Wednesday, February 11, 2009

U.S. Constitution to Feds: "Hands Off Religion"

In writing about Obama's pietism I pointed out that "The self-worshiping American power elite that Obama represents has promoted a false understanding of the proper relationship between piety and politics based on the shibboleth of separation." Why do I call the assertion that the U.S. Constitution requires separation of Church and state false? The phrase "separation of church and state" occurs nowhere in the Constitution of the United States. The false understanding promoted under the idea of separation distracts from the more accurate concept of religious freedom actually set forth in the Constitution. The first amendment simply makes it clear that the Federal Government must follow a "hands-off" policy when it comes to religious institutions and activities. It is forbidden to make law on the subject of religious establishment, so that there can be no constitutionally legal basis for institutional coercion. It is also forbidden to make laws that bar people from practicing their religion. Though people often speak as if the first amendment prevents the Federal government from dictating belief, in fact the operative word is "exercise", a word that connotes a regular activity, not a purely mental or intellectual disposition.

It's also important to note that the first amendment's constraints are not placed upon some abstract entity called "government." They are specifically targeted at the Congress of the United States, the lawmaking body of the national government of the United States. The U.S. government has only those powers delegated by the Constitution. By the clear and explicit language of the tenth amendment "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Read in context with this language, the first amendment simply makes clear that the power to make law with respect to religious institutions and practices is withheld from, not delegated to, the Federal Government. It is therefore reserved to the States or the people.

Though the legal shysters of the power elite pretend that the 14th amendment somehow authorizes the Federal courts to interfere with the States and the people on these matters, no amount of verbal contortion can justify their claim. The 14th amendment says simply that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…" By the terms of the first and tenth amendments, those privileges and immunities include the privilege of practicing their religion, and establishing religious institutions without interference by law from the national government. In this regard, the shysters' sophistical legal reasoning depends on the false pretense that the object of the first amendment's language is the protection of individual rights, when in fact it deals with the allocation of a power of government (specifically the power to make laws with regard to religious institutions and practices.) The powers of government are not the prerogatives of individual persons. They belong to the people as a whole. The first amendment simply makes clear that the power to legislate on religious matters i.e., by legislation to take action with regard to them, remains in the hands of the people, acting on their own, or through their local governments, or through the governments they establish at the State level.

I'm sure the legal shysters quietly pat themselves on the back for the cleverness with which they have used references to the first amendment to allow Federal courts to do exactly what its words forbid them to do, which is, use the instruments of the law to interfere with religious institutions and ban the practice of religion in the public square. But though they cite a thousand court decisions and precedents, none of them makes one iota of difference if it contradicts the Constitution. The whole purpose of having a written constitution is to make sure that those who fancy themselves the lords and princes of the law cannot depart in their judgments from the understanding that in the first place authorizes them to exercise whatever government powers they possess. This means that at any time we may have recourse to the original words of the Constitution in order to expose their usurpations and abuses, and strip them away. In reading the Constitution our proper guides are the same reason and common sense the Founders continually referred to as they deliberated upon its ratification. Corrupted by a sense of their own power, the judges of our era may refuse to accept these guides as constraints upon their legal reasoning? But unless we are willing to surrender government of, by and for the people, we the people must continue to have recourse to them in our deliberations on the Constitutional validity of Federal court opinions, as well as all other actions by the U.S. government.

The Constitution does not forbid an establishment of religion. Rather it forbids the Federal legislature from making any laws on the subject. This leaves the States or the people free to deal with the matter as they choose, independent of dictation by the national government. Does this prevent the government of the United States from working with entities and organizations connected with or grounded in religion? Obviously not. The Constitution leaves legislative discretion in matters of religion to the States. If a State grants a larger role to religion (as was done by almost all of them at the time they ratified the Constitution), the Federal Government is nonetheless authorized to deal with it. But the tenth amendment leaves it to the people of the States to determine what if any role their State governments will play, with the residue of decision-making power left to the people at the local level or in their private associations. By and large the American people have chosen to rely on private institutions, but how can language that does not forbid the Federal government to work with a State government on grounds of religion be used as an excuse to bar cooperation with private entities? In fact, since Federal legislation is forbidden to touch on matters of religious institution or practice at all, it's hard to see how the national government can lawfully take account of them at all.

The logical consequence is not difficult to make out. At the Federal level legislation must be written in terms that apply to all, without regard to these matters. If the White House wishes to encourage more local action in some matters, it can only do so by law only on the basis of criteria that pay no regard whatsoever to religion, but that allow all entities which satisfy objective and religiously neutral requirements to enjoy equal privileges. The Federal government cannot require, for example that participation in a given program be limited to people who pray. By the same token, if they are otherwise qualified to do so, it cannot forbid their participation solely on account of their practice of prayer .

This is in no way prevents the President, the Congress or the Judiciary, for that matter, from showing respect for religious institutions and practices where no law or legal coercion comes into play. It would not, for instance, preclude the use of money authorized and appropriated by law, or the use of facilities built with such money, by people voluntarily participating in religious activities (like a Congressional prayer group, or military personnel attending services on a military base) so long as the opportunity for such activities is available to all citizens on the basis of criteria formulated without regard to religious practices or institutions. Nor does it interfere with otherwise lawful actions of government officials (like references to God in speeches, or religious prayers in public places.) The Federal laws (and therefore all lawful action at the Federal level) can include or be based on no provision "respecting" these matters. (It's enlightening here to remember that the word "respect" has a Latin root, in a word that means looking at,observing, or seeing.) Contrary to the tenets of political correctness, the Constitution does not require that the national laws of the United States be sensitive to the religious differences among its citizens. Rather it requires that they be blind to such differences and by law require no action, constraint or penalty on account of them. People in official positions can conduct themselves according to their own conscience in this regard, provided nothing they do comes from or enforces with purported legal authority any rule, order or policy specifically in regard to the practice or institution of religion.

The shysters' fabricated doctrine of separation aims to neuter religious believers as they act in the public square. The words of the first amendment actually neuter the Federal Government in all its dealings by law with citizens of the United States. You might say that on these matters, the Constitution requires a permanent U.S. government policy of scrupulous indifference with respect to religious institutions and practices as such. Obviously this is not the last word on the subject, but, given the Constitution's clear wording, isn't it the reasonable place to start?

With this Constitutionally grounded principle in mind, we can think about some of the specific issues on which we are these days called to take a stand, including the issue of marriage, the regulation of sexual behavior, and the question of religious practices (the obvious example is human sacrifice) that violate laws formulated without specific regard for them. We can also make out why it is that nothing in the Constitution interferes with the duty of all leaders and politicians to respect and apply the concepts of right and wrong upon which the nation is founded (summarized in the Declaration of Independence), even though these concepts presume and rely upon respect for the existence and authority of the Creator, who is the author and will be the judge of us all. Stay tuned.

Worth considering? Then don't forget to DIGG IT!!!!


Tim Miller said...

70 diggs, but no comments? Did anybody who digged this read it, or was it so profound nobody could add anything to it?

Unfortunately, in America we no longer have a common philosophical starting point. Happy Birthday, Charles Darwin. Much of America's philosophy today is rooted in the idea that life is uncaused. Even though most Americans reject the idea of uncaused human existence, they accept philosophy rooted in that idea. Therefore, right and wrong are social constructs. We must educate (change minds) and evangelize (change hearts) to see this happen. Great post. (I digged it, too.)

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