Big Liberty Agenda. What Has Been Lost? The 1st and 2nd Amendments.
on July 19th, 2010 at 2:49 am 
A liberal friend of mine, asked me, with a straight face the other day, “Why are you so worried about the Constitution? What rights have you lost? This got me thinking, as many people who aren’t plugged into the news might not see an erosion of freedom.
While the loss of freedoms has been happening over the past century, the Obama Administration’s has accelerated the process to a point where more people are becoming concerned.
Yet many of these lost freedoms only impact a small percentage of individuals. Those that are distracted by the latest reality TV shows and celebrity gossip, have no idea anything is amiss.
Over the next few weeks, we’ll be highlighting some of the Constitutional rights that are endangered by our out of control Federal Government. Let’s start with the 1st Amendment.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Let’s take it piece by piece…Today we’ll look at freedom of religion and freedom of speech.
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”
This is the first Constitutional error many make as most in the mainstream always discuss the separation of church and state, as if those words appear in the Constitution. Thomas Jefferson penned those words in a letter.
The main thrust of this was to avoid a state sponsored religious organization like the Church of England. Not only was the state church a danger to the free expression of religion, at the time it was an exceedingly corrupt arm of the British monarch. The founders had no intention of banning religious practice from the public arena, only to ensure the government did not create a state sponsored and funded church.
Federal and state courts have used the wall metaphor repeatedly and incorrectly to infringe on the basic right of religious expression.
- Censor private religious expression (such as Christmas displays) in public areas
- Removing religious symbols (such as crosses) from government land/buildings
- Denying education vouchers for church sponsored school
- Denying faith-based social welfare agencies the same rights as their secular counterparts.
The whitewashing of religion from public life offends the basic rights of religious exercise, expression, and association. This has been happening for years prior to the Obama Administration.
Obama has taken this to a different level, which now threatens the very basis of our cherished religious freedoms.
One subtle, but telling change is the constant use of the phrase Freedom of Worship instead of Freedom of Religion. The difference is subtle but critical. Freedom of Worship specifically speaks to what you do within the walls of a church. Freedom of Religion speaks to the free exercise of those religious beliefs. So worshiping your church is fine, but outside of those walls, there is no guarantee of he right to freely express your beliefs.
Right now the bans are on roadside crosses, the wearing of t-shirts at schools, etc.
Taken to extremes, this could mean banning of evangelical missions, destruction of church schools and initiatives and the right to express religious beliefs that fly in the face of political correctness. For example, the new hate crimes legislation could make religious speech, critical of homosexuality, a hate crime.
The stage is set, for the Federal Government to severely limit expressions of religious freedoms based on a non-existent separation of church and state.
“Congress shall make no law… abridging the freedom of speech.”
There have always been challenges to this very simple language. The rights of privacy and public safety have created a push pull for this basic right.
In 2003, the one of the biggest infringements of this basic right was enacted and held up by the Supreme Court…The McCain/Feingold Campaign Finance bill, which in part, placed strict limits on when groups could run TV ads during a campaign.
The justices and many liberal groups hold that large corporations will have undue influence on elections and this compelled the law. As Judge Scalia said at the time this bill was originally upheld, “it was a sad day for freedom of speech.
Subsequent rulings have effectively overturned this abomination. But Congress will soon pass the DISCLOSE act, which will place even tougher restrictions on campaign related speech.
Those on the left (in both political parties) maintain that this is necessary to keep evil big business out of politics. Yet, the judges, legislators and supporters of this miss a simple point.
“Congress shall make no law… abridging the freedom of speech.” People and groups with the means to advertise on TV should not be denied that right simply because of the proximity to an election. Whether the ads are sponsored by George Soros or Rush Limbaugh, the basic simple and clean language of the 1st Amendment should always prevail.
In addition, there are repeated attempts, in the name of political correctness, to have certain words, banned as hate speech. Efforts abound to effectively censor voices through ideas like the Fairness Doctrine and Internet regulations on websites. Numerous other examples abound.
The simple fact is that the founder’s language is clear and should be understood by any reasonable person. We should not make any laws infringing on these rights. Period.
Yet these rights have been under assault, by both political parties, for years.
The momentum is building to further restrict speech and religious expression as these freedoms are an impediment to the goal of rigid state control that progressives have pursued for years. With the current Administration they are working hard to make this scary vision a reality. Opinions that differ from their dogmatic belief system could be the next target of additional initiatives and legislation.
“Congress shall make no law respecting…of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
These freedoms are under assault, not only by a government that is actively looking into
- Implementing net neutrality
- The Fairness Doctrine
- Prosecuting/harassing media members that have the temerity to challenge the regime.
- The Administration attempted to cut Fox News out of media coverage and regularly derides the network.
- There is this little known case where a local journalist is being prosecuted by the Federal Government for exposing a government housing scam. The journalist refuses to reveal his sources so he is being prosecuted to “protect life and property.”
In some ways, the media has voluntarily become a pawn of the government. Stories like the refusal to allow an audit of the Federal Reserve, Van Jones, the ACORN scandal, the DOJ’s unconscionable decision to drop the the Black Panther voter intimidation case, and climategate are just a few of the major stories that the Main Stream Media has chosen to ignore over the past 2 years.
Whether it is by choice or convenience the 4th Estate has often willfully ignored stories that would embarrass the administration. GE owns NBC. GE stands to make billions of dollars based on Green Energy and other Obama Administration initiatives. It sure wouldn’t be a stretch to see that critical stories about the administration would not be prudent for any of the NBC networks to cover. One wonders, if there are similar reasons that keep the other major networks and papers from covering key stories.
Our first amendment rights are under particular assault right now. What can we say about the 2nd Amendment that hasn’t been said already?
Major cities have effectively banned the ownership of guns by law abiding citizens. Every year, liberal legislators rush to past more and more restrictive gun laws. This year, a law was struck down by the Supreme Court that would have effectively gutted the 2nd Amendment. But the scary part was the vote was 5-4….and the minority decision vigorously defended the governments rights to effectively ban firearm ownership. We teeter on the brink of the 2nd Amendment being effectively stricken from the Constitution.
Next time, we’ll touch on the 9th and 10th Amendments of the Constitution….as we explore the freedoms that have been lost…or about to be lost,
This is just one of many reasons why the Roanoke Tea Party is at the forefront of the 21st century Civil Rights Movement. This is a movement to ensure these basic rights to all people. Be the resistance and Join Us in the Civil Rights movement.
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The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and later learned they were mistaken. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”
The First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.
Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state. I commend it to you. http://tiny.cc/6nnnx
Thanks for your thoughtful reply. No one is suggesting that the government be “infused with religion.” That is absurd.
But the Federal government should not take on a role of actively opposing expressions of religious freedom.
The recent shift in language towards protecting the “right of worship”, versus the broader definition described in the Constitution is the most troubling trend in regards to the definition of the Freedom of Religion. While it may seem a question of semantics, opponents of our Consitutional freedoms have doen a masterful job of manipulating the language around these key issues.
The 1st Amendment was not written to remove religion from the public square. But that appears to be the agenda of progressive politicians and judges. I would think this endangers the free expression of religion much more than a nativity scene in front of a puiblic building.
When discussing separation of church and state, it is critical to distinguish between the “public square” and “government” and to distinguish “individual” from “government” speech on religion. You are correct to note that the First Amendment does not remove religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. And in practice there is religion aplenty in the public square; I see and hear it daily in the media, on the street, on the internet, etc. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. While figuring out whether someone is speaking for the government may sometimes be difficult, making the distinction is critical. The Wake Forest paper does a good job of summarizing how the courts go about sorting this out.
You assert that the founders intended “only to ensure the government did not create a state sponsored and funded church.” The legislative history of the First Amendment belies the narrow scope you would give it. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. In keeping with the Amendment’s terms and legislative history, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by Congress and/or the Executive doing all sorts of things to promote this or that religion–stopping just short of formally establishing a church.
While I don’t think a manger scene in front of a government building should be construed as defacto establishment of religion, reasonable people can disagree.
What is happening now, is a shift towards the establishment of a new religion…the religion of Liberalism. Read Ginsberg’s majority decision in Christian Legal Society v. Martinez this year, and it is filled with lines like this…that education should foster the…“development of conflict-resolution skills, toleration, and readiness to find a common ground.” Is that not imposing a world view that is very much like a religious belief? What if I feel like finding truth and developing ethically grounded students are more important educational goals? If those are religious goals…do the secular flavors of the month (inclusion, toleration, etc.) somehow trump other standards that might have some vague religious background?
Progressives have a religion…they just don’t call it that. And it is promoted in decisions like this.
Denying the ability of this group to limit membership based on religious beliefs is one step closer to making the expression of religious beliefs outside of worship, illegal. And that is certainly not what the founders had in mind. Here is the decision and an insightful analysis from (shockingly) the NYT.
Manger scenes and such are relative quibbles. This decision is a manifestation of where the subtle shift away from the original intent of the 1st Amendment is taking us…
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=08-1371
http://opinionator.blogs.nytimes.com/2010/07/19/being-neutral-is-oh-so-hard-to-do/?scp=7&sq=christian&st=cse
Though I have read the case and Stanley Fish’s commentary, I am not familiar with the case law concerning First Amendment rights in the context of a “limited forum” established by a government body, here Hastings College of the Law (my alma mater).
That said, I’ll venture some observations. First, the passages that you and Fish consider promotion of “religions” of multi-culturalism, liberalism, or the like are not statements by Ginsburg of what she thinks education should foster, rather they are statements by Hastings of what it has adopted as its educational goals. When a state restricts access to a limited public forum, the law provides that the restriction must be reasonable, not necessarily the only or most reasonable one, but at least reasonable. Ginsburg merely found Hastings’ restriction reasonable in order to further the educational goals the college set, in part, by incorporating discrimination policies established by the state legislature.
You would not, I trust, favor a court supplanting a state college’s educational goals with different goals of the court’s choosing.
Note too that this is not a case about Hastings prohibiting or restricting CLS from excluding anyone it wants or saying whatever it wants. CLS remains free to do that. Rather this is about whether Hastings established reasonable conditions for the eligibility of a “registered student organization,” a status bringing entitlement to certain benefits such as use of school funds and facilities and the Hastings name and logo. It only seems reasonable that a school would have some say in who it gives its money and lends its name.
I understand that some think that the government discriminates against them and their religion when it precludes them from discriminating (as the government would characterize it) against gays. The courts have occasionally confronted issues concerning whether and, if so, when the government may require people to do things contrary to their faith. They have generally ruled that the government cannot enact laws specifically aimed at a particular religion, but if the government enacts laws generally applicable to everyone or at least broad classes of people (e.g, laws concerning traffic, pollution, taxes, contracts, fraud, negligence), it can require everyone, including those who may object on religious grounds, to abide by them. (Were it otherwise and anyone could opt out of laws with the excuse that their religion requires or allows it, the government could hardly operate.) While the government has this power, it may (and sometimes does) choose to relieve individuals of this bind by including conscientious objector provisions or the like in the law.
“You would not, I trust, favor a court supplanting a state college’s educational goals with different goals of the court’s choosing.”
That certainly isn’t going to be a problem here, because the college and the judge share the same views. To suggest that Ginsberg’s bias doesn’t play a role here is naive.
Your whole argument hinges on the fact that court precedent has slowly eroded the very simple language of the 1st Amendment, and that precedent justifies the erosion. Even though that erosion is dripping with bias.
The 1st Amendment means what it says…and the courts are moving towards a goal of freedom of worship…not freedom of expression. So outward expressions that don’t fit what the liberal courts or what liberal institutions believe are being suppressed. I see no cases where expressions of liberal/progressive ideology are being blocked by courts on behalf of offended Christians.
The latest case would be this one. http://www.foxnews.com/us/2010/07/28/court-university-expel-student-opposes-homosexuality/?test=latestnews
I am sure there is a precedent laden legal argument to support this argument as well. But going back to the orginal language of the 1st Amendment….this is a clear violation of her expression of her religious beliefs.
This is why the latest hate crime legislation is so damaging to Civil Liberties. Taking the application of this to its logical conclusion, we have just legislated against the belief that homosexuality is a sin and therefore “wrong.” And while preaching this in a church MAY be protected for now…any outward expression of this in the public square will be outlawed.
And that is antithetical to the founders vision.