DATE: Thursday, October 9, 1997             TAG: 9710090012

SECTION: LOCAL                   PAGE: B10  EDITION: FINAL 

TYPE: OPINION 

SOURCE: BY BART SPUNG 

                                            LENGTH:   91 lines

AMENDMENT IS NO GUARANTEE OF RELIGIOUS FREEDOM

In an effort to curb our nation's moral decline and restore its religious heritage, the Christian Coalition is advocating the passage of the Religious Freedom Amendment. The proposed constitutional amendments provides, ``To secure the people's right to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. . . .'' Although the amendment's ends are laudable, there is a more principled and, ultimately, pragmatic means to their achievement behind which the Christian Coalition should throw its political weight.

No one would have thought the Religious Freedom Amendment necessary two generations ago. Issues of school prayer, Bible reading in the classroom and the Ten Commandments on school walls were traditionally under state and local control. However, several Supreme Court decisions over the past half-century held as unconstitutional state laws allowing those practices.

The Supreme Court removed religion issues from the political process under the auspices of the Establishment Clause of the First Amendment. The clause states, ``Congress shall make no law respecting an establishment of religion.'' To justify thwarting the people's will, the court changed the original meaning of the clause by expanding its interpretation of ``Congress'' and ``religion.''

Historically, only Congress was prohibited from establishing religion. In 1833, Chief Justice John Marshall held in Barron vs. Baltimore that the entire Bill of Rights applied only to the federal government, not to the states. Modernists believe that rule changed in 1868 with the passage of the 14th Amendment. Their theory is that the due-process clause of the 14th Amendment incorporated the First Amendment and most of the Bill of Rights, so as to make it applicable to the states. That theory is not supported by history. In 1876, the Blaine Amendment was proposed which stated that, ``no state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof. . . .'' It was defeated. Therefore, within eight years of the ratification of the 14th Amendment, the people confirmed that they did not want the prohibition against establishing religion extended to the states. It was not until 1947 in Everson vs. Board of Education that the court held the Establishment Clause to be applicable to the states.

The 1828 Webster's Dictionary defined religion as ``a belief in the being and perfections of God, in the revelation of His will to man, in man's obligation to obey His commands, in a state of reward and punishment, and in man's accountableness to God. . . .'' Justice Joseph Story stated in his Commentaries in 1833 that, ``(t)he real object of the (First A)mendment was .

The Establishment Clause, therefore, originally meant that the federal government could not establish a particular Christian denomination as the national religion. By abandoning that limited meaning, the court has spawned a desire within many for the Religious Freedom Amendment. The amendment's supporters, however, are misguided. By their support they implicitly concede the truth of our nation's heritage and the original meaning of the Establishment Clause to the secularists and condone the Supreme Court further distorting the original meaning of the Constitution. There is a better solution.

Because judges interpret the Constitution, any successful effort to restore integrity, consistency and tradition to its interpretation must address the proper role of the federal judge. The judicial confirmation process is an appropriate opportunity to do that. The Christian Coalition should, therefore, use its influence to persuade senators to exercise their constitutional advice and consent role to its full extent.

The Advice and Consent Clause of Article II, Section 2 requires the Senate to approve a president's nominees to the bench. With rare exceptions, the Senate rubber-stamps nominees. Although Supreme Court nominees are usually the only ones in the public eye, a president nominates dozens of lower federal judges every year.

The Senate's consent function must, however, not be used to politicize the confirmation process. The Senate must not require nominees to pass a litmus test whereby they reveal how they would rule on particular cases. Instead, senators must require nominees to commit to act as judges and not legislators once they assume the bench. The federal judge's role requires him or her to allow the people and their elected representatives the freedom to make their own laws unless prohibited by a provision of the Constitution as originally understood. A nominee either believes this or does not. It is the Senate's duty to find out and confirm only those committed to the former.

The Christian Coalition may find it more pragmatic to pass an amendment than to stand on principle and seek to affect judicial philosophy. After all, even if the Senate closely scrutinizes nominees, that is no guarantee that as judges they will interpret our laws according to their original meaning. Yet the Christian Coalition and others who are committed to restoring our nation to its constitutional heritage should direct their influence to that end. For without a judiciary committed to the jurisprudence of original intent, the Religious Freedom Amendment, even if ratified, will, like the Establishment Clause, be construed by judges to mean whatever they desire. MEMO: Bart Spung lives in Virginia Beach and is a 1997 graduate of

Regent University School of Law.

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