May 10, 2014
I have argued since I first began writing and speaking on this issue that the First Amendment restrains only the actions of Congress. The first word in the First Amendment, after all, is the word “Congress.” “Congress shall make no law…”
The Founders quite intentionally were not imposing restraints on what a state could do in offering prayers before legislative assemblies, or what a city could do in erecting Ten Commandments monuments, or what a school could do in offering prayer and Bible reading over the intercom or at graduation. Congress and Congress alone is bound down by the chains of the First Amendment.
This has enormous implications for public policy, because it means that the only entity in America that can violate the First Amendment is Congress. A state can’t, a city can’t, and a school official or student most certainly can’t. State constitutions may have something to say about what those entities can do, but the federal government, including the judiciary, has precisely zero constitutional or moral authority to intervene in such matters.
That, my friends, is freedom. Freedom for states, cities and schools to decide matters of religious expression for themselves without black-robed tyrants on the other side of the country deciding such things for them.
Thus the recent Supreme Court ruling, allowing cities and, in fact, all government bodies to offer invocations in Jesus’ name before meetings is a good ruling. But the matter never even should have been before the Court in the first place. The First Amendment prohibits any kind of federal interference in religious expression whatsoever.
And while in many ways I have been a lone voice crying in the wilderness on this topic, I now find there are two of us crying out in the desert of out-of-control jurisprudence. Clarence Thomas, in his concurring opinion in Greece v. Galloway, makes it clear that he shares the same view I hold on the scope of the First Amendment. According to Thomas, it applies only to Congress, just like, well, just like the First Amendment itself says. Is Thomas the only Supreme Court justice who can read and interpret plain English?
Says Thomas, “I write separately to reiterate my view that the Establishment Clause is ‘best understood as a federalism provision.'” (Emphasis mine throughout.) “Federalism” simply means that any powers not expressly granted to the central government in the Constitution belong exclusively to the States or to the people themselves.
Thomas directly attacks the Incorporation Doctrine, easily the most nefarious act of judicial activism in Supreme Court history. The Incorporation Doctrine contends that in some mysterious way the 14th Amendment magically “incorporates” the Bill of Rights against the States. This is sheer folly from a legal, constitutional and historical perspective.
Thomas is of course absolutely correct when he states that if the Incorporation Doctrine is incorrect, then when it comes to city council prayers, the Establishment Clause “has no application,” and thus such prayers do not even fall within the Court’s purview. They are none of the Court’s business, period.
Thomas correctly observes that the Clause “probably prohibits Congress from establishing a national religion.” That is, Congress is not permitted to pick one Christian denomination and make it the official church of the United States and compel people to attend it and support it with their tax dollars.
“The text of the Clause,” writes Thomas, “also suggests that Congress ‘could not interfere with state establishments'” either. In other words, the First Amendment permits states to have established churches if they wish. “That choice of language – ‘Congress shall make no law’ – effectively denied Congress any power to regulate state establishments.”
Thomas points out the quite obvious but often blindly ignored fact that at least six of the original states (other assessments go as high as nine or 10) had established churches in 1789 when the First Amendment was adopted. Only Virginia, Rhode Island, Pennsylvania and Delaware had no version of establishment at all in 1789.
As Thomas writes, although by 1833 all States had dismantled establishments, “the decision to establish or disestablish religion was reserved to the States.”
The very point of the First Amendment was to prohibit the newly created central government from interfering in any way with the liberty of States to regulate religious expression in any way they chose. Consequently, “[a]pplying the Clause against the States eliminates their right to establish religion free from federal interference, thereby ‘prohibiting exactly what the Establishment Clause protected.'”
In other words, incorporation turns the First Amendment on its head, which is then used like a billy club to punish the very thing it was designed to protect.
Thomas illustrates the absurdity of the incorporation doctrine by referencing the Tenth Amendment:
“To my knowledge, no court has ever suggested that the Tenth Amendment, which ‘reserve[s] to the States’ powers not delegated to the Federal Government, could or should be applied against the States. To incorporate that limitation would be to divest the States of all powers not specifically delegated to them, thereby inverting the original import of the Amendment. Incorporating the Establishment Clause has precisely the same effect.”
If we were following the Constitution as given to us by the Founders, and not as mangled and shredded by the courts, we would be a nation in which the Federal Government would butt out of every single matter of religious expression at the state and local level, whether the matter is prayer in legislative assemblies or at school events, Bible reading in schools, Ten Commandments monuments, crosses on water towers or in honor of veterans, roadside memorials, state seals, statues of Jesus, etc., etc. These would properly be a matter for local and state officials to decide.
Bottom line: let’s return to the First Amendment as given to us by the Founders. Let freedom ring again across every hill and through every valley and city in the land. Just like it’s supposed to.
(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)
Bryan Fischer is the host of the daily ‘Focal Point’ radio talk program on AFR Talk, a division of the American Family Association. ‘Focal Point’ airs live from 1-3 pm Central Time, and is also simulcast on the AFA Channel, which can be seen on the Sky Angel network.
© Copyright 2014 by Bryan Fischer