Thursday, May 21, 2009

Constitutional change

[from JohnS] As the second in my series of suggested changes to the Constitution, I propose the following:

Article XXX?

National or State Religion.

Amendment I is amended as follows; delete the phrase “Congress shall make no law respecting an establishment of religion“, replacing it as follows: “Congress and the several states shall make no law establishing a national or state religion“.


I suspect that the words respecting an establishment in Amendment I has caused the judiciary to apply the amendment to all religious acts and displays etc on government property and also to allow federal law to intercede into religious practices. This proposed amendment limits the national and state governments from designating a national or state religion. It does not limit a community (including a city or town) from forming a religious community if it chooses. This is intended. We have religious communities within our country now, the Amish communities for example, and I see no reason to change. The amendment would also allow communities to display religious symbols and other religious artifacts if it so choose. This amendment allows Freedom of Religion as our fore fathers intended and not Freedom from Religion as some intend today.

Ira raised an interesting situation in his Blog Topic on polygamy, this amendment would allow communities to choose to become a religious community if they wish including becoming polygamous, however, it would have to be under the guise of religion.

Local ordinances and statutes will apply within a community. If a community wishes to define itself as an Islamic community, for example, it may do so by enacting appropriate ordinances, however, nothing precludes the citizens of that community from appealing to community leaders, the local courts or through local elections to become more secular and remove religious symbols they disapprove. However, it limits federal and state interference into the community’s affairs. The federal or state governments could probably pass laws restricting certain religious acts as endangering the people or contravening law and order, however, the burden of proof would be on the federal or state governments. This also ties into the intent of the tenth amendment.

I don’t know whether additional language will be needed to distinguish between communities, (incl. towns and cities), and counties and parishes. From my limited knowledge, towns are generally independent from counties and county administrations so I’ve not included such language. A non-incorporated community within a county would probably have to abide by county statutes.


Ira Glickstein said...

Quite a challenging amendment John! I agree with you that the "establishment" clause of the First Amendment to our Constitution has been over-interpreted against any recognition of the religious basis of our Country and Constitution. However, I'm afraid you have gone too far in the opposite direction by allowing local communities to establish a particular official religion.

In many areas of the US, neighborhoods, towns and counties are dominated by one particular religion or other. Most often it is some Protestant denomination or other, but it is also sometimes Mormon, Catholic, Islamic, Jewish, or some relatively minor but somewhat extreme offshoot of one of these major religions or some other belief system.

Say an Islamic (or Jewish) town imposed special taxes on Churches or limits on the heights of their towers or banned the sale of certain foods? [Islamic law specifies which foods are halāl (lawful) and which are harām (unlawful); Jewish law which are kosher (fit) and traif (torn).] Say they specified the only foreign language to be taught at the high school was Arabic (or Hebrew), or that all classes were to be taught in that language?

Multiply that by Latino Catholic towns, Polygamous renegade Mormon sect counties, Native American spirit reservations, and so on, and you have nothing but trouble IMHO!

Ira Glickstein

JohnS said...

I understand and have thought about all of the points that you bring up, however, how can the first amendment be modified to assure freedom of religion, not freedom from religion; how can we bring religion back to its rightful place, to the intent of our founders, and still not permit communities to express their religious preferences?
What if we have communities and towns that are Latino Catholic or Arabic Islamists? What if they are a predominantly Polish, Greek or Norwegian communities, or an Italian or Irish conclaves within a city, who generally practice their religious beliefs; is that all bad? Why shouldn’t they practice their religion as they see fit and display symbols expressing their religion within their public places? If Atheists or people of other religious persuasions move into their communities it is by choice; if they are discriminated1 against then State or Federal laws would apply; if they are not discriminate against then what is the problem? If these communities act illegally, as some cult groups have then there are State or Federal laws that would apply, until they do leave them alone.
My interpretation of freedom of religion is that I can practice my religious beliefs by myself or with others as long as my or our actions cause no harm to others. I also believe in the last four words of the 10th Amendment - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
1, The federal government (courts) has chosen to accept perceived discrimination as reason to remove religion from all public places thus fostering freedom from religion. I would take that away from them, return it to the communities, and return freedom of religion to the people.

Ira Glickstein said...

Good points John but the First Amendment already protects free religious exercise:

"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."The problem, as always, is the judicial interpretation of the Constitution by the contemporary judiciary. Certainly, the Founders could not anticipate every new scientific, technological and global development, so the Constitution has to be interpreted in accord with modern times. On the other hand, I think they would cringe at some recent mis-interpretations that completely turn our Constitution on its head and go against the plain meaning of its words and spirit.

I think any display or gathering on public property that would be open to, say, an anti-war demonstration, should be open to religious groups on the same basis.

Ira Glickstein