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.

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.

Judicial Activism and the Courts

I have become more and more interested in this subject recently after a number of court rulings, particularly by the United States Supreme Court. I have looked into several interesting decisions specifically because of the liberal use of the courts to establish law. My previous posting was about the danger of more liberal nominations after the next election should Barack Obama win the election and the Democrats control the Senate. This time let us look at a couple of specific cases.

The District of Columbia Gun Control Law (Heller versus DC)

Mr. Heller is a man who legally carries a gun during the performance of his job in Washington, DC. He is trained to use it and carries it when at work. The DC gun law denied Mr. Heller the right to possess a firearm at home despite his training and demonstrated ability to carry a gun safely. Mr. Heller sued based on the interpretation of the Second Amendment of the Constitution that the individual right to own guns for legitimate purposes is not to be infringed by state or municipal law. DC maintained that its interest in the protection of the citizens of DC was sufficient cause to pass the law. In a 5-4 ruling today, the US Supreme Court struck down the DC law, causing howls of liberal protest and celebration by conservatives. Justice Scalia wrote in the majority opinion that while the efficacy of protecting the citizenry by restricting gun ownership is debatable, the power of the court to contravene the Second Amendment is not debatable. Therefore, the Supreme Court has the power to review and interpret law but does NOT have the power to make law. It therefore follows that if the US Supreme Court does not hold this power, no lower court does.

The landmark case of Marbury vs Madison confirmed the idea of judicial review even though the concept had been informally in place earlier. In the Marbury case, Chief Justice John Marshall found that there was a conflict between the Constitution and the Judiciary Act of 1789. Since the Judiciary Act was a law passed by Congress, the question became whether Congress could legitimately pass a law which conflicted with the Constitution. Marshall wrote that law that conflicts with the Constitution is not law and therefore the Constitution always wins out. Since the Constitution is the highest law of the land and judges swear an oath to it, how can a judge issue a ruling in conflict with it? Marshall’s point was that there was no reason to have a Constitution if Congress never paid attention to it and passed laws in conflict with it.

One of the more interesting things which came out of this decision is how the four liberal justices (Souter, Stevens, Ginsburg, Breyer) all found a way to justify the law despite it being in conflict with the United States Constitution. The Canon of Constitutional Avoidance states that if an issue can be interpreted without causing a constitutional conflict, it should be interpreted that way. In this case, there was no way to avoid the conflict because the law directly conflicted with the Second Amendment despite any good intentions of the DC government.

Eminent Domain (Susette Kelo versus City of New London)

The concept of Eminent Domain has been around for a long time. The idea is that a government can seize property from an individual property owner for use to benefit the community at large. Per the Takings Clause of the Fifth Amendment, the property owner is compensated for the value of the property, though often not to their satisfaction. This has historically meant takings for uses like hospitals, transportation centers, public utilities and other obvious public welfare projects, usually tax-funded. For completeness, eminent domain does not only apply to real estate properties, it can be used by the government to seize military needs, trade secrets, patents and other intellectual properties. The difference in the Kelo case was that property was being taken from an individual to be used for a private venture for profit by other private investors, not the government. The government of New London argued that the improvements to the property would increase tax revenues and the business venture would be good for the citizens at large. Kelo argued the government had no right to seize property from an individual for another individual. The taking of property for profit subsequently made its way to the US Supreme Court.

The case was decided 5-4 in favor of City of New London setting off nationwide protest. The majority were the five liberal justices and Justice Anthony Kennedy. In opposing the ruling, Justice Scalia argued that ruling in favor of New London would eliminate the distinction between private and public property and that the only private property would be property the government was not interested in obtaining. After the decision, reaction was swift. Polls showed between 65-97% of people interviewed disagreed with the decision. President Bush issued an executive order banning similar eminent domain procedures by the federal government. More than forty states have enacted laws to prevent takings like the Kelo case. This is another case of the liberal US Supreme Court justices making law in conflict with the constitution. The Fifth Amendment specifically states “nor shall private property be taken for public use, without just compensation”. The liberal justices substitute “public purpose” for the actual phrase “public use”. This means that any wealthy business can have the local government condemn (take) anyone’s property solely with a promise to have a more successful business. This is clearly an example of liberalism in that the government is always smarter than its citizens and always knows what is best for individuals. This decision also preferentially gives advantage to the wealthy and powerful.

Both of these cases point out the need to avoid nominating judicial activists to the courts. President George W. Bush can be accused of a lot of things but he has certainly been a lot more successful in nominating Supreme Court justices who interpret rather than create law than either Presidents Eisenhower or Reagan.