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Friday, September 15, 2006
Bryan Fischer, Executive Director
THE TRUE MEANING OF THE FIRST AMENDMENT, PART I
The mission of the Idaho Values Alliance is primarily educational. In honor of the 217th anniversary of the establishment of the United States Constitution, I will, over the next several days, clarify for you the original intent of the First Amendment. As I explain, only by understanding the original intent of the Founders can we accurately apply that plank of the Bill of Rights to current religious expression controversies.
"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
There has been more controversy over the interpretation and application of  the First Amendment and its religious liberty clauses than over any other part of the U.S. Constitution. It is crucial for our judiciary and for our entire culture to have a clear and unambiguous understanding of its meaning if we are to find our way through what has become a minefield of conflict and litigation over which public expressions of religious sentiment are permissible and which are not.
What I learned about the sacred text of the Scripture, in my previous life as a teaching pastor, applies equally to the text of our nation's supreme legal document: a written work either means what its authors intended it to mean, or it can mean anything at all. In other words, if we abandon the principle that a document means what its writers intended it to mean, that document becomes capable of a dizzying variety of interpretations, many of which will have no connection at all to the author's original plain intent, and may even flatly contradict it.
Our Founding Fathers agreed with the importance of grasping the original intent of the Framers. Said Thomas Jefferson, in a rebuke of a contemporary Supreme Court justice, "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." (emphasis mine)
The "Father of the Constitution," James Madison, said, "I entirely concur  in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution . . . What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense." (emphasis mine)
Justice James Wilson agreed: "The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it."
So it becomes incumbent upon us to ascertain as nearly as possible what the Founding Fathers meant when they carefully crafted the language of the First Amendment, both with respect to the Establishment clause and the Free Exercise clause. Returning to a clear understanding of their intent is the only possible way to chart a navigable path into our future. Laying out a clear and unambiguous understanding of those clauses is the purpose of this paper.
1. Only Congress can violate the First Amendment
We must begin with the very first word of the First Amendment: "Congress." What has been almost entirely lost in all the litigation surrounding the First Amendment is that the Founding Fathers intended it as a restraint on  Congress and Congress alone.
Quite simply what this means is that Congress and Congress alone can violate the First Amendment. It is simply impossible for a president, a state government, a governor, a mayor or city council, a school, a principal, a teacher, or a student to violate the First Amendment. It was never intended to apply to them at all. (I'll deal with the so-called "Incorporation Doctrine" in a moment.)
The Bill of Rights was clearly intended by the Framers to be a restraint on the federal government and the federal government alone. As the Tenth Amendment makes clear, any authority not expressly granted to the central government by the Constitution itself is the exclusive province of the states and the people.
Thus it is entirely inappropriate, for instance, for the First Amendment to be used to restrain prayer and Bible reading in schools. What happens in schools, cities, and states with regard to religious expression is properly a matter of state constitution, state law and institutional policy, not the federal constitution. Along that path lies true religious freedom.
Thomas Jefferson clearly understood that most religious liberty matters were not matters for the central government to decide. Said Jefferson in his second inaugural address, "In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government." Religious exercises were to be left "under the direction and discipline of state and church authorities."
The bottom line for Jefferson was that the federal government - which of course must include the federal judiciary, up to and including the U.S. Supreme Court - has no business meddling with the free exercise of religion in the individual states.
A proper understanding of the First Amendment makes it an egregious and unconstitutional thing for the Supreme Court in Washington, D.C. to dictate policy regarding prayer and Bible reading in Idaho public schools, or to interfere with decisions regarding the public posting of the Ten Commandments.
Those decisions are properly matters for state authorities, city officials, and the patrons of local school districts to decide. In fact, it would be the Supreme Court that stands in violation of the Constitution by presuming to interfere with the free exercise of religion in states, communities, and school districts.
Part 2
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