In the final installment of this series I cover the Establishment, Supremacy and Full faith and credit clauses.
The First amendment states: 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.
Congress cannot pass laws respecting an establishment of religion. Remember the constitution only applied to the new federal government and new congress. There were at least 6 states that had established religions when the constitution was ratified. The constitution would not have been ratified by the states with established religions if they would have been forced to disestablish their religion. In fact some think the amendment was to keep the new congress from disestablishing the states religions.
There is debate around incorporation doctrine that the 14th amendment and the due process clause only incorporates individual rights. For example, the second part of this clause, the free exercise thereof, by an individual. But preventing a state congress from establishing a religion is not an individual right.
We need to be very clear on when religion is being established vs. allowed to be practiced or the free expression thereof. A city can put a Christmas tree or a manger or any other religious symbol in the town square, that is not establishing a religion. Only in denying certain religious symbols is it in the realm of establishing, especially denying all but one denomination’s symbol. I personally think it might be best if the city does not perform the activity at all, but does allow the activity by its citizens. There is no constitutional question in the latter case. It is even debatable that it applies to the state to begin with.
We know the framers of the constitution were not in favor of incorporation of the constitution to the states. There are specific enumerated state restrictions in the constitution, mainly to ensure that power was given to the new federal government. James Madison proposed a negative or veto power for the new congress on state laws and that never made it into the final draft. I think Madison felt that we would have great statesmen in the federal government that could protect liberties and provide equal protection of the laws by placing a negative on a bad state law. But it was decided, wisely I believe, that it was too much power to grant the federal government and I am guessing they could imagine the abuse. I am glad it does not exist. So, they did not find it wise for the federal government to be involved in state law except where expressly stated.
Note; there is no such wording as separation of church and state in the constitution. The phrase “separation of church and state” in this context is generally traced to a January 1, 1802 letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper. The constitution does not say we need to keep them separate.
But we must allow the public to define morality, right from wrong, guide their cities and neighbors as they see fit and agree to. We do not want that legislated by the government, not the federal government for sure.
Some food for thought:
“No government can continue good but under the control of the people; and . . . . their minds are to be informed by education what is right and what wrong; to be encouraged in habits of virtue and to be deterred from those of vice . . . . These are the inculcations necessary to render the people a sure basis for the structure and order of government.” – Thomas Jefferson
“…if the citizens neglect their Duty and place unprincipled men in office, the government will soon be corrupted; laws will be made, not for the public good so much as for selfish or local purposes; corrupt or incompetent men will be appointed to execute the Laws; the public revenues will be squandered on unworthy men; and the rights of the citizen will be violated or disregarded.” – Noah Webster
Article 6 of the constitution says: (paragraph 2) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
A few keys points. There are restrictions on states in the constitution, most in Article 4 and Article 1 section 10. These restrictions give power to the federal government and remove it from the states. E.g. article 1 section 8 says “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;” Our Federal government acts as a single entity to the world outside the states and needs power to act on each states behalf. The clause talks about treaties as well. So, if the U.S. enters into a treaty with England, all states must abide by it. There would be too much chaos if foreign nations had to negotiate with each state. Also laws made to implement the powers of the constitution also become national laws of the land, keeping in mind that power is limited. This does not grant power to the federal government to make rules to regulate the behavior of the citizens. They only have enumerated powers in which to act and most of them do not give the federal government power over the individual. One of the few places this power exists was granted in the 16th amendment. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. Which I believe was a mistake and part of the beginning of the end of federalism. Followed quickly with the 17th amendment, future topic, along with Nullification. (The states ability to nullify unconstitutional federal laws)
James Madison in Federalist 44 talks about this clause extensively concluding with:
It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions.
Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States.
So, the federal government has a constitutional role in creating laws that can bind states, but the federal government is constrained in power by the constitution and the states that put the officers of the federal government in place. Even the paragraph says laws made… …in Pursuance thereof. Again, be careful when giving away power and rights, I guarantee it will be next to impossible to get them back. Especially the further away they are given.
Finally, Full faith and credit. Article 4 section 1 says:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
This clause applies to judgments, not laws. One state’s laws do not apply to another, but a judgment rendered in a court in one state can be governed by the federal government in its proof and application in other states. Congress is granted jurisdiction and due process to be involved.
At the Philadelphia Convention (the constitutional convention), James Madison said that he wanted to supplement that provision in the Articles of Confederation, to let Congress “provide for the execution of Judgments in other States, under such regulations as might be expedient.”
In Federalist 42 Madison explained:
The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction.
Again, no power to apply state laws across state lines, or control the actions of a state with regard to the treatment of its own citizens. It allows the prescription of how to prove the acts, records and proceedings. And it allows for the jurisdiction in execution of the judgments across state lines. The federal government generally does have jurisdiction when maters cross state lines.
Again, the constitution provides enumerated powers to our federal government. They are specific and limited. While it might be convenient to use one of these clauses out of context to allow the federal government to exceed its power and legislate in a manner we might like, we may even find prudent, It is a dangerous precedent and releases the constitutional constraints that government can then use in ways unseen, in a manner you do not like. Unintended consequences! The founders were wise to constrain federal power. “ In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” – Thomas Jefferson
If we find it necessary to grant the federal government more power, we must follow the process in the constitution, Article 5 another future topic, to deliberately amend the constitution. Let cooler heads prevail, let’s have that debate first. We must always be vigilant and protect our liberty, or we will wake up to find it gone.