5 votes

States can establish religion and Congress can do nothing about it

The 1st Amendment:

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

First note it is the lawmaking power of Congress that is being circumscribed, not that of the States. Also note the indefinite article "an", which acknowledges the possible existence of an establishment of religion. Some States at the time of ratification had established religion in some way.

Therefore, the 1st Amendment bars Congress from interfering with State-established religions. Congress can neither call up the Militia nor appropriate funds to pay them to, for example, remove a display of the 10 commandments from a State courthouse because to do so would require laws the 1st Amendment bars Congress from making.



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The Position is Moot

A.) STATE Constitutions unanimously bar the establishment of a STATE religion.

B.) The Incorporation Doctrine, applied the federal Bill of Rights to all STATES

Even with the Incorporation Doctrine

In order for Congress to call up the Militia to forcefully remove a display of the ten commandments in a State courthouse, they must pass law. But the 1st Amendment bars Congress from making such law.

What Part

With all due respect, what part of STATE Constitutions banning the establishment of religion are you failing to understand?

What if a State amends its constitution?

Right, I skipped that one. If a State amends its constitution to establish a particular religion, Congress is barred by the 1st Amendment from doing anything about it.

Look up the history of

Look up the history of Maryland. It used to be an all Catholic state. You had to be Catholic to live there if I got that right.

Many state constitutions

barr the establishment of a religion. Also the constitution protects the free exercise of an individual's religion, so states cannot ban particular religions.

For instance the Texas constitution says - All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.

The free exercise *thereof*

It seems the 1st only protects the free exercise of State-established religions, not just any religion, and again, only from Congress.

Also, notice the Texas constitution protects the right to worship "Almighty God". Does that context circumscribe the scope of the remainder of that section? Isn't "denomination" a reference to other sects that worship the same deity? What about religions that don't worship Jehovah?

When the Constitution and the Bill of Rights

were ratified, seven out of thirteen states had state churches and no one thought anything of it. The 1st Amendment was for the feds only.

A bit silly, and anti-liberty

It is a natural right, and individual right we have by virtue of our humanity, not to have to follow a religion - especially a state religion. That is why Congress is prevented from establishing such a thing because it is a way to control the individual.

And, even if you could establish some complex legal justification, why would you think it would be a good thing? Who's religion would be used? There are many city streets I have driven with the churches of a dozen different Christian sects/cults. If you guys can't even agree on your religion, how is creating a state religion going to help?

Like I said, a bit silly.

"In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot."--Mark Twain

What of the right of self-government?

If like-minded people have the right to form government at all, don't they have a right to establish religion with their government?

The 1st Amendment is more about the republican form of government than anything else. Congress being barred from establishing religion means the power is left to the States or the people respectively. Notice this means the legislative body with the power to declare war can not also declare an official national religion nor compel member States to abandon their own. That is the primary purpose of the 1st Amendment: to block nationalism and bolster the republican form of government.

Some of the Colonies actually recognized the existence of different sects and declared that none were to be favored. Others required office holders to be of the Protestant faith. The 1st Amendment means the people of the States didn't have to agree on religion in order to live side-by-side in peace. They each had their own sandbox.

Ah....Democracy

Sure, let the "like-minded" people run things....Not those who believe in individual rights.

Defense against tyranny of the majority is the whole point of the Bill of Rights. Government is force. Your basic argument is that the majority of the people in a state can decide which religion the government will force every citizen to be a part of - or at least adhere to their rules. Next comes stripping non-Christians out of the state or putting them in jail. Where would the majority stop?

If this is not the goal, then why establish a government religion? Your only recourse is to tell those in the state who will not subject themselves to your deity, as was often told to former slaves and Tea Partiers now, "you can leave then if you don't like it".

"In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot."--Mark Twain

A republican form of government

The republican form of government goes against "majority rule", doesn't it? One State out of fifty establishes the Hindu religion as "official" and the rest of the States can do nothing about it. They are barred from waging war by Article I, Section 10, while Congress is restrained by the 1st Amendment.

Consider how things were at the beginning. The Colonies had already established their religions for some time. Therefore we wouldn't be talking about "love it or leave it", but rather "love it or immigrate to somewhere else".

Also, "establishing a religion" need not mean declaring an official State religion where everyone must pay tithe to the Church. It may also mean that a State recognizes as legitimate a particular religion that had theretofore been discriminated against by the government.

Yes....

You just confirmed what I wrote. As for "that had theretofore been discriminated against by the government" -- that is just imaginary Christian oppression, a very common delusion.

"In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot."--Mark Twain

Maybe so

But the fact remains that the original intent and effect of the establishment clause in 1st Amendment was to preserve the power of the States to establish religion. Perhaps it was wrong for the Colonists to answer religious discrimination in the Old World by granting themselves in the New World the same kind of political power that had been used to do so. Perhaps they should only have guaranteed rights of consciousness.

By the way, note they would also have the power to protect non-Christian religion.

As a point of history, this was a fact

Various states had established religions until early in the 1800's. They voluntarily discontinued the practice.

you're ignoring the 14th amendment.

it's generally accepted that the 14th amendment has the effect of enforcing the limitations of the bill of rights on states and authorizing the federal government to enforce those limitations. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States -14th amendment"

In many instances the use of the 14th is annoying and problematic... however, using it to ensure states don't establish religions or infringe upon the freedom of religion is a very good thing.

In the very least...

In the very least it should be clear that prior to the 14th Amendment, the 1st Amendment restricted the lawmaking power of Congress, not that of the States. Thus when we talk about "the founding fathers" and "original intent", we should be clear that the 1st Amendment actually protected the reserved power of the States to establish religion as well as the power to restrict the "licentiousness of speech" (Jefferson's Kentucky Resolution) or the power to regulate public assembly.

Even more, however, the 14th Amendment did not actually change the 1st Amendment. It still reads "Congress shall make no law". The so-called "Incorporation Doctrine" derived from the 14th Amendment seems to both depend upon and ignore that fact. Citizens of the US are not immune to the laws of the State in which they stand.

You misunderstand i think

"No State shall make or enforce any law abridging the privileges or immunities of citizens....."

Is not freedom of religion an immunity?

People often think government has to make things fair, cant pray on public property, or in government buildings or schools, because it can make others uncomfortable, when in fact its the exact opposite.

Government has no authority to PREVENT anyone from worshiping ANYWHERE on any public/government property, and government has NO authority over households, period.

The only thing government can do, is stop the state from arresting people for worshiping other than a state approved religion. Government has no other power, and that was its purpose, to prevent corrupted states from taking away rights from the people, that is why we signed into a constitution among all the states.

Yup

It's right there in words.

Yup.

What would Ohio's State religion even look like? I'm guessing it would involve a lot of Bar-B-Que.

Defend Liberty!

:)

You're dead on :)

"You only live free if your willing to die free."

What would a state

What would a state "establishing religion" even mean? And what is the point of your thread?

Here was the first link on a

Here was the first link on a google search for "established religions in the colonies":

http://undergod.procon.org/view.resource.php?resourceID=000069

A couple highlights:

-- Delaware's constitution included an oath of office:

"I _______, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, One God, blessed for evermore; and I do acknowledge the holy scriptures of the Old Testament and New Testament to be given by Divine Inspiration.

-- New Hampshire, Georgia, North Carolina required office holders be of the Protestant faith.

"Establishment" refers to such integrations of religion into the respective governments. Religion could be "established" by law, much like the Church of England.

I often find peoples' understanding of the effect and original intent of the 1st Amendment is quite different from what is plainly written, and am compelled to correct that misunderstanding. I see that the 1st Amendment was more about the republican form of government than anything else, and that what ever potential evil might come of such power to establish religion, or to restrict the freedom of speech or public assembly (which, by the way, States still do) at least it could only affect one State at a time. It means one size does not have to fit all.

Are you in favor of states

Are you in favor of states establishing religion?

Depends...

You'd have to read each state constitution. I believe most address this issue.

As per the Pennsylvania Constitution, in Article 1, Section 8 it says, "...no preference shall ever be given by law to any religious establishments or modes of worship."

NOTE: I am not advocating violence in any way. The content of the post is for intellectual, theoretical, and philosophical discussion. FEDS, please don't come to my house.

Fair enough

Fair enough. But even still, Congress wouldn't settle any related disputes.

That is true

and some states have had state established religions at one time. Maryland for one did have a state religion after the signing of the constitution.

however, I'm not keen on states doing this.

OMG ITS A PIECE OF F#%*ING PAPER THAT NOBODY HAS

LISTENED TO IN 230 YEARS!!!!!!

AAAAAAAAHHHHHHHHHHHHHHHH!!!!!!!

Séamusín

Silly. Billy-Club Fed gets Supreme Court favor.

Secretive Creation of the Banking Creature from Jekyll Island. What the Congress nor President cannot gift to the Fed, shall be ordained by the Supreme Court. Ever wonder why so many religious questions land unto the Supreme Court?

The Supreme Court had its say on the matter in McCulloch v. Maryland (1819). It voted 9-0 to uphold the Second Bank of the United States as constitutional. The Court argued with the doctrine of implied powers, stating that to be ‘necessary and proper’ the

The history of central banking in the United States does not begin with the Federal Reserve. The Bank of the United States received its charter in 1791 from the U.S. Congress and President Washington signed it. Secretary of State Alexander Hamilton [N.Y. Banker] designed the Bank's charter by modeling it after the Bank of England, the British central bank. Secretary of State Thomas Jefferson believed the Bank was unconstitutional because it was an unauthorized extension of federal power...

The Central Bank needed only to be useful in helping the government meet its responsibilities in maintaining the public credit and regulating the money supply. Chief Justice Marshall wrote, “After the most deliberate consideration, it is the unanimous and decided opinion of this court that the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is part of the supreme law of the land” (Hixson, 117). The Court affirmed this opinion in the 1824 case Osborn v. Bank of the United States (Ibid, 14).

The Fed Temple, Washington D.C.
Therefore, the historical legal precedent exists for Congress' power to create a central bank. It formed the Federal Reserve system in 1913 to perform many of the same functions as its predecessors. As before, the courts have agreed that a central bank, and
the Federal Reserve in particular, is constitutional.
[Dubiously so.]

Disclaimer: Mark Twain (1835-1910-To be continued) is unlicensed. His river pilot's license went delinquent in 1862. Caution advised. Daily Paul

the state constitution

The state constitutions have to include the federal constitution.
STATE CONGRESS shall make no law either...

State laws are created the exact same way as federal laws.
they go through the state legislature and they have to abide by the State constitution, which contains the federal constitution.

http://system.uslegal.com/state-constitutions/

I use Blue Wave, but don't expect one of THEIR silly taglines.

Huh?

First, which State constitution "includes" or "contains" the US constitution?

In the Washington state constitution it only refers to it:

SECTION 2 SUPREME LAW OF THE LAND. The Constitution of the United States is the supreme law of the land.

Even with that, however, the fact remains that the 1st Amendment restrains only the powers of Congress.