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Why Paying Attention to the Constitution Matters

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I received the following portion of a longer email from someone who disagreed with me on the interpretation of the Constitution related to the relationship between the Federal government and the states. He opened his email with this statement (my response follows his comments):

“I, sir, have an education in law; you do not.  All you have are the efforts to rationalize your way around it—pseudo-law from the lunatic fringe which is applied to everything as one-size-fits-all all non-answer to everything.  Empty of content, it is an avoidance of everything, beginning with law and reason. The Constitution, sir, applies both to Federal and state gov’ts: it is expressly the ‘supreme law of the land’; it is expressly stipulated therein that any subordinate law—and all other law is subordinate to it— inconsistent with it is unconstitutional, including state constitutional provisions and law. That is why, as example, GA’s first constitution was amended to make it religion-neutral—to modify its prohibition against active clergy holding public office—upon ratification of the Federal Constitution. All states with such prohibitions did the same, exactly as they modified the oath of office in the state constitutions to accommodate those who hold different, or no, religious views.”

Your claim to “have an education in law” is irrelevant since there are others who have an education in law who would disagree with your views. Anyone who has the ability to read and reason can join in this debate. The Constitution doesn’t require that a Supreme Court Justice “have an education in law” or even be a lawyer! I suspect that your claim to “have an education in law” means that you are NOT a lawyer or a law professor. So please don’t try to pull professional rank on me. If you are a law professor, then say o. As far as I can tell, you are a liberal statist crank.

You are wrong on your understanding of the relationship between the Federal and state constitutions as the Constitution was originally conceived. The prohibitions concerning clergymen not holding dual offices were in place in some states prior to the drafting of the Constitution.  For example, Delaware’s constitution (1776) established the Christian religion (Art. 22) while not elevating “one religious sect” in the “State in preference to another” (Art. 29):

ART. 22. Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall take the following oath, or affirmation, if conscientiously scrupulous of taking an oath, to wit:

“I, ___________ will bear true allegiance to the Delaware State, submit to its constitution and laws, and do no act wittingly whereby the freedom thereof may be prejudiced.”

And also make and subscribe the following declaration, to wit:

“I, ___________ do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.”

And all officers shall also take an oath of office.

ART. 29. There shall be no establishment of any one religious sect in this State in preference to another; and no clergyman or preacher of the gospel, of any denomination, shall be capable of holding any civil once in this State, or of being a member of either of the branches of the legislature, while they continue in the exercise of the pastoral function.

A jurisdictional separation between church and state was maintained by prohibiting a “clergyman or preacher of the gospel, of any denomination” from “holding any civil office” in the state, “or of being a member of either of the branches of the legislature, while they continue in the exercise of the pastoral function” (Art. 29). Let me repeat. This state prohibition was in effect prior to 1787, and Article VI, sec. 1 in the Constitution did nothing to change this at the state level.

Taking your view, then one has to explain how the Constitution of North Carolina in 1776 provided, “That no person who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State” and remained in force until 1835, when it was amended by changing the word “Protestant” to “Christian,” and as so amended remained in force until the Constitution of 1868. And in that Constitution among the persons disqualified for office were “all persons who shall deny the being of Almighty God.”

Your understanding of the Constitution is a revisionist version. The Federal Government through the courts has turned the Constitution on its head, and your comments are evidence of this fact. Many of these changes came by way of the passage of the Fourteenth Amendment which has been used to nullify the original intent of the Bill of Rights. Originally the states only wanted to give limited authority and enumerated powers to a national government. Thomas Jefferson made these points in the Kentucky Resolutions of 1798:

“Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party....each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

The very wording of the First Amendment is a brake on the Federal Government: “Congress shall make no law. . . .” If Congress can’t make a law, then it can’t make a law.

Article posted June 8, 2009

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