A free press used to be a vigilant guard on the ramparts of liberty. This next election may determine the viability of the Constitution
..respecting the establishment of a religion or the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”
This is the First Amendment to the Constitution of the United States. Since the democrat socialists came into congress in full dress in the middle 1960s, the Constitution has been under a full-throated assault by the forces of progressivism. This assault—intentional and destructive—is the most serious threat to the nation manifested now in BLM and Antifa. Not since the start of World War II has this nation faced such a serious force of corrupt and corrosive usurpation of power allowed by the feckless republicans and encouraged by the democrats. The most recent attack on the First Amendment is not only unconscionable but also immoral.
The Establishment Clause
I want to know how destroying monuments and statues will bring more jobs to the inner city. I want to know how painting murals on streets is going to make schools better in urban neighborhoods. I want to know where the elected officials are in defending the rich history of the nation. Why are there not more politicians out there saying enough is enough? Where are the school boards who will stand up to teacher unions and administrators to ensure that real intellectual diversity is presented in the classrooms? Where are the boards of trustees who will make college presidents bring intellectual diversity to their campuses? Where are the regents? Anyone? Anyone?
Since the Founding, the tensions between governments and religious institutions have been a constant in the political discourse of the nation and a frequent subject of adjudication in our judicial system. The very basis of most of the immigration into the New World was to escape religious persecution. Though many states attempted to establish “state” religions, the wisdom of the Founders held forth so that the national government would not be allowed to establish such “state” institutions. In fact, in the body of the Constitution, one finds reference to the fact that religious beliefs cannot be a disqualifier of an individual who seeks public office.
For most of the first 150 years of the nation’s existence, the “state” stayed out of the religion business just as Jefferson had promised. However, things would change, particularly when those who felt that any form of religious expression tied to government activity was a breach of the “wall of separation between Church and State.”
The actions of the Supreme Court have virtually eliminated any links between religion and government. Though many believe that God must be part of government, getting this genie back in the bottle will be extremely difficult. Though the “state” may be prohibited from “establishing” a religion, the state is also prohibited from interfering in the “free exercise” thereof.
The Free Exercise Thereof…
As with most cases dealing with the Bill of Rights, our national court system has been at the very center of the constant storm that whirls around this topic. The “free exercise” clause of the First Amendment has been very much a constant of the court system since the late 19th Century.
The court standards have changed over time, but the first set of rules indicated that the “state” did not have a compelling interest in the exercise of religion as long as that practice did not violate the law. The first significant case before the Supreme Court dealt with a Mormon who was a bigamist. Though his religious beliefs were not in question, the fact that he broke the law by being married to two women was what got him in trouble. Think about this for a moment. The court thought that his exercise of religion and his beliefs were not in question, but he had broken a public law divined from common law (societal norms). The whole of society, save this particular sectarian element, believed that marriage was between one man and one woman. Hmmm.
Most of the “free exercise” cases that have come before the court have been decided in favor of the individual or organization seeking the protections of the Constitution to worship or practice religion as they wish. In order for the state to interfere, there must be a compelling state interest. This is a very high threshold to cross.
During democrat administrations, the government rules coming out of the Department of Health and Human services and other agencies opened serious breaches in the wall of separation. The “state” argued that “reproductive services,” including morning-after pills, were a right protected by common law. These mandates have been arbitrary and have required religious institutions to violate the doctrines—the free exercise of—their beliefs. Because the institutions were not breaking any element of existing law, these rules really had no legal standing and were also unconstitutional from the outset.
One further point to make is that the Religious Freedom Restoration Act of 1993, as amended, prohibits the national government from imposing “rules that unnecessarily burden religious institutions from the free exercise of their beliefs.” This law, though parts were found unconstitutional in 1997, placed prohibitions on the national government. These prohibitions were upheld by the Supreme Court as late as 2014. More recent court decisions, including the 2020 decision defending the Little Sisters of the Poor, indicate that religious liberties may be safe for the time being. If Joe Biden gets elected, all bets are off. The next three Associate Justices appointed to the Supreme Court may knock religious protections into a cocked hat. The courts and their make-up are critical to the protection of our First Amendment rights.
A democrat administration with a democrat majority in the Senate would alter the very culture of the nation for a generation to come. Of course, I probably won’t be here to see the endgame. However, my three sons will have to bear that cross.
Freedom of the Press
The Founders believed that a free press was one of the many checks and balances that would protect the people from “imprudent magistrates.” Though calling journalism a profession stretches credulity, one can make the case that a free press has been an essential element in pursuit of the protection of liberty—perhaps until now.
Over the past 60 years or so, however, we have seen an erosion in journalistic standards so that today, our society entertains “news” outlets that are nothing more than propaganda machines for one special interest or another. The one special interest left out of this “traditional” mix is that of the American people. Were it not for talk radio, Fox News networks and this President, one can only imagine where we would be as a nation.
Going back to the Reagan administration and the efforts of the Federal Communications Commission, one can find the seminal decision that, more than any other policy decision, perhaps saved the nation. When in 1986, the FCC decided to suspend enforcement of the Fairness Doctrine, alternative voices was allowed to grow and flourish in the country. No longer did the progressive machines who dominated the print and broadcast media have a hold on information flow. Accurate Information should be the coin of the realm when it comes to making informed decisions about government in America.
Today, with the Internet and a host of other outlets, the free market should determine the ebb and flow of ideas. One should be grateful that a free press protects not only the Washington Post and the New York Times but also Rush Limbaugh, Sean Hannity, Jacob Hall and Sam Clovis. A free press used to be a vigilant guard on the ramparts of liberty. This next election may determine the viability of the Constitution.