Congress Shall Make No Law

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 First Amendment to The Constitution of the United States

8 thoughts on “Congress Shall Make No Law”

  1. Congress shall make no law respecting an establishment of religion . . . .

    IIRC, at the time of the passage of the Bill of Rights, seven of the states had established churches; that is, churches supported by grants from the public fisc. Strong evidence that the Founders intended the proscription to apply only to the national gov’t, not the states.

    • Another area where they gave the states primacy over the feds. Soon to be a sore point yet again.

  2. As a foreigner who has sometimes dabbles in the study of the legal interpretation of the American Constitution I’ve never really understood why this amendment appears to have been taken to prohibit voluntary religious activity in publically owned spaces. On the face of it it seems to prohibit Congress, but not the States – though the tangled history of incorporation has extended it to the States – from passing certain laws, but in some of the cases I’ve read about no laws passed by Congress or the States were involved.

    Mind you, I’ve often found the trail back from court decision to the wording of the constitution somewhat ambiguous. I hesitate to mention Roe v Wade given the passions it evokes, but I never did manage to convince myself that the reasoning from constitutional wording via the right of privacy to the limits on “unduly restrictive state regulation of abortion” actually hung together.

    It does not help that almost every dispute I’ve subsequently observed – be it in blog post or Congressional hearing – seems to conflate the two different questions of what the constitution says and what laws should govern abortion. (Personally, I doubt the constitutional interpretation – even though I understand why so many support it, whatever their views on its logic – but am happy with fairly liberal abortion laws such as currently apply in England).

    • It might help if you consider that the second largest religious grouping in the US is “irreligious”: atheists, agnostics, lapsed whatevers, and followers of the flying spaghetti monster.

      The irreligious comprise a third of the population and in most cases interpret the amendment as forbidding any role for religion in the public space. Some of the more aggressive demand an end to religious beliefs and practices in the private space, as well. All the while forgetting that atheism is itself a religion.

    • I’ve never really understood why this amendment appears to have been taken to prohibit voluntary religious activity in publically owned spaces.

      That’s because it doesn’t. The premise is far to broad. I am perfectly free to pray on the public street. I can preach on the same street. These instances don’t create disputes, so they don’t make the foreign news..

      However, a government unit organizing prayers on the public street is a very different situation. So is a permanent cross in a public space, even if I can stand in the same space and freely pray.

      The key is government involvement in the activity, not the simple matter of who has title to the venue.

      • Terence, this does not really make sense to me in terms of the limited prohibition in the constitution and that restrictions have been placed on the voluntary and consensual activities of the likes of students. Still this just reflects my difficulty in understanding the rationale of the some of the courts constitutional decisions.

        • The logic says government involvement in religious practices constitutes establishment. That’s why it applies to government and government units.

          Students are free to engage in voluntary and consensual prayer, but teachers and coaches cannot lead the prayers. The members of the football team can pray, but the coach can’t lead them.

          In trying to understand and make sense of it, look for government involvement. We have seen cases where schools try to prohibit students’ voluntary and consensual religious observance that did not involve government employees, but they have not done well in the courts.

          Is there a lot of ambiguity? Sure. For example, there is an inherent conflict between religious beliefs and the expanding scope of civil rights legislation. That’s a fight right now. Watch the fight over the Equality Act of 2019 which the democrats have introduced in Congress. It expends additional protections for gays, but also decreases the ability to bring civil rights action based on religious liberty.

          Pay more attention to the court decisions than the news stories about attempts by various factions to increase or decrease the strength and scope of the First Amendment.

Comments are closed.