U.S. Constitution Found to be Unconstitutional

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In
the latest issue of the Southern California Review of Law and
Women's Studies, Gary Simson and Erika Sussman argue that abstinence
only sex education is unconstitutional because it promotes a religious
agenda. The fact that such education is supported by the Christian
Coalition and the "religious right" makes legal toleration
of abstinence teaching an unconstitutional act.

If
such a proposition is seriously considered, it becomes quickly evident
then, that any law which promotes ideas and morality which originated
with Christian groups must be interpreted as a violation of the
establishment clause of the First Amendment to the Constitution.
To carry this concept over to other concepts and agendas, this would
mean that public espousal of things like human or "natural"
rights, representative government, respect of human dignity, the
first amendment, and the Constitution itself must all be declared
unconstitutional. A brief look at the history of liberalism and
the idea of a separate church and state illustrates the foolish
nature of such an argument.

The
concepts of human rights and the dignity of the individual were
conceived exclusively within Christian Europe. Although applied
heavily to politics by British and French philosophers of the 17th
and 18th centuries, such ideas originated even earlier
with Jesuit and Dominican scholastics who wrote often of the primacy
of the human individual in natural law. Men like Juan de Mariana
and John Locke were religious men who simply pointed out that God's
natural law is superior to the law of man. Without this basic premise
there can be no comprehension of human rights as anything more than
favors granted by a governmental body. Human rights are a concept
which grew out of medieval Christian Europe. They are a moral concept
born of a religious morality. To teach people that they have "rights"
is to teach them that there is a moral law which exists outside
the jurisdiction of government.

The
idea that religion is an entity which exists separate from government
is a product of Christian civilization as well. The idea of divine
rulers was abhorrent to the ancient Jews and their offspring, the
Christians, adopted a similar attitude. Prior to the rise of Christianity,
religion was seen as one and the same with the state. Oriental monarchies
of the East frequently deified their rulers and attributed godlike
powers and knowledge to royal persons. Ancient Persian and Japanese
emperors were worshipped by their subjects as divine figures. Sometimes,
(it was believed), to look upon such monarchs could cause instant
blindness, and to touch them could bring death. Such beliefs continued
in places like China and Japan into the 20th century.
After frequent contact with eastern societies in Egypt and Asia
Minor, the Roman Empire eventually adopted such practices. Many
emperors were declared to be gods after their death, and some emperors
like Caligula demanded to be deified in their lifetimes. As Christianity
gained strength and the Empire began to decline, many Romans accused
the Christians of bringing about the fall of Rome by subverting
the state religion. While writing City
of God
, St. Augustine had to devote considerable space to
defending the Christian church against such charges. To the Romans,
the health of the pagan religions and the health of the Roman state
were dependent on one another.

As
European society began to develop after the fall of the Empire,
it became clear that the Church and the various governments of Western
Europe were separate entities. When Frederick II emperor of Byzantium
tried to claim the cathedral of Milan as the property of the Empire,
Archbishop Ambrose (later St. Ambrose) refused the emperor citing
that earthly government had no jurisdiction over the property of
the church. According to historian Ralph Raico, for the next thousand
years, the Church was seen as separate and even adversarial to the
power of the state. Only after the Reformation did human government
begin to adopt state religions as a means of consolidating power.

By
the time classical liberalism began to take hold, it was still clear
to many political philosophers that religion as an arm of the state
is dangerous and deleterious to human rights. When liberal ideas
were imported into the new world in the 18th century,
they were adopted and spread by Puritans, Anglicans, Quakers and
Catholics living in colonies established by Christian English royalty.
Such beliefs were eventually transmitted to the authors of the American
constitution who incorporated their own ideas about human liberty
into the document. Horace White once observed that the Constitution
is based on "the religion of Calvin" and historian Richard
Hofstadter wrote that the Founders "had a vivid Calvinistic
sense of evil and damnation." By restraining government, classical
liberals are acting on their beliefs that a higher power than the
state exists. The Constitution is a product of these beliefs. No
where else on earth did such ideas of religion, state, and liberty
develop. The Constitution and its parent philosophy, liberalism
are founded upon a Judeo-Christian ethic of the fallibility of the
state and the need to secure natural rights. With the ratification
of the Constitution, these ideals were eventually imposed on all
Americans.

In
their law article, Simson and Sussman want us to believe that government
endorsement of any concept or program that originates in religious
morals amounts to violation of the Constitution. The logical extension
of this argument is that any action of government that is based
on religious values must be discarded as well. By protecting human
rights like life and liberty, the government would be imposing its
own moral agenda on people who might not hold life and liberty as
high esteem as Western, Christian philosophy traditionally has.
The conclusion must be that the Constitution itself must violate
its own First Amendment because it makes certain moral assumptions
about the nature of mankind; assumptions which stem from religious
Christian beliefs. Even Jefferson, the so-called deist and author
of the Virginia statute against state religions would have never
accepted the idea of an amoral government. He was able to see the
foolishness of such an idea. Public policy must be based on some
kind of moral and ethical foundation. The problem that Simson and
Sussman really have is that they just happen to disagree with the
idea of abstinence and wish to replace it with a different kind
of morality: a state sponsored morality which would be constructed
and enforced by the government elites. Ironically, such a plan would
create the very situation that the First Amendment sought to avoid:
a public morality governing private behavior to be designed and
enforced by the state. It's a situation that any ancient Persian
despot would love.

It
is amazing that this type of assertion would even make it into a
refereed journal, but as evidenced by the giant legal embarrassment
that is Election 2000, the legal community just continues to amaze.

For
more on the Western origins of Classical Liberalism, see Ralph
Raico's Article
.

December
11, 2000

Ryan
McMaken is a graduate student in American politics at the University
of Colorado. He edits the Western
Mercury
.

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