April 27, 2010 – The Amendments to the United States Constitution – Janine Turner
Howdy from Texas. Day 5 of the Constitution! As my daughter, Juliette said, “Technically it’s day 6 but the first day was like a “xii” in a book.” I thank you for joining us today. I am having a WONDERFUL time and I am just rather thrilled to have this opportunity to study the United States Constitution with “y’all” – as we say in Texas. I hope you are reading the daily readings with your children and/or loved one! Please tell your children about our, “We the People 9.17 Contest.” Scholarships, prizes, travel!!!
I want to thank Michael Krauss for his superb essay today on the Constitutional Amendments! I am glad Michael focused on the First Amendment because I am absolutely intrigued with it and I believe it is incredibly relevant today.
I have been writing on the First Amendment quite a bit lately. As I explained in my daily video podcast today, (I do one every day), I have always thought of the First Amendment as “freedom of speech.” Of course, this is one of our most treasured rights. However, I am also starting to recognize the First Amendment as, “freedom of religion.” The beginning of the First Amendment is well known and has been parlayed into the (misconstrued) American mantra of “separation of church and state.” It is as follows, “Congress shall make no law respecting an establishment of religion..” However, the six words that follow are rarely discussed and little known,
“or prohibiting the free exercise thereof..”
“Or prohibiting the free exercise thereof..” Amazing. With these six words, the First Amendment states that it is our right as Americans to express our religion. Both of these statements stemmed from the religious persecution in Europe. Our European ancestors were forced to abide by a mandated religion and were not allowed to freely express their personal religious beliefs.
Thus, this amendment is brilliant and paid for by the blood, sweat and tears of our ancestors. No law may stipulate that an American citizen must follow a certain religion. Great. But also, no American may be denied his/her right to exercise his/her religion – anywhere. The First Amendment does not state, “You may express your religion – but only in certain places.”
I believe that these six words, “or prohibit the free exercise thereof” need to be promulgated across America. They need to become the new American mantra. Our forefathers did not deny God, the Divine Providence, or our Creator a place in government then – nor should He be denied that place now.
16 Responses to “April 27, 2010 – The Amendments to the United States Constitution – Janine Turner”
Julie Bedard says:
Very interesting perspective…I never thought about the phrase “or prohibiting the free exercise thereof” in this manner until now. You are dead on Janine in your analysis of this Amendment. Let us all remember separation of church and state does not mean “Freedom from Religion”. I no longer will feel as if I have to hide my faith!
Bob Greenslade says:
I am surprised the preamble to the Bill of Rights did not get the attention it deserves because the first paragraph discloses the intent of the Amendments.
It states the sole purpose of the Amendments was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended.
Based on the wording of the preamble, the Amendments, when adopted, placed constitutional prohibitions on the powers of the federal government to prevent that government from “misconstruing or abusing its powers” concerning the rights of the people. Thus, a document that restrains the powers of the federal government cannot be the source of the individual rights of the American people.
The Amendments would be easier to understand if they had been titled the Bill of Prohibitions or Bill of Restraints. In the case of individual rights, the Amendments enumerate rights that exist independent of the Constitution and deny the federal government the general authority to legislate or encroach upon those rights. The Amendments are simply an extension of the system of limited government in an enumerated form.
Unfortunately, the preamble to the Bill of Rights remains one of most overlooked provisions of the Constitution.
Vince Scaramozzi says:
I Have the two volume set of the “The Debates on the Constitution” from the Classics of Liberty Library. They are arranged in chronological order and contain both the Federalist and Anti-Federalist papers. I have read most of them. They are a difficult read. Actually, the Anti-federalists were the primary reason the Bill of Rights were presented and subsequently ratified. The Constitution would not have been successfully ratified without the support of the Anti-federalists. They understood that there was a need to clarify aspects of the constitution to prevent misinterpretation and subsequent abuse. The preamble to the bill of rights verifies this purpose.
With regard to the 1st Amendment and its religious clause; I agree that the purpose was to prevent Government from interfering with the peoples’ Right to worship or not worship as they chose. The first part of the clause. (in part) “Congress shall make no law respecting an establishment of religion,” should be considered very carefully. This was the basis Jefferson’s “wall of separation between church and state.” statement to the Danbury Baptist Association. Considering that ‘morality’ is an establishment of religion; could it not be construed that the clause may be understood to also mean no law establishing morality or immorality shall be established?
I have heard the argument that ‘murder’ and other injurious actions are immoral. I agree but there is also the fact that they are also harmful and obviously exhibit perceptible harm. However, there are many actions that are considered immoral but do not inflict perceptible harm. Therefore, these actions should not and do not constitute criminal behavior. Immorality is an individual’s personal perspective and is not subject to state intervention. Actions that inflict perceptible harm or injury upon another human being or their property is a criminal act! Prostitution is immoral. However, it is also a contract between two consenting adults. In the event no physical involuntary harm comes to either party; no crime has occurred. The same goes for recreational drug use. If no harm results then no crime has occurred. However, if an individual inflicts harm due to their impaired state it is imperative that they are punished for that crime regardless or their impairment.
By taking away our “RIGHT” to choose an action based on morality or immorality is an infringement upon our unalienable rights.
hollis ramsey says:
as a nontheist, i am of course interested in the right to freedom from religion. i believe that the Ninth Amendment implicitly gives me the right to be free of religion. the unenumerated rights are i think the most important phrase in the entire Bill of Rights. if we paid more attention to the Ninth Amendment, we wouldn’t need several of the lateramendments — slaves would be free, all men and women would have the right to vote, prohibition would never have happened, e.g.
the Bill protects individual citizens from the tyranny of the federal government. it is a list of “they shalt nots” — not “thou shalt nots.” as such, the Ninth Amendment is probably the most important of them all. and notice that it is placed — deliberately, i believe — ahead of the Tenth Amendment’s guarantee of states’ rights vs. federal rights. placement matters. the rights of the individual trump the rights of the state or of the federal government.
and, in the light of the Ninth Amendment, i plead with you to keep god out of government, including out of theConstitution and Bill of Rights. i do not have a favorable opinion of any gods, including the judeo-christian one so often quoted. we are not a nation “under god” as long as i — and the 12-14% of my fellow americans share that opinion. how can we be indivisible if there are those of us who are not “under god”? the Ninth Amendment gives us the right to be free of god and religion. i am not godless — i am god-free. and i have that right, thanks to the unenumerated rights of the Ninth Amendment.
Hollis: I’m sorry, but you do not have a right to be free “from” religion. The Constitution is very explicit in stating that. You have a right to expect your federal government not to establish a preferred national religion, under the original meaning of the Establishment Clause, but even at the time, several of the original 13 stated did have an established state religion. The argument that religion and government were to be kept apart was aimed only at the federal government, not the state governments.
The restrictions on government inherent in the Establishment Clause were not technically made applicable to thestates until the 14th Amendment was ratified in 1868, and it was not until 1947 that the Supreme Court began interpreting the Establishment Clause as applicable to state laws regarding religion. As for the current trend of trying to remove all reference to religion in the public sphere, that didn’t start until well into the 1980s.
And those efforts are incorrect, and are caused largely by misreadings of the First Amendment.
The United States is not an atheist nation, nor is it a Christian nation, nor an Islamic nation. It is a nation of ALL religions, a place of religious pluralism where the Free Exercise Clause demands of every citizen tolerance of the peaceable exercise of religion by every other citizen, regardless of the form or beliefs involved. While it is true that you can be “god-free” in your own life, your preference for living without reference to or involvement with God does not impose upon anyone else a burden to hide their faith or protect you from exposure to their expressions of religion. To argue that the Establishment Clause gives you the power of the dissenter’s veto, allowing you to suppress the free expression of religion by others defies the purpose of the Free Exercise Clause, which expressly protects the right to place one’s religion on display in the public square.
The stricture of the Establishment Clause is limited to government agents, who, according to the Supreme Court case “Lemon v. Kurtzman” are required to maintain strict religious NEUTRALITY, not religious hostility. Indeed, the Free Exercise clause places an affirmative duty on all levels of government to defend the exercise of religion against suppression by anyone, including government.
Thus, the requirement of the Constitution is that we must all tolerate the peaceable acts of others, and may not misuse the law to suppress the expression of religion by others, who have an individual right to use and enjoy their public lands and property, within reasonable limits, while doing so.
While you do indeed have a right to be an atheist, you do not have a right to use that atheism to suppress the religious beliefs or practices of others.
An excellent example of this constitutional requirement for tolerance by all is Devil’s Tower, Wyoming. Several Indian tribes venerate and worship this geological formation, which they call Bear Butte, as a place of religious power, and have done so for many hundreds, if not thousands of years.
But Devil’s Tower is a national monument and therefore belongs to all the people of the United States, who have an equal right to use and enjoy it in a reasonable and peaceable manner according to their own desires, consistent with the laws intended to conserve the area.
The feature is a popular spot for rock climbing, and many hundreds of climbers scale the butte every year. Indians object to this activity because they consider the butte to be sacred, and this is particularly true in June, when the tribes hold religious observances around the butte.
This is a classic example of the collision of secular activities and religious activities in the public sphere. Many atheists feel that religious observances should not be allowed, since approving them and issuing permits constitutes “establishing” religion by lending government support to religious activities on public lands. But this is not the case, as the Supreme Court lays out in “Lemon v. Kurtzman” where it set forth a three-pronged test to determine whether a particular government act violates the Establishment Clause.
The test consists of three questions:
First, the government’s action must have a legitimate secular purpose.
Second, the government’s action must neither advance nor inhibit religion.
Third, the government’s action must not “excessively entangle” the government in religion.
If any one or more of the prongs is violated, the government’s action violates the Establishment Clause.
So, may the government prohibit the free exercise of religion by the Indian tribes in venerating and worshiping Bear Butte at particular times by denying them a permit? No, because that would violate the second prong of the test by inhibiting their right to free exercise of religion.
Can the government issue them a permit for such activity? Yes, it can, because issuing a permit for a religious meeting is a ministerial duty that has a secular purpose of protecting the resource which neither advances nor inhibits religion, since permits are required for all group activities at the monument.
Can government prohibit climbers from climbing on Devil’s Tower to protect the sacredness of the butte, either generally or during the June religious observances by Indians? No, because that would advance the religious rights of the Indian tribes over the secular rights of the climbers to use and enjoy their public lands, which violates the second prong of the test.
Thus, while the Indian tribes must be permitted to worship, they must tolerate the climbers, and likewise the climbers must tolerate the religious expression of the Indians, even though both activities make use of the same public land.
Vince M says:
With what I just read when I went to school we said “The Pledge of Allegiance”, now due to “other” religious beliefs forced upon us, it has been taken out of our public schools. I am sorry but I get confused, whose country is this?
Hollis….just as placement is important, so too is wording. It is Freedom “OF” Religion….not “FROM” Religion.
Jeremy Ervin says:
I hate to burst your bubble, but there is no such thing as non-religion. That position is absurd on its face. Your unstated (and apparently unrealized) religion is secular humanism. Please hear me out. I agree that we would retain much more liberty if we actually adhered to the expressed-powers Constitutional structure as intended. However, your foundation for these statements is incoherent without understanding the Source of law.
God cannot be kept out of government as you suggest. If you believe, as you say, that the 9th amendment or any of the amendments “gives” you any rights, then the Constitution (i.e. the men who wrote it) becomes the lawgiver, and therefore is your god. So then, if man is the ultimate arbiter and authority of his rights, then man has become his own god. This is an inherently humanistic religious notion. On the contrary, the Constitution does not create rights. It simply guarantees rights that were correctly understood at the founding the united States by setting the scope and limitations of the federal government. Where do rights come from in the first place? The founders believed they come from the Lawgiver, who is God. They believed “that all men…are endowed by their Creator with certain inalienable rights…”
While I would agree that one cannot be coerced to worship God in any other way than according to the dictates of his own conscience, the Bill of Rights specifically guarantees freedom OF religion. It was John Adams who said, “Ourconstitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.” This was not a minority view or understanding, but can be found throughout the statements of the founders in general.
Also, you can’t keep God out of the founding documents because He is explicitly included. Besides the fact that unanimous consent is given “in the Year of our Lord “, the Constitution points directly to the charter of the nation, namely the Declaration of Independence. Therefore, you can’t somehow leave out the critical import of the Declaration, which specifically refers to God as man’s Creator, appeals to the Supreme Judge of the world, and relies upon the protection of Divine Providence. Both documents are full of principles and precepts taken straight from the pages of Holy Scripture. This was not a mistake or simply the politically expedient road based on the times in which the founders lived. It was based on firm, deeply held religious convictions about the nature of God and mankind.
If we are not “under God”, then it is only because we have left our national religious moorings. I would suggest that our only alternative is to return to that same commitment to Almighty God that was the firm reliance of our founders, or else we are doomed to the driving winds and tossing waves of the open sea. Without an unchanging Lawgiver, rights are simply what someone else decides is acceptable for you, AKA tyranny.
Jeremy Ervin says:
Seth, I agree with your arguments, with the exception of one point (respectfully). This nation was specifically founded as a Christian nation and none other. “The Lord” specifically refers to the God of the Bible, and the founding fathers knew this. It was not that they thought non-religion was in any way acceptable. Rather, they understood the distinction between Church and State and their respective jurisdictions. Corporeal matters (man’s duty to man) was the jurisdiction of state government, and spiritual matters (man’s duty to God) was the jurisdiction of church government. Each sphere of government was directly accountable to God and did not have authority over the other.
Therefore, the plain statement was made in the first amendment that the federal government could in no way force man toward his religious duty to God. Not that man was absolved from that duty, but that the State had no jurisdiction there because that was a matter of the heart. The Church, however, did have that jurisdiction. And thus many presidents and other political leaders publicly called the people to repentance for their sins and pleaded for God’s grace upon the nation. They did not privatize their religion, but demonstrated it openly in their governance. They invoked the name of Almighty God, rightly understanding the Source and sustaining Power of law and judgment.
The prevailing notion today that we are pluralistic is incorrect. Neither does majority opinion on the matter make it correct. Perhaps we have turned into a pluralistic society over time, but that is only due to a lack of understanding and application of our national birthright. The entire root and foundation of the united States of America is Almighty God, the Creator of heavens and earth, not deism or a mystical feeling of some god-like entity out there somewhere, or anything else. I think it is impossible to find such notions in the writings of the founders. Instead we find prayer and supplication to God, and a clear recognition of His supervision all throughout.
E E Keller says:
As you do not have the right to you use your expression of religion to suppress beliefs or practices of others; which religious zealots do all the time.
The genius of the Founders is in their deep philosophical and political thinking and debate about the fundamental principles of government and society, and their discovery of principles of liberty and constrained government that resulted in the creation of the most successful political and social model in the history of the world. We don’t see that kind of careful political thinking on original principles much today, and that’s why, at least for me, the Founding Fathers are revered, not as supremely intelligent, but as unusually skilled in deep political and ethical thinking, far beyond most of what we see today. They were not more intelligent, they were simply more wise and careful thinkers.
For those who do not believe in deity, who are non-theistic in their beliefs, I believe that there is an objective, scientific and philosophical basis for what the Founders attributed to deity. For non-theists, the practical effect of referring to a Creator, and the assertion that our rights are granted by God, not man, is to ensure that the rights that we enjoy are not derived from the ever-changing political philosophies of man, but are an inherent part of our nature as living beings and thinking humans. It is the inherent nature of our rights that makes them unalienable, and non-theists must have an objective, intellectual basis for finding those rights to be inherent if we are to avoid having our rights characterized as state-granted and subject to the whims and caprices of the public will.
The Founders took as a principle that a Creator exists, and they wisely decided that because subjective rights, those that are subject to the whims and caprices of the ruling class, were not effective in protecting individuals against the tyranny of despots and their fellow men. So, they moved rights beyond the power of either man or government to grant or deny, into the philosophical realm of “natural rights” precisely in order to prevent what they rightly saw as the dangers of despotism and majoritarian tyranny that inevitably occurs when one man, or one group of men, are permitted to determine what rights another man, or group of men, may enjoy.
The Founders resorted to deity and religion because such beliefs were ubiquitous in their time and they did not see any need for any other rational basis for such rights. But it is true today that there are many Americans who are not theistic by nature, and it is likewise true that they ought to enjoy the same rights as any other person, and that therefore we should seek an objective, rational basis for our unalienable rights.
In the context of Creator versus Nature, whether a Creator exists or not is not terribly relevant to the philosophical construct of natural rights. Rights, in that non-theistic sense, accrue simply by virtue of our existence as human beings and the necessities of nature for social constructs to regulate behavior in communities. Rights are clearly a product of our intellect, but this does not mean that their origin cannot be derived from observations of our natural world and natural behavior. Natural rights are founded in natural principles, which is what gives them their intellectual strength when applied to human behavior outside the theistic realm.
For that reason I have for some time been trying to construct a logical and rational argument that derives our inherent rights as a function of natural processes, which I see as a companion to theistic belief, not in opposition to it. I call these derivations the Organic Rights, which are derived from organic laws of nature and natural behavior.
Every organism needs life, autonomy, the resources to survive, and the ability to reproduce in order to exist both as an individual and as a species. The Organic Rights are expressions of these fundamental organic needs as applied to human society, and it is my claim that human society cannot survive unless it respects those fundamental organic needs of all human beings any more than a species itself cannot survive if it does not fulfill the underlying organic needs. Thus, I express those fundamental organic needs as the Organic Rights, because without societal recognition and protection of those rights, individuals cannot survive and society cannot exist.
Every organism on earth seeks to preserve it’s own life. This instinct is seen everywhere in the natural world as a function of evolution. Every individual organism seeks autonomous life in that it will defend itself and its life when attacked by another organism. Therefore, the First Organic Law is that all living creatures pursue autonomous survival and will engage in self-defense to prolong life. From the First Organic Law I derive the following Organic Rights:
The First Organic Right is the right to life, for without the right to life, there is no purpose for any philosophical construct, and death is the result.
The Second Organic Right, the right to individual liberty, emerges because all living creatures strive for organic autonomy and individual liberty.
The Third Organic Right is the right to self-defense, because all living creatures naturally defend their lives when attacked, to one degree or another.
Next, we observe in nature that all living creatures will seek to find and obtain that which is necessary for their survival. Fundamentally this is energy, which comes in many forms. In addition, higher creatures will seek out shelter against the elements as well, as a part of the necessities of survival. From this natural behavior I derive the Second Organic Law; all creatures seek to obtain and secure to their own use the resources necessary for survival.
From this Second Organic Law I derive the Fourth Organic Right; the right to seek out, obtain and reserve to one’s exclusive use the resources necessary for survival, which is more simply stated as the right to the exclusive ownership and use of private property.
The Third Organic Law is that all creatures seek to reproduce and pass on their genetic material as a function of evolution.
From this I derive the Fifth Organic Right, which is the right to reproduce, more complexly stated as the right to form a relationship with a mate, engage in reproductive behavior, create a family and raise one’s children to adulthood.
Thus, I derive natural rights directly from natural behavior, without resort to deity or a Creator, but rather simply by reference to our nature as living beings. Those rights are inherent, and superior, and unalienable, and not derived from any social construct of mankind because they are necessary components of our very existence and being, without which no man, and no living creature, can survive and flourish.
This places at least these five Organic Rights above any inferior human social construct, and therefore places them beyond the power of others to disparage or deny as a matter of general social policy. Society may not morally deprive an individual of his Organic Rights absent some misbehavior on the part of the individual that makes it necessary to do so.
This construct does not disparage the concept of a Creator, or of God, but rather it simply describes the basis of superior unalienable rights from a non-theistic direction, for the benefit of those who choose to exercise their religious freedom non-theistically. It also serves to resolve the objections of non-theists to idea that our rights are divinely inspired, but without disparaging the beliefs of those who adhere to the firmly religious historical context of the Founders.
Jeremy writes: “Seth, I agree with your arguments, with the exception of one point (respectfully). This nation was specifically founded as a Christian nation and none other.”
Jeremy, I’m afraid I must disagree. Thomas Jefferson explicitly debunked this assertion in saying, “Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting “Jesus Christ,” so that it would read “A departure from the plan of Jesus Christ, the holy author of our religion;” the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.”
There existed at the time of the Constitutional Convention the adherents of many different religions within the bounds of the nation, and it was the express desire of the Founders to extend to each and every person the right to worship as their conscience called them to do so, subject only to such worship being peaceable and tolerant of the like right of others to worship differently.
This is what I mean when I say this is a religiously pluralistic society. Of course the predominant religion of the nation was Christianity, but within that context there were endless denominations and congregations who had differences in their beliefs and practices. That this nation was founded BY Christians (predominantly) does not mean that it was founded exclusively FOR Christians, much less that our system of law and government is intended to favor Christianity over any other religion. The First Amendment makes that perfectly clear.
You are correct in saying that religion and government have their separate spheres and each citizen has a duty to each distinct from his or her duty to the other, but the Founders were perfectly clear that while they personally attributed the opportunity to found a new nation, based on new principles, to the grace of God and his divine inspiration (and I will not dispute this point), and they expressed this gratitude and opportunity firmly to God, they were determined not to recreate precisely the sort of theocratic tyranny they had just expended the precious blood and treasure of the inhabitants of America to escape.
So, it is true enough to say that the Founders themselves worked to create the Constitution based in part upon their beliefs and obedience to God, who they believed had called them to this task, but it is not true to say that the nation, and the Constitution that flowed from that inspiration, be it divine or worldly, makes the nation an exclusively “Christian Nation.” The express declarations of the Constitution and the many statements of the Founders themselves belie this construction.
Certainly Christianity is the predominant religion, but in our Constitution, it takes its place in equality beside all other peaceable religious beliefs.
Ralph T. Howarth, Jr. says:
it was the express desire of the Founders to extend to each and every person the right to worship as their conscience called them to do so, subject only to such worship being peaceable and tolerant of the like right of others to worship differently.
This is what I mean when I say this is a religiously pluralistic society.
An absolute pluralism is an impossibility with religion when it comes down to the governance of behavior that theConstitution does not touch. That is the civil moral code of law. You cannot have pluralism when it comes to religion in moral law. An example is that the Christian says murder is wrong; but the Islam says, honor killing is right. There is no plural moral ground to meet there. The Constitution only addresses what are temporal affairs to which air affairs that are not moral in nature. What the Constitution did establish was a trans-denominational public square where: 1) The right of conscience is the most sacred of property; and 2) because of the Christian belief system that one must live by faith and not be coerced into what is against there conscience. This in turn is where we have the freedom of worship, prayer and liturgical rites. An Mohammedan, Hindoo or Infidel is welcome and free to do as they please here as long as they abide by the moral civil code of the Judeo-Christian ethic. That is where the Lemon test goes wrong and freedom of religion is abused. When it comes to the question of worship and such, then it is liberty; but when it comes to matters of behavior, then it is touching morals and no longer is liberty. Breaching morals is called license; but many today confuse license for liberty to which they say, “Don’t force your religion on me” when what they actually are saying “Don’t force your morals on me…it burns my conscience.”
The 1st Amendment never advocated license in any received sense and jurisprudence dictates that one must consult what is the probable view of the legislator who passed the law over that of any court opinion that follows thereafter. A court ruling is an opinion and not law: that is why it is a called an “opinion”. The Capital building being federal property was used for Sunday church services in the House of Representatives up to about the times of the Civil War, and Thomas Jefferson advocated the establishment of the nation’s first trans-denominational university, attended services in the capitol frequently, and his abridged Bible on the morals of Jesus Christ sent to the Indian tribes on federal lands. Such persisted up to about 1900 where federal funds was used to support Catholic missionaries to the Indian Tribes. In addition, that same Congress that passed the First Amendment is the same Congress that passed the Northwest Ordinance saying: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”