Originally published by our Legal Editor, Mike "gamecock" DeVine as Charlotte Law and Civil Rights Examiner for Examiner.com
This week marks the 217th anniversary of the ratification of the first ten amendments to the U.S. Constitution, collectively known as the “Bill of Rights.” In fact, Monday was designated “Bill of Rights Day.”
I dare say that most Americans are much more familiar with their rights as enumerated in the ten Bill of Rights than they are with the seven articles of the main body of the Constitution proper. Many Americans may also know of the Federalist Papers that were published in newspapers at the time to persuade Americans to ratify the Constitution. Less known are the so-called “anti-federalists” who conditioned their support for ratification of the Constitution on the immediate passage of these bill of rights to ensure that there was no misunderstanding that they retained their Creator endowed inalienable rights confirmed in the Declaration of Independence and to limit the power of the Federal government.
Patrick "Give me liberty of give me death" Henry Pictured) was the leader of the anti-federalists.
What has this to do with the War on Christmas we have been documenting, especially as regards actions taken by federal courts? Everything.
What many Americans don’t realize is that all of the 13 states that formed the federal government via the U.S. Constitution already had state constitutions that protected their civil rights from state action and that the Bill of Rights was only meant to apply to the federal government. There is some disagreement on this, especially after the ratification of the 14th Amendment after the Civil War and the implementation of the “incorporation doctrine” by the U.S. Supreme Court, which we will address later.
But with respect to the First Amendment, which by its terms only applied to the federal government, there could be no such misunderstanding:
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 amendment specifically prohibited Congress and only congress from “establishing a religion.” The framers were specifically and only prohibiting the federal government from establishing a National Church equivalent to the Church of England that had just fought a war to get out from under. As British subjects, they had been forced to pay taxes to support the Church.
Moreover, at the time of the ratification of the Bill of Rights and at least until the 1830s, individual states had established state churches, as they were allowed to do under their state constitutions, which were not affected by a First Amendment that only applied to Congress.
In fact, the famous letter from then President Thomas Jefferson to the Danbury Baptists that contained the phrase “wall of separation” of church and state, which has been wholly mischaracterized by courts and supporters of War on Christmas type rulings. The letter was a response to a request from the Baptists that the federal government intervene on their behalf against the State established Congregationalists Church of Connecticut. Jefferson said he could not due to Wall between the State (Federal government) and the Church (of Connecticut).
All states had voluntarily dis-established all state churches by 1850, mainly as a way to try and attract more settlers in competition with other states.
But the right to establish a state church remained.
After the Civil War, in order to place freed slaves and all Americans of any ethnicity on the same legal footing as whites, and all individuals, the Fourteenth Amendment was ratified:
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; nor 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. (Section One)
Nothing in the amendment required the application of any of the Bill of Rights to the states, much less the “establishment” clause of the First Amendment, and no one thought to do so, until 1947.
In the Everson case, Justice Hugo Black, citing Jefferson’s wall of separation letter, “incorporated” the First Amendment into the 14th and applied same to the states to prohibit the use of public funds with respect to Catholic school bus transportation.
Since that activist ruling, the federal courts have essentially taken over local schools in a way never envisioned by the Constitution. Even if one accepted that no state could establish a state church, the rulings prohibiting Bible Study, prayer, nativity displays, etc, all fall far short of that. In fact, recent precedent allows funding of non-religious activities (like buses) of private schools if such funding is equal to that of public schools.
This type of “nationalization” was the very thing that the mis-characterized anti-federalists sought to prohibit and which the father of the Constitution, James Madison sought to achieve with the Bill of Rights.
Thankfully, with the replacement of former Justice Sandra Day O’Connor with Samuel Alito, there is now a 5-4 majority that has been chipping away at case precedents that fueled the War on Christmas.
We will continue to follow the War on Christmas until Santa Clause comes.
"One man with courage makes a majority." - Andrew Jackson