Thursday, April 16, 2009

Remove Activist Judges, part 2

Last week, I discussed the We the People Act, a bill which has been recently reintroduced into the Congress. In that post, I explained how this bill, if passed would remove from the jurisdiction of the federal courts the issues of abortion, sexual orientation, and freedom of religion. I got to thinking about that last one…doesn’t it say in the first amendment, “Congress shall make no law…”. So I reread it:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And here is the portion of the We the People Act concerning religion:

The Supreme Court of the United States and each Federal court shall not adjudicate any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;

The “free exercise” part is OK because only the prohibition of it is mentioned in Amendment 1. (The “no law respecting…” part applies only to the “establishment of religion”). So I would have to conclude that this is a flaw in the bill. Any bill mentioning the establishment of religion is certainly also respecting it, and therefore in clear violation of the first amendment! Sure the original Articles give Congress the authority to restrict the federal courts on these issues as this bill asserts. And certainly the federal courts have absolutely no business ruling on such cases. (If there can be no federal law made concerning the “establishment of religion”, then the federal courts certainly should not interpret any federal law as if it did!) But the first amendment is properly viewed as an additional restriction on congressional authority in this matter beyond what is mentioned Article III section 2.

Does anybody have any additional thoughts on this?

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