“We will use the freedoms of the Constitution to destroy the Constitution” – was a sign held by a Muslim demonstrator in Dearborn, Michigan, reported in Dr. Irwin Lutzer’s book, “The Cross in the Shadow of the Crescent.”
This is similar to sharia Muslim organizer Anjem Choudary of Islam4UK who declared in the London Daily Express, Oct. 15, 2009: “We have had enough of democracy and man-made law. … We will call for a complete upheaval of the British ruling system … and demand full implementation of Sharia in Britain.”
Dwight Eisenhower warned of this (Time magazine, Oct. 13, 1952): “The Bill of Rights contains no grant of privilege for a group of people to destroy the Bill of Rights. A group … dedicated to the ultimate destruction of all civil liberties, cannot be allowed to claim civil liberties as its privileged sanctuary from which to carry on subversion of the government.”
Lawmakers are increasingly faced with the dilemma – should freedom of speech be for groups whose ultimate goal is to abolish freedom of speech?
Does freedom of religion belong to those who have a track record of abolishing freedom of religion?
Should “sharia-practicing” Muslims and enforcers of “politically correct” sexual agendas be allowed to demand freedoms for themselves while intolerantly bullying and intimidating others into surrendering their freedoms? Is Western Civilization committing “assisted suicide” – with big government bureaucrats usurping power from the people to force the people to swallow something committed to their destruction?
President Eisenhower addressed the Governors’ Conference, June 24, 1957: “The National Government was itself the creature of the States. … Yet today it is often made to appear that the creature, Frankenstein-like, is determined to destroy the creators.”
At the time the U.S. Constitution was written, the thirteen states were afraid that the federal government they just created might some day become too powerful and take away their liberties, reminiscent of what King George’s government had done.
George Mason was a delegate to the Constitutional Convention from Virginia, but he refused to sign the U.S. Constitution because it did not put enough limits on the federal government. George Mason insisted that “restrictive clauses” should be added to the Constitution to prevent an abuse of federal power. This earned George Mason the title of “Father of the Bill of Rights.”
At the time, Mercy Otis Warren wrote in “Observations on the new Constitution, and on the Federal and State Conventions,” 1788: “The origin of all power is in the people, and they have an incontestable right to check the creatures of their own creation.”
The Preamble of the Bill of Rights stated: “The Conventions of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added. … Resolved … that the following Articles be proposed … as Amendments to the Constitution.”
Elbridge Gerry, who signed the Declaration of Independence and helped write the U.S. Constitution, addressed the first session of Congress as it composed the Bill of Rights, Aug. 17, 1789: “This declaration of rights … is intended to secure the people against the mal-administration of the government.”
Twelve Amendments were approved by Congress and signed by Frederick Augustus Muhlenberg as the First Speaker of the House, who was a Lutheran pastor in Pennsylvania before being elected to Congress and John Adams as the president of the Senate, who was also vice president under George Washington.
The twelve Amendments were sent to the states for their consideration. After much heated debate in the various state ratifying conventions, ten amendments were chosen to limit or handcuff the federal government.
These Ten Amendments, called the Bill of Rights, were ratified by the states on Dec. 15, 1791.
The First Amendment to restrict the federal government began: “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.”
Insight into the intention of the establishment clause of the First Amendment is seen by reading the debates of the various state ratifying conventions.
At North Carolina’s Ratifying Convention, July 30, 1788, Governor Samuel Johnston argued: “The people of Massachusetts and Connecticut are mostly Presbyterians. … In Rhode Island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much; the most numerous are the Episcopalians and the Baptists. In New Jersey, they are as much divided as we are. In Pennsylvania, if any sect prevails more than others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects. … I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.”
Supreme Court Justice Joseph Story, who was appointed by President James Madison, explained in his “Commentaries on the Constitution of the United States,” 1833: “In some of the states, Episcopalians constituted the predominant sect; in other, Presbyterians; in others, Congregationalists; in others, Quakers. … The whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice and the state constitutions.”
Amendments to the “federal” Constitution, particularly regarding religion, did not override individual “state” constitutions. This is seen by the acknowledgments of religion in the state constitutions at the time the states debated and ratified the Bill of Rights.
The first state to ratify 10 of the proposed 12 articles of the Bill of Rights was New Jersey on Nov. 20, 1789. At that time, New Jersey was still operating under its 1776 Constitution, which stated: “All persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government … shall be capable of being elected.”
Maryland was the second state to ratify the Bill of Rights, Dec. 19, 1789. At that time, Maryland was still operating under its 1776 Constitution, which stated: “No other test … ought to be required, on admission to any office … than such oath of support and fidelity to this state … and a declaration of a belief in the Christian religion.”
North Carolina was the third state to ratify the Bill of Rights, Dec. 22, 1789. At that time, North Carolina was still operating under its 1776 Constitution, which stated: “No person, who shall deny the being of God or the truth of the Protestant religion, or the Divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the state, shall be capable of holding … office.”
South Carolina was the fourth state to ratify the Bill of Rights, Jan. 19, 1790. At that time, South Carolina was still operating under its 1778 Constitution, which stated: “No person shall be eligible to a seat … unless he be of the Prostestant religion. … The Christian Protestant religion shall be deemed … the established religion of this state.”
New Hampshire was the fifth state to ratify the Bill of Rights, Jan. 25, 1790. At that time, New Hampshire was still operating under its 1784 Constitution, which stated: “No person shall be capable of being elected … who is not of the Protestant religion.”
Delaware was the sixth state to ratify the Bill of Rights, Jan. 28, 1790. At that time, Delaware was still operating under its 1776 Constitution, which stated: “Every person … appointed to any office … shall … subscribe … ‘I … profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the Holy Scriptures of the Old and New Testament to be given by Divine inspiration.'”
New York was the seventh state to ratify the Bill of Rights, Feb. 24, 1790. At that time, New York was still operating under its 1777 Constitution, which stated: “The United American states … declare … ‘Laws of nature and of Nature’s God … All men are created equal; that they are endowed by their Creator with certain unalienable rights. … Appealing to the Supreme Judge of the world … A firm reliance on the protection of Divine Providence’ … People of this state, ordain … the free exercise and enjoyment of religious profession and worship, without discrimination. … Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness.”
Pennsylvania was the eighth state to ratify the Bill of Rights, March 10, 1790. At that time, Pennsylvania was still operating under its 1776 Constitution, which stated: “Each member, before he takes his seat, shall … subscribe … ‘I do believe in one God, the Creator and Governor of the Universe, the Rewarder of the good and the Punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine Inspiration.'”
Rhode Island was the ninth state to ratify the Bill of Rights, June 7, 1790. At that time, Rhode Island was still operating under its 1663 Colonial Constitution, which stated: “By the blessing of God … a full liberty in religious concernements … rightly grounded upon Gospel principles, will give the best and greatest security … in the true Christian faith and worship of God. … They may … defend themselves, in their just rights and liberties against all the enemies of the Christian faith.”
Vermont was the 10th state to ratify the Bill of Rights, Nov. 3, 1791. At that time, Vermont was still operating under its 1777 Constitution, which stated: “And each member, before he takes his seat, shall make and subscribe the following declaration, viz. ‘I ____ do believe in one God, the Creator and Governor of the Universe, the Rewarder of the good and Punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration, and own and profess the Protestant religion.’ And no further or other religious test shall ever, hereafter, be required.”
Virginia was the 11th state to ratify the Bill of Rights, Dec. 15, 1791. At that time, Virginia was still operating under its 1776 Constitution, which stated: “It is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.”
After the Bill of Rights were ratified by three-fourths of the states, Secretary of State Thomas Jefferson certified their adoption on March 1, 1792.
Regarding religion, Thomas Jefferson wrote to Samuel Miller, Jan. 23, 1808: “I consider the government of the U.S. as interdicted (prohibited) by the Constitution from inter-meddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the states the powers not delegated to the U.S. …”
Jefferson continued: “Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general (federal) government. It must then rest with the states as far as it can be in any human authority. … I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines. … Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets.”
The Legislative Reference Service of the Library of Congress prepared “The Constitution of the United States of America – Analysis and Interpretation” (Edward S. Corwin, editor, U.S. Government Printing Office, Washington, 1953, p. 758), which stated: “In his ‘Commentaries on the Constitution,’ 1833, Justice Joseph Story asserted that the purpose of the First Amendment was not to discredit the then existing state establishments of religion, but rather ‘to exclude from the National Government all power to act on the subject.'”
Justice Joseph Story wrote in “A Familiar Exposition of the Constitution of the United States,” 1840: “We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence than the framers of the Constitution). … Probably, at the time of the adoption of the Constitution, and of the Amendment to it now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. …”
Story continued: “But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men or to punish them for worshipping God in the manner which they believe their accountability to Him requires. … The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority without a criminal disobedience of the precepts of natural as well as of revealed religion. The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.”
Thomas Jefferson stated in his second inaugural address, March 4, 1805: “In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the general (ederal) government. I have therefore undertaken, on no occasion, to prescribe the religious exercise suited to it; but have left them, as the Constitution found them, under the direction and discipline of state and church authorities by the several religious societies.”
Things began to change with the 14th Amendment.
In 1889, John Bouvier’s Law Dictionary (Philadelphia, J.B. Lippincott Co.) gave the definition of “religion” and then hinted of the novel use of the 14th Amendment: “‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.’ … By establishment of religion is meant the setting up of state church, or at least conferring upon one church of special favors which are denied to others. … The Christian religion is, of course, recognized by the government, yet … the preservation of religious liberty is left to the states. … This provision and that relating to religious tests are limitations upon the power of the (Federal) Congress only. … Perhaps the Fourteenth Amendment may give additional securities if needful.”
The 14th Amendment was passed July 28, 1866, to force Southern Democrat states to give rights to freed slaves. But in solving one problem it created another.
Republican Congressman John Farnsworth of Illinois stated of the 14th Amendment, March 31, 1871: “The reason for the adoption (of the 14th Amendment) … was because of … discriminating … legislation of those states … by which they were punishing one class of men under different laws from another class.”
The 14th Amendment was sponsored by Republican Congressman John Bingham of Ohio. When asked if he feared the 14th Amendment might open the door for the federal government to usurp rights away from the states, Rep. John Bingham replied: “I repel the suggestion … that the Amendment will … take away from any state any right that belongs to it.”
Nevertheless, shortly after the 14th Amendment was ratified, activist federal judges began to do just that.
Darwinist philosopher Herbert Spencer influenced Harvard Law School dean Christopher Columbus Langdell to apply evolution to the legal process. Rather than upholding the intent of those who wrote the laws, Langdell taught that laws could evolve through a series of “case precedents.”
There developed two ways to change laws.
The first way to change laws requires motivating a majority of citizens to elect Congressmen and Senators, who in turn, need a majority to pass a law, which in turn needs to be signed by the President, who was elected by a majority.
The second way to change laws is much easier. Simply find an activist judge who is willing to subtly evolve the definitions of words that are in existing laws to push the will of a minority.
This evolutionary view influenced Supreme Court Justice Oliver Wendell Holmes, Jr., to challenge the tradition that the Constitution should only be changed when two-thirds of the state legislatures, or two-thirds of both the Senate and House, propose an amendment, and three-fourths of the states ratify it.
Holmes’ biographer wrote in “The Justice from Beacon Hill” (1991) that he: “… shook the little world of lawyers and judges who had been raised on Blackstone’s theory that the law, given by God Himself, was immutable and eternal and judges had only to discover its contents. It took some years for them to come around to the view that the law was flexible, responsive to changing social and economic climates. … Holmes had … broken new intellectual trails … demonstrating that the corpus of the law was neither ukase (an edict) from God nor derived from Nature, but … was a constantly evolving thing.”
Federal courts proceeded to use the 14th Amendment, along with an expanded reading of “general welfare” and the “commerce clause,” to evolve the role of the Bill of Rights, particularly the first eight Amendments, from limiting the federal government to limiting the state governments.
James Madison wrote to James Robertson, April 20, 1831: “With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
In a figurative sense, activist judges took the handcuffs off the wrists of the federal government and placed them on the states. Judges removed from states’ jurisdiction responsibility over trade disputes, union strikes, and even what farmers could grow on their farms.
Federal court cases which began to creatively usurp state jurisdiction included:
- Freedom of speech and press, Gitlow v. New York, 1925 (re: Socialists) and Fiske v. Kansas, 1927 (re: Unions)
- Freedom of press, Near v. Minnesota, 1931 (re: anti-Catholics)
- Freedom of assembly, DeJonge v. Oregon, 1937 (re: Communists)
Federal judges used the 14th Amendment to remove from states’ jurisdiction responsibility for freedom of religion in cases regarding Jehovah’s Witnesses:
- Cantwell v. Connecticut, 1940
- Minersville School District v. Gobitis, 1940
- Jones v. Opelika, 1942
- Taylor v. Mississippi, 1943
- Martin v. Struthers, 1943
- United States v. Ballard, 1944
- Saia v. New York, 1948
- Niemotoko v. Maryland, 1951
Cases of anti-Catholic discrimination were appealed to the Supreme Court: Pierce v. Society of Sisters of Holy Names of Jesus and Mary, 1925, and Everson v. Board of Education, 1947.
Federal Courts created a case by case “crucible of litigation” method (Wallace v. Jaffree, 1985) by which the First Amendment took on an increasingly anti-religious interpretation.
Ronald Reagan addressed the Alabama State Legislature, March 15, 1982: “The First Amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny.”
Michigan Supreme Court Chief Justice Thomas Cooley wrote in “The General Principles of Constitutional Law” (2nd Ed., 1891, p. 282): “The Second Amendment … was meant to be a strong moral check against the usurpation and arbitrary power of rulers. … The people … shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.”
Thomas Jefferson warned Charles Hammond, 1821, how federal judges would be tempted to usurp power: “The germ of dissolution of our … government is in … the Federal judiciary … working like gravity by night and by day, gaining a little today and a little tomorrow … until all shall be usurped from the states.”
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