I. Congress and the First Amendment.

For those not already familiar with the text, here it is:

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.
- https://www.law.cornell.edu/constitution/first_amendment

I think it's important to point out that the text prevents Congress from making any such law. Now why would that be? Why specifically Congress? The reason for this, I argue, is because the American legal system can't conceive of any other government organ possibly presuming to do anything that could establish a religion or prohibit its exercise. It is not as if the executive branch or the judicial branch of government could make a law either establishing a religion or prohibiting its exercise because it is not in their power to do so even in principle. Nothing stemming from either of those two branches could possibly accomplish this but, as we increasingly see today, that is exactly what we see happening, especially in the case of the judicial branch.

I should also like to point out that even before freedom of speech, freedom of religion is guaranteed. There is here I believe a logical connection. Freedom of religion implicitly already guarantees and guards the other rights that are listed. It would border on meaningless if freedom of religion were guaranteed but Americans could not freely and confidently assemble peacefully or propagate their beliefs publicly. The logic that unites these rights could be (and will be) argued to be either personal conviction or conscience. But surely this could be interpreted licentiously? Might it not be understood to be effectively anarchy? To prevent such an interpretation, I believe there is stress on protecting the right of the American people to peaceably assemble. Hence atheists no less than believers can avail themselves of these rights, assemble, organize and propagate and express their own beliefs publicly to the extent that they are indeed peaceful: What appears to unite them all is an underlying logic of sincere and ultimately peaceful conviction. I think believers should stress to non-believers that the First Amendment does not only guarantee their own religious liberty but also the non-believer's right not to be forced to participate in a religion.

In regards to the First Amendment and its correct understanding or interpretation, some will point to a letter written by Thomas Jefferson about it. I find this sometimes employed disingenuously, as they often ignore that President Jefferson made quite explicit the underlying legal logic of the Constitution:

"...Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."
- http://www.loc.gov/loc/lcib/9806/danpre.html

For President Jefferson, rights are grounded in and come from nature. Conscience is understood to be of right and natural rights of individuals cannot or at least should not cause opposition to social obligations or duties; i.e., are not such to be anti-social. What he says in the letter also seems to confirm quite explicitly what we said above regarding the underlying logic of the First Amendment. That President Jefferson affirms that social duties exist means he understands there is no radical dichotomy between individuals and society and that society really can at times make legitimate demands of its individual members. For President Jefferson, for something to be of right, it must flow from i) nature and ii) not be such to contradict any legitimate social obligations, which again presumably and ultimately flow from and are justified by i). We can say ii) is a kind of test or criteria for whether or not something really is a natural right.

Moreover, since Jefferson clearly believes that man's rights flow from nature, it obviously means that to be consistent he has to also believe that man is by nature a religious animal; otherwise, there would be no justification for Americans to have a right to the free exercise of religion. But then we might ask why it didn't follow that Americans could be lawfully persecuted by the government for being avowedly non-religious? Again, the underlying logic here seems to gravitate or hinge on the idea of conscience or sincerely held personal conviction; and that this, in turn, necessitates freedom of religion. 

Finally, we should also point out that the First Amendment is frequently compared or referred to the Anglican Church of England by its contemporaries. As time went on, it seems to have became clearer to some thinkers that the king's appointing himself the head of the Church of England was an inherently tyrannical act and that the government's promulgation of religious articles and establishment of religious rites that followed from this was illegitimate. Government as such simply is not an authority on religion and cannot dictate a religion to the people through an act or operation of law. The First Amendment therefore prevents the federal government especially from being either the instrument of religion as such on one hand or of becoming the author of one on the other. In my mind, this really does effectively prevent the government from enforcing anything that required a kind of secularism; it prohibits tests of faith not only in the affirmative but also in the negative.

I would argue that as a consequence public institutions are obliged to accommodate equally and impartially peoples various religious beliefs and opinions to the extent possible, including of course their espoused non-religion. We should bear in mind, however, that the American people have an express and explicit right to be religious in character and upon this is hinged even an American's right to be non-religious and not the other way around without doing obvious violence to the text. In no way whatsoever can the First Amendment be interpreted absolutely as freedom from religion because this would make freedom of speech, for instance, meaningless; or, if it is to be interpreted as freedom from religion then it would equally imply and guarantee also freedom from non-religion to be consistent. But of course that really would be impossible.

Last edited by Timocrates (3/14/2016 8:55 pm)