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July 24, 2002

A Look at First Amendment Rights and Wrongs

Norman M. Covert

A little research can be dangerous, but it seemed prudent to look at the writings of such founding fathers as Thomas Jefferson and James Madison as we further debate the issues of whether the Ten Commandments Stone in Memorial Grounds Park soils the First Amendment.

We found the discourse lively among these authors regarding the guiding documents, The Constitution and attached amendments. Nowhere in the research did we see official reference to "Separation of Church and State." That came from the pen of "interpreters" and is correct in the proper context.

Here is what the First Amendment to the Constitution says:

"Article One: 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."

That came from the collective pen of Jefferson and Madison, who actually was convinced enough to present this early version of what they called a Bill of Rights. Here is what Madison presented in the House of Representatives on June 8, 1789:

"Fourth, that in Article I, Section 9, between clauses 3 and 4, be inserted these clauses, to wit:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.."

Only lawyers, politicians, atheists and courts could screw up something simple like Article One of the Amendments to the Constitution. The courts have messed with the amendment so many times that it has forgotten what it says. One would think the Supreme Court and its lesser chambers could read a simple sentence, but its rulings have buggered a sacred document.

It would seem from a layman's viewpoint that as Jefferson said, we can suggest a prayer at school but we cannot mandate it by law. Actually Jefferson referred to "a day of fasting and prayer" as something he (as President) could only recommend as a moral leader.

We stumbled on an 1819 speech by Maryland Judge Henry M. Brackenridge, who objected strenuously to a Maryland law enacted in 1788 that forbade Jews to act as constables or serve as lawyers or judges. They were otherwise granted full citizenship, enduring discrimination that also existed at the time in Great Britain and Europe. The law was mirrored in other states, like North Carolina, which required its elected officials to swear allegiance to the Christian faith.

It wasn't until 1825 that the Maryland General Assembly overturned that law. Interestingly, Washington County legislator Thomas Kennedy squired the repeal through the maize in Annapolis. He paid the price, losing his seat in the next election, but was later re-elected.

Judge Brackenridge's eloquent speech discussed prejudice and religious freedom, finally turning to the Maryland Constitution itself, which is unchanged today and reads:

"No person ought by any law to be molested in his person or estate on account of his religious persuasion or profession or for his religious practice, unless, under color of religion, any man shall disturb the good order, peace, or safety of the state, or shall infringe the law of morality, or injure others in their natural, civil or religious rights."

"I will ask, "Judge Brackenridge said, "whether the religious test in the constitution of this state can stand for a moment when construed by the spirit of this declaration? No, sir, they are utterly incompatible.

"Let us turn now to the 1st amendment to the Constitution of the United States; we find that Congress is expressly forbidden to pass any law respecting an establishment of religion.

"Does this not speak volumes," Judge Brackenridge asked rhetorically?

Would that Judge Brackenridge were on the bench today. We might not be having this discussion.

In several writings, Jefferson was clearly determined that the words protected his religious freedom and expression, while stating emphatically that neither the states nor the federal government could mandate a particular religion to which citizens would have to swear fealty.

While in retirement at Monticello, Jefferson answered a religious zealot by saying that in essence preachers should preach the Gospel and worshippers should not be forced to hear political or governmental debate from the pulpit. He said teachers should teach their subjects and ministers likewise.

Jefferson was called upon to discuss the exercise of religious freedom that arose in Connecticut, which was founded as a religious colony by followers of John Calvin. The church was a formidable influence until adoption of the U. S. Constitution. It objected to being limited in its influence in Connecticut's government and was reluctant to sever its historic ties.

Jefferson wrote to Presbyterian minister Samuel Miller on Jan. 23, 1808:

"I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times for exercises and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it."

James Madison had to remind The Congress on February 21, 1811, that its bill incorporating "the Protestant Episcopal Church in the Town of Alexandria, in the District of Columbia" was vetoed because it "exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and violates in particular (the First Amendment to the Constitution)."

In each instance, discussion centered on creation of a religious sect as being a forbidden act by government, both state and local. Likewise, the free expression of religion was encouraged and nowhere does it liken such objects as the Ten Commandments Stone as being tantamount to establishing religion.

We are thankful there are so many voices in our city and county government who are willing to stand up to challenges to the stone, which contains on it the very basics of our founding documents. Its location in a cemetery and memorial grounds park should certainly stand the scrutiny of even today's courts of record.

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