ROANOKE TIMES
Copyright (c) 1995, Roanoke Times
DATE: Saturday, December 16, 1995 TAG: 9512190009
SECTION: EDITORIAL PAGE: A-11 EDITION: METRO
SOURCE: MATTHEW J. FRANCK
ONCE AGAIN, The Roanoke Times presumes to instruct its readers, and this time a local congressman, too, in that old-time conservatism (Dec. 5 editorial, "Why is Goodlatte sponsoring this?").
The issue is Rep. Robert Goodlatte's co-sponsorship of Rep. Henry Hyde's "Religious Equality Amendment" to the U.S. Constitution. The editorial writer can't quite decide whether the proposed amendment is merely "frivolous tampering with the Constitution" or more dangerously "sneaky" and "radical" for the effect it would have on current First Amendment jurisprudence. But whatever horribles were paraded forth, the editorial's distinguishing mark is the roaring defense of the "old wisdom" of "the nation's founders" whose handiwork, we're told, ought to be left alone in all its pristine glory.
Now, if only the writer knew a scrap or two of the truth about the intentions of the generation responsible for the First Amendment, we might have been privileged to read an argument about the conservatism of the founding fathers and who is true to it today. But this newspaper has really risen in defense of the last half-century of Supreme Court jurisprudence on the religion clauses of the First Amendment, not in defense of the framers of those clauses. And the editorial's confounding of the two is sad, as well as misleading, for the Supreme Court since the '40s has systematically distorted the principles and purposes of the framers.
Much of the trouble can be traced to Justice Hugo Black's opinion in a 1947 case from New Jersey, in which it was held that "Neither a state nor the federal government can ... pass laws which aid one religion, aid all religions, or prefer one religion over another." Black had historical grounds for making, at best, two-thirds of this sweeping assertion - for the practice of aiding all religions, evenhandedly and without preference among them, was the policy of the same Congress that drafted the First Amendment, and was universally understood at the time to be perfectly in keeping with the amendment's prohibition on any "establishment" of religion.
But in the same case, Black asserted that the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them." Sounds great; sounds really neutral. But this doctrine was wrong historically and as a practical matter.
Historically, there's no evidence that the framers intended government to be neutral as to the conflicting claims of "believers and nonbelievers.'' To the contrary, it was religion and not irreligion (or atheism or anti-religiosity) that the First Amendment singled out for protection, and its framers clearly preferred the claims of believers to those of nonbelievers. And as a practical matter, Black's notion of neutrality has turned out to be a false one. Adopting his pronouncement as orthodox jurisprudence has led consistently to victory for the claims of nonbelievers over those of believers.
For all this newspaper's bluster about standing up for the wisdom of the founders, its position is really the ahistorical one of Black. Its characterization of Goodlatte and Hyde as radicals is either the product of ignorance or of cynicism. Most Americans will find their sympathies on church-and-state questions coinciding with those of the founders:
No one is to be coerced in matters of worship, nor is any sect to receive preferential treatment at the expense of others. But government may aid religions generally, help to foster religiosity, enlist the aid of various sects quite neutrally in implementing public policy, and sponsor public nonsectarian recognition of God. Yes, even in the form of school prayer.
The issue for conservatives today is how to restore that original understanding. Whether the Hyde-Goodlatte amendment, the competing one of Rep. Ernest Istook or the statute suggested by Professor Harry Jaffa (Dec. 5 commentary, "God is integral to the Constitution") is the best beginning to such a recovery of original principles is a practical question. Better than all of these, I think, is the language of a constitutional amendment suggested by Professor James R. Stoner Jr. in the May issue of the magazine First Things:
"The prohibition of laws respecting an establishment of religion shall not be construed to forbid voluntary prayer or other religious exercise in public places, or to bar expenditure of public money for the general welfare through religious institutions; nor shall general laws be held invalid on grounds of the religious beliefs or motives of those supporting enactment of such laws."
Constitutional amendments are extremely difficult to propose and ratify, and rightly so. Thus I suggest another course of action for Goodlatte: a statute withdrawing from the jurisdiction of federal courts all cases involving challenges to state and local laws and policies on the basis of the First Amendment. Or for that matter, the entire Bill of Rights.
As shocking as this may sound, such a statute is within the constitutional power of Congress by simple majority vote, and it would have the effect of restoring another aspect of the framers' original understanding - namely, that provisions of the Bill of Rights apply only to policies of the federal government and not at all to those of the states.
Where would such a statute leave matters of civil liberties at the state level? Just where the founders placed those matters: Questions of church and state, freedom of speech and press, and criminal-justice procedure would be controlled by the law of each state's constitution, as interpreted by each state's courts. Fifty different solutions to every significant constitutional question might well be the result, but that's what federalism is all about. And the struggle over such contentious issues would at least take place in an arena where constitutional opinions of local majorities are paid more attention than they receive at the bench of the U.S. Supreme Court.
Matthew J. Franck is associate professor and chairman of the Department of Political Science at Radford University.
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