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.
-Amendment I, US Constitution
A couple of reasons as to why the recent Intelligent Design ruling, that said it was unconstitional for the government to teach ID in public schools, is wrong:
Teaching Intelligent Design as fact is not “establishing” religion. At most, it reinforces religion. “Establishing a religion” is generally understood (at the time the Constitution was written and in the present) to be to either start a new religion or to establish an official state church. Teaching ID does neither.
It isn’t Congress that is mandating the inclusion of ID in public school curriculum. The first amendment is limited in application to Congress. (”Congress shall make no law…”) It says nothing about the Executive or Judicial branches or the State and Local governments.
What I have said above applies to most all the rulings that have been made on the basis of “seperation of church and state” (a phrase that doesn’t even appear in the Constitution).
Furthermore, teaching Intelligent Design as an alternate theory is certainly not unreasonable. Even totally disproven theories are taught in science class to provide perspective. How much more a controversial theory that has much support?
7 Responses
December 27th, 2005 at 9:13 am
Use caution when trying to divine why the Constitution includes and doesn’t include or spell-out some things. The Founding Fathers may have left such things vague to accommodate future situations. For example, the Constitution makes no reference to allowing private citizens the right to vote for the President, to wit:
And yet everyone assumes that the U.S. Constitution “guarantees” someone’s right to a vote for the President. It doesn’t in any way shape or form, leaving the matter up to the States to decide. So much for strict interpretation.
Also, for better or for worse, Congress is given express control over the States as needed:
Otherwise, it just wouldn’t work. Just imagine what would have happened if the 14th Amendment weren’t enforceable using the idea that the Constitution is selectively applied.
Finally, I agree that other viewpoints should be accommodated within public schools on a variety of subjects. The U.S. needs better ways to teach such controversial subjects without shoving it down society’s collective throats. U.S. public school systems tried such tactics with mathematics for decades. Such ill-conceived teaching principles resulted in the unabated brain drain in “hard sciences”.
December 27th, 2005 at 9:14 am
The Establishment Clause is applied to states through the 14th Amendment, because it is interpreted to confer an individual privilege from state-established religion (or, in the alternative one supposes, an immunity from prescriptive exposure to religion at the hands of the state). The interpretation is perhaps dubious, but not entirely recent. There was a movement which peaked in the 1980s that argued that the First Amendment was only a limitation on Congressional power, and conferred no remedial rights on individuals whatever, and therefore could not be applied to the states through the 14th Amendment; that movement failed (or has become even more of a minority movement) largely because the idea that Congress may not abridge a free press or peacable assembly but that states might do so was repulsive to most people–and once freedom of press and assembly applied to states, freedom of religion did as well.
December 27th, 2005 at 2:20 pm
The Jaded JD: You are the lawyer and I’m not, but a simple reading of the 14th amendment (and I was fully aware of the 14th amendment and the argument that is made that the entire bill of rights applied to the states; the post time of 3:30 AM coupled with the fact that I just didn’t want to open that can of worms that I thought to be a bit inapplicable made so that I didn’t include the 14th amendment question) says that only the rights extend to the states. The first amendment is not written out as a right (except for “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”) but rather as a command to Congress to not make a law restricting free speech or religion. If you look at the rest of the Bill of Rights, you see that each of them are enumerated as universal rights.
The first amendment is a limitation on Congressional power, the rest of the “Bill of Rights” is absolute enumerations of rights.
An example of this is displayed in the 3rd amendment:
The third amendment is clearly set forth as a right. It basically says in an absolute way: “It won’t be done.” On the other hand, the first amendment doesn’t enumerate a right for the people, but rather a restriction on Congressional power.
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I totally agree that the thought that the principle of freedom of speech isn’t applicable to the states is a repulsive one. However, it’s not the job of judges to figure out the right policy, but to carry out what the Constitution says. If the right policy (which I agree it is) is to have freedom of speech apply to the states, then it should be changed via the legal amendment method. When we rely on unelected judges to make policy decisions instead of forcing our elected leaders to do so, we are in a very bad spot and set a very bad precedent.
Another thing to consider: What do the state constitutions say? Do they guarantee freedom of speech? If they do, there is no problem.
December 27th, 2005 at 7:02 pm
The judiciary has the power to determine what laws and actions of Congress, the President, even itself, are unconstitutional, as per the Constitution and case precedent. Marbury vs. Madison established judicial review in the earliest years of the U.S. Without it, policies such as “separate but equal” or even the Dredd Scott decision would have stayed around longer than otherwise. This is why “checks and balances” works.
As for free speech in the States, that comes two ways, and doesn’t have to be explicitly stated in the State Constitutions. For one, Article IV, Section 2 ensures “[T]he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Second, Congress determines what States get annexed into the U.S. as per Article IV, Section 3. Congress mandated that States have to accept the U.S. Constitution, and draft their own such that it doesn’t go against the U.S. Constitution, before being annexed into the U.S. I don’t know the specific statute, but I’m almost certain it’s on the books.
December 28th, 2005 at 9:50 am
The important thing is to not let the opponents of ID (and Christianity) play the victim. They love to portray themselves as oppressed and whine that they are having their civil rights taken away. They all want to be seen as Rosa Parks. But in reality it is they who are the aggressors. This Country was founded on Christianity, in fact in the early years of this country some schools used the Bible as their only textbook.
ID opponents are the ones who have gotten the Bible, prayer, and creation banned from our school system. If anyone is being oppressed it is the Christians.
December 28th, 2005 at 3:38 pm
StikkBomber: I’m not sure that I am following you… Would you take Article IV, Section 2 to mean that if several states enumerate a right in their state constitution or in their laws that all the other states have to protect that “right” as well? Because unless you take this stance, I’m not aware of any place in the Constitution that puts forth free speech as a right (I think that should be fixed by Congress) which would make the second half of your second paragraph irrelevant.
December 29th, 2005 at 10:08 am
This is where interpretation of the U.S. Constitution and the Founding Fathers intentions gets tricky. I take Article IV Section 2 to mean that all States have to abide by those rights granted under the U.S Constitution to join the Union. I don’t think it necessarily means that each State has to follow all the laws of another State’s constitution. If the latter were the case, then topics as far reaching as State income taxation, dancing and singing (yes some States and jurisdictions have ordnances against dancing and singing), and gay marriage would either be universal, or eradicated, instead of some States doing them, others not.
You are correct, the Constitution doesn’t explicitly tell the States to guarantee free speech. But, it states in the 9th Amendment that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” I take that to mean that since the Constitution didn’t say States had to ensure free speech, it doesn’t give them the power to take it away either. Again, the U.S. Constitution requires States to ratify it and abide by the laws Congress sets forth in order to become a State, in accordance with Article IV Sections 2 and 3. So free speech is still guaranteed, because the text in the U.S. Constitution, or lack thereof, trumps State law in this regard. As such, free speech guarantees happen in a roundabout manner anyway.
A series of documents that really helps understand the thought processes used behind drafting the U.S. Constitution are the Federalist Papers. While not necessarily a part of the U.S. Constitution, they were originally written to urge New York residents to ratify the U.S. Constitution. They later became the documents that further explain the logic and philosophy used in drafting the U.S. Constitution. A thorough perusal of them, if not a flat-out reading, certainly helps understand the U.S. Constitution.
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