In my previous post, I made the point that the First Amendment placed limits on no one except the United States Congress, and therefore did not support attempts to muzzle religious expression at the state and local level. Some may argue that this is not true, and cite the 14th Amendment as their authority. Well, that is partly correct, but not to the extent that they would have you believe. Let's look at it.

The 14th Amendment was enacted during the Reconstruction period following the civil war, and its intent was to insure that states recognized the citizenship of the newly freed slaves, and gave them equal rights and protections under the law. The amendment gave the United States Congress the authority to establish legislation to enforce this.

Article 1 of the 14th Amendment reads, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Do not miss the fact that this statement made two very major and fundamental changes to the United States government.

First, it explicitly recognized that African-Americans were persons, which the law had not previously recognized. In fact, in the Dred Scott decision, the United States Supreme Court determined that African-Americans were in fact not persons, and not entitled to protection under the law, and it took this amendment to correct that. The Supreme Court never corrected it, and still hasn't, though since the enactment of this amendment the point is moot. It's also instructive to note that it took a century for the protections granted by this amendment to be fully realized, in part due to another Supreme Court decision, Plessy v. Ferguson, which said that "separate but equal" adequately met the requirements of the amendment, which perpetuated the "Jim Crow" laws in many Southern states. (As the reader can plainly see from the examples cited in this paragraph, the Supreme Court is not infallible, and their decisions should not be taken as being on the level of "holy writ" and beyond question.)

Second, it established an unprecedented authority for the United States Congress, the power to overrule state laws when it determined that these laws violated the Constitutional rights of citizens. In other words, where the First Amendment said "Congress shall make no law....", the 14th Amendment now gave Congress the authority to make sure that the state legislatures did not enact any such laws, either. As originally written, the Constitution had been intended to narrowly define the scope of the federal government, and placed few limitations on the states. The idea commonly held today that federal law is supreme over state law would have seemed foreign to many Americans prior to the Civil War.

Now, you may be thinking that since the 14th Amendment gives Congress the authority and responsibility to make sure the state legislatures follow the First Amendment, that means that the separationists are correct and that "separation of church and state" is constitutionally mandated at all levels of government, from federal to local. That, however, is not correct. Here's why: The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." As I noted in my previous post, this means that Congress may not establish an official religion, a "Church of the United States," and that it is not to make laws that impede the free exercise of religion by the people. What the 14th Amendment does is to give Congress the authority and responsibility to require state legislatures (the state-level equivalent of Congress) to live by that same rule. State legislatures may not pass a law that establishes an official religion, a "Church of Connecticut", say, and also may not may not make laws impeding the free exercise of religion by the people. This means that the limitations imposed by the combination of the First and 14th Amendments are still applicable only to legislative bodies at the federal and state level, and do not provide a basis for such frivolous actions as suing a teacher for having a Bible on his desk or suing a town for having a cross on its seal or having a cross as part of the veterans' memorial. Such suits, in fact, seek to violate the constitutional guarantee of free exercise of religion by the people, and any court decision in favor of such suits is therefore by definition unconstitutional. Yet, such unconstitutional decisions continue to occur. Why is that?

In my opinion, the problem stems from an erroneous teaching that is commonly found in this country regarding the role of the courts. If you ask most people to define the role of a judge, they will tell you that a judge "interprets the law." They've been taught this in school, and they think it's correct. It isn't. The role of the judge is to ENFORCE the law. The judge may "interpret" the law only to the extent necessary to properly enforce it. Where laws conflict with the Constitution, the judge is bound to go along with the Constitution as the higher authority, and this is where we get the concept of "judicial review" and judges finding laws unconstitutional. However, the pervading idea that the judge's primary role is to "interpret" the law has had the effect of inviting the judge to make the law mean anything he or she wants, regardless of the clear wording or the intent of the legislature. The judge is free to "interpret" that black is white, up is down, freedom is slavery (a little "1984" reference seemed appropriate at this point), and it becomes enshrined in law and above question, no matter how preposterous it is. This has resulted in judges declaring properly enacted laws unconstitutional on the most frivolous of grounds, in effect setting themselves up as a "super-legislature" with the ability to dictate to the other branches. This is the very sort of thing that the Constitution was designed to prevent, by separation of powers and checks and balances, but the checks on the judiciary have not been enforced by the legislative branch, allowing us to come to the point where the balance between the branches is dangerously skewed. This cannot help but be destructive of the rights of the citizens. How do we as citizens protect our rights in this situation? Here are a couple of suggestions: Hold Congress accountable to enforce the constitutional checks on the judiciary, and to enforce the Tenth Amendment, which states, " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."