The Establishment Clause
The portion of the First
Amendment that I will cover in this “Billboard” reads as follows: “Congress
shall make no law respecting an establishment of religion.” Constitutional
scholars and judges have entitled this clause “The Establishment Clause”. It is
important that you understand that scholars, judges, and journalists are
referring to this portion of the First Amendment when they use this phrase.
When the average American thinks of
this clause he or she thinks that it is some God-given right bestowed upon the
people by our founding fathers to protect us from having to worship in some
nationally created religion. It is not such a right. This clause was placed
into the Bill of Rights for one reason and one reason only: to protect the
State established religions from being over taken by the federal government. In
his book The Bill of Rights Akhil Reed Amar notes that “[in] 1789, at
least six states had government-supported churches.” He also writes that four
other states “barred non-Christians or non-Protestants from holding government
office.” In fact, the Establishment Clause was essentially copied word for word
from the New Hampshire State Constitution which said that “Congress shall make
no laws touching religion.” So, long before our founding fathers wrote
the Bill of Rights New Hampshire had already told Congress that they could not
touch their state established religion anyways. Thus, when our founding fathers
placed this clause into the Bill of Rights they didn’t do it to protect “we the
people” from a federally established church, they did it to protect the several
state law’s and tradition’s of running religion on their own.
However, according to the Supreme
Court, this all changed in 1868 when the 14th Amendment was added to
our Constitution. The 14th Amendment established that “[no] State
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States.” The Supreme Court took this phrase to
mean that if the federal government can’t do something to the people, then
neither can the states (the Court entitled this rule as the rule of
“incorporation”, in other words, the states were now “incorporated” into the
obligations that the federal government had). So although the 1st
Amendment was written specifically for the Congress to obey, the states were
now also obligated to obey it. And that ultimately meant that the Supreme Court
of the United States, and not the individual states, would have the power to
say when any level of government (whether it be federal, state, local, school
board, etc.) was establishing a form of religion. And as we all know very well,
this power is being abused. The courts have stricken down school prayer, the
ten commandments, and they have almost taken the “Christ” out of “Christmas”
(which means that we’ll only be left with a “mas”; or, as I read it, a “mess”).
Now, lets go back to the what we were talking about before so that we can
better understand what I am talking about now. The original purpose of the
Establishment Clause was to tell the federal government that they could not
disestablish state-established religions. Remember, it says that “Congress
shall make no law respecting an establishment of religion.” Then, after the
ratification (passing) of the 14th Amendment the Supreme Court said
that, in theory, that establishment clause was being changed to read as
follows: Congress and the States shall make no law respecting an
establishment of religion. So the Supreme Court was essentially saying that
although the 1st Amendment is in the Bill of Rights in order to
restrain Congress from disestablishing state-established religions, the 14th
Amendment forces us to apply the establishment clause to the States also; so
now the establishment clause must mean that the States have to restrain
themselves from doing exactly what the establishment clause was meant to enable
them to do in the first place—establish religion. In Akhil Amar’s words, “to
apply the [establishment] clause against a state government is precisely to
eliminate its right to choose whether to establish a religion—a right clearly
confirmed by the establishment clause itself.”
Any Constitutionally devout American will not be fooled at the way that the federal government has taken this clause, which was written down specifically for them to obey, and have twisted it to mean that they no longer have to obey it. Any religiously devout American will be able to sense how the twisting of this clause has changed its original course from a “hands-off” federal government role in religion, to a role in which the federal government has allowed themselves to exercise the ability to essentially drain America’s ever diminishing pool of religion completely.