Denying History
A federal judge has ruled that it is in violation of the U.S. Constitution for the Indiana state legislature to open their session with a prayer invoking "any deity", in this case Jesus. The Indiana Civil Liberties Union led the charge to send Speaker of the House Brian Bosma's invitation of a reverend who mentioned Jesus straight to federal, not state, court to determine whether or not Bosma was improperly allowing an endorsement of a specific religion.
First, I tend to be an originalist when it comes to the U.S. Constitution's Bill of Rights. I also believe that it is the job of the federal courts to interpret what the meaning of those rights were at the time of the Constitution’s creation and apply them in their decisions. I do not believe in a "Living Constitution", one that changes with the political or social wind, even if it only blows from the extreme left at times. You might as well not have a Constitution if you believe it should change that frequently. Law could be anything the most influential group wanted it to be. That is anarchy at worst, oligarchy at best. A representative republic, as we have, or any institution purporting itself to have roots based in democracy, must have a framework of rights that is inviolate.
If those rights are restricted, as the Bill of Rights often are, it must be by the established amendment process of the U.S. Constitution and not by judicial fiat. If a lone judge, a panel of judges, or nine judges in Washington can decide what our rights currently mean, perhaps differently than 20 years ago, and differently 20 years from now, then we have no inalienable rights. We have only what we are granted by this tyranny of the judiciary. Therefore, knowing the original intent of the Founding Fathers is critical. If we accept that these were good men who established for us a good government, then we accept what legacy they provided us in the Bill of Rights, not as our only freedoms, but ones that the federal government (and later dubiously through the 14th Amendment, the States) cannot alter or restrict or reinterpret at their whim. In the case of the First Amendment, traditionally, the Court will examine whether a government action violates the Establishment Clause. If it doesn't, it must determine whether it overly burdens an individual's right to adhere to his or her religious customs.
With all this in mind, the ICLU director today made comments regarding the case on the show "Abdul in the Morning" on WXNT 1430 that the Indiana legislature's actions flew in the face of "decades of precedent" and noted this was how the law had been interpreted for "20 years or more". Here in lies the flaw in the arguments of the Left in this country. Twenty years ago, big hair bands and parachute pants were in style. The arguments of the Left, in my opinion, don't even have that kind of longevity, despite their exhaustive attempts to jam them down the public's throat time and time again. This is the point of originalism. You're either right today and always or you're right based on the social engineers of the day and also subject to them.
What if, in ten years, we were to see a religious revival across the nation and the First Amendment were reinterpreted again to make Christianity the religion of the land. Well, that's a violation of the Establishment Clause, unless you have social engineers on the Courts that constructively write their opinions to say that in fact it isn't since we are fundamentally a Christian nation (again, at the time). Or, would you on the Left prefer the originalist Justice who would say "No, this is a clear violation of the Establishment Clause based on the historical writings and beliefs when the Amendment was written"? My guess is you would want the originalist, a wonderful hypocrisy, but one many on the Left will never grasp.
Historically, there has been a prayer invocation in legislatures going back to the First Congress. Many at the time of the writing of the Constitution invoked Jesus and a Christian God. This was expected and the norm and not seen as infringing on the rights of those including the "Enlightened" who did not subscribe to that theory of the time. Setting aside other religions like Judaism, those of the Age of Enlightenment who didn't hold to Christianity and who were loudest of all at the time said next to zero on this fact. Ok, one private letter from Thomas Jefferson (which amazingly folks does NOT qualify as law), but beyond that, there's next to nothing. Invocations mentioning Jesus were not viewed by the likes of the delegates of the Constitutional Convention to be an Establishment of Religion, and would likely more be viewed as a matter of Free Exercise. We are exercising our right to pray. If you don't wish to...don't. That's your free exercise. If we force you at gun point to pray our prayer, then we are "Establishing" religion.
Pretty straight-forward when you look at it that way and not through the distorted prism of nuances, emanation of penumbras, and coercive counseling, no?
This is how I see the issue, and frankly how most Americans see the issue. Our religion is our business and if our elected representatives want to freely exercise their religion in chambers, they are no different than us. Or do we say we deny them rights because they serve? Doesn't that touch on the whole "equal protection" thing the left is always up in arms about?
A federal judge has ruled that it is in violation of the U.S. Constitution for the Indiana state legislature to open their session with a prayer invoking "any deity", in this case Jesus. The Indiana Civil Liberties Union led the charge to send Speaker of the House Brian Bosma's invitation of a reverend who mentioned Jesus straight to federal, not state, court to determine whether or not Bosma was improperly allowing an endorsement of a specific religion.
First, I tend to be an originalist when it comes to the U.S. Constitution's Bill of Rights. I also believe that it is the job of the federal courts to interpret what the meaning of those rights were at the time of the Constitution’s creation and apply them in their decisions. I do not believe in a "Living Constitution", one that changes with the political or social wind, even if it only blows from the extreme left at times. You might as well not have a Constitution if you believe it should change that frequently. Law could be anything the most influential group wanted it to be. That is anarchy at worst, oligarchy at best. A representative republic, as we have, or any institution purporting itself to have roots based in democracy, must have a framework of rights that is inviolate.
If those rights are restricted, as the Bill of Rights often are, it must be by the established amendment process of the U.S. Constitution and not by judicial fiat. If a lone judge, a panel of judges, or nine judges in Washington can decide what our rights currently mean, perhaps differently than 20 years ago, and differently 20 years from now, then we have no inalienable rights. We have only what we are granted by this tyranny of the judiciary. Therefore, knowing the original intent of the Founding Fathers is critical. If we accept that these were good men who established for us a good government, then we accept what legacy they provided us in the Bill of Rights, not as our only freedoms, but ones that the federal government (and later dubiously through the 14th Amendment, the States) cannot alter or restrict or reinterpret at their whim. In the case of the First Amendment, traditionally, the Court will examine whether a government action violates the Establishment Clause. If it doesn't, it must determine whether it overly burdens an individual's right to adhere to his or her religious customs.
With all this in mind, the ICLU director today made comments regarding the case on the show "Abdul in the Morning" on WXNT 1430 that the Indiana legislature's actions flew in the face of "decades of precedent" and noted this was how the law had been interpreted for "20 years or more". Here in lies the flaw in the arguments of the Left in this country. Twenty years ago, big hair bands and parachute pants were in style. The arguments of the Left, in my opinion, don't even have that kind of longevity, despite their exhaustive attempts to jam them down the public's throat time and time again. This is the point of originalism. You're either right today and always or you're right based on the social engineers of the day and also subject to them.
What if, in ten years, we were to see a religious revival across the nation and the First Amendment were reinterpreted again to make Christianity the religion of the land. Well, that's a violation of the Establishment Clause, unless you have social engineers on the Courts that constructively write their opinions to say that in fact it isn't since we are fundamentally a Christian nation (again, at the time). Or, would you on the Left prefer the originalist Justice who would say "No, this is a clear violation of the Establishment Clause based on the historical writings and beliefs when the Amendment was written"? My guess is you would want the originalist, a wonderful hypocrisy, but one many on the Left will never grasp.
Historically, there has been a prayer invocation in legislatures going back to the First Congress. Many at the time of the writing of the Constitution invoked Jesus and a Christian God. This was expected and the norm and not seen as infringing on the rights of those including the "Enlightened" who did not subscribe to that theory of the time. Setting aside other religions like Judaism, those of the Age of Enlightenment who didn't hold to Christianity and who were loudest of all at the time said next to zero on this fact. Ok, one private letter from Thomas Jefferson (which amazingly folks does NOT qualify as law), but beyond that, there's next to nothing. Invocations mentioning Jesus were not viewed by the likes of the delegates of the Constitutional Convention to be an Establishment of Religion, and would likely more be viewed as a matter of Free Exercise. We are exercising our right to pray. If you don't wish to...don't. That's your free exercise. If we force you at gun point to pray our prayer, then we are "Establishing" religion.
Pretty straight-forward when you look at it that way and not through the distorted prism of nuances, emanation of penumbras, and coercive counseling, no?
This is how I see the issue, and frankly how most Americans see the issue. Our religion is our business and if our elected representatives want to freely exercise their religion in chambers, they are no different than us. Or do we say we deny them rights because they serve? Doesn't that touch on the whole "equal protection" thing the left is always up in arms about?
posted by Rob Beck | 9:29 PM
3 Comments:
If you want to use "strict interpretation" on the First Amendment, why even argue that the First Amendment prohibits state establishment of religion? The First Amendment says *Congress* shall pass no *law*. So, if it doesn't involve a Congressional law, why not conclude that the First Amendment does not apply?
If the Indiana General Assembly passes a law that outlaws Presbyterianism, wouldn't that comply with a strict reading of the First Amendment? It's not Congress, and it's not establishing a religion, it's prohibiting one.
My point being, that if you agree that the Indiana General Assembly is prohibited by the First Amendment from outlawing Presbyterianism, you have to conclude that there is more to the First Amendment than is readily apparent from the plain text. To determine what is and is not prohibited by the First Amendment, a judge is required to refer to pass case law, particularly that decided by the United States Supreme Court. That is what the judge in this case did. Had he done otherwise, he would have been engaging in that dreaded judicial activism.
There is government speech and there is private speech. This is a critical distinction. The Speaker of the House of Representatives conceded in the legal proceedings that prayers from the Speaker's podium constitute government speech. Because access to the podium is controlled by the Speaker and is not available to the public generally, these prayers are government speech. It's entirely reasonable to view the First Amendment as a limitation on government, in this case a limitation on government speech. For the government to engage in standing, clapping revival-style "sing with Jesus" prayers is inappropriate government speech. Were this private speech, there would be no problem at all.
I'm in favor of limited government, and I think the case was decided appropriately. Read the thing -- it's 60 pages, but it's very well written.
Available at:
http://www.insd.uscourts.gov/News/1-05-cv-0813%20Opinion.pdf
I sort of waffle on this issue, but here's a question:
Let's say that there had been a conflict, early on. Let's say Jefferson, who privately compiled his own version of the New Testament which excluded any reference to miracles, divinity, or resurrection -- in other words, embraced the philosophy and rejected the mythology -- had come forward, early on, to reject invocations of God on the grounds that such invocations were offensive to his personal beliefs. Would the Court have sided with him?
What prevented him from bringing such a case, or publishing his New Testament? Societal pressures, presumably, pressures which have since been mitigated by the advance of science and reason -- and the fact of multiculturalism, which has been a part of this country since non-Europeans started flocking to our shores.
That's the thing: the Court only decides a thing when it becomes controversial. The fact that it wasn't controversial at the time doesn't necessarily mean it was Constitutional. Now, I don't know for certain that the case was never brought up, but I have to assume if there was a precedent we'd have heard about it by now.
Seems like there has been a live and let-live attitude with respect to these prayers for a long time. My guess is that Rev. Brown's "Walk with Jesus" standing, clapping, singing revival style prayer is what pushed a few people over the edge.
Once the case was in front of Judge Hamilton, he had to take the facts in front of them and apply the existing law. Everyone would have been better off, I think, had the prayers been toned down, even if they still contained references to Jesus.
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