Monte Kuligowski
Herman Cain got it right on the right to ban mosques
By Monte Kuligowski
July 25, 2011

A common assumption is that a national right of freedom of religion is afforded by the U.S. Constitution. Regarding the Ground Zero mosque, how many times have we heard that though the imam has the right to build it, maybe that wouldn't be the wisest decision? Speaking at the 2010 White House iftar dinner, Barack Obama didn't comment on the wisdom, but on the supposed right:

"But let me be clear. As a citizen, and as President, I believe that Muslims have the same right to practice their religion as everyone else in this country. And that includes the right to build a place of worship and a community center on private property in Lower Manhattan, in accordance with local laws and ordinances. This is America. And our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are. The writ of the Founders must endure."

Now enter Herman Cain in 2011. Regarding another controversial mosque proposal, this one in Tennessee, Mr. Cain recently expressed his view to a news person that localities may ban mosques. Here's how the AFP reports the story:

"Republican presidential hopeful Herman Cain on Sunday said US communities that want to ban mosques have a right to do so, as he backed opponents of a mosque being built in Tennessee.

'Islam is both a religion and a set of laws — Sharia laws. That's the difference between any one of our traditional religions where it's just about religious purposes,' Cain told Fox News Sunday.

Asked whether a community, like the one in Murfreesboro, Tennessee, should be able to 'ban a mosque,' Cain replied: 'Yes, they have the right to do that.'"

That's not a politically correct answer — but it's constitutionally correct.

First, the heretical statements and then, I'll explain: Contrary to what many believe, there is no federal right to freedom of religion. And, people do not have an automatic right to build mosques in Tennessee or any other state.

Above, Mr. Obama says that Muslims have the right to build mosques "in accordance with local laws and ordinances." But, what if a state or local law were to prohibit the building of mosques? You can bet your bottom dollar that Obama would say that a federal right of religious freedom trumps the state law.

But contrary to what Obama believes, the writ of the Founders was to prevent the federal government from exerting central control over the states in the ordinary affairs of life, including matters of religion.

The U.S. Constitution was ratified with the assurance that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In context, the Constitution says what the federal government cannot do; it does not provide a nationwide right of religious freedom.

The states are not prohibited by the Constitution from either establishing religion or prohibiting free exercise. In fact, during the period the individual states ratified the Constitution and the Bill of Rights most had their own official state religions. Many states endorsed the Christian religion well into the mid-20th century.

In 1808, President Thomas Jefferson broke from his two predecessors and decided against issuing a national proclamation for religious exercise. Jefferson did so because of our federalism system of government created by the Constitution.

Explaining his position by letter to Samuel Miller, Jefferson wrote that his decision

"results not only from the provision that no law shall be made respecting the establishment, or free exercise, or religion, but from that also which reserves to the states the powers not delegated to the US. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general [federal] government."

Jefferson concludes his letter to Miller by noting the practice of his predecessors. But had they examined the issue of federal jurisdiction, they "would have discovered that what might be a right in a state government, was a violation of that right when assumed by another."

The individual states have retained the power under the Constitution to regulate religion, including the right to ban mosques based on safety concerns or for that matter, for any reason. Just as some Muslim countries ban or regulate the building of churches, the individual states have retained sovereignty over such matters.

Under the actual Constitution, one state may vote to ban all mosques while another may promote and fund mosques. In areas of retained sovereignty the states are subject only to their own constitutions. The federal government is powerless to ban or to establish or to interfere with the powers of the states. That's how the country was founded. It's called constitutional federalism. It's a system which allows for diversity among the states.

Of course, the problem is that the First Amendment itself was amended, not by the legal process of a constitutional amendment, but by unilateral decree of the U.S. Supreme Court. The Religion Clause of the First Amendment, ratified by the states to control the power of the federal government is now used against the very states it was meant to protect. And, the federal government made itself the referee regarding what the states may and may not do.

Legal commentary and court precedent was unanimous for approximately the first 150 years of our country's constitutional history on the fact that the Bill of Rights limits the power of the federal government, not the states.

Then, in the early 20th century (1925), judicial activists on the Supreme Court got clever. Since the 14th Amendment (1868) controls the power of the states — in context of ending slavery and granting rights to the former slaves — why not use it against the states in ways never imagined?

Never mind that the 14th Amendment does not mention the Bill of Rights and has nothing to do with applying them against the states. But, since the 14th speaks of "liberty" interests why not "incorporate" some of the restrictions on the federal government from the Bill of Rights into the 14th and apply them against the states?

It was dishonest to the core — but, oh so brilliant.

Because the Court did it mildly at first and incrementally, it got away with its crime against the Constitution.

In short, that's how "Congress shall make no law respecting an establishment of religion," morphed into, "Local school districts everywhere shall cease in their time-honored religious traditions and exercises."

What is taking place via the illegal doctrine of "incorporation" is pure federal tyranny.

So, did Herman Cain get it right?

Probably not if you believe the U.S. Supreme Court has power to amend the Constitution without the amendment process. And, if you believe that central control over the states via turning the Bill of Rights on its head is valid, then Herman Cain is outrageously out of touch.

But if you believe that we must set aside decades of illegal precedent and get back to the actual Constitution and the system that made America great, then, absolutely, the Hermanator nailed it.

Note: Above, Mr. Cain bases his position on the view that Islam is not always practiced as a valid religion, not on the view that the current state of the law is an affront to the Constitution.

© Monte Kuligowski


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Monte Kuligowski

Monte Kuligowski is an attorney and writer whose legal scholarship, including "Does the Declaration of Independence Pass the Lemon Test?" (Duke Journal of Constitutional Law & Public Policy), has been published in several law journals... (more)

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