U.S. Constitution Found to be Unconstitutional

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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