Will You Comment On The Freedom Of Religion Clause Found In The 1st Amendment Of The Constitution And Any Recent Changes?
March 1, 2020 | View PDF
The First Amendment to the Constitution is a part of those first ten amendments also referred to as the Bill of Rights. The portion of the first amendment that relates to religion reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Unfortunately there are not many writings that exist regarding the discussions on this amendment. It seems that the final language was a collection of suggested amendments.
Prior to the ratification of the Constitution there was a series of newspaper articles published under the name of Publius. These articles were published by 3-4 notable Federalists which supported a stronger central government and were attempting to influence its ratification. In opposition to the Constitution were the anti Federalists who published under other names. The anti Federalists believed the President may be like a monarch and that Federal powers of the judiciary, etc. would become too great. It was a compromise of the Federalists and the anti Federalists that the first ten amendments address the liberties of individuals.
Steven K. Green then an Associate Professor of Law published in
Volume 38 of the Creighton Law Review, 2005, the article Federalism and the Establishment Clause: A Reassessment. Professor Green did an excellent review on the Federalist and anti- Federalist positions. He pointed out that before the Constitution there were some states that favored certain
religious denominations or if they didn’t they still might have religious tests for political candidates. He discussed various points of view including thoughts that the intent by various jurists was more for the
Federal government to stay out of state established denominations. Page 771, stated the following:
James Madison expressed similar views on the lack of federal
authority over religious matters, stating: "[t]here is not a shadow
of right in the federal government to intermeddle with religion.
Its least interference [with religion] could be a most flagrant
usurpation."5 7 While Madison could simply have been asserting
a lack of federal power over national religious matters rather
than a lack of authority over state religious laws, other
federalists were more explicit in their remarks about the federalist
limitations to the Constitution. James Iredell, later to become
justice of the Supreme Court, replied to concerns that the federal
religious test ban could be enforced on state governments:
They [Congress] certainly have no authority to interfere in the establishment of any religion whatsoever, and I am astonished that any gentleman should conceive they have. Is there any power given to Congress in matters of religion? Can they pass a single act to impair our religious liberties? If they could, it would be a just cause of alarm.
Had Congress undertaken to guarantee religious freedom, or any particular species of it, they would then have had a pretence to interfere in a subject they have nothing to do with. Each state, so far as the clause in question does not interfere, must be left to
the operation of its own principles. 58
Madison’s statement was one of special interest in that he said that government should not have authority over religion. I suppose that the first suggestion of that was by a very learned Sunday school teacher of mine just a few weeks ago as he mentioned that in reference to the Establishment Clause. My Sunday School teacher has this quarter been going over the History of Christianity. It has been a great class and the teacher is very knowledgeable and at times a bit over our heads. I think of interest has been the growth of Christianity and its connection to the Catholic Church. While there have been times when the papacy has been given to members of certain aristocratic families or there have been multiple popes or a pope that was very young or a pope that fathered several children, located in multiple places or even involved in murder, it has navigated a bumpy road. That is not a criticism at all of the papacy or Catholic Church but rather to point out the downfall of a religious institution when governments are involved. It was not until the 1930’s when Mussolini allowed the Pope to have their own sovereign and neutral state. The Vatican almost had issues with occupying German soldiers during early World War II when harboring a few allied pilots that had been shot down.
I favor being a more strict Constitutionalist when it comes to Constitutional interpretation. Some jurists do not believe in trying to understand the original intent of the Framers and then there are others who believe the Constitution to be an ever-evolving and living document. I think if the anti Federalist of old were to read the opinions of today they would know that the Federalists had won, that states have lost some powers, that some individuals have gained appropriate rights and some have lost rights especially the unborn who don’t necessarily have a right to life. While the right to worship is untouched the right to express public display of religion is restrained with religious symbols of Christmas and Hanukah necessarily displayed with mythical secular symbols so as not to offend the few.
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.
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