Freedom of Religion part 4
What Happened to It?
In the previous articles we saw the history of religious freedom, why and how the Founding Fathers tried to create and protect true religious freedom in America, the social value of a religious upbringing and that, originally, the courts understood the intention of the First Amendment. That intention is well explained in a John Adams quote from Thoughts on Government (1776).
The Supreme Court itself determined that the Federal government should not interfere with religious practice or expression unless these acts were covert acts against peace and good order. The courts even elaborated as to what type of acts would not be acceptable.
The courts understood that the interpretation of a law should be based on the "letter of the law", and if there is any doubt about how to interpret the wording of the law, the spirit in which the law was written must be considered.
Unfortunately, the proper interpretation of law, including the supreme law of this country, the Constitution, was and is not always adhered to. This concerned the surviving Founders (as expressed in a letter from James Madison to Henry Lee in 1824) and probably was the inspiration for Joseph Story writing the Commentaries on the Constitution.
Society was changing. Science and technology were improving. Those who disparaged religion were more and more vocal. Napoleon Bonaparte said, "Religion is excellent stuff for keeping common people quiet". The founder of analytical philosophy, Bertrand Russell, said "Religion is something left over from the infancy of our intelligence; it will fade away as we adopt reason and science as our guidelines".
Karl Marx, author of The Communist Manifesto, wrote and spoke against religion, saying things like"Religion is the sign of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people", and "The first requisite for the happiness of the people is the abolition of religion." The elite, such as poet and culture critic Matthew Arnold said "All the biblical miracles will at last disappear with the progress of science".
Indeed, the "intelligentsia" and elite in society embraced the ideas of communism. They wanted society to "progress" in what they felt was its proper evolution to become a socialist society. (Hence they were and are called "progressives".)
FDR was a progressive. He was very dissatisfied with the Supreme Court, which was largely conservative, and had in 1935 unanimously determined that three of his New Deal initiatives were unconstitutional. FDR was reelected in 1936 by a large margin and in 1937 expended his political capital in trying to making the Supreme Court more liberal and, he hoped, more agreeable to the New Deal.
Roosevelt argued that the Court, with its six septuagenarians, wasn't up to the job and proposed the "Judiciary Reorganization Bill of 1937", known ever since as "the Court-packing scheme". While this bill never succeeded as FDR wanted, he still managed, because of circumstances, to have eight Supreme Court justices of his choice appointed between August 1937 and February 1943. (In total Roosevelt appointed 193 federal judges during his 12 years as president.) Needless to say, FDR's judicial appointments were progressives.
Observing their behavior, it is obvious that progressive judges did not, and still do not, feel bound to interpreting the law according to the spirit in which it was written. These progressive judges are referred to as activist judges. They find new meanings for words, new interpretations for laws, "implied" powers, believe in a "living constitution" and actually go to foreign law to justify their opinions in their decisions.
In the Everson v. Board of Education decision, in 1947, the now liberal Supreme Court showed a disturbing paradigm shift. It coupled the First Amendment with the Fourteenth Amendment thereby removing the states' rights and binding individual states to the court's decisions. It also separated Jefferson's "wall of separation between Church and State" from the rest of his letter and all other writings indicating its true meaning. (This was the beginning of the court ignoring the use of accurate historical context, which is easily accessible, to determine meaning and make decisions.) The Supreme Court decided that this new wall they had erroneously erected "must be high and impregnable" and that "We could not approve the slightest breach".
Since the Everson case decision, there have been several anti-religion Supreme Court decisions. These vary from restricting voluntary behaviors like taking elective classes and having non-sectarian school prayer, to having passive displays of religious material, to having a simple moment of silence. (This banned, amazingly, because of the "underlying intent"!) Indeed, the judiciary has proven Thomas Jefferson's fears correct. He wrote that the Constitution is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.
In summary, religious freedom has suffered at the hands of activist judges on the Supreme Court over the past 60 years. Couple that fact with the restrictions on free speech imposed by the political correctness that is in vogue for the past few decades (which far surpasses the norms of good manners) and you have seriously harmed the God given rights to freedom of religion and freedom of speech as intended by our Founding Fathers.
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