Bryan Fischer
McCarthy, Jefferson agree: states can regulate religious expression
By Bryan Fischer
August 17, 2011

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

Andy McCarthy is an experienced attorney, a former prosecutor with the DOJ who got lengthy prison terms for the Muslims who tried to blow up the World Trade Center in 1993. He's hardly a lightweight when it comes to matters of the law, the Constitution and the danger to the West posed by Islam itself.

One of the issues that directly pertains to the issue of containing the spread of Islam in America is the extent to which government can legitimately and constitutionally restrain it.

Some argue that the First Amendment, even though it only mentions Congress ("Congress shall make no law...") restrains every branch of government at every level from any kind of regulation of religious activity.

However, Andy McCarthy argues in Saturday's National Review Online that this view represents a judicially-distorted view of the First Amendment. He quotes Jefferson to the effect that, while the First Amendment does tie the hands of the federal government, it contains no restraints on what state governments may do in matters of religious expression.

"Let's put health care to the side. Say a governor and state legislature had enacted a scheme to establish a state religion, or at least to advantage one religion over others. One could argue that this was — or was not — unwise policy. It certainly seems as hostile to liberty as the idea of coercing a citizen to buy a commodity as a condition of citizenship. Yet, for the first 160 years of governance under the federal constitution, there would have been nothing objectionable about it under U.S. law. Until the Supreme Court suddenly decided to 'incorporate' the Establishment Clause against the states, the First Amendment was no bar. The federal government, as Jefferson put it, was 'interdicted from intermeddling' in matters of religion — religion was an issue left to the states and their citizens, and we trusted them to handle it responsibly." (Emphasis mine.)

If Jefferson and McCarthy are right, then states have considerable latitude under the Constitution as given to us by the Founders (not the Constitution as disfigured beyond recognition by activist judges) to regulate the expression of religion within their borders.

States like Virginia, whose founders explicitly wanted to protect the free exercise of religion for Muslims, would be free to do so. Other states would not be bound by what Virginia decided to do, and would have the freedom to regulate Islam in any way they saw fit to preserve public peace and order.

States, according to the understanding expressed by Jefferson and McCarthy, would thus be constitutionally free to restrict the building of new mosques, which they might be inclined to do on the grounds that 95.3% of all Muslims who attend mosque on a weekly basis go to one that distributes literature calling for the violent overthrow of the United States in the name of Allah. They would be free to ban Muslim Student Associations on college campuses in their state, which they might be inclined to do on the grounds that MSAs are offshoots of the Muslim Brotherhood and hence dedicated to "eliminating and destroying the Western civilization from within" by "'sabotaging' its miserable house by their hands and the hands of the believers so that it is eliminated and God's religion is made victorious over all other religions."

And under any construction, since Congress constitutionally controls immigration and is free to regulate it in whatever way it wants, Congress is free to restrict the immigration of Muslims to the U.S., which it might be inclined to do on the grounds that Islam teaches it followers to kill us once they get here. The First Amendment under any construction deals with constitutional rights of U.S. citizens, and since Muslim would-be immigrants are not on our soil and are not U.S. citizens, that would simply be no barrier. Immigration is a privilege, not a right.

And since Congress likewise is entrusted by the Constitution with developing the rules and regulations for the military, Congress is certainly free to restrict enlistment in any way it chooses, including banning those who believe in an ideology that directs them to kill their fellow American soldiers. Serving in the United States military is likewise a privilege, not a right.

If Jefferson and McCarthy are right, then the solution to our challenges in dealing with Islam may indeed be found in the Constitution. Not the one mangled by activist courts, but the one given to us by the Founders. Perhaps the Founders and our founding document are even wiser than we thought.

(Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)


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