“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 of the people peaceably to assemble and to petition the government for a redress of grievances.”
The major force breaking down American culture is the mistaken idea that we are founded on separation of church and state, and that the First Amendment guarantees to each of us freedom of speech, press, religion and assembly. While it must be admitted that almost every person in this country, from far right to extreme left agrees with this mistaken notion of freedom, and that therefore it must be one of the last vestiges of unity we have remaining to us, the opposite is true. This mistaken notion of separation of church and state works, on a molecular level, to divide us, and it is only when we restore to ourselves the proper exercise of the powers of moral self-government, as a necessary expression of community self-government, that we can reforge the kind of unity that a diverse and self-governing people must have. If this misbegotten central error is not reversed we will never return to being the nation we were founded to be nor will we ever again be the shining light of liberty that was always our promise.
While there are a whole raft other problems that our nation must address and remedy in returning to our original form of government, there are two other major mistakes (in addition to a plethora of minor ones). Those two other major mistakes are the establishment of corporate personhood in 1886 and the abandonment of the Tenth Amendment, and with it constitutional limits on the federal government, that took place under the leadership of Franklin Roosevelt in the 1930's. Together, all these changes have served to dismantle the system of government our founders devised, and thereby rob us of its most important benefits. While both of those blunders occurred prior to the Supreme Court's declaration of the principle of separation of church and state in 1947, we nonetheless will closely examine the perversion of the First Amendment before we look at those two earlier blunders for two reasons.
First of all, the perversion of the First Amendment has opened the door and set the stage for the widespread debauching and demoralization of the American people. It seems that virtually every virtue the people ever practiced is under attack, and that includes the kinds of civic virtues a people must possess if a free, self-governing republic is to thrive.
Secondly, the perversion of the First has become a kind of capstone on the entire decades long effort to dismantle our republic. It lends philosophical, legal, and spiritual legitimacy to the elitist culture that has taken root and gained rule over us. This top down aristocratic trending culture is the exact opposite of the society our nation was intended to be. As long as this perverted use of the First Amendment holds sway over us it is seemingly impossible for the hearts and minds of the people to once again embrace that original, empowering, and unifying vision of American governance.
One more word before launching into a close examination of how the First Amendment was twisted into it's present misuse. The goal of this book is to empower the American people to win the battle against what is essentially a Marxist assault on our nation. As such, the first goal is to call us to unity again, and that can realistically be done by envisioning the kind of community and individual self-determination our system of government previously provided us. Once we have looked at the three big mistakes mentioned earlier, starting with the First Amendment, we will be able to examine the kind of society that grows when the people possess the powers of moral, social, and economic self-determination.
More than anything else, that analysis will reveal that the common people are more empowered and better able to deal with the challenges every society must meet in the American system than they are in any form of Marxism, Fascism or socialism. A free people in the American mode would, if we would wake up and educate ourselves toward it, be more than capable of domesticating the twin challenges of corporate excess and a run away technological revolution without resorting to the dubious means of big authoritarian government. Restoring local community moral self government is much more than waving a hollow flag.
As we begin to examine the three major blunders resulting in the dismantling of America’s experiment in self-government, we will first look at the error that was accomplished last; the complete twisting of the First Amendment. It will probably shock folks to realize how deeply we have all been hoodwinked on this issue. The backward, sideways, and convoluted process used in twisting the First Amendment is typical of how all three major blunders were accomplished. A closer look at the true use of the First Amendment will pave the way to understanding the damage all three major blunders wreaked on America, and when all three are examined it will awaken a long dormant vision of how American liberty was intended to work.
The United States of America, in the first part of the Twenty First Century is a nation struggling, with our most basic value, that of unity. We are not at all united. The tragedy of this great national disunity is that it is largely driven by our misbegotten devotion to a flawed myth, namely that there must be a separation of church and state. This myth of separation of church and state is both impossible to achieve and dangerous to pursue. In following this dark star, we have painted ourselves into a corner of national division, incoherent law, and an almost complete collapse of the consciousness of citizenship and self-government. On the bright side, by considering how this change has come about and regaining a vision of the true use of the First Amendment, we can reverse the blunder and begin to re-acquire, for our people and our descendants, the great blessings of liberty.
Don't misunderstand. While a separation of church and state is impossible, it is possible to not have religious ceremonies conducted at government functions and to have no officially sanctioned religion. That is possible.
On the other hand, to insist that we will not have any morality taught, or any morality informing the passing of laws, or any morality guiding how we hand out public welfare, or any morality about what we think is right and wrong about education, or what we teach the children, or any other imaginable infringement of church into state is impossible.
There was a great social cliche from the 1960’s that we can’t legislate morality. At first glance, like a lot of the stuff out of the 60’s, it sounds great. Folks like to do immoral things, and hearts and minds can’t be changed by passing laws. But, when looked at in a deeper way, it is revealed as pure drivel because every law ever passed is an attempt to legislate morality, at least as it involves actions. Every law, from laws against murder and theft to laws about corporate policy or land zoning, are based on someone’s idea about what is right and wrong. Once enacted into legislation, these moral opinions are given the force of law and imposed by the power of the state.
Take, for example, some of the most basic moral lessons we teach in this society. Who says that kindergartners have to line up in rows and that girls should go to the girl's rest room, and boys go to the boy's rest room? What the hey, if we're going to have a total nihilism, why should they have to line up or take turns or be educated in the first place? And who says they shouldn't hit each other?
So, okay, we'll teach some morality. The question then becomes, "whose" morality will be taught? The founders of the American Republic recognized this inevitable intertwining of morality, education, and religion before the Constitution was even written in the Northwest Ordinance (1787), which states,
"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
As a short aside, this dedicated use of public education to instill morality was seen as necessary by the Founders who lived in a mostly agrarian society in which they spent a great deal of time with their children. They still thought that the schools should systematically teach the children to think in a moral way. Today, when parents spend much less time with their children, many argue that any morality should be taught at home and the schools should be reserved for teaching the values of the state. This makes one wonder what kind of morals, or lack thereof, some want our children to have.
That dovetails with a much larger point. Thomas Jefferson, immediately after penning the Declaration of Independence, returned to the Virginia House of Burgesses and rose to advocate for doing away with the Church of England as the established church of Virginia. Jefferson said at that time,
"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical."
Given the wide diversity of opinion in this nation on almost any subject touching law and morality, how are any opinions going to be mandated from the level of the federal government without forcing someone to “furnish contributions of money for the propagation of opinions which he disbelieves…”? It is impossible not to violate someone’s beliefs if morality is to be legislated at the federal level. So the question becomes not only whose morality will be legislated and taught but also what is the appropriate level of government to do this legislating?
This is the point the Founders came to in writing the First Amendment.
The first ten amendments to the Constitution, known as the Bill of Rights, came about because many of the original states approved the Constitution only on the condition that certain provisions would be added limiting the powers of the central government and reserving certain rights and powers to the people and the states. The vast majority of the populace insisted on these provisions because they wanted to prevent the kinds of religious and political oppression they had seen acted out by the strong central governments of Europe.
When the First Congress passed the First Amendment, and sent it to the states for ratification, it was never intended to be what it has become, a limit on what the states can legislate regarding speech, press, or religion. What's more, Congress did consider such limits on the states and rejected the idea or, to be more precise, the ideas. One of the two proposals which were later combined into the First Amendment dealt with speech and press, and the other dealt with religion.
In the book, "Religious Liberty in America," Glenn T. Miller writes,
"The history of the wording of the first clause of the First Amendment is significant for its interpretation. The House of Representatives first adopted this reading: 'Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be abridged.' This was the most comprehensive form proposed. Two problems appeared in the Senate. The first problem was a movement to change the wording in the direction of permitting a multiple establishment of religion throughout the nation. One form that this proposal took was: 'Congress shall make no law establishing any particular denomination of religion in preference to another or prohibiting the free exercise thereof, nor shall the rights of conscience be abridged.' This was defeated. The second problem was a concern that the federal government not be permitted to interfere with religious establishments where they either existed or might exist. This concern shaped the wording decisively. The section on the rights of conscience was deleted and stress was placed on the prohibition of congressional action. The Senate sent this version to the House: 'Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.' Since this leaned too far in the direction of the New England type of Holy Commonwealth, the House finally passed this version: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' The Senate concurred. In its final form, the First Amendment was designed to prevent any federal interference with religion. Congress could not pass a law establishing a church; nor could it pass a law disestablishing a church. The question of faith was, thus, reserved to the states for their action and their action alone. Should it prove necessary to pass laws regulating religion, as it would be if the churches were to hold property, they would be state laws." 1.
Make no mistake, this is very radical stuff. It means that the states were allowed to set up official religions, while the federal government wasn’t. This explains the word “respecting” being included in the language of the First Amendment.
This might sound like utter blasphemy to people raised with the modern myth that there has to be a total wall of separation between church and state, but the fact of the matter is that many of the original states had established religions, and there was no thinking that this was in any way repugnant to the Constitution. In fact, taxes to support churches were levied well into the 1800's, and requirements that office holders swear to religious beliefs were on the books until as late as the 1940's. It's true that they had been largely ignored since the 1850's, but they were on the books, and they fell into disuse only because of popular fashion and not due to any constitutional problems.
We can find verification of this interpretation of the First Amendment by looking at the words of no less a friend of liberty than Thomas Jefferson (who first coined the phrase “wall of separation between church and state”). Consider "The Kentucky Resolutions," which he wrote (anonymously because he was John Adams’ Vice-President at the time) in 1798, in opposition to the Adams’ administration’s Alien and Sedition Acts. In Section 3, he writes:
This next part is a word salad filled with old fashioned words.
This might be hard to read and understand.
Buck up and do it anyway.
This is what it feels like to do a patriotic chore.
" Resolved That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that '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'; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution , nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, and the more special provision had been made by one of the amendments to the Constitution, which expressly declares, that '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': thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled "An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States," which does abridge the freedom of the press, is not law, but is altogether void, and of no force." 2.
In short, Jefferson, and the framers of the Constitution understood the First Amendment to mean that it absolutely forbade the federal, or general, government from restricting any speech, censoring any book or paper, or establishing or interfering with any religion. On the other hand, they saw that it was perfectly proper for the states to be involved with any of those activities, if the citizens so decided in a free republic.
Just in case someone might think that the preceding thoughts from Thomas Jefferson came in the heat of battle with John Adams, and were later repented of, consider what President Jefferson said on the occasion of his second inauguration in 1805,
"In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the general government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it; but have left them as the Constitution found them, under the direction and discipline of state or church authorities acknowledged by the several religious societies."
Within the context of state control, Jefferson fought vigorously for minimal government, which is why we can find so many of his writings calling for an almost absolute freedom of speech, press, and religion. Regardless, he would have clearly been against establishing even his own ideas of religion at the federal level.
That's the way things stood in this country, at least until the passage of the Fourteenth Amendment. In 1868, when the Fourteenth Amendment was ratified as part of reconstruction after the Civil War, uncertainty and confusion reigned in Washington D.C. No one knew how to put the country back together again, and the victorious North did not want to lose in Congress what had been won on the battlefield. So one thing the "Radical" Republicans wanted to ensure was that state and local laws were enforced equally, especially in regard to the just freed slaves. For that purpose, they enacted the first section of the Fourteenth Amendment, which reads.
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, or shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Some people think this all important first section of the Fourteenth Amendment is unnecessary as the Constitution already guarantees equal enforcement of the laws, but they overlook the fact that whether or not freed African-Americans could be full citizens was the central question that had been denied in the infamous Dred Scott decision. Rep. John A. Bingham, of Ohio, the chief author of the amendment, was absolutely correct in bringing the whole notion of the first section of the Fourteenth forward because of Dred Scott and because we consequently needed a Constitutional delegation of power in order for Congress to have clearly legitimate authority in pursuing a civil rights agenda. Mr. Bingham once said, in advocating ratification of the Fourteenth, that, "It is a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every state..." So what does this have to do with the First Amendment? Unfortunately, all the separation of church and state stuff grew out of wrongly applying the First Amendment to the states, and that is based on a misuse of the Fourteenth Amendment. To once again resort to Mr. Miller’s “Religious Liberty in America”,
"These problems arose after the passage of the Fourteenth Amendment broadened the authority of the Federal Government. They would not have arisen under the original wording of the Constitution and the First Amendment, nor would many of the issues that divide us today have arisen under it. To cite one example, if the state of New Jersey had chosen to promote religious rather than public education, it would have been entirely within the Constitutional provisions to do so. It is not surprising, therefore, that few cases concerning religious matters reached the Supreme Court before the Civil War."
3.
The only correction to be made to Mr. Miller’s thinking is to point out that these changes didn’t occur immediately after ratification of the Fourteenth Amendment. Indeed, given the moral temper of the times, if the American people circa 1868 would have even suspected that approval of the Fourteenth would result in federal mandates of atheism in the schools and pornography in the stores, they would never have ratified it.
Even though the Fourteenth Amendment was intended to ensure the rights of full citizenship to African-Americans, it was only used for that purpose in a confused and halfhearted way, and a lot of that confusion has stayed with the issue until the present day. The primary use the Fourteenth Amendment was put to in the 1800's was to bestow most of the rights of American citizenship onto private interstate corporations, making them immune to most state controls, as will be detailed in a later chapter of this book.
To cite one quote on this issue.
“Of the cases in this court in which the Fourteenth Amendment was applied during its first fifty after its adoption, less than one half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations.” Justice Hugo Black- 1939
4
Cruikshank
It only gradually started to be applied to both civil rights and First Amendment issues well into the Twentieth century after the 1930's. Actual enforcement of the Fourteenth Amendment, as written and intended; to ensure full citizenship for all, regardless of race, finally began in the 1960's as a result of the Civil Rights Movement.
So the question remains; how did the First Amendment get dragged into this? It was sixty years after the ratification of the Fourteenth Amendment before the Supreme Court started applying speech, press, and religious standards onto the states, using the rationale that the First Amendment was to be applied to the states by the Fourteenth Amendment's "privileges or immunities" language; that the First was thus contained within the Fourteenth Amendment. The subject didn't even come up until 1905. Here's where it starts to get all sideways, backwards and convoluted, so be prepared. The beginning of the fallacy can be traced back to 1875 and the case of U.S. v Cruikshank, 92 U.S. 542,552.
Cruikshank was a case in which a group of African-Americans was seeking redress in the Supreme Court, under the Fourteenth Amendment. They had been repeatedly accosted by white citizens when they (the blacks) tried to attend peaceful political meetings. Since the Court was in no mood, in the waning days of Reconstruction, to see the Fourteenth Amendment properly applied, they ruled against the blacks, seeing nothing being done wrong by the State of Louisiana, and hence no trigger for the Fourteenth Amendment. In a snide little piece of dictum to the side, they let it be known that if said group had been meeting to petition the federal Congress, then the court might have ruled in their favor.
Key parts of the key paragraph read,
This is the first of many actual court rulings.
If that scares you?:
take deep breaths and forge on
This really is how we put this nation back together
"...right of people...petitioning Congress. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States."
There are three points in response.
First, the Court here makes the original mistake of misreading the First Amendment. Even if some group of citizens is meeting to petition the Federal Congress, the First remains solely a limit on congressional action. The Congress of the United States can't make a law to try to stop them, but the states remain free to. It does not, even then, become an individual right which the various states are required to protect. To offer an extreme argument, are the states required to allow even riotous behavior to continue if the participants claim to be meeting to petition the federal Congress?
The Court is here begging, in a small way, the same question it continues to dodge, in a big way, today. How can a limit on Congress magically become a guarantee of individual privilege, and hence a limit on the States instead?
Second point. A more sound legal approach and better advice for the Court to have given would be for the plaintiffs to attempt to demonstrate that the State of Louisiana was providing protection of the laws in an unequal manner. It would be easy enough to prove that the peace officers of Louisiana wouldn't allow their white citizens to be marauded in a like manner.
Third point. The race of the plaintiffs was mentioned a number of times in the Court's decision, undoubtedly so that future generations would realize what was really going on here. Those in the future would then hopefully forgive them for so nakedly grasping at any straw of rationale to avoid enforcing the already (by 1875) too radical Fourteenth Amendment. That also explains their little falsely friendly piece of advisory dictum; it was a racist joke for the ages. In the final analysis, this has to be one of the ugliest rulings in the history of the Supreme Court. Not only should they not have fiddled with the First Amendment in this way, but they should have recognized that the State of Louisiana was not enforcing the laws in an equal manner, and mandated federal intervention on the basis of using the Fourteenth Amendment for its intended purpose.
That's the sideways part. Now for how all this came in through the back door. In Patterson v Colorado, 205 U.S. 454, 462, (1905), the Court upheld a Colorado law prohibiting the publication of subversive literature. In his lone dissent, Mr. Justice Harlan held forth on the need for the entire First Amendment to be contained within the power of the Fourteenth Amendment. He forcefully argued that we need total freedom of speech and press in order to be American society, and yet the only legal precedent cited for this view was that little piece of dictum from Cruikshank. Even that revered ruling he twisted out of all recognition, taking what was a limited aside, and converting it into a mandate that the entire First Amendment must be applied to the states, and that the country must consequently be thrust into absolute freedom of speech and press. His dissent is so powerful, (Probably the best single court statement ever written advocating our modern reading of the First Amendment), and later proved to be so influential, that it will be presented here in full.
Harlan's Dissent
Oh no, more legal word salad
"I cannot agree that this writ of error should be dismissed.
By the First Amendment of the Constitution of the United States, it is provided that 'Congress shall make no law respecting an establishment of religion, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and to petition the Government for redress.' In the Civil Rights cases, 109 U.S.1,20, it was adjudged that the Thirteenth Amendment, although in form prohibitory, had a reflex character in that it established and decreed universal civil and political freedom throughout the United States. In United States v. Cruikshank, 92 U.S. 542, 552, we held that the right of the people peaceably to assemble and to petition the Government for a redress of grievances one of the rights recognized in and protected by the First Amendment against hostile legislation by Congress was an attribute of 'national citizenship.' So the First Amendment, although in form prohibitory, is to be regarded as having a reflex character and as affirmatively recognizing freedom of speech and freedom of the press as rights belonging to citizens of the United States; that is, those rights are to be deemed attributes of national citizenship or citizenship of the United States. No one, I take it, will hesitate to say that a judgment of a Federal court, prior to the adoption of the Fourteenth Amendment, impairing or abridging freedom of speech or of the press, would have been in violation of the rights of 'citizens of the United States' as guaranteed by the First Amendment, this, for the reason that the rights of free speech and a free press were, as already said, attributes of national citizenship before the Fourteenth Amendment was made a part of the Constitution.
Now, the Fourteenth Amendment declares, in express words, that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' As the First Amendment guaranteed the rights of free speech and of a free press against hostile action by the United States, it would seem clear that when the Fourteenth Amendment prohibited the States from impairing or abridging the privileges of citizens of the United States it necessarily prohibited the States from impairing or abridging the constitutional rights of such citizens to free speech and a free press.
But the court announces that it leaves undecided the specific question whether there is to be found in the Fourteenth Amendment a prohibition as to the rights of free speech and a free press similar to that in the First. It yet proceeds to say that the main purpose of such constitutional provisions was to prevent all such 'previous restraints' upon publications as had been practiced by other governments, but not to prevent the subsequent punishment of such as may be deemed contrary to the public welfare. I cannot assent to that view, if it be meant that the legislature may impair or abridge the rights of a free press and of free speech whenever it thinks that the public welfare requires that to be done.
The public welfare cannot override constitutional privileges, and if the rights of free speech and of a free press are, in their essence, attributes of national citizenship, as I think they are, then neither Congress nor any State since the adoption of the Fourteenth Amendment can, by legislative enactments or by judicial action, impair or abridge them. In my judgment the action of the court below was in violation of the rights of free speech and a free press as guaranteed by the Constitution.
I go further and hold that the privileges of free speech and of a free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the Fourteenth Amendment forbidding a State to deprive any person of his liberty without due process of law. It is, I think, impossible to conceive of liberty as secured by the Constitution against hostile action, whether by the Nation or by the States, which does not embrace the right to enjoy free speech and the right to have a free press."
And so Mr. Justice Harlan concluded in 1905. A few notes should be made at this point before moving ahead with the narrative of what happened to the First Amendment. In the second paragraph, he seems to be saying that free speech and press could not have been restricted by the Court because it was part of a national citizenship. This is a very technical but important mistake. The real reason the Court could make no such limit was Congress could make no law, and, therefore, the Executive has nothing to enforce and the Court has nothing to adjudicate. Contrast Harlan's view with Thomas Jefferson's, quoted from ”The Kentucky Resolutions” that issues of speech, press, and religion "... are withheld from the cognizance of federal tribunals."
Also in the third paragraph, his reliance on the Thirteenth Amendment is misconceived. The Thirteenth Amendment reads,
“Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
This amendment is clearly intended to apply to the states, having a “reflex character,” as Harlan terms it, and is not, like the First Amendment, a limit only on Congress. The ruling he cites has nothing to do with the First Amendment, and he should be ashamed of equating the two amendments in this way.
In the third paragraph, Harlan is again making the leap, as in Cruikshank, where a limit on Congress is changed into a right, which in turn becomes a limit on the states.
In the Fourth paragraph, where he can't assent to the idea that legislatures can limit speech or press based on concerns of public welfare, Mr. Justice Harlan disagrees with another of Mr. Jefferson's views, this also from “The Kentucky Resolutions” quoted earlier "...that thus was manifested their (the state's) determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed.”
In the fifth paragraph, this "due process" stuff doesn't mean that states can't restrict liberty. Of course they can, when someone is convicted, by due process, of violating a law. It also doesn't mean (and it occurs in both the Fourteenth and Fifth Amendments) that the states are restricted from making certain types of laws limiting personal liberty. But it does mean that they must follow due process when enacting and enforcing such laws.
Finally, in the last paragraph, the good Mr. Justice Harlan might find it impossible to conceive of liberty without the absolute freedom of speech and press he calls for, but he had to ignore 130 years of prior American history to do so. What did he think he was doing, working up some fictional society?
Technical Legal Issues
We will return to dispute the philosophical flaws of this famous dissent from the highly esteemed Mr. Justice John Marshall Harlan (he also, admirably, dissented from the infamous Plessey v Ferguson ruling, which established the onerous racist federal doctrine of “separate but equal”) after following the history of the decline of the First Amendment to its finish.
Even though Harlan's was a lone dissent from the Court's opinion, it's noteworthy for a couple of reasons. First of all, in Patterson, the Court seemed to be engaging in a dialogue with Harlan, stating in its ruling that,
"We leave undecided the question whether there is to be found in the Fourteenth Amendment a prohibition similar to that in the First. But even if we were to assume that freedom of speech and freedom of the press were protected from abridgment on the part not only of the United States but also of the States, still we should be far from the conclusion that the plaintiff in error would have us reach."
The second reason Harlan's dissent is so important is that this is the only place the Court reveals any in depth thinking on this subject until 1947. What happened next is the Court said nothing on the subject for fifteen years and then, in the 1920's, continued the dialogue by simply stating, without comment or explanation, that the Court saw the First Amendment contained within the Fourteenth Amendment, seeming to have accepted Justice Harlan's reasoning.
In the first of these cases, Gilbert v. Minnesota, 254 U.S. 325, (1920), a case about a Minnesota law against advocating pacifism, Justice Brandeis, in dissent, saw no occasion to consider if the law violated the Fourteenth Amendment but that such a subject was within the Court's domain was assumed. Then again, in Gitlow v. New York, 268 U.S. 652, (1925), the Court asserts, without stating why, that under the First Amendment, as contained in the Fourteenth Amendment, it has the authority to define the limits of speech and press. It then obscures and confuses the point by agreeing with the lower court and upholding the conviction.
The court had previously ruled, during the First World War, that the phrase "no law" in the First Amendment didn't stop the Federal government from restricting seditious publications in war time. Combined with their assumed authority over peace time First Amendment issues, they then had the potential of generating some kind of federal definition of free speech, and applying it to the states. This all slid together when, under newly appointed Chief Justice Charles Evans Hughes, the Court overturned, for the first time (1931), some of the state's laws regarding press and speech. Stromberg v. California, 283 U.S. 359, and Near v. Minnesota, U.S. 283 .
Minor cases of the same sort continued through the depression and the war years, until 1947, when the final great case in this chain of convoluted, backward mistakes around the First Amendment occurred. In Everson v Board of Education, 330 U.S. 1, the Court, using the now large number of minor cases as precedent, dictated at length about its power to define how intertwined a local school board could be with a local church. It was in this case that the terms "separation of church and state,” “establishment clause" and “free exercise clause” entered the American judicial lexicon. And, in its typical convoluted, backward way, the Court upheld, for other reasons, the local school board's decision to use public school buses to transport parochial school students.
These radical new concepts were left to simmer silently into the Constitution for more than a decade and were then unleashed on a credulous and astonished nation. To again quote from Glenn T. Miller’s “Religious Liberty in America”,
"The most revolutionary action in the area of religion and education was in the cases of Engel v. Vitale (1962), School District of Abington Twp. v. Schempp (1963), and Murray v. Curlett (1963). The decisions in these cases outlawed the traditional practice of beginning the school day with devotions, usually prayer and Bible reading. The decisions were based on a strict reading of the First Amendment's anti-establishment clause, but they clearly went beyond the nation's traditional understanding of what that clause did or did not mean."
5
The public outcry against this new assertion of federal power was muted at the time, probably due to the fact that any journalists looking into it found that the principle of separation of church and state had been declared more than a decade earlier with no public objection. Furthermore, since we had let the federal government take over so much of the business of government services it didn't seem to matter, the withdrawal from instilling morals in the populace didn't seem to pose a threat to public well being. The move to place all issues of morality and moral education under federal control didn’t seem to threaten the day-to-day well being of the citizenry, so they let this new Court ruling go unchallenged.
There then followed the entire odious train of rulings regarding freedom of expression, speech, and religion throughout the latter part of the Twentieth Century. Pornography had to be allowed in almost all communities, along with lewd and topless dancing, subversive literature, and flag burning. Then, in an arbitrary and inconsistent manner, the Court allowed some controls on speech, such as ethnic intimidation and hate speech laws.
At the same time, any expression of religious sentiment was banned from any public function, especially public schools. Thus our tortured national dance with the misused First Amendment has unfolded.
During this whole process the Supreme Court has projected a pretentious image of wisdom by first asserting that there can be no local, state, or federal controls on speech or press, and then relenting and admitting that there did need to be some such limits and that the Court would define what those limits would be. This began in 1919, when Justice Holmes famously wrote in the case of Schenk v United States,
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Further on he formulated this. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
These sound like wise words and would be very wise indeed and entirely appropriate if uttered by a state legislator or a county judge. But in the setting of a ruling by the U.S. Supreme Court, they must be seen for the beginning of a usurpation of power from state and local government that they are. Contrast this famous “clear and present danger” formulation with Jefferson’s comments from, once again, “The Kentucky Resolutions”
"...that thus was manifested their (the state's) determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged..."
So, while the Court presents itself as being so liberal and wise, this whole process of prohibiting state and local controls, and then admitting that there did have to be some controls that the Court would deign to deliver, has really been just a disingenuous way of usurping some of the powers of self-government from the states, the localities, and hence, the people.
In this whole process, from Harlan’s dissent forward, there is an almost conspiratorial aura to the whole affair. This is not necessarily because there is an actual conspiracy abroad in the land but rather because there is a school of philosophy abroad, which goes by the name of secularism or secular humanism. This school of philosophy, or point of view if you will, tried to assert itself at the original writing of the First Amendment with the idea that freedom of conscience should be protected from state interference. This same sentiment came up in Harlan’s dissent and now holds sway in this nation. The well meaning folks who advance it probably don’t consider that they advocate violation of the Constitution. Rather, they wish so much that the Constitution did contain this concept of total separation of church and state and total freedom of speech and press that they think it is there.
Whereas, the actual words of the First Amendment do not say that. Read it, presented at the beginning of this chapter. It is a single sentence that is clearly a prohibition on certain kinds of laws that the federal Congress is not to make. Since it is nothing but a prohibition on Congress, it is not a statement of privilege or immunity that accrues to the individual, and it is, therefore, not covered under the language of the Fourteenth Amendment. Consequently, just on the basis of a technical reading of the Constitution, the rulings of the Court are in error.
Philosophical Arguments
Holy Mole-y, first law book word salads, now philosophy!?
Deep breaths, another cup of coffee, and forge on Patriot
But, of course, that is small beer compared to the fact that the general population has bought into this myth and has come to agree with the flawed philosophy behind it. This leads us to the philosophical discussion promised earlier. The first issue to be wrestled with in this section is that separation of church and state is a myth impossible to attain.
Think about what a total separation of church and state would entail. If we were to thoroughly apply a literal reading of the establishment of religion clause so that no law respecting any establishment of any religion (or belief system) could be passed to all levels of government under the Constitution, including federal, the system becomes absurd. Remember, every law is based on or informed by someone's unproven belief system.
A total application of the principal that no law can be made respecting an establishment of religion, or relying on any unproven system of moral beliefs in formulating our laws would leave the federal government unable to make any law or ruling, for or against, any entanglement between any level of government and any moral code. The same limit would apply to the states, counties, and localities. If there were some already existent laws based on someone's moral assumptions, they would have to be left in place, but any new moral realizations, such as the need for sound environmental policy, could not be established in law. No laws could be enacted at any level of government based on what anyone thought was right or wrong.
Given our modern propensity to rooting out thought crimes, we might end up where it is illegal for an individual to have a moral, self governing thought, or to advocate anything. The individual is certainly the foundational level in self government, and no law means “no” law. What's more, the word "respecting" means respecting. No level of government could make any law, for or against, any religion or moral assumption. Only a numb nihilism (belief in nothing) would be allowed, and even that couldn't be enforced.
There are more good examples of how absurd this concept becomes. You say no restrictions on press or speech? Then bring on the hard core child pornography and bestiality and let’s put them on animated billboards. No restriction on speech means get ready for riot, and for idiots who will yell "fire" in crowded theaters.
So, separation of church and state, when we see that it necessarily means separation of the state from any unproven belief system with the total freedom of speech and press that necessarily goes along with that, is definitely an absurd and impossible notion.
Pursuing this myth is extremely dangerous because it is impossible to achieve. Just as when the Court prohibited state and local controls on speech and press only to substitute their own controls, they have also, by process of eliminating any reference to any deity, substituted an atheistic belief system and imposed it like an official religion on every level of government in America. This particular belief system, what is now our official national belief system, is known generally as secularism or secular humanism.
Webster’s Unabridged Dictionary, 1979, definition of religion reads,
“3. (b) loosely, any system of beliefs, practices, ethical values, etc. resembling, suggestive of, or likened to such a system; as, humanism is his religion.”
Admittedly, this is not the only, or even the primary definition of religion offered by Webster (there are seven in this edition) but it is a valid one for our purpose because it highlights the notion that separation of religion and state is impossible, and it points to why it is such a dangerous myth to pursue. What we have done in pursuing this myth is to to allow ourselves to be fooled into accepting an atheistic national religion. Most foolish and very dangerous indeed.
The term “secular” or “atheistic theocracy” deserves a short aside. “Theocracy” means rule by God. Unless you are a devout believer who might point to ancient Israel, you must admit that no such thing has ever existed on Earth. What humans do get, such as in modern Iran, is a nation run by folks according to their ideas about God. So the word “Ideocracy” would be more accurate and, in a humorous way, more descriptive of what is going on in both Iran and America. All around the globe, we have “Ideocracy”, or government, based around someone’s ideas about what is right and wrong, whether that includes God or not. However, since “ideocracy” doesn’t carry the emotional weight, we will instead use “theocracy” in this book, as in secular humanist theocracy.
The term "Atheistic Theocracy," while superficially a contradiction in terms, gets to the point about why it is so dangerous to pursue this myth of separation of church and state. We will never be able to arrive at that mythical, morally neutral foundation to our laws, but what has been done in trying to get there has been to systematically remove any reference to divinity in general and the Judeo Christian God in particular.
The word atheism means, "Without God". It comes from the Latin, a -without, and Theo -God. By attempting to rid our entire civic structure of any reference to or reliance on God (or revealed ethics) we have succeeded not at building a wall of separation between government and any unproven religious-like belief systems, but, instead, what we have done is to establish atheism (with-out-God-ism) as our official religion. No one is required to take an oath to it, but all laws that are based on any other belief system will be struck down as unconstitutional.
What’s more, Atheism, or Secular Humanism, pretends to a moral superiority it hasn't earned: First, by keeping any reference to God out of its policies, using only what is thought of as reason, and second, by borrowing on the credibility that has been earned by the hard sciences. Secular Humanists then use this assumed moral superiority to simply dismiss any other point of view and forge ahead with their social and political agenda, ignoring cries of religious oppression and cultural genocide.
The worst part is that they assert this supposed moral superiority while ignoring the fact that secular humanism has produced the most horror filled, immoral political regimes in history. Do the names Hitler, Stalin, and Mao ring a bell? Of course, the fact that they think their statistics and so called logic render them morally superior is simply proof of the point that every legal system will always have a set of unproven moral assumptions at its base, and all of them will rely on their own writings. Whether it's Secular Humanism with its statistics and so called logic, Catholicism with its traditions, Protestantism with its Bible, Islam with its Koran, they all have their own self referencing foundations.
The point of the First Amendment was not to avoid having someone’s idea about right and wrong kept from the councils of government but, rather, to prevent any particular belief system from being installed at the federal level. Since no system of government can avoid enshrining somebody’s ideas, and since all laws are based on somebody’s ideas, the way the federal system is supposed to work is that when we, as a nation, come to some new moral conclusion, that idea, and no others, (and certainly no system of moral thinking) is enshrined in the form of a new amendment to the Constitution. This prevents establishing some particular belief system but does allow us, as a nation, to grow and change.
The founders of this country wrote the First Amendment to prevent just the kind of oppression that occurred in Nazi Germany and Communist Russia and China. Secular Humanism is just another religion among religions, (no worse, and certainly no better) and like all religions, it becomes especially dangerous only when it is given too much power in a centralized government. The founders clearly intended that no particular religion be established at the federal level because they saw that a religion established at that level could exercise an oppressive advantage over all the other religions.
To sum up, this whole backward and convoluted process has set the First Amendment precisely on its head, taking the amendment the Founders intended to prevent the establishment of an official national belief system and, instead, using it as a rationale to establish an official national belief system.
Seen in that light, the most important reason to get back to the original words, and reserve the powers mentioned in the First Amendment to the states and the people, is because that's the only way to deconstruct the national theocracy we have become; the very thing the Founders worked to prevent. To sum up, this whole backward and convoluted process has set the First Amendment precisely on its head, taking the amendment the Founders intended to prevent the establishment of an official national belief system and, instead, using it as a rationale to establish an official national belief system.
Many will continue to argue that this is merely an attempt to revive the dead words of some dead white men. On the contrary, even though the words of the wise should be kept alive for their own sake, we should return to an honest use of the First Amendment because the society framed by the Constitution, one of local community moral self-government, is far superior to our present system and much more likely to produce unity, peace, and contentment in the citizenry.
First, we should get clear about the importance of using the First Amendment as it was intended. To do that, let us go back to the scandal of the usurpation of the First Amendment, and the dissent of Mr. Justice Harlan. In the final paragraph he wrote:
“I go further and hold that the privileges of free speech and of a free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the Fourteenth Amendment forbidding a State to deprive any person of his liberty without due process of law. It is, I think, impossible to conceive of liberty as secured by the Constitution against hostile action, whether by the Nation or by the States, which does not embrace the right to enjoy free speech and the right to have a free press."
For the sake of deeper reasoning, let’s set aside the previously discussed absurdity of actual enforcement of those rules and admit that there must be some limits on speech and press, and even pretend it is appropriate for the federal courts to make those decisions. Even with all those stipulations, Harlan’s definition of liberty is still flawed because it posits a kind of atomized liberty. With his definition, each person as an atomized individual has exactly the same homogenized liberties (and limitations) wherever in the nation they reside.
At first blush, Harlan’s atomized definition of liberty seems to empower the individual, and so must be moving in the best direction. He calls for everyone to have no limits on speech or press, so what could be freer than that? Remember though that as soon as the Court removed all the powers to limit speech and press from the states and localities, it took those same powers to itself. The Court declared, in fairly specific detail, how far those freedoms should go, where they should be limited, and retained to the federal courts the power to make any further changes to the definitions of free speech and press.
So on deeper analysis it is seen that this atomized definition of liberty, this homogenized national sameness, actually dis-empowers and silences the individual because it renders almost any individual effort to change or improve the social environment pointless. Since all the real decisions in this atomized liberty are made behind closed doors thousands of miles away by authorities who don’t have to care what the individual thinks, the individual citizen comes to feel that s/he has no real say in public affairs. Apathy is the inevitable first fruit of atomized liberty.
In addition to apathy, the atomized liberty brought about by the usurpation of the powers of moral self government by over centralized government has worked in three major ways to keep a fascistic agenda going, and to work as an engine further destroying family, community, and national unity. The first of these three ways is the great division this faux liberty has spawned.
Monolithic Dichotomy
For the few people who remain politically involved there is little or no reason to form together in mature compromise with geographical neighbors. Instead, since all the real decisions of moral and cultural government are being made at the federal level, it only makes sense to form together with whatever national party promises to place your kind of person in the Congress, the White House, and eventually the Supreme Court. Either our side forces our morality down their throats at the national level or they will force their ideas down our throats. There is not very much reason left to form common cause and forge reasonable compromises with your neighbors about much of anything.
Since at least the cases that threw prayer out of public schools and even more so since Roe v Wade legalized abortion nationwide in 1973, the only way for a person to get the kind of moral government that he or she might like is to get the U.S. Supreme Court to be composed of like-minded members. That sets up a political dynamic that necessitates being in lock step with a national organization, and getting both the Congress and President that you desire. Any of us that care about lifestyle and moral issues (on either side of these issues) can feel very threatened and desperate to exert some control.
The fact that any kind of local or state accommodation has been made impossible by the federal Courts drives us into the clutches of national organizations and creates the monolithic dichotomy of our modern politics. This monolithic dichotomy is a dynamic where each individual must become a supporter of one entire national agenda or the other to have even a hint of a chance to have our real concerns addressed. Then, we are not only at the mercy of the most distant and unaccountable level of government imaginable, but the people as a whole can’t get together on the other major issues of economic and social self government. They are hopelessly pitted against each other around the issues of moral self government.
Consequently, to the normal, alienated, apathetic little person, with local community reduced to playing a never ending game of big brother may I with the feds, with its every move subject to federal nullification, said little person doesn’t see much point in getting involved with the deliberations of local government. Nor does s/he sense any ability to make a difference in the deliberations at the federal level. Thus, the sense of being involved with self government fades away from the little person, isolating them to family and a few friends, not really connected to a larger community.
Moreover, the usurpation of the powers of moral self government causes not only division, but deep hostility in the hearts of many of the American people for each other. Since, in this system, someone is always forced to “furnish contributions of money for the propagation of opinions which he disbelieves”, we have been set at each other. Our current political scene really does seem designed to get us to fight each other. Just as the quickest way to get two cats to fight each other is to tie their tails together, this perversion of our system has caused our mutual love of freedom to be used against us, causing us to engage in never-ending, vicious cultural warfare
So, the setting of the First Amendment precisely on its head has resulted in an apathetic, alienated and deeply divided citizenry, dovetailing perfectly with the effects of the other two major blunders of corporate personhood and federal socialism.
A Secular Priesthood
The second way that the overturning of the First Amendment hurts us is that the secular humanist priesthood it empowered has worked to inculcate the population with selfish and materialistic thinking. Schools and the now impossible to domesticate media inundate us with the message that seeking our own self gratification and self esteem is what life is about, and that sexual license, greed, and manipulation of others is perfectly okay.
If any state or locality tries to buck the trend, by casting doubt on the unproven theory that we came to be by a process of materialistic evolution, and that there might therefore be a moral component built into our lives, that is thrown out as an unconstitutional blending of church and state. Only the rankest form of materialism can be taught, because that is now the official belief. So when the young learn these lessons, and come to see themselves as material creatures having no higher meaning than satisfying their material appetites, we shouldn’t wonder why. When these values leave us incapable of the kind of selfless, self-sacrificial thinking necessary for free self-governing communities to thrive, and so common in days gone by, we should be very concerned for our future.
The third way that the overturning of the First Amendment threatens us is closely related to the second. If someone had come to our nation in the 1920’s and tried to impose an authoritarian government on us, we would have fought them with every fiber in our being. However, by removing the powers of moral self government from our communities, and spending decades inculcating us with selfish values, that same authoritarian government won’t have to be imposed on us. Because of the breakdown in morality, and the resulting upswing in crime (we have more people in prison than any other nation in history) the people won’t just accept an authoritarian government being imposed on them, they will eventually demand it. Thus, the change in the use of the First Amendment has greatly contributed to completely degrading our nation.
Returning to the original use of the First Amendment might frighten some because we have been rendered fearful of freedom, coming to think that our friends and neighbors are just waiting for the chance when we can enslave each other in some kind of religious theocracy. This is most foolish, and ultimately based on the fear that none of us should be free, because we, the people, can’t handle those kinds of decisions. To the contrary, we should realize that the people could handle freedom as well as they did in the past, and that even if religious excess were to emerge in some small towns, it would be self correcting as people could move, and change things if life got crazy.
On the other hand, by pursuing the unattainable myth of separation of church and state, we haven’t arrived at some gloriously neutral government immune from the excesses of unproven belief systems. Rather, we have put ourselves under the thumb of an un-elected secular priesthood that dictates right and wrong to the whole nation based on its own set of unproven beliefs. This is precisely the situation the First Amendment was enacted to prevent.
Additionally, as we are saddled with the twin notions of the “separation clause” and the “establishment clause”, many well meaning souls are constantly engaged in a futile effort to formulate a balance between the two that enables the moral elevation of the citizenry while preserving the separation of church and state. This is an effort doomed to the same epic failure as the medieval quest to find the “philosopher's stone” that would transform lead into gold. That stone never existed, and the myth of a separation of church and state can never exist either. Our national ship of state will break apart seeking for that impossible passage.
In enduring, accepting, and even clamoring for these changes to the First Amendment we have become profoundly alienated from our essential role in self government, and from each other. Consider the following prediction from Alexis DeTocqueville published in 1835.
DeTocqueville's Warning
“Thus, I think that the type of oppression threatening democracy will not be like anything there has been in the world before; our contemporaries would not be able to find any example of it in their memories. I, too, am having difficulty finding a word which will exactly convey the whole idea I have formed; the old words despotism and tyranny are not suitable. This is a new phenomenon which I must, therefore, attempt to define since I can find no name for it.
I wish to imagine under what new features despotism might appear in the world: I see an innumerable crowd of men, all alike and equal, turned in upon themselves in a restless search for those petty, vulgar pleasures with which they fill their souls. Each of them, living apart, is almost unaware of the destiny of all the rest. His children and personal friends are for him the whole of the human race; as for the remainder of his fellow citizens, he stands alongside them but does not see them;, he touches them without feeling them; he exists only in himself and for himself; if he still retains his family circle, at any rate he may be said to have lost his country.
Above these men stands an immense and protective power which alone is responsible for looking after their enjoyments and watching over their destiny. It is absolute, meticulous, ordered, provident, and kindly disposed. It would be like a fatherly authority, if, father like, its aim were to prepare men for manhood, but it seeks only to keep them in perpetual childhood; it prefers its citizens to enjoy themselves provided they have only enjoyment in mind. It works readily for their happiness but it wishes to be the only provider and judge of it. It provides their security, anticipates and guarantees their needs, supplies their pleasures, directs their principal concerns, manages their industry, regulates their estates, divides their inheritances. Why can it not remove from them entirely the bother of thinking and the troubles of life?
Thus, it reduces daily the value and frequency of the exercise of free choice; it restricts the activity of free will within a narrower range and gradually removes autonomy itself from each citizen. Equality has prepared men for all this, inclining them to tolerate all these things and often even to see them as a blessing.
Thus, the ruling power, having taken each citizen one by one into its powerful grasp and having molded him to its own liking, spreads it arms over the whole of society, covering the surface of social life with a network of petty, complicated, detailed, and uniform rules through which even the most original minds and the most energetic spirits cannot reach the light in order to rise above the crowd. It does not break men’s wills but it does soften, bend, and control them; rarely does it force men to act but it constantly opposes what actions they perform; it does not destroy the start of anything but it stands in its way; it does not tyrannize but it inhibits, represses, drains, snuffs out, dulls so much effort that finally it reduces each nation to nothing more than a flock of timid and hardworking animals with the government as shepherd.” 5..
The society DeTocqueville describes seems to be the one in which we find ourselves. The assertion here is that this woeful state is a direct and inevitable outgrowth of the three major usurpations of the powers economic, social, and moral self determination (especially the moral) from our communities which have resulted in an atomized definition of liberty being imposed upon us. This atomized, alienated, powerless mindset of the modern American must be contrasted with the involved, connected, and sincere citizen that used to be the norm in America, and would (it is here asserted) tend to be produced if these powers of self government were restored to the states and localities.
Footnotes:
1. "Religious Liberty in America”, Glenn T. Miller,1976, The Westminster Press, p. 75
2. “The Complete Jefferson”, Assembled and arranged by Saul K. Padover, Duell, Sloan, and Pearce, Inc., NY, NY 1943, p. 128-134
3. “Religious Liberty in America”, p. 83
4. “Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights.
Thom Hartmann, Rodale, 2004. p. 157
.5. “Democracy1 in America” (b), Alexis DeToqueville, 1835, Penguin Books, London, England, 2003, p.805, 806
