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On the establishment of religion:
What the Constitution really says
By Alan Keyes – August 26, 2003
This is quite a long and detailed article, so I have made an outline to help you decide if you want to spend the time reading it in more detail or just trust that I’ve hit the high points correctly.
Federal judges do NOT have the right to interfere with State actions that may or may not constitute an establishment of religion.
The first clause of the 1st Amendment to the Constitution plainly states:
“Congress shall make no law respecting an establishment of religion.”
Since there can be no federal law on the subject, there appears to be no lawful basis for any element of the federal government – including the courts – to act in this area.
The 10th Amendment to the Constitution plainly states:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This means that the power to make laws respecting an establishment of religion, having been explicitly withheld from the United States, is reserved to the States or to the people.
Taken together, the 1st and 10th Amendments clearly forbid federal judges from doing stuff like banning Ten Commandment displays on State property.
An erroneous premise
Federal judges and justices who do this stuff claim they have the right under the 14th Amendment:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
But, the 14th Amendment only restricts the legislative powers of the States where they deal with the rights of individual citizens.
And the first clause of the 1st Amendment deals with the rights of States, not individuals. Specifically, it reserves to each State the right to establish religion if a majority of the people of that State decide they want it.
Distinguishing rights of the people from individual rights
The first two clauses of the 1st Amendment are often treated as if they were one. This is incorrect.
The first clause — “Congress shall make no law respecting an establishment of religion” — designates a power of government that is reserved to the States. Congress is forbidden to address the subject at all.
The second clause — “or prohibiting the free exercise thereof” — deals with an action or set of actions (the free exercise of religion) that cannot be free unless they originate in individual choice. This clause allows for some federal action, but severely restricts the character of such action in favor of free exercise by individuals.
When federal judges ban a Ten Commandments monument on State property, they are violating both the clearly stated right of any State to establish religion and the right of individuals to freely exercise religion.
Parallel rights and actions
The assumption made by the judges that do this stuff is that the right of a State to do something somehow means individuals cannot do that thing. That is wrong.
- The government’s power to arm soldiers does not interfere with an individual’s right to arm himself.
- The government’s power to establish schools does not interfere with an individual’s right to educate his kids at home or start a private school.
- The government’s power to run a postal service does not interfere with an individuals right to operate a messenger service or set up a company like UPS.
The way the Constitution is written puts religion into the same kind of category — i.e., a matter of parallel individual and governmental possibilities.
Federal and State governments are both forbidden to coerce or prohibit individual choice and action in matters of religion.
The Federal government is further forbidden to get involved in any way with a constitutional majority’s decision within a State to express or support religious beliefs or values. The point of this was to secure the right of the people of the States to live under a State government that reflects their religious inclination.
Subverting the wisdom of the Founders
Federal judges who over-turn State laws on religion violate Article IV, Section 4 of the U.S. Constitution:
“The United States shall guarantee to every State in this Union a republican form of government.”
Federal judges who ban Ten Commandments displays on State property say the majority is not allowed to have that right, because some minority … possibly even one person … does not like the result of the vote.
But the Constitution protects the right of State majorities to choose on religious matters. Furthermore, it guarantees the rights of every individual in the losing minority to either stick around and try to convince fellow State citizens to change their votes or else move to some other State that upholds a value system they find more congenial.
What it does NOT do is allow federal judges to establish atheism as the official religion of the entire United States.
Unlawful usurpation and lawful resistance
These federal judges put the force of law and the punishment of force behind their orders. These are the very definition of what constitutes “establishment of religion.” Thus, while pretending to protect religious freedom, they actually destroy it.
Ordinarily, we have a duty to obey a court order. But where that order is unlawful, we may have a right or even a duty to disobey it. For example, if a federal judge orders the governor of a state to take actions that he conscientiously believes violates a fundamental and constitutionally protected right of the people of his State, that official is duty-bound to refuse the order.
An aside from CtH: For our military, this duty is encoded in the UCMJ; there is no “I was ordered to commit that crime” exemption allowed to American Soldiers. For Catholics, the moral rights to and limits on civil disobedience were defined by Pope Paul VI in section 74 of his 1965 encyclical Gaudium et Spes.
Judge Moore and the people of Alabama
The citizens of Alabama are justified in bringing suit against those State officials who carried out the judge’s unlawful order. But since the federal judiciary is the perpetrator, what chance do they have?
Federal judges are human and humans are prone to look first to their own self-interest. Thus expanding their own power is likely to distract federal judges from the legal merits of the case.
The people and their representatives
This is why the U.S. Constitution did NOT make federal courts the ultimate judges of their own powers. That job rests with the Congress.
The right and duty of Congress
Congress must pass legislation that says “hands off” to federal courts on matters of State religious expression, such as the placement of a Ten Commandments monument on State property, which neither prevent nor coerce any individual’s practice of religion.