Congressman Paul Broun Speaks out AGAINST ENDA

Free Exercise: The Original Intent

Two hundred some odd years ago, thirteen Amendments to the United States Constitution were proposed. In the last eighty years, the fourth of those proposed has produced much animosity. The pre-eminent way to discover the original intent of the First Amendment is to establish America’s heritage and the fundamental beliefs of our founders. Doing so will lead to the discovery that the current jurisprudence that Congress exercises over the states is one of controversy and even outright disregard for the Constitution. And finally, the abstruse truth will be uncovered that the Supreme Court of the United States has construed the First Amendment to fit its every whim.

Though some deny that America is a Christian nation, history reveals that Christopher Columbus came to this continent not for mere exploration or to flee persecution but because he believed God led him to our shores to spread the gospel.[1] Moreover, the first colonial grant from Queen Elizabeth to Sir Walter Raleigh in 1584 was to enact laws provided “they be not against the true Christian faith.”[2] The first charter of Virginia by King James in 1606 was to propagate the “Christian religion to such people, [who as yet live in darkness].”[3] During his travels in the 1830’s, Alexis de Tocqueville stated, “On my arrival in the United States, the religious aspect of the country was the first thing that struck my attention.”[4] Indeed, many point to Thomas Jefferson and claim unequivocal and categorical separation of church and state. This often-quoted expression of Thomas Jefferson regarding the “wall of separation between church and state” has become so popular that many people believe these words are in the Constitution. They are not; in fact, Jefferson was in France at the time of the First Amendment was drafted. Jefferson rejected the notion that there should be no interaction between church and state. On three occasions President Jefferson signed into law federal land grants specifically to promote proselytizing among American Indians.[5] The notion that Jefferson’s beliefs regarding church and state are contained within the First Amendment is one of irrefutable error.

Until 1925, the federal government had absolutely no jurisdiction over religious matters within the states.[6] If a state established a state-sponsored church or religion, the federal government had no authority to promote or inhibit the practice of religion within the state. Indeed, as late as the Revolutionary War, there were established churches in at least eight of the thirteen colonies and established religions in at least four of the other five.[7] The First Amendment specifically states that the federal government has no jurisdiction to act on religious matters within the states (Congress shall make no law . . . .). In 1940 the United States Supreme Court ignored the historical context of the First Amendment and applied the free exercise clause to the states in the case of Cantwell v. Connecticut.[8] In doing so, the Supreme Court violated its own jurisprudence and tossed aside the original understanding of the First Amendment and the volumes of history which document the religious liberty ideals of our founders. The French Philosopher Jean-Jacques Rousseau reminds us of the consequences of such actions:

Free people, remember this maxim: we may acquire liberty, but it is never recovered if it is once lost.

The Free Exercise clause is meant to protect individuals from the intrusion of the federal government. It provides liberty to the individual and restrains the government. Justice Story, in his Commentaries on the Constitution (1833), offered an imperforate explanation of the purpose of the religious-freedom clause. It was adopted, Story said, because different sects predominated in different states; and "it was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment.”

Today, under the Smith era (see Employment Division v. Smith), the free exercise clause has been voided by the Supreme Court.[9] Consider this. Ante the Smith area, a person could constitutionally be exempted from a neutral law of general applicability if they could prove they had a sincerely-held religious belief and the law in question put an undue burden on their ability to fulfill the said belief. In Smith the Court said that when free exercise (FE) is combined with another fundamental right (FR), it will use its highest legal standard—the compelling interest test (CIT)—to evaluate the case.

FE + FR = CIT

However, the Court makes it clear that any fundamental right standing alone is entitled to the compelling interest test.

FR = CIT

If you solve these equations for FE, the value of FE = 0. Free exercise is worth nothing in this Constitutional equation. Today, in order to successfully argue a Constitutional free exercise claim, one must combine free exercise with another fundamental right.[10] In Smith, the Supreme Court violated stare decisis and threw away hundreds of years of legal precedent.

Freedom of religion is spoken of capaciously. But how many people know the facts? How many people understand that the Supreme Court of the United States has, for all practical purposes, wiped away the second clause of the First Amendment?

Counter to what is taught today, public schools were established in order to teach children how to read the bible and to teach them the principles of Christianity. The first compulsory education law was adopted by the Massachusetts colony in 1647. The law mandated universal education in order to teach people how to read the Scriptures.[11] Now, 350 years later, it constitutes a “violation” of the establishment clause (which is categorically intertwined with the free exercise clause) to pray[12], read the Bible[13], or even have a moment of silence[14] in school.

In its fervor to remove religion from school, intriguingly, the Supreme Court has, in fact, established a religion of its own. It is called Humanism. Beguilingly, the Supreme Court has actually recognized Humanism as a religion.[15] They have rejected one religion, and empowered another. In public schools today, one may have religious freedom: but only as long as one accepts the Supreme Court’s favorite religion. If not, no need to apply.

The original intent behind the First Amendment was to prevent the federal government from infringing on certain inherent, immutable, and intrinsic rights. In 1925 the First Amendment was erroneously applied through the 14^th Amendment to the states. In 1962 the Supreme Court outlawed prayer in school. In 1963 the Supreme Court outlawed reading the Bible in schools. In 1990 the free exercise clause was voided by the Supreme Court. Article 1 of the Constitution reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Based on the Supreme Court’s rulings, they believe Article 1 should more accurately read, “All legislative Powers herein granted shall be vested in a Congress and a Supreme Court of the United States….” Free exercise is a critical component of the First Amendment. We must preserve and protect it. “The Constitution does not require a complete separation of church and state. It affirmatively mandates accommodation, not merely tolerance, of all religions and forbids hostility towards any” – Warren Burger, Chief Justice of the Supreme Court.[16]

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[1] Peter Marshall & David Manual, The Light and the Glory 29-48 (1997)

[2] The Church of the Holy Trinity v. United States, 143 U.S. 457, 466 (1892).

[3] Id.

[4] Alex de Tocqueville, Democracy In America, 1-2 (1835)

[5] R. Cord, Separation of Church & State, 41-46 (1982)

[6] Gitlow v. New York, 268 U.S. 652 (1925)

[7] Engel v. Vitale, 370 U.S. 421, 427-48 (1962)

[8] Cantwell v. Connecticut 310 U.S. 296 (1940)

[9] Employment Division v. Smith 494 U.S. 872 (1990)

[10] Michael P. Farris, Constitutional Law for Enlightened Citizens, 333-335 (Home School Legal Defense Association, 2006)

[11] See Colonial Origins of the American Constitution: A Documentary History 129 (Donald S. Lutz, ed., Liberty Fund, 1998)

[12] Engel v. Vitale, 370 U.S. 421 (1962)

Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)

[13] Abington Township School District v. Schempp, 374 U.S. 203 (1963)

[14] Wallace v. Jaffree, 472 U.S. 38 (1985)

[15] Torcaso v. Watkins, 367 U.S. 488 (1961)

[16] Lynch v. Donnelly, 465 U.S. 668, 669-670, 673 (1985)

The Failure of the American Government School System

“I think there is no other country in the world where, proportionately to population, there are so few ignorant and so few learned individuals as in America. Primary education is within reach of all; higher education is hardly available to anybody” – Alexis de

Tocqueville, 1848.[1]

Since 1971, test scores and proficiency levels in all subjects of learning have been falling. Based on the research of Caroline Hoxby, who recently divided average student achievement scores from the National Assessment of Educational Progress by per-pupil-spending data from the U.S. Department of Education to estimate the change in productivity between 1970-71 and 1998-99. She found American school productivity fell by between 55 and 73 percent, depending on the skill and age cohort tested. According to Hoxby, if schools today were as productive as they were in 1970-71, the average 17-year-old would have a score that fewer than 5 percent of 17-year-olds currently attain.[2] Additionally, it was reported in 1995[3] that:

• “Twenty-five percent of high school seniors can barely read their diplomas, and only 3 percent can write above an adequate level.
• Only 15 percent of college faculty members say their students are adequately prepared in mathematics and quantitative reasoning.
• High school seniors correctly answer questions about basic economic concepts only 35 percent of the time.
• American businesses lose between $25 billion and $30 billion a year because of the weak reading and writing skills of their workers.”

Thirty years ago, the public school system was thought to be a failed experiment. Such prominent writers as Peter Schrag said we had reached “the end of the impossible dream” of providing universal, free, and high-quality public education.[4] In the 2000-2001 school year, over 41 million students were enrolled in the public school system. The total cost of the public school system for that year was $334 billion, which equals $7,079 per student.[5] The average cost per student is continually rising, but the average proficiency per student has been continually falling. Thirty-five years ago, the educational deficit became clear. Since then, the government has tried nearly everything in their power to fix the problem: they have failed.

A radical change must take place in the American public schools. The education of my parent’s generation was dismal. Even worse, the education of my generation is most accurately described in the words of a Nebraska teacher who taught at one of the nation’s best academic high schools:

With very few exceptions, I watched for fourteen years as student after student entered and left high school having learned next to nothing during his or her four year term. . . . My experience has convinced me that if the purpose of the public schools were to prevent children from acquiring an education, they could not do a better job than they are right now, at this very moment in the classrooms all across the nation. . . . [The public school system] crushes our children’s intellectual curiosity and then demands that they learn anyways (1992).[6]

Clearly in the last thirty years, the scholastic proficiency of the average high school graduate has been falling, and based on the data, will continue to fall. This trend is perilous indeed. The consequences of the low proficiency of many younger Americans are yet to be seen. No doubt, they will be far reaching.

“The educational foundations of out society are presently being eroded by a rising tide of mediocrity that threatens our very future as a Nation and a people. . . . We have, in effect been committing an act of unthinking, unilateral educational disarmament”— A Nation at Risk: The Imperative for Education Reform (1982).[7]

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[1] Democracy in America (1848, 13^th ed.; reprint, New York: Anchor Books, 1969), 55-56.

[2] Caroline M. Hoxby, “School Choice and School Productivity”, Economics of School Choice (Chicago: University Press for the National Bureau of Economic Research, 2001)

[3] Sykes, Dumbing Down Our Kids, (New York: St. Martin’s Pres, 1995)

[4] Peter Schrag, “End of the Impossible Dream”, Saturday Review, 19 September, 1970, 68.

[5] United States Department of Education, National Center for Educational Statistics, Common Core of Data: Early Estimates of Public Elementary/Secondary Education Survey, 2000-1; National Public Education Financial Survey, and State Survey of Public Elementary/Secondary Education, 1996-7 through 1999-2000.

[6] Edward Rauchut, “I Quit: A Teacher Refuses to Be Part of a Dysfunctional System”, Teacher Magazine, February 1992, 26. Rauchut is presently an associate professor at Bellevue College in Nebraska.

[7] National Commission on Excellence in Education, “A Nation at Risk: The Imperative for Education Reform (1982), 20. Reprinted in 129 Congressional Record S 6059, S 6060 (daily ed. 5 May 1983)