Bryan Fischer
First Amendment, Part 2: A restraint on Congress alone
By Bryan Fischer
As I wrote in my first column on the subject of the correct interpretation and application of the First Amendment, it is incumbent upon us to ascertain as nearly as possible what the Founding Fathers meant when they carefully crafted the language of the First Amendment, both with respect to the Establishment clause and the Free Exercise clause. Returning to a clear understanding of their intent is the only possible way to chart a navigable path into our future. Laying out a clear and unambiguous understanding of those clauses is the purpose of this series of columns.
We must begin with the very first word of the First Amendment — "Congress shall make no law..." What has been almost entirely lost in all the litigation surrounding the First Amendment is that the Founding Fathers intended it as a restraint on Congress and Congress alone.
Quite simply what this means is that Congress and Congress alone can violate the First Amendment. It is simply impossible for a president, a state government, a governor, a mayor or city council, a school, a principal, a teacher, or a student to violate the First Amendment. It was never intended to apply to them at all. (I'll deal with the so-called "Incorporation Doctrine" in a subsequent column.)
The Bill of Rights was clearly intended by the Framers to be a restraint on the federal government and the federal government alone. As the Tenth Amendment makes clear, any authority not expressly granted to the central government by the Constitution itself is the exclusive province of the states and the people.
Thus it is entirely inappropriate for the First Amendment to be used to restrain prayer and Bible reading in schools, for instance. What happens in schools, cities, and states is properly a matter of state constitution, state law and institutional policy, not the federal constitution. Along that path lies true religious freedom.
Thomas Jefferson clearly understood that most religious liberty matters were not matters for the central government to decide. Said Jefferson in his second inaugural address, "In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government." Religious exercises were to be left "under the direction and discipline of state and church authorities."
The bottom line for Jefferson was that the federal government — which of course must include the federal judiciary, up to and including the U.S. Supreme Court — has no business meddling with the free exercise of religion in the individual states.
A proper understanding of the First Amendment then, would make it an egregious and unconstitutional thing for the Supreme Court in Washington, D.C. to dictate policy regarding prayer and Bible reading in local public schools, or to interfere with decisions regarding the public posting of the Ten Commandments.
We've witnessed an example of this judicial overreach in my hometown, in a case involving the Boise Rescue Mission. The Rescue Mission leases a building from the city of Boise and operates a homeless shelter for men there. It receives not one single dime of taxpayer funding.
Last week, the 9th Circuit Court of Appeals ruled that, because the city owns the building, the Rescue Mission is not allowed to offer even voluntary worship services for its guests. In other words, the court ruled guests cannot attend a chapel service even if they want to. Even voluntary participation in religious exercises has been ruled "unconstitutional" by a federal court.
But if we understand the First Amendment, what kind of services the Boise Rescue Mission offers is none of the central government's business.
Such decisions are properly matters for city officials and Rescue Mission leaders to decide. Prayer and Bible reading in schools are properly matters for state authorities, boards of education, and the patrons of local school districts to decide. In fact, the federal judiciary itself is in violation of the Constitution when it presumes to interfere with the free exercise of religion in states, communities, and school districts.
Next time: the Establishment clause
© Bryan Fischer
As I wrote in my first column on the subject of the correct interpretation and application of the First Amendment, it is incumbent upon us to ascertain as nearly as possible what the Founding Fathers meant when they carefully crafted the language of the First Amendment, both with respect to the Establishment clause and the Free Exercise clause. Returning to a clear understanding of their intent is the only possible way to chart a navigable path into our future. Laying out a clear and unambiguous understanding of those clauses is the purpose of this series of columns.
We must begin with the very first word of the First Amendment — "Congress shall make no law..." What has been almost entirely lost in all the litigation surrounding the First Amendment is that the Founding Fathers intended it as a restraint on Congress and Congress alone.
Quite simply what this means is that Congress and Congress alone can violate the First Amendment. It is simply impossible for a president, a state government, a governor, a mayor or city council, a school, a principal, a teacher, or a student to violate the First Amendment. It was never intended to apply to them at all. (I'll deal with the so-called "Incorporation Doctrine" in a subsequent column.)
The Bill of Rights was clearly intended by the Framers to be a restraint on the federal government and the federal government alone. As the Tenth Amendment makes clear, any authority not expressly granted to the central government by the Constitution itself is the exclusive province of the states and the people.
Thus it is entirely inappropriate for the First Amendment to be used to restrain prayer and Bible reading in schools, for instance. What happens in schools, cities, and states is properly a matter of state constitution, state law and institutional policy, not the federal constitution. Along that path lies true religious freedom.
Thomas Jefferson clearly understood that most religious liberty matters were not matters for the central government to decide. Said Jefferson in his second inaugural address, "In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government." Religious exercises were to be left "under the direction and discipline of state and church authorities."
The bottom line for Jefferson was that the federal government — which of course must include the federal judiciary, up to and including the U.S. Supreme Court — has no business meddling with the free exercise of religion in the individual states.
A proper understanding of the First Amendment then, would make it an egregious and unconstitutional thing for the Supreme Court in Washington, D.C. to dictate policy regarding prayer and Bible reading in local public schools, or to interfere with decisions regarding the public posting of the Ten Commandments.
We've witnessed an example of this judicial overreach in my hometown, in a case involving the Boise Rescue Mission. The Rescue Mission leases a building from the city of Boise and operates a homeless shelter for men there. It receives not one single dime of taxpayer funding.
Last week, the 9th Circuit Court of Appeals ruled that, because the city owns the building, the Rescue Mission is not allowed to offer even voluntary worship services for its guests. In other words, the court ruled guests cannot attend a chapel service even if they want to. Even voluntary participation in religious exercises has been ruled "unconstitutional" by a federal court.
But if we understand the First Amendment, what kind of services the Boise Rescue Mission offers is none of the central government's business.
Such decisions are properly matters for city officials and Rescue Mission leaders to decide. Prayer and Bible reading in schools are properly matters for state authorities, boards of education, and the patrons of local school districts to decide. In fact, the federal judiciary itself is in violation of the Constitution when it presumes to interfere with the free exercise of religion in states, communities, and school districts.
Next time: the Establishment clause
© Bryan Fischer
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