the whitestick papers

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Posts Tagged ‘free speech

The Myth of Separation

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With this post, I’m adding a new category called “Musings”.  I’ve pretty much exhausted – for now – insights I can easily share about campaigns and candidates and, while these may be related to events, will be more general and philosophical in nature.  As always, you’re welcome, even encouraged, to comment.

Have you ever wondered why the First Amendment to the US Constitution has so many subjects?  The rest of the Bill of Rights seem to do just fine with one subject per Amendment – the Second involves arming private citizens, the Fourth has to do with your property being secure; the Fifth prevents self-incrimination, the Ninth deals with the enumerated powers of the Federal Government and the Tenth covers unstated rights of the states and individuals.  But the First covers a wide range of seemingly unrelated topics – freedom of religion, freedom of speech, a free press and the redress of grievances, whatever that means.  Couldn’t they agree on what came first and, from that, implied top priority and, as a result, just dumped them all together?

If you look over the debate in the Constitutional Convention and the public discussion in the Federalist Papers, you won’t find much that would tell you the Founders floundered on the First Amendment.  It seems they had a very good idea what they were trying to do – and also why it’s the First Amendment.  It’s easiest to figure this out if we work backwards.

What  does the phrase “a redress of grievances” mean?  In modern terms, we’d call this “righting a wrong,” recognizing something that isn’t the way it should be and proposing a way to make it better.  How do we do that?  Simple; we pass laws.  So, in the end, the point of all this is to make sure government always allows the citizens to pass laws on issues and ideas that come up.  We do this, of course, through the legislative process, electing representatives to make the laws we think are needed to correct wrongs – to “redress grievances.”

The legislative process is part of the “peaceably to assemble” but it also has the greater meaning of letting our representatives know what we want.  We can gather in rallies and town halls; we can write letters and, in our day, make phone calls with the idea of communicating to our representatives how we want them to vote on bills.  This protects everything from to the TEA Party, from the union supporters in front of the Wisconsin capitol to the million or more who gathered on the Mall in Washington, DC.

Another way to communicate with our representatives and other elected leaders is through the press, which also can call them to task when they get it wrong or do something they shouldn’t.  In their day, the printing press was used for everything from printing pamphlets and handbills to printing newspapers; our modern equivalent is Facebook, blogs and Twitter.  This is where ideas are presented and discussed by the people; everyone able to speak their mind, influence others and make logical arguments for and against the things they considered important.

The same, of course, is true for the right for people to speak freely – to express their ideas in the market, in the street, in their homes and in their businesses.  Courtesy and consideration may temper what you say and where – it’s not a good idea to shout “fire” in a crowded theater – but even if you don’t have access to a printing press – or the internet – you can still make your points.  There is, of course, no guarantee anyone will listen or that they’ll agree with you, but you have the right to let your voice be heard.

Now, where do these grievances that need to be redressed come from?  What’s behind the ideas that get people speaking on street corners and pamphlets printed?  Why would people gather together to encourage their legislators to act, and why would make lawmakers make laws?  We’ve already seen the answer; to right a wrong.  But how do we, as a people, know what’s right and what’s wrong?  The answer is a moral code, a personal or group agreement on what’s right and what’s wrong.  And what’s the most typical source of a moral code is a religious perspective.

You’ll notice I didn’t say “church”.  Churches promote a moral code, of course, and you’ll find it’s pretty much consistent among the various denominations.  Sure, they have their differences but, at the core, Christianity tends to agree about how people should and shouldn’t act.  A lot of those are in tune with other world religions as well, whether structured like Islam or Buddhism, or more informal like Wicca.  Even agnosticism and atheism are religious belief systems – denying or questioning God’s existence is a religious belief. even if it’s expressed in the negative.  From these core beliefs flow  a constant stream of opinions about how people should act within society, how societies and communities should interact with each other and how government should impact everything.  So it makes sense that the bridge between expressing ideas of right and wrong and the moral code they spring from is a statement about allowing the free expression of religion.  It’s a natural and necessary link in the chain.

Nothing stifles that free expression quite like having one moral code – or religious belief – dominate.  If one belief system is the accepted norm, all others are, by definition, second class at best.  Europe at the time of the Constitution was a crazy quilt of denominational patches; one subset or another of Christianity was the official state religion, using that power to promote itself and bury any competing viewpoints.  Think public employee unions and the incestuous relationship that’s grown between them and state government and you’ll get a good idea of what things were like.  If you were on the right side, religiously speaking, you won; if you dissented, you were outside the tent.  To prevent that sort of thing happening here and stifling the free flow of moral ideas, the Founders forbid it in the first words of the First Amendment.

So, here then is the chain of logic that links what at first glance seems like a bunch of unrelated topics.  First and foremost, different moral codes are encouraged, both by not allowing any one perspective from dominating and by letting all points of view have equal access to the marketplace of ideas.  Then, anyone can say what he or she want; they can print it and try to influence others as well.  People can gather in town squares, write letters, and otherwise seek to influence their representatives, and both they and those representatives can make rules and pass laws that express that moral code.

If we accept that laws are based in a moral code – a sense of what’s right and what’s wrong – and everyone has equal access to promote what they believe, why is it we hear all the time that religion belongs in church, not in government?  What about the supposedly Constitutional “wall of separation between church and state”?  Well, what’s happened is that one religious belief is being allowed to become dominant – one that misapplies the prohibition on establishing a religion to prohibit another religious viewpoint from the free expression of its moral code, abridging its free speech and free assembly rights, just as the Founders tried to prevent.

The phrase itself, “separation of church and state” isn’t found in the Constitution.  Instead, it’s from a letter Thomas Jefferson wrote in early 1802.  A church group, the Baptist Assembly of Danbury, Connecticut, was concerned the establishment clause of the First Amendment might be used to tell a church they couldn’t speak to the issues of the day.  Jefferson replied that, instead, the First Amendment set up a wall which prevented the state from laying any restrictions on the church.  Each had their role in society, and that the government had no right or ability to tell the church what to do or what to say.

So, the next time someone tells you the church should stay out of government affairs, remind them that all laws spring from a moral code, and religion is the source of all moral code – even if the religion is atheism.  The next time you hear the phrase “separation of church and state”, let the speaker know Jefferson saw that wall as one-way, and that the state had no legitimate power over the church but that the church did have a legitimate right to say what’s right and what’s wrong.


Written by Jeffrey S. Smith

16 June 2011 at 11:36 am

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