Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
For about 100 years our Supreme Court took the first part of the first amendment to mean exactly as is says. As long as they did not make any laws that established a religion or that prohibited the practice of religion, then Congress was not deemed to be at odds with the Constitution. Lately, we seem to be parsing the words to the point of muddying up the perfectly clear single sentence, written out above, that is the foundational first part of our Bill of Rights. The importance of looking at the entirety is diminished all too often as we separate our view into the establishment clause, the wall of separation, defining free exercise, and on and on. Often the Court looks to the framers intent when trying to discern the meaning of the words. It seems in fashion today to parse the words until some of the Justices can find a way to insert their own intent. Strict construction is the proper way to view the Constitution. Changes to the law should be left to legislators and if necessary amendment by the States.
If we look at framers intent in the First Amendment we cannot escape this Declaration of Independence preamble sentence. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. Let’s call this the “endowment clause” J. This plain and simply identifies the intent, intent strong enough to go to war over, of the framers and the ratify-ers of the Bill of Rights. Equally vivid in their minds was the knowledge of the excesses that occur when the state runs the church. In summary, the intent of the first part of the first amendment is to restrict the state from interfering with the church; while clearing the way for the God fearing citizen to exert moral force on the state.
Religious freedom being addressed first is no accident. For a republic to last, the law must be seen as moral. As it becomes more in fashion for judges to wade into the legislative arena, this vital connection between practical law and natural law is becoming frayed. Laws look less like the Ten Commandments and more like arbitrary board game rules. For free people to be a law abiding people; the rightness and wrongness of an action must be clearly evident. This is to be distinguished from a memorized set of arbitrary legalities and illegalities. It is here that we see the primacy of God in our law; it is here that we recognize the source of the rights with which we are endowed. This is the heart of our republic, morally developed people acting as they deem appropriate to proportionately supervise their government. This is our only defense against lapsing into classic amoral democracy, which develops into tyranny by the majority. This is why it is imperative that Supreme Court justices never create law.
Sometimes, what is needed is some judicial restraint. Beyond the abhorrent practice of creating law from the bench, often the urge to eradicate excesses can be remedied with enough time for the ballot box to work. When egregious attempts to direct the actions of churches are made by Congress it should be addressed immediately. The excess in the recent health care law is an excellent example of congressional action that is repugnant to the Constitution and should be struck down. Here are a few of the overreaches in just that one law. The first amendment is clearly violated when churches are required to purchase items, let alone that those items are against church teaching. The balance of power itself is shifted towards the Administration without amendment or ratification when the words “or as the Secretary shall determine” is inserted again and again. The “commerce clause”, Article 1- Section 8, a favorite tool of the legislating justice, is now being used in an attempted expansion, to mean that there is no longer any constitutional restriction on any whim of the State. Perhaps any single law that is written on more pages than are required to print the Constitution should be tossed as a general principle.
Free speech and the various protections for the modes of speech are closely related to the religious aspects referred to already. This is for good reason; they are grouped together in the first amendment because they are simply different sides of the same coin. Free exchange of ideas and information are essential to developing and offering the informed consent necessary to our republic.
One glaring ongoing set of laws that are unconstitutionally opposed to the first amendment are loosely referred to as campaign finance laws. When money, timing, subject matter, and anonymity are regulated, freedom of speech is abridged. This is plain and simple and inarguable. It also can be messy and misleading. Limiting speech has not cleaned things up or led to more truthfulness in our elections or legislative efforts, just the opposite has occurred. Today the chairman of the Senate Judiciary Committee, Patrick Leahy, verbally attacked the Supreme Court Chief Justice John Roberts as being an activist judge regarding the health care law currently being reviewed but not yet ruled upon. I don’t recall this type of behavior in my lifetime, it is very messy. It is also intentionally misleading. The term “activist judge” has become an accepted pejorative as it has been used for years now to describe one who legislates from the bench. I described that unsavory practice already in this missive. Making law from the bench replaces passing law the traditional way, the constitutional way, via the legislative process. It is resorted to more and more by the left because their initiatives fail to gain the support of the people; rightfully I might add. Leahy’s use of the term “activist judge” in an opposite way to defame a justice who is reliably in the strict constructionist camp is an attempt to muddy the water, to confuse the issue in the mind of the casual voter.
The answer is moral, informed, aware, awake, and involved voters. Speech is restricted, muddied and misleading at times. Redouble you efforts to stay informed. Question things to the very depths of your consciousness. Pray for wisdom. Vote and act as if the republic depended on it. It does.