With the Supreme
Court considering the Ninth Circuit Court ban on “under God” in the Pledge
of Allegiance and refusing to hear the case about Judge Roy Moore and his
Ten Commandments Monument, perhaps it is time to take a fresh look at the
If the First Amendment read “Congress shall make no law respecting (regarding)
jellybeans,” there would be no question of the meaning.
It would be obvious that a law creating a federal jellybean monopoly would
be a violation of the law. Everyone would understand that Congress could
not tax jellybeans, regulate jellybeans, ban jellybeans, or even write a
law defining jellybeans. The Constitution would clearly ban any Federal interference
with state jellybean laws. It would also ban Federal interference with any
personal use of jellybeans on public property.
If the Supreme Court tried to write laws regulating the use of jellybeans
at the state or personal level it would be an obvious violation of the ban
on Federal interference with state jellybean laws. Someone might even remember
that the Supreme Court has no Constitutional authority to write laws in the
So why, when we substitute the words “establishment of religion” for jelly
beans, do we suddenly lose the ability to see the obvious? Perhaps it is
because we can’t imagine a time when there would have been state establishments
for the First Amendment to protect.
James Madison introduced the first draft, which read, "nor shall any national
religion be established." The meaning was clear and obvious. In conference
committee the politicians in Congress changed the text to read, "Congress
shall make no law respecting (pertaining to) an establishment of religion."
What if they actually meant exactly what they said?
At the time the Bill of Rights was written and ratified, four or more of
the eleven states had established religions, depending on the definition
used. Others had close relationships between church and state. Many of the
Congressmen who wrote the Bill of Rights represented states that had tax-supported
religions and, like all politicians, wanted to protect the interests of their
states. It would have been impossible to pass the First Amendment by a two-thirds
vote without the support of some of these politicians. If you had lived in
one of these states and read the words "Congress shall make no law," you
would undoubtedly have concluded that Congress was banned from making any
laws which would in any way effect your state establishment. If you were
a congressman from one of these states it would be obvious that you intended
those words to protect your state establishment from any federal interference.
Even the Congressmen favoring total separation of church and state would
probably have had no objection to this more restrictive language since they
wanted the federal government completely out of the religion business, and
the amendment only applied to the federal government.
Most people don’t realize that Madison actually wrote two First Amendments,
one for the federal government and one for the states, which was not passed
by Congress. His version for the states did not include an establishment
It appears that the final language of the establishment clause was written
at least in part to protect state establishments from any federal interference.
Therefore, the entire body of law written by the federal courts "respecting
an establishment of religion" is in direct violation of the First Amendment,
which clearly bans the federal government from interfering with state establishments
It could be argued that this no longer applies because there are no more
state establishments of religion. But then, of course, we all know that is
false. We have over fifty years of case law telling us that establishments
are lurking everywhere. They are hiding under school desks, behind nativity
scenes on public property, on school vouchers, in the Pledge of Allegiance,
and, according to the ACLU, even on school calendars listing a terrible establishment
called Christmas vacation. And the First Amendment declares every one of
these establishments off limits to the federal government. It is the letter
of the law, the original understanding of the law, and obviously the original
intent of the law.
Stephen Erwin is Executive Director of the Judicial Amendment Coalition, a non-profit corporation registered to lobby Congress for the Judicial Accountability Amendment.