On Misreading the Constitution?

Frankly, Scarlett, I don’t give a damn (about the original intent of the founders). They lived in their time, we live in ours and the times they have a changed. They established a government, they did not write Holy Scripture.

In fact, I’m convinced that there is no original intent. If by the founders we mean those bewigged eighteenth century gentlemen in short pants and high stockings who wrote the Declaration of Independence and the Constitution, let’s face it, the former also gave us the Articles of Confederation which was a compact of thirteen sovereign states (as in State of Israel, an independent nation) unified in fighting Britain but in hardly anything else, and then when that wasn’t working too well, some of them met in secret session to create the Constitution. So what was the original intent of that group? Hard to say. Some left mid-session in anger at what was going on; some refused to sign the Constitution because it didn’t say what they thought it should; others agreed with Ben Franklin who said, in effect, well, it’s not what anybody wants, but it’s the best we can do, so let’s sign the thing, hope for the best, and go home.

Immediately it was realized that the Constitution even with all its compromises wasn’t quite right so amendments were proposed by James Madison, ten of which were ratified very quickly, and then an eleventh and then a twelfth to resolve problems that none of the founders in their infinite wisdom had anticipated.

And yet, there are some today who seem to think that they know the Original Intent and that it is good.

Which brings me to Thomas J. Tobin, the Roman Catholic bishop of Rhode Island. Writing in The Providence Journal on January 12 he throws down the gauntlet to Governor Chafee who didn’t have a prayer service before his inauguration and who had the temerity to declare that Rhode Island was a secular state. “By now,” the bishop writes, “you should be aware that the exact phrase ‘separation of church and state’ isn’t found anywhere in our nation’s Constitution but rather was a principle that evolved later on…to protect religion from the interference of the state. It was never intended to remove every spiritual aspiration, prayerful utterance or reference to God from public life.” He then backs this up by quoting a Catholic archbishop, a pope, and quotations from Madison and Washington.

As to no mention of separation of church and state in the Constitution, the bishop is correct. There is also no mention of toleration of slavery (or even the word “slavery”) but there was slavery. There is no mention of judicial review, but there is judicial review. There is no mention of the air force, and yet the President is commander-in-chief of that as well as the army and navy which are mentioned. If we only look at what the founders said we’d only count three of every five black people every census. The Constitution was not written by divinely inspired men but by politicians. I’ll spare the bishop Thomas Jefferson’s vituperative remarks about Christianity and priests but will recommend that he look at Brooke Allen’s “Moral Minority” which demonstrates with ease that the founders were anything but religious folk and that they wanted as little to do with religion as possible.

The bishop also contends, rightly, that religious leaders have “every right, indeed the duty, to speak out on public issues. If we fail to do so, we’re neglecting our role as teachers, preachers and prophets.” Prophets? The age of prophesy is still with us? OK, let’s just chalk that off to hyperbole and agree that yes, religious leaders as citizens have a right to express their views. But do they have the right to threaten legislators with excommunication or denial of the sacraments to those of their faith who disagree with the hierarchy’s views? Archbishop Raymond Burke of St. Louis publicly stated that he would deny John Kerry communion because of his views on abortion and Archbishop Sean O’Malley of Boston, told Catholic elected officials who are pro-abortion that they should not be receiving communion and that they should refrain from taking part in the Christian sacrament on their own. This goes beyond writing a letter to the paper or seeking an interview to express differing views. Closer to home Bishop Tobin forbade Patrick Kennedy from receiving communion because of his advocacy of abortion rights. That’s what the founders had in mind? I’m thinking not. And if it is, I refer you to my first sentence.