Tuesday, October 10, 2006

How to Fix the First Amendment (and Shaft the ACLU)

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

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