ROANOKE TIMES
Copyright (c) 1995, Roanoke Times
DATE: Sunday, December 31, 1995 TAG: 9512290118
SECTION: EDITORIAL PAGE: F2 EDITION: METRO
SOURCE: WILLIAM KOVARIK
ONCE AGAIN, Professor Matt Franck presumes to instruct the public on constitutional history through his own peculiar optic. This time, it was in a commentary, Dec. 16, in which he says the Founding Fathers preferred religion to irreligion and would have seen it promoted by government.
Come now. The point of both the Virginia Statute of Religious Freedom and the Bill of Rights is to protect expression, not to promote religion. Surely that is obvious. Civil government should not interfere in religious expression, according to the Virginia Statute, until there are "overt acts against peace and good order." The Virginia framers trusted "that truth is great and will prevail if left to herself." Yet Franck proposes that we take positive action to foster religious sentiments (in a "neutral" manner, of course) in memory of the framers' intent.
Worse, Franck goes on to advocate exempting states from the federal Constitution's Bill of Rights, which is like a surgeon recommending an amputation to cure a flu bug.
Franck's hacksaw cure-all is based on the fact that the Bill of Rights was first applied only on the federal level. Of course, the framers had to accommodate political realities and skirt delicate issues of states rights in building the new Constitution.
These issues would be decided (one would have thought rather decisively) by the Civil War and the 14th Amendment.
The broader point has to do with whether we rely on fractured interpretations of history as a guide to our rights or whether we attempt to apply what wisdom we have managed to scrape together in two centuries and expand the human freedoms that the Constitution was designed to protect.
To argue that the framers would have wanted us to remember their intent and willfully diminish our freedoms is simply preposterous. Moreover, Frank's strict historical interpretations of the framers' intent, whether accurate or not, would hardly be tolerable in practice today.
For instance, the civil-rights movement would have been utterly silenced in the South had the Alabama state interpretation of the First Amendment prevailed in New York Times vs. Sullivan in 1964. Imagine that turbulent era without the vocal advocates of nonviolent change. Imagine the catalog of gross injustices that would certainly have occurred if states had been free to ignore the Bill of Rights.
Surely, it is one thing to be guided by a firmly fixed set of virtues, which is the admirable point at the heart of Franck's argument. Yet it is quite another thing, a dangerous and unpredictable thing, to be so inflexibly set in a presumptuous moral posture as to ignore human needs and modern realities.
William Kovarik is an assistant professor of media studies at Radford University.
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