President, States, Courts
Bound By First Amendment
Gene Garman
(constitutional scholar)
After hearing from several people regarding President Bush's public religiosity, we decided we ought to be certain of a few things we'd been suggesting, so we wrote to constitutional scholar and occasional PAM contributor Gene Garman. |
From: "Positive Atheism Magazine" <editor@positiveatheism.org>
To: "Gene Garman"
Subject: Is President Bound By First Amendment?
Date: September 20, 2001 4:29 AM
Gene,
We need to know if the President is bound by the First Amendment.
I have been saying that he is, and that Jefferson's interpretation of the Constitution in the letter to Rev. Samuel Miller, January 23, 1808, is what has prevailed in later Supreme Court cases. In it, he said that the Constitution has given to the President "no authority to direct the religious exercises of his constituents."
I'm sure the states are bound by it as well, but am not sure if this is the result of a later Supreme Court case or a subsequent Amendment. Also, I am almost sure that the courts themselves are bound by the First Amendment. Several cases where courts have "sentenced" people to Alcoholics Anonymous meetings were shot down. I know of three cases where the State did the mandating and those were shot down in the Circuit courts. However, you'd think the courts (of all institutions) would obey the law!
Lately, another reader writes that it's the Tenth Amendment which hands to the states authority which is not granted by the Constitution to the Federal Government. According to this, the Constitution simply fails to grant the authority to the President "to direct the religious exercises of his constituents."
I thank you in advance for any help or to point to an essay which has already discussed these issues.
PS:
On your page
http://www.sunnetworks.net/~ggarman/exercise.html
the "eternal hostility" quote uses a lowercase "g" in god in the original, as a snapshot of the original in our Big List of Quotations and in our copy of it shows.
Cliff Walker
Positive Atheism Magazine
Six years of service to
people with no reason to believe
From: "Gene Garman"
To: "Positive Atheism Magazine" <editor@positiveatheism.org>
Subject: Re: Is President Bound By First Amendment?
Date: September 20, 2001 5:48 AM
Hi Cliff,
Of course the President is bound by the First Amendment, as is everyone, including the states.
When it was originally written, the First Amendment indeed applied only to the national Congress ("Congress shall make no law"), but the subsequent Fourteenth has been ruled by the Supreme Court, in regard to the First Amendment religion clauses, to apply to the states. I make this point in my book and also provide some Court cases: see "Reynolds v. U.S." See also: "Everson v. Board," and "McCollum."
The Tenth Amendment states' rights folks never seem to get any further than that Amendment, but the Civil War produced the Thirteenth and Fourteenth Amendments as additions to the Constitution, and these Amendments eliminate any doubt about state's rights. America is one nation -- a union -- not a confederation like existed previously under the Articles of Confederation. The South was forced to learn that the hard way, and 620,000 Americans died in the process. Now, states, cities, school districts, or any level of government shall make no law respecting an establishment of religion.
As for courts, they too must abide by the law, as you note in the AA cases. However, courts do have some discretion due to violations of law, but those are individual cases, all of which may be appealed.
Anyway, I hope that makes sense. If not, let me know and I will try again. Sometimes I am so busy I do not even understand what I am saying, especially at midnight.
Thanks, for the PS note. I will check it out.
Gene
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