Constitutional Protection of Our Heritage

Have you ever been talking to someone and started to wonder if you are both talking about the same thing? As the months have gone by, I've started to wonder if we're all talking about the same thing or, more to the point, if we have all been looking at the same Constitution. Perhaps all that needs to be said is, "Excuse me, but I am referring to the Constitution of the United States of America." Part of me thinks that the other party would reply, "Oh, I'm sorry, I thought you were talking about something else." Unfortunately, it probably isn't that easy.

It may sound kind of silly to state that we all appear to be talking about different documents. It is one thing to argue how to interpret the more vague sections of the document, but I am not writing about that. The truth is I am really starting to wonder if most of the people who talk about the Constitution, including many justices, have actually read it.

Here is the first amendment: "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."

It seems straight-forward enough. I don't think it could have been written any more clearly. It defies reason how many people have become to understand it (unless they have never actually read it). It starts "Congress shall make no law" and then continues to explain what laws Congress shall not make. Much time has been devoted to arguing about the exact meaning of the prohibitions. That is another matter that, for the sake of brevity, I will not address in this writing. However, I do wish to address the first five words of the first amendment.

Unless you have had your head in the sand for the past few years, you are aware of the removal of plaques of the Ten Commandments from county courthouses around the country. In Pennsylvania, a plaque was removed from the Chester County Courthouse. The plaque was removed because it supposedly violated the first amendment rights of certain individuals because it demonstrated that the government, in this case the county government, acknowledged the existence of a single God. By so doing, some argued that those who believe in multiple gods or no god at all were having their first amendment rights infringed. A similar complaint was made in California against the Pledge of Allegiance as a result of the "under God" section. Previously, prayer has been removed from public schools for similar reasons.

The argument has always focused on whether the recognition of God could be interpreted as establishment of a religion or a prohibition of the free exercise of religion. Much time has been expended arguing that issue. Well, guess what? That is not the issue at all.

No, the issue is not in the details of the amendment, but rather on whom the restrictions apply. It does not read, 'Government shall make no law' nor does it read, 'No one shall make a law' nor does it read, 'No one shall take an action'. It reads, "Congress shall make no law". Congress made no law that placed any plaque on any county courthouse. Congress made no law that placed prayer in public schools. So, no one could have possibly had their first amendment rights infringed by those actions.

The same goes for the rest of the freedoms in that amendment. If your school, workplace, local government or state government abridges those freedoms, you may have a case in local or state court, but should not in federal court. Congress did not take the action, did not pass the law and thus your rights under the first amendment were not violated.

It may be a radical idea to acknowledge that the first amendment does not apply to anything but acts of Congress. Unlike the other amendments in the Bill of Rights, the first amendment specifically states that it applies only to the laws made by Congress. That fact is one that we the people seem to overlook. For so many years, we have 'gone running to mama' every time we don't like the way we've been treated and cried the first amendment. It is no wonder that the federal government has grown so far beyond its legal scope and powers. Every day we encourage it to do so by asking it to safeguard a freedom over which it has no jurisdiction.

In Pennsylvania, the state constitution deals with the issue of religion, speech, press, assembly and redress of grievances. You will find the same in other states. The reason you will find it in those constitutions is because if those freedoms were to be protected at a level below Congress, they needed to be addressed. Had the first amendment been written to apply to all levels of government and society, such inclusions in state constitutions would not have been necessary. Article I, Section 3 of the Pennsylvania Constitution reads, "All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship."

In Pennsylvania, you will note the freedom covers all men in all situations and not just in the laws made by the State Legislature. It states that "no human authority" can abridge your religious freedom. The sections on the other freedoms are similarly all encompassing. They are not restricted to laws made by the State Legislature. It is, therefore, an issue for the Pennsylvania Commonwealth Courts to determine if the recitation of the pledge, period of prayer in school or placement of a Ten Commandments plaque on a county courthouse interferes "with the rights of conscience" of citizens within the Commonwealth.

In Tennessee, the wording is more modern than Pennsylvania's, but the law is the same. In that state, no law can be made that infringes the freedom of speech, assembly, religion, press or ability to petition the government for redress of grievances. In Virginia, the law is different. There you have the freedom to worship as you see fit, but rather than prohibit all human authority from interfering in religion, it only prohibits the General Assembly from interfering. In Texas, you have freedom of religion and while the State cannot interfere with your ability to believe as you wish, it can pass laws to equally protect the ability of every religion to worship peacefully. In California, you have freedom of religion only if it does not interfere with the peace or safety of the state. All of our 'first amendment rights' are protected to different degrees by the fifty individual states in the union. Some states have modified the amount of protection of those rights in recent years, reducing it by a significant degree. The rights you may believe are reserved may not be so protected as you thought.

Whether your argument is about prayer in school, PC speech or the right to fly a particular flag, you need to make that argument work within the laws of your state and community. If your school has banned prayer, then it is the school that has made the rule and not Congress. It is not the first amendment that has been violated. If you have been banned from flying a particular flag in a parade, it was that parade commission or local government that passed that ban. It is not the first amendment that has been violated.

If we are going to allow the federal government to decide what rights we do or do not have in our respective states when it has no Constitutional authority to do so, then we might as well just not argue about FREEDOM at all. We sacrifice the freedom of power being in the hands of the people when we run to the federal government each time we don't like the way we are treated. By letting the federal government exceed its authority by ruling on such matters, we violate the tenth amendment.

Why do federal courts accept cases about freedom of speech, religion, press, assembly and the ability to petition that do not involve laws passed by Congress? Why do they not refuse to hear them and leave them in the proper jurisdiction of the states? Why do they assume a right and power for which they have no legal right? They do it for the same reason as does a person who breaks into another's property with no legal right. There is a benefit in doing so, so long as they are not caught.

For the courts, the benefit is the power to create law. By ruling on matters in which they have no jurisdiction, they create powers for themselves and create new law that is not bound by the same restrictions placed on laws legally created by the legislative branch. As the 'highest law in the land', they make themselves immune to checks and balances by simply ruling that they have the authority to grant themselves the authority to make the ruling. We, by offering them the opportunity to take that power when asking them to decide cases they should not, give tacit approval to a precedent-based re-writing of the tenth amendment to read, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the federal courts.'

We have been distracted by the attacks on our symbols and our beliefs by individuals from noticing the attack on our freedom of speech and religion by the federal courts. In our haste to defend our rights, we have given them up to a power over which we have no control. In our zeal to protect our heritage, we have promoted the gutting of the beliefs for which our ancestors were willing to die. By using the federal courts to rule on speech and religious issues that deal with individual, local or state attacks upon them, we can only hope to preserve the visual husk of our heritage, empty of substance. What use is the symbol of the rights of men if the way we preserve it is by surrendering those rights?

The fight for our HERITAGE must be made; the heritage of power being in the hands of the people. The fight must be held in the proper legal jurisdiction or else there can be no true victory for freedom and liberty. When we wish to protect our 'first amendment rights,' let us think instead of the tenth. It is the tenth that holds the true guarantee that we have the freedoms of speech, religion, assembly, press and ability to petition. It is through the tenth that we are able to guard those freedoms ourselves in our communities and our states.

So, as a Pennsylvanian with the following guaranteed right of speech: "The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty." (Article I, Section 7, Clause 2 - PA Constitution), I ask you and the federal courts, "Excuse me, but are we reading the same document?"