How to Fix the First Amendment (and Shaft the ACLU)
Posted on October 9, 2006
Lawyer Ray Kraft writes:
“But there is a Third Way here - and that is for Congress to debate and define, by legislation, the controversial and undefined terms in the Constitution, such as “an establishment of religion.” I cannot find or think of any reason why it would not be within the power of Congress to do so, and it would not require an amendment of the Constitution, so long as the legislated definition was consistent with a plausible and reasonable reading of the Constitution. Congress would not remove or change the phrase, “an establishment of religion.” It would simply define the phrase - deciding what “an establishment of religion” means - something that the courts have been grappling with for decades. This might be a long and controversial debate in Congress, but it would be a good debate for us to have.
And this would not be unconstitutional, as long as the legislative definition of “an establishment of religion” was consistent with the apparent intent of the First Amendment - which is, obviously, to protect the broadest possible scope of religious freedom, and to prohibit an official or State religion.
Most importantly, by defining these controversial clauses and phrases in the Constitution, Congress could dramatically limit the ability of the ACLU and its ilk to challenge the free exercise of religion in public places, and other liberties that the ACLU and others do not think Americans should have. So long as the legislation was not vague and ambiguous, and was not clearly unconstitutional, the Court would be bound by the definitions adopted by Congress, since, unless the law is vague and ambiguous, or clearly unconstitutional, the Court must defer to the legislative power of Congress. Congress writes the laws, the courts interpret and enforce them. If the law is clear there is little room for interpretation, and the courts can only enforce it.
Read the whole thing
Above post crossposted from Tongue Tied
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7 Responses to “How to Fix the First Amendment (and Shaft the ACLU)”
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Very interesting. One would hope if Congress could ever get the cajones to do something like this that they would define things by the original intent. Courts have a hard time doing it, and as stated it would be quite a debate. It would make things clear in the end no matter which definition came about. At that point it would be solid and unquestionable.
It would make things clear in the end no matter which definition came about.
And therein lies the danger… the ACLU and the courts have succeeded in changing the definition, they have not succeeded in changing the constitution.
Rather than meddle with what the framers got right, I would rather continue to fight those who continue to subvert it.
Well, thats just it Lobo. It would be a gamble. However, if it were defined correctly it could help stop those subverting it. I might be willing to take the gamble if it were a Congress I had confidence in. But, has there ever been a such thing?
I might be willing to take the gamble if it were a Congress I had confidence in.
Well, thats just it Jay.
It is being proposed that we use a corrupt Congress and courts that screwed it up, to correct what the constitutional framers got right in the first place.
The bottom line is “the people” are not holding the “elected representatives” accountable. In many cases, we are doing the same thing with the courts.
I don’t see where there is any trouble understanding the First Amendment as it means what it states. The only problem is it is in the interests of some factions to ignore what it states and back up their own politics.
An obviously mean single and respecting obviously means favoring so it means Congress should make no law respecting a single establishment of religion which tells us quite a bit before we even figure out what establishment of religion means.
The courts can if they choose to, ignore Congress’ intent for laws they write, so I do not even know if your suggestion would work. I guess it is worth a try but a rebuke of the judiciary by Congress might be more effective and preventing activist judges from getting on the bench even more so.
“I cannot find or think of any reason why it would not be within the power of Congress to do so”
Try reading marbury v. madison.
Gfactor,
Marbury v. Madison was a case that gave the federal judiciary the power of judicial review, a power not specifically mentioned in the U.S. Constitution, and one Thomas Jefferson called them tyrants for giving themselves.
Congress, if they so desire, can override a Supreme Court ruling by simply impeaching those Justices that made it. I forget, but it may actually be easier than overriding a Presidential veto. They also have the power to regulate the federal courts or restructure the inferior courts. The federal courts are therefore more careful with Congress than with the state legislatures.