Tuesday, December 18, 2007

Myth Alert! My Bill of Rights

Apparently, modern Christians know as little about the history of their government as they do about the history of the church. As the election year draws near, I hear all kinds of Christians saying all kinds of silly things about the U.S. Constitution and the Founding Fathers. I blame inept school teachers and lazy parents for not making people read or learn from first hand sources. I will endeavor to set the record straight. Let us start with the myth that the Bill of Rights was originally intended to guarantee individual citizens these freedoms… in particular the universal right for an individual to have "freedom of religion".

Originally, the first 10 Amendments to the Constitution (aka the Bill of Rights) applied in a very limited scope. Anyone who reads the "Federalist Papers" knows that. When these amendments were written, they were limitations that only applied to the federal government. The First Amendment did not universally restrict the governments of the states and only limited Congress from establishing or forbidding religion, speech, the press, etc, etc.

In short:

You did not have these rights objectively as an individual. The Bill of Rights just said that the federal government could not deprive you of these things. Your state reserved the right to decide what your rights were as a citizen and they could freely deprive you of rights "guaranteed to you" in the Bill of Rights.

Consequently, states were free to limit or control the exercise of religion, gun rights, habeas corpus, and free speech as they saw fit. In fact, there were many “state churches” in the United States that held an official religion for that state in those early days. Such an idea offends most modern Americans who believe that their view of America has always been the traditional view.

As an example, Massachusetts did not disestablish its official church until 1833--more than forty years after the ratification of the First Amendment. The state had been officially Congregational until 1780. Massachusetts then moved to a system that was "more fair" which required every man to belong to a church (any church), and even permitted each church to tax its members. This system continued until it was abolished in 1833. It should be noted that the state of Massachusetts continued to have official establishments of religion in local areas for many years after that.

The Supreme Court upheld this understanding of Constitutional Law in Barron v. Baltimore (1833) which stated that freedoms granted by the Bill of Rights were restrictions upon the federal government alone (specifically the 5th Amendment in that case) and that the rights listed did not restrict the operation of state governments.

Other states had official religions:

Connecticut was officially a Congregational state until 1818
Georgia was officially Church of England state until 1789
New Hampshire was officially a Congregational state until 1790
North Carolina was officially a Church of England state until 1776
South Carolina was officially a Church of England state until 1854
Virginia was officially a Church of England state until 1786

It was also this Constitutional understanding that pro-slavery states used to forbid the printing of abolitionist literature and ban the peaceful assembly of anti-slavery organizations prior to the American Civil War.

This view of the function of the Bill of Rights had changed by 1868 with the ratification of the 14th Amendment. That is after the American Civil War for those of you who are fuzzy on the timeline. The authority of the Bill of Rights over the states was further cemented by the Gitlow v. New York decision (1925) which bound states to the First Amendment limitations of the federal government in the Bill of Rights using the 14th Amendment. These developments effectively overturned Barron v. Baltimore and reserved the restrictions listed in the Constitutional Amendments to the state governments as well. So the free exercise of religion at the individual level was not a product of the U.S. Constitution, but rather of the 14th Amendment which became law many decades later.

What does this mean? That means that the country that you live in now is not the one that the Founding Fathers created with the U.S. Constitution. The freedoms that you have always considered to be inalienable rights that are immune to all government intrusion were not originally afforded to you by the Bill of Rights, but rather by the addition of the 14th Amendment. Prior to the 14th Amendment, the Constitution offered you no assurance that your basic rights were protected from the actions of your individual state.

Thank God for the 14th Amendment and those "liberal judges" who deviated from strict interpretations of the Constitution in order to correct a tyrannical system that watched as citizens were deprived of individual liberty.

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