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Courts, Churches and the Constitution
by Bruce Walker
25 August 2003Ten Commandments Monument

The Establishment Clause was never intended to apply to the states in the first place.


Americans have been trained well by Leftists.  Relentless propaganda has created myths about American government which conceal critical facts.  Seldom has this propaganda been more effective than in spinning the odd lie that the United States Constitution requires that religion and government must be separate.

The Leftist argument is based upon the First Amendment to the Constitution, which says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” What did this term -- establishment of religion -- originally mean?

The history of the late Eighteenth Century, the period in which these words were penned, and the voluminous and clear writings of our Founding Fathers make the meaning clear: Congress, the intended repository of nearly all federal power, was prohibited from establishing a specific national church. 

Most European nations in 1791 had an established national church.  The United Kingdom of Great Britain included two distinct nations, England and Scotland, and this polity had two established national churches -- Anglicanism in England and Presbyterianism in Scotland.  Our Revolutionary War allowed us to break from Britain in all the ways that vexed us.

Pointedly, this prohibition did not prevent -- and it was never intended to prevent -- the governments of the sovereign and several states of the United States from establishing particular religions within those states.  In fact, half of the original thirteen states not only had established state churches but continued to have these established state churches after the ratification of the Constitution and after the adoption of the Bill of Rights.

The Founding Fathers viewed a national church, just as they viewed a national government, as an inherent danger to liberty.  The Bill of Rights itself does not limit the powers of state governments at all. Ratification of these first ten amendments was insisted upon by the Antifederalists (which included a number of our Founding Fathers) as a protection against the power of the new, national government.

The Tenth Amendment provides that powers not given the government of the United States were reserved to the states or the people.  The Ninth Amendment -- the “forgotten Ninth” -- goes even farther, saying that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. 

This amendment is especially important because the United States does not enumerate or create any rights for state governments, which were at the time sovereign, and because the language “shall not be construed” was a check upon the judicial branch of the federal government, whose fanciful powers have come through the artifice of “construing” the Constitution.

There are no longer any established churches in state governments, but this has nothing at all to do with the First Amendment.  The states that had established religions in 1791 gradually ended these established religions over the next four decades (much like all those northern states that had slavery in 1791, ended slavery by state, not federal, action in those same succeeding decades).

Assume that the First Amendment never had a clause prohibiting the establishment of a national church -- remembering that the Constitution did not have this prohibition, and only the amendments to that document prohibited Congress from establishing a national religion -- would this have been a calamity?

While that was a reasonable assumption in 1791, it was not a reasonable opinion at all by 1945.   England, Sweden, Scotland, and Iceland -- nations which had resisted the monstrous horrors of racial and religious genocide -- all had established national churches. 

Indeed, those nations which acted most honorably during the Second World War -- England, Sweden, Scotland, Iceland, Norway, Denmark and Finland -- were notable for continuing to have an established state religion long after this had been fashionable in the salons of Paris or the populist beer halls of Berlin.  If experience is any guide, nations do not act monstrously until God has been made an “unperson.”

The First Amendment is directed only at Congress, not at the federal government generally. “Congress shall make no law...”  What if President Bush issued an executive order declaring that the Judeo-Christian faith is the national religion of American government?  What would the Supreme Court do?  The First Amendment is clear: it limits only the power of Congress.

It does not restrict actions by the President or the Supreme Court.  Could the Supreme Court itself pronounce that the Christian faith or the Judeo-Christian faith is the national religion of America.  Absolutely!  In fact, in 1892, over one century after the Bill of Rights that created the illusory “wall between church and state” was adopted, the Supreme Court in its Church of the Holy Trinity v. United States stated, “Our laws and institutions must necessarily be based upon and embody the teachings of The Redeemer of mankind.  It is impossible that it should be otherwise, and in this sense and to this extent our civilization and our institutions are emphatically Christian”

If the First Amendment was never intended to restrict state government power,  then how was this amendment ever construed as limiting the power of state governments -- particularly considering that state governments had the power to establish state churches after the Constitution and the Bill of Rights were adopted?

The judicial flim-flam for this fraud is called “incorporation.”  It refers to the Supreme Court’s determination that the Fourteenth Amendment to the Constitution “incorporates” most of the Bill of Rights into state governments.  The Fourteenth Amendments prohibits state governments from denying anyone their life, liberty or property without due process of law and requires that state governments give each person within the state equal protection of the laws.

Was this what Congress and state legislatures intended when they enacted the Fourteenth Amendment?  No -- not only did those men who passed this amendment not intend that incorporation, but the Supreme Court itself has specifically held that the purpose for the Fourteenth Amendment -- like the Thirteenth Amendment and Fifteenth Amendment -- was to protect recently emancipated slaves in the South.

And it long used this reasoning to refuse to extend the protections of Bill of Rights to state government actions. In 1925, the Supreme Court rejected the argument that the Fourteenth Amendment “incorporated” the protections of freedom of speech in the Bill of Rights to state governments, but then magically discovered that this federal protections were incorporated in a 1931 decision.  In 1940 and then again in 1947 the Supreme Court determined that the establishment provisions of the First Amendment did not apply to the states, but then reversed itself in 1948.

Why?  Was it because the citizens of the various states had no other rights except those in the Bill of Rights?  No.  In fact, the various rights which we rightly consider indispensable to a free nation were first granted to Americans by state governments, not the federal government. 

State constitutions did not include these rights as “amendments” because these rights were spelled out in the original state constitutions themselves.  State governments have proven better, not worse, protectors of individual liberties than the federal government.

Was it because the threat of established religion had proven so dangerous to the modern world?  In 1948, precisely the opposite argument could be made.  It is now obvious, from the example of those decent and tolerant nations which have formally established a particular Christian denomination as the state religion, that the horrors of holocausts, gulags and persecution were not caused by established churches in nations.

Was it because state governments were threatening to create some sort of theocracies?  No.  More than a century after state governments had voluntarily -- without any pressure from any of the branches of the federal government -- ended established state churches, there was virtually no sentiment to make non-denominational New Hampshire into a Congregationalist state.

The real cause is as simple as it is awful: Leftists loath the concept of a Blessed Creator of the Universe.  No one, no one at all, may be superior to the ideology of man.  This Deiphobia is the salient fact of all Leftists: Stalin, Hitler, Castro, Mao, Mussolini and every other thug on the radical Left recoils in horror at the image of a Lord of the Universe.

Ironically, the very purging of religion from state governments hurt, rather than helped, those religious minorities whom it was ostensibly intended to protect.  When each state is allowed to approach religion in its own way, then people faithful to one region can choose to live in a particular state or region or city.

The Mormon migration to the Rocky Mountains insured that Utah was not hateful toward Mormons. Jewish immigration to New York and other big cites insured that these state governments were not anti-Semitic or hostile toward Judaism. Catholics immigrants and voters -- Irish, Italian and Polish voters, among others -- made anti-Catholic bigotry political poison.

The consequences of federalizing religion and government insures that the spirit of toleration which naturally flowed from each state retaining authority over these issues and each citizen having the power to move from state to state will become testy, tense and, perhaps, totalitarian.

As bad as the federalization of this issue has been, the judicialization of the issue is worse.  The First Amendment addresses what Congress may do. When the Fourteenth Amendment was adopted -- that very hook used by Leftists to bring the unnecessary and redundant protections of the Bill of Rights into state government -- does the Fourteenth Amendment give any inkling of how the federal government is supposed to implement this amendment?

Yes, it does.  Section Five says exactly how the Fourteenth Amendment is supposed to be implemented, and it says: “Congress shall have the power, by appropriate legislation, to enforce the provisions of this article.” 

Here is a novel concept:  why not have Congress, and not the Supreme Court, determine how to enforce the provisions of the Fourteenth Amendment?  When the Constitution, when the Billl of Rights, when the Fourteenth Amendment were adopted, the American people presumed that Congress -- who has the exclusive authority under the Constitution to make laws -- might...make laws! 

What if Congress passed a law, pursuant to the power which the Fourteenth Amendment places in Congress alone, that allows reasonable, clear, tolerant and respected policies toward religion and government?  To some people, that would be a nightmare.  To other people -- to all of us serfs -- it would be liberation.

Bruce Walker's articles can be found at the Conservative Truth
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