to make it sound like the founders were against religion. It only takes even a cursory reading of any of the writings of most of the founders to trash that view. The vast majority of the founders were devoted to their religion and used it to guide their actions and values routinely. To claim otherwise is fiction.

People in line with groups like the American Civil Liberties Union (ACLU) have taken the position that anything government in the same area code as anything religious is a violation of the Constitution, specifically the first amendment. But is it? Since the federal government intrudes into almost every area of citizen’s lives, does that mean that religion has no place in the modern United States? Or, does the Constitution mean what it says?

Let’s look at an example for the sake of argument:

There has been a monument to memorialize Americans who lost their lives in military service in the Mojave National Preserve since 1934. It is a cross no more than about eight feet tall. It can be seen from a few hundred yards. A case recently went to the United States Supreme Court to decide whether it was allowed on public lands. I suppose it is redundant to point out that no one seemed to mind for about sixty-six years. Looking back at the first amendment, did Congress have anything to do with this monument? Did they make a law establishing it? The memorial was originally placed by the Veterans of Foreign Wars which is not Congress, and, as an organization, is a heck of a lot more respected and popular. So, since 1) Congress was not involved, and 2) no law was made, and 3) no prohibition on the free exercise of religion was established, how does the mere presence of the memorial violate the first amendment? None of the specific prohibitions listed in the first amendment apply. The case is, of course, a lot more complicated than it appears. There is question of standing for the plaintiff, there is a question about land transfer and a number of other issues including that the government refused to allow a Buddhist monument in the same area in 1999, stating they were going to remove the cross. Notwithstanding all the complexities, the plaintiff in the suit argues that the mere presence of any religious symbol on government property establishes an official religion for the nation.

Using that same premise, a Star of David or a cross on a headstone in a government cemetery is an endorsement of religion. If the mere presence of a religious symbol establishes religion, then there certainly are a number of established religions in the country.

It comes down to the same argument all over again: Can judges interpret the law any way they want, or does the Constitution mean what is written? If the liberal former view is true, they Bill of Rights would have been a lot easier to write as one amendment, “Do whatever you want to” and courts could serve up the Law du Jour each day of the week.

Term Limits and Corruption in Politics

As I have watched the political landscape over my adult life, I have seen more and more of the ineffectiveness of the legislative branch. I am convinced that many of the problems which we all see regularly playing out on the evening news and the twenty-four hours news outlets could be avoided by term limits. I have written earlier on how the US Constitution was purposely developed in the way that is was to make the passing of new law and the changing of existing law difficult so as to not be subject to whim and short term fads and trends. What we see now is not what the founders intended.

The founding fathers embraced the concept of the citizen-legislator. This is when a person becomes successful in some private endeavor and then voluntarily leaves his vocation to temporarily serve in the government to try to better the state for all. The citizen-legislator does not join the government to advance his/her own interests but serves to improve the lot for the people. After a period of service, the citizen-legislator leaves government voluntarily to return to their vocation, content in the knowledge that they have served their country and that others will carry on in their stead. It is a way to pay back the country for the opportunities which allowed the person to become successful in the first place. It is not done for personal enrichment or glory, it is altruistic.

We have devolved to the lowest political scum, the career politician. The only goal of the career politician is to remain attached to the public teat for as long as possible. Those who are career politicians may have the public good at heart as a coincidence, but their primary goal is always to maintain their office and to consolidate their power. Let us examine some of the problems with the career politician.

Anyone who spends their entire life in public jobs has no idea how the overwhelming majority of people in the United States earn their living. I will use some examples throughout this discussion. How a very wealthy Senator who never held a job of consequence in his life (e.g., Edward Kennedy) claims to be champion of the working man amazes me. The idea of the citizen-legislator was to bring people with real-world experience and knowledge to the legislature so that people who understood commerce would craft laws about commerce. People who understood the effects of taxes would write laws controlling taxation. People who held jobs would create law which encouraged job creation. People like Bill Clinton who never had a job not paid for by tax payers are stereotypical of what the founding fathers did not want. The Civil Service, not elected office, is the place for people who want to make a career in government.

There is no reason to consolidate power into a kingdom if you know you will be leaving office and will no longer be King. Lobbyists pay off the more senior and more powerful legislators precisely because they know that those people will never leave office voluntarily. You might have noted that every time you see a Representative or Senator charged with misconduct or ethical violations, it is always some one who has been in Congress a long time (Stevens, Frank, Dodd, Rostenkowski, Hastert, Rangle, Jefferson, etc.) That is because it makes no sense to bribe someone who doesn’t hold power to promote your agenda. The saying that “absolute power corrupts absolutely” could have been the motto of the US Congress. Quoting Alexander Hamilton in Federalist number six, "Men of this class, whether the favourites of a King or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage, or personal gratification."

The career politicians always argue that the people have a right to vote whoever they want to into power for as long as they want. Of course, the people don’t know about the many back room deals, gerrymandering and bribes which go into continuously getting those same politicians re-elected. That argument might work if there was a level playing field but there clearly is not.

The career politicians also argue what a wonderful job they have been doing for their constituents. While this may be true and many unnecessary tax-funded projects may have been brought back to their political contributors in their home districts, the arrogance of the argument is startling. If you are, for example, a Senator from New York, will you honestly argue that there is no one else in a state of millions of people who could do a good job as Senator? Does Ted Stevens have to remain a Senator (and crook, apparently) for thirty six years? Is there no one else in the State of Alaska who could do the job? He stayed there for that long and you see where it ended up. Joe Biden has been a Senator for twenty eight years and is now actively seeking to have his son taken the seat from him. Is that an elected office or a kingdom? The King is now Vice President; long live the new King, son of the old King.

My suggestion is that when the amendment restricting the terms for the Presidency to two was passed, it didn’t go far enough. That is not unusual because Congress almost always includes a codicil in every law they pass which states that the law does not apply to Congress. I think that five terms (ten years) is enough time for any representative to do some good then go home. Two terms (twelve years) is enough for a Senator. If you can’t get anything done in twelve years, you need to be replaced on principle. A system like that would set up a staggered rotation, eight years for President, ten years for Representatives, and twelve years for Senators. The idea of Robert Byrd tottering around the Senate, barely able to speak and stay awake, is ridiculous. By the way, if you want to see how absolute power does absolutely corrupt, go see Robert Byrd in West Virginia. You take the Robert Byrd Highway across the Robert Byrd Bridge and the Robert Byrd Dam, turn onto Robert Byrd Parkway past Robert Byrd Park, Robert Byrd Elementary, and Robert Byrd High School until you find the Robert Byrd Federal Building. There may be something in West Virginia not named after Robert Byrd but I am not sure what that might be.

Judical Activism

In all of the media frenzy over non-issues and personalities in the last national election, the most lasting historical effect of any President's administration was mostly overlooked. The choice of Justices to the US Supreme Court and Judges to the Circuit Courts of Appeal and the Federal District Courts have a profound effect on the lives of the population of the country. While the issue was largely overlooked, judicial activism is a constant danger to the make up of the government. It amounts to the judicial branch subverting the very document they are sworn to uphold and interpret.

When the founding fathers of the United States designed the mechanics of the government, they made the passing and changing of law difficult. To people desiring changes in the law, it can be frustrating to watch the sniping and deliberations which go into the passage of legislation. It has been famously said that “no one should see how sausages or laws are created”. It seems inefficient and more difficult than it needs to be. That is not coincidence. It was designed to be that way from the beginning and it is very intentional. At the time that the ratification of the United States Constitution was being debated, there was a lot of wariness of a strong central government and allowing the central government too much power. After all, the country had just fought a long and bloody war to get out from under a too powerful government which was not responsive to the needs of the people.

It was precisely because of the suspicion that central government which was too powerful would be subject to trends and to shifting political winds that the constitution was written the way it was. It takes deliberations in both the House of Representatives and the Senate separately, and then agreement between the two bodies before the bill being considered is even sent to the President. All of those steps were meant to ensure that fads and short-sighted trends were not constantly causing changes in law which were fickle and subject to whim. Political preferences in the United States are cyclical and the founding fathers knew that in order to have stability, the law must have some consistency.

Keeping those ideas in mind, the changes which are, by design, most difficult to make are changes in the constitution itself. A change to the United States Constitution requires involvement of all of the state governments and two-thirds of those governments must ratify the amendment. This is a Herculean task by any measurement. It is supposed to be. All of the articles of the constitution were hammered out in long debate and compromise in which all sides strenuously argued the merits. It is not something to be casually changed on a whim.

The constitution specifically delegates the power to create law to the legislative branch. The legislative branch is designed to be most representative of the governed population. Any idea without merit will not get through the scrutiny of the elected legislators because in short order they will be facing those same people asking to be re-elected. The country tends to be reluctant to wholesale radical change and so these processes allow progress to be generally very methodical with some notable exceptions. By definition, every constitutional amendment is a big change.

Liberal political thinkers got frustrated by their inability to pass legislation that agreed with their political views so they found a way to get around the constitution. They found activist judges. The idea is that they can find a judge who agrees with whatever interpretation of the law they want codified and they argue a case in front of the judge. The judge then rules that the law is only constitutional if it is rewritten the way the judge wants it. In that way, the legislature becomes powerless to change or adapt the law in any way other than the judge wants it.

There are a number of problems with this approach. The first is that the legislative branch is delegated the authority to create law specifically because they are accountable to the people in open elections. Federal judges are political appointees who, except in cases of malfeasance or criminal conduct, are accountable to no one. The second problem is that case law from one area of the country can be used as precedent in another part of the country. This allows creative and radical decisions by rogue judges to spread like malignancies across the country. It is a well documented phenomenon that liberal lawyers "shop" cases around until they find a favorable federal judge and try the case in that district or circuit. The third problem is that an isolated federal judge making a decision creating law removes the entire deliberative process installed in the constitution specifically to prevent trendy and whimsical changes in federal law.

A constitution which constantly changes shape like an amoeba and adapts without deliberation and debate and the input of the legislatures is no constitution. There is no stability and no consistency and besmirches the system of government on which our country’s very existence is based. Judges who create law are not interpreting law, as the constitution intended and specifically states, they are pseudo-monarchs creating law without accountability. The American Revolution was fought to divest this country of just such a system of government.