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The Real First Amendment
by Stephen Erwin
19 February 2003Constitution

If the First Amendment read “Congress shall make no law respecting (regarding) jellybeans,” there would be no question of the meaning.


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 First Amendment.

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 first place.

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 clause.

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 of religion.

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.

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