Friday, September 22, 2006

Bryan Fischer, Executive Director

THE TRUE MEANING OF THE FIRST AMENDMENT, PART 5

5. The solution? Rebuilding Jefferson's "Wall of Separation"

Probably no phrase in America's legal history has been twisted more badly than Jefferson's "wall of separation" phrase. In fact, the Supreme Court and other activists in the church of secular liberalism have turned this expression on its head, granting it a meaning that is 180 degrees out from what Jefferson meant when he coined the phrase.

Jefferson's phrase, of course, is not a part of the Constitution at all, as many today unfortunately believe. In fact, it had no legal significance at all until the Court dragged it out of the dustbin of history and inserted into the 1947 Everson ruling. Overnight, it went from being a single phrase from an obscure private letter to becoming the Rosetta Stone of constitutional interpretation.

The Danbury Baptist Association wrote Jefferson early in his presidency, concerned about what might happen to religious liberty during his term in office. They expressed their conviction that "no man ought to suffer in name, person, or effects on account of his religious opinions."

Jefferson wrote to reassure the Association that they need have no fear of government intrusion into religious expression on his watch, for two reasons. One, government has no legitimate authority to punish a man for what he thinks. The "legislative powers of government," wrote Jefferson, "reach actions only, and not opinions."

Thus, Jefferson would be aghast at "hate crimes" legislation, which punish a man not for what he did but for what he was thinking when he did it.

Jefferson likewise would be aghast at efforts to determine the constitutionality of Ten Commandments displays based on whether the intent of the display was religious or secular. Such mind-reading assessments are wholly outside the proper role of government, according to Jefferson, and he likely would say that such exercises would best be left to the Amazing Kreskin or carnival performers.

The second reason the Baptist Association had no reason to fear a Jeffersonian administration was that the Constitution expressly prohibited the federal government from interfering in any way with religious expression. Quoting the First Amendment, which prohibited establishing one Christian denomination as the official church of America, and which prohibited any effort to interfere with the free exercise of religion, Jefferson rightly reasoned that the Constitution had created a "wall of separation" protecting religious expression from government interference.

In other words, Jefferson said, I couldn't interfere even if I wanted to, because there is an impregnable wall that prevents me, and every other branch of the federal government, from poaching in the garden of religious liberty and presuming to tell state and local officials what they can and cannot do in matters of religious expression.

The bottom line is this: Jefferson's" wall of separation" was meant to protect religious expression from government tyranny, not to insulate the government from religious influence or to exclude religion from the public square. In a stunning display of judicial arrogance and activism, the Supreme Court has used the phrase to justify what would have horrified Jefferson - interfering willy-nilly with any and all kinds of religious expression at every level. The Court even went so far as to tell Grangeville High School right here in Idaho that it was not permitted to allow a Jewish rabbi to offer a prayer at its graduation ceremony.

Jefferson would rightly point out that a black-robed oligarchy on the other side of the country has no constitutional warrant to dictate matters of religious expression to a rural high school in the mountain West, and of course, he would be right.

President Ronald Reagan had it right when he stated, in his State of the Union address in 1984, that "the First Amendment of the Constitution was not written to protect the people from religion, that amendment was written to protect religion from government tyranny." The "pendulum," he went on to say, "has swung too far toward intolerance against genuine religious freedom. It is time to redress the balance."

We could not agree more. It's time to rebuild Jefferson's wall of separation. It's time to take decisions about religious  liberty out of the hands of the Supreme Court, which has repeatedly punched gaping holes in his wall, and put them back in the hands of those who must live with the consequences of such decisions - states, cities, and schools. It's time to allow them to make their own decisions about religious expression without fear of litigation, and answer to their own constituents or patrons for such decisions rather than to distant judges who have never set foot in their states, cities, or schools, and might not even be able to find them on a map.

It's time once again to let freedom ring, and, as the inscription on the Liberty Bell says, quoting the Bible (the horror!), to again "proclaim liberty through all the land."