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Do We Need the First Amendment?

September 7, 2000

At times you get the feeling that liberals regard prayer as a threat to the First Amendment.

The U.S. Supreme Court has led the way, moving from the position that public-school prayers are unconstitutional to its latest refinement, the view that student-led prayers at public high-school football games are also, by extension, unconstitutional. After all, the loudspeakers are paid for with public money and the prayers are uttered with the implicit approval of the school.

This new addition to the liberal Deposit of Faith has provoked a reaction, especially in the South, where folks tend to feel that separation of church and state must not be construed to mean separation of church and football. Now the people in the stands are praying aloud together in defiance.

Needless to say, the New York Times is in an editorial lather about it, seeing these prayers as the seeds of another Spanish Inquisition. The Paper of Record admits that voluntary prayer is probably constitutional, but feels that that doesn’t make it less menacing. Or less unmannerly: just think of the hurt feelings of non-Christians in the stands who feel excluded when the Christian hordes launch into the Lord’s Prayer!

“It’s not a legal issue, but a sensitivity issue,” says Jay Kaiman of the Anti-Defamation League in Atlanta. So the Lord’s Prayer is now insensitive? Interesting. Lots of people take the Lord’s name in vain without worrying about Christian sensitivities; Christians seem to be the only minority Hollywood doesn’t mind offending — or positively delights in offending. What does the Anti-Defamation League have to say about that? Or would swearing and blaspheming be “free speech” issues?

“Jewish organizations say the prayer movement is spreading a divisive message,” reports the Jewish Telegraphic Agency. It seems that exercises of First Amendment freedoms are “divisive” only when Christians exercise them.

[The church isn't the 
only thing the state should be separated from.]If only liberals would read the First Amendment as closely as they do the Second Amendment. They insist that “the right to keep and bear arms” is qualified by the purpose of “a well- regulated militia.” Why, when it comes to separating church and state, do they ignore the words “Congress shall make no law respecting”? Why do they think “Congress” — the legislative branch of the federal government — means state and local governments and their schools? Why do they pretend that the slightest encouragement of religion amounts to an “establishment of religion,” when the specific historical meaning of “establishment” is so clear — as witness the fact that Congress itself has always had chaplains to open sessions with a prayer?

Of course all these church-state quarrels could be avoided if we separated school and state. No government — federal, state, or local — has any business molding children’s minds. Yet most people take for granted that the government is and must be responsible for education at every level, from pre-school to grad school.

When you combine that assumption with the separation of church and state, religious education — the most important education of all — is squeezed out. As C.S. Lewis noted, the modern world insists that religion be a purely private affair, then shrinks the area of privacy to the vanishing point. When the state moves in, separation means forcing the church to move out. And the state keeps moving into new domains which it claims as its own.

Which suggests another question. Why don’t liberals fret about transgressions of the Tenth Amendment as much as they worry about transgressions of the First? Is that limitation on the federal government’s powers less important, less comprehensive, less binding, less central to the very nature of this Republic?

While the First Amendment has become the subject of Talmudic elaborations, the Tenth Amendment has dwindled into a dead letter. The great principle of dividing and dispersing power — the very genius of the original American system — is at least as vital to freedom as the specific protections of the First Amendment; in fact it includes them, since if the federal government were confined to its enumerated powers it would have no authority to infringe freedom of religion, speech, press, and assembly. If we took the Tenth seriously, we wouldn’t need the First.

But try explaining that to a liberal.

Joseph Sobran

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