Why does the Bill of Rights begin with the First Amendment? It has to, of course, but why is this particular amendment first and not one of the others? It's first because the men who created the Constitution and Bill of Rights--in particular, James Madison--recognized that it was the most important.
We need to remember that the Bill of Rights was never intended to grant rights. Madison and the others worked from the premise that these rights were innate. The Bill of Rights didn't give you these rights, it stated in no uncertain terms that these were rights you already had, and the government was never to be allowed to take them away.
Recently, the First Amendment has come under attack yet again. The most vocal of its enemies are often those who most loudly claim to be defending it, and this time is no different.
When it comes to religion, the First Amendment contains two equally important, but to some minds conflicting clauses. First there is the establishment clause, immediately followed by the free exercise clause. Both are frequently misinterpreted or ignored, but the establishment clause is probably attacked more often.Usually by those who feel that the free exercise clause is the only one that counts (as long as it's their religion being exercised).
The most literal meaning of the establishment clause is that Congress is forbidden to establish an official religion for the United States. A lot of very loud fundamentalist Christians think it should be limited to precisely that and nothing more. They feel that religious involvement in government is just fine, as long as no one is trying to declare the United States as officially Baptist, or Methodist, or Catholic, or whatever. They have no trouble at all with the idea that there should be no official Church of the United States, not least because you'd never get them to agree on which denomination should get the franchise.
Madison, who would certainly be the expert on original intent, had a much broader idea in mind. His actions as President, as well as his writings when out of office, make it quite clear that the intent of the First Amendment is that there should be no government support of religion, nor of anything that might create the impression of such support. Religion wasn't to be harmed or hindered, but it was to be left to thrive or whither on its own. Madison vetoed measures that would have given government money to churches for the purpose of poor relief (he would certainly have vetoed the current faith base initiatives), and another measure that would have spent government money printing copies of scripture. After leaving the White House, he also expressed the opinion that paying chaplains for the legislature out of government funds was certainly unconstitutional, though he was willing to allow the chaplains as long as the legislators paid them out of their own pockets.
One could easily say the same for military chaplains. There's no good reason for the government to pay them when they could just as easily be paid by their denominations, or out of the collection plate. There are probably some television evangelists who could provide the entire military chaplaincy budget for a year by donating their take for a couple months. True, the chaplains would no longer be military officers, but most of them don't act like officers anyway, and they've never been allowed to command troops or carry weapons.
Well, that's not going to change. Congress and the military will continue to have chaplains based on nothing more than precedent. Madison himself recognized that the legislative chaplains would probably get to keep their jobs simply because they were already established (and even then you couldn't expect legislators to pay for things themselves).
The real First Amendment battleground is in the schools. In Rhode Island recently a student went to court to remove a prayer banner from the auditorium. The school had an easy compromise offered, simply remove the word "prayer" from the title, the invocation "Our Heavenly Father," and the "amen" at the end. The rest of the prayer was a simple collection of platitudes to which there could be no objection.
But rather than compromise, the school decided to fight it out in court where, predictably, they lost. Official school prayers, whether led by faculty members, or just presented silently to the students, have been illegal since 1962. The result is that the banner remains in the auditorium, covered over pending an appeal, and the student has to be accompanied to school by police to insure her safety. The death threats were probably as predictable as the court decision. The church has always simply killed its enemies whenever it had the power, and many school kids are barely civilized to begin with. Still, much as some would like to limit the scope of the First Amendment, Madison's view continues to prevail. Government cannot be seen as supporting religion.The Founding Fathers had recently fought a war to escape from an oppressive government with an official religion, and they weren't about to allow the same sort of theological tyranny to compromise their vision of a secular nation.
The other area where fundamentalists continue to attack the First Amendment is school biology classes. The Indiana senate yesterday passed a bill that would "allow" teachers to introduce religious explanations whenever they discuss the origins of life. Creationists are as relentless as they are wrong. Despite the minor detail that the development of life, and even the existence of the universe, can now be explained without the requirement of supernatural input, the fundamentalists aren't about to give up the struggle. Particularly, their clergy aren't about to give up. After all, they recognize that reducing the supernatural to coincidence, misapprehension, and myth also means they'll have to go out and start earning an honest living.
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