One writer who recently mangled the meaning of the First Amendment at least posed the right question at the end of his column when, speaking of the First Amendment, he asks, “What else can it mean but what it says so clearly and firmly?” Thus his distortion of the plain meaning of the amendment - in which he uses the First Amendment as a club to repress rather than protect freedom of religion - is both puzzling and disturbing.
The writer fails, for instance, to give proper weight to the very first word in the amendment. “Congress shall make no law…” He asserts that this “applies to all levels and bodies of government.” But it quite obviously and plainly does not. It applies to Congress and Congress alone. The only entity restricted in any way by the First Amendment is the United States Congress. It is simply impossible for a state government, or a school teacher, or a student praying at graduation, or an Alabama judge placing a copy of the 10 Commandments in a courthouse, to violate the First Amendment because it does not even apply to them.
The writer refers to the Supreme Court’s decision in 1947 to retroactively apply the Fourteenth Amendment to the First. But the Fourteenth Amendment was enacted for one purpose only, to prevent individual states from denying citizenship to blacks in the wake of the Civil War. To apply that amendment in a way that prohibits religious activities in schools and local communities is an egregious judicial overreach. The Court’s misguided fusion of the two was simply a way to grant itself license to interfere in religious affairs within individual states, which Jefferson’s “wall of separation” clearly forbids it to do.
The Supreme Court is not infallible, as it demonstrated by reversing its position on state laws regulating sodomy. Either the Court was right in 1986 (it was) or it was right in 2003 (it wasn’t) but it couldn’t have been right both times. And it was plainly wrong in merging the Fourteenth and First Amendments.
History confirms this. The same congress that approved the Fourteenth Amendment rejected the proposed Blaine Amendment (1875) which began, “No State shall make any law respecting an establishment of religion…” Clearly the Fourteenth was not to be coupled with the First. The First Amendment prevents the federal government from meddling in religious matters and the Tenth Amendment indicates such matters were, in Jefferson’s words, to “rest with the States.” And that’s where the issue should remain. Idahoans are perfectly capable of deciding religious liberty issues for themselves without waiting for a black-robed oligarchy on the other side of the country to tell us what we may and may not do.
And so we see that, according to the Framers, Congress is the only entity that can violate the First Amendment, and it can only do so by passing a “law” that “establishes” one official, nationwide Christian denomination (such as the Anglican Church was in England) and gives it legal preference over all other Christian denominations. If it doesn’t do that, Congress can do anything it wants without violating the First Amendment. (Freedom of religion!) Jefferson, for instance, regularly attended worship services held in government buildings when he was president, and signed legislation that assigned taxpayer funds to Roman Catholic missionaries to evangelize Native American tribes.
Jefferson was troubled by a developing trend in his own day, in which the constitution was a "mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." Perhaps it’s time we listen to Jefferson and allow the First Amendment to “mean what it says so clearly and so firmly.”