Montana Viewpoint©


July 20, 2009

A couple of days ago I saw a sign that said, “Legalize the Constitution.” That seemed a little strange seeing that the Constitution is the supreme law of the land, and that thousands of court cases have been decided with the Constitution as the basis. There are folks, though, who think that the court system has got it all wrong and that they, and not the courts, are in possession of the one true interpretation of the Constitution.

This kind of individual interpretation of the law can get you into trouble. Years ago I knew a fellow who used his house for collateral to get a bank loan. For years he kept up to date on the payments, but suddenly he stopped sending them in. When the bank called they were told that because the money he had borrowed was’t backed by gold it was not legal tender, and he didn’t have to pay it back. He did, however, manage to find some patsies who would accept the money for groceries or whatever, and even though it was worthless as far as he was concerned, he passed it off to unsuspecting pilgrims with all the brazenness of an ace counterfeiter.

The bank, in spite of this newly gained knowledge about the worthlessness of the greenbacks, still wanted them back, maybe just for their sentimental value, but they were serious about it. So serious, in fact, that they foreclosed on the property. The unrepentant borrower was serious, too; so serious that when the Sheriff’s Office contacted him about leaving the house he holed up with a small armory and told them to come get him, which they did. It could have been disastrous, but the borrower, deciding that discretion was the better part of valor, gave himself up and went to jail. After ten days he had a jailhouse conversion and accepted paper money not backed by gold as his personal salvation. He had it right that the money wasn’t backed by gold, but he took it upon himself to make the “legal” decision that it was worthless.

Likewise the Constitution can be interpreted out of context. On their face the words in the Constitution never change, but their meaning is dependent on how subsequent Supreme Court decisions have interpreted them. Documents from the era when the Constitution was written are also taken into account in determining the meaning of the framers’ language The Establishment Clause in the First Amendment is a good case in point because interpretation of its meaning has often lead to controversy: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The intent of the Establishment Clause was to forbid the establishment of an official national religion, and although the states were free to do as they chose, most of them chose religious freedom over an official religion.

The colonists had had plenty of experience in religious persecution in England where the national religion was Church of England, or Anglican. If you were not Anglican you could hold not elected or appointed office. Maryland, founded as a Catholic colony, passed their Religious Tolerance Act in 1649, but forty years later England declared Anglicanism the official religion in Maryland and forbid the preaching, teaching, or practice of Catholicism.

The framers of the constitution were all too aware of the oppression that religious intolerance can bring because they had fled England to escape from it. At the convention held in North Carolina to ratify the Bill of Rights, Delegate James Iredell said, “Under the color of religious tests the utmost cruelties have been exercised. Those in power have generally considered all wisdom centered in themselves; that they alone had the right to dictate to the rest of mankind; and that all opposition to their tenets was profane and impious.”

Connecticut, however, maintained Congregationalism as their state religion until 1818, causing the Baptist Association of the town of Danbury, who felt discriminated against by Connecticut law, to write President Jefferson in 1801 asking him to intervene. This prompted Jefferson’s famous reply in which he wrote that the Establishment Clause built “a wall of separation between Church & State,” and that phrase that has been used by the courts in making their decisions.

Another rationale for keeping religion and government independent of one another is found in Jefferson’s “Bill for Religious Freedom” passed by Virginia in 1776: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern.”

The purpose of the Establishment Clause was not to ban religious principals from government affairs, but to prevent elevating a particular religious sect as the official state religion. It’s all a matter of interpretation, but you have to go beyond the document itself to find how to interpret it.

Montana Viewpoint© is carried by 20 Montana weekly newspapers, including those in Helena and Billings, with a combined circulation of over 60,000.

Jim Elliott is a former state senator from Trout Creek. He served in the Montana House 1989 to 1996 and the Montana Senate from 2001 to 2008. Elliott has distributed his opinion column statewide since 1992. There is no charge for publication.

Jim Elliott
Phone: 406-827-3671
Mail: 100 TC Road, Trout Creek, MT 59874