[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5078 Introduced in House (IH)]







106th CONGRESS
  2d Session
                                H. R. 5078

     To restore first amendment protections of religion and speech.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 27, 2000

   Mr. Paul introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
     To restore first amendment protections of religion and speech.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``First Amendment Restoration Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The freedom to practice religion and to express 
        religious thought is acknowledged to be one of the fundamental 
        and unalienable rights belonging to all individuals.
            (2) The Framers of the Constitution deliberately withheld, 
        in the main body of that document, any authority for the 
        Federal Government to meddle with the religious affairs or with 
        the free speech of the people. Then, as further and more 
        specific protection for the people, they added the first 
        amendment, which includes the ``establishment clause'' and the 
        ``freedom of speech clause'' which are as follows: ``Congress 
        shall make no law respecting an establishment of religion or 
        prohibiting the free exercise thereof; or abridging the freedom 
        of speech . . .''. It is of utmost importance to note that the 
        first amendment is not a grant of authority to the Federal 
        Government. To the contrary, it is a specific restriction upon 
        the exercise of power by the Federal Government.
            (3) For over 150 years, the Court held to this historically 
        correct position in interpreting the first amendment. During 
        this period, scant mention was made to ``The Separation of 
        Church and State''.
            (4) Then, beginning in 1947, and accelerating through the 
        60's, the Court abruptly reversed its position. This was done 
        with no change in the law, either by statute or by amendment to 
        the Constitution. The Court invented the distorted meaning of 
        the first amendment utilizing the separation of ``church and 
        state'' in 1947 in Everson v. Board of Education when it 
        announced: The First Amendment has erected a wall between 
        church and state. That wall must be kept high and impregnable. 
        We could not approve the slightest breach. (Everson v. Board of 
        Education; 330 U.S. 1, 18 [1947]). Over the past five decades, 
        rulings of the United States Supreme Court have served to 
        infringe upon the rights of Americans to enjoy freedom of 
        speech relating to religious matters. Such infringements 
        include the outlawing of prayer in schools and of the display 
        of the Ten Commandments in public places. These rulings have 
        not reflected a neutrality toward religious denominations but a 
        hostility toward religious thought. They have served to 
        undermine the foundation of not only our moral code but our 
        system of law and justice.
            (5) In making this abrupt change, the Court ignored all 
        historical precedent established previously by the Court, the 
        wording of the First Amendment, and the intent of its framers. 
        The rulings are legally irrational and without foundation. 
        Although the Court presumed to rely upon the First Amendment 
        for its authority for these rulings, a review of that Amendment 
        reveals that said rulings could not possibly have been based 
        upon its original intent. Consequently, it is incumbent upon 
        this Congress to review not only the rulings of the Court which 
        are in question but the wording and history of the First 
        Amendment to determine the intent of its framers. This abrupt 
        change is found in the following court cases:
                    (A) ``A verbal prayer offered in a school is 
                unconstitutional, even if that prayer is both voluntary 
                and denominationally neutral.'' (Engel v. Vitale, 1962, 
                Abington v. Schempp, 1963, Commissioner of Education v. 
                School Committee of Leyden, 1971.)
                    (B) ``Freedoms of speech and press are guaranteed 
                to students and teachers unless the topic is religious, 
                at which time such speech becomes unconstitutional.'' 
                (Stein v. Oshinsky, 1965, Collins v. Chandler Unified 
                School District, 1981, Bishop v. Aronov, 1991, Duran v. 
                Nitsche, 1991.)
                    (C) ``It is unconstitutional for students to see 
                the Ten Commandments since they might read, meditate 
                upon, respect, or obey them.'' (Stone v. Graham, 1980, 
                Ring v. Grand Forks Public School District, 1980, 
                Lanner v. Wimmer, 1981.)
                    (D) ``If a student prays over his lunch, it is 
                unconstitutional for him to pray aloud.'' (Reed v. Van 
                Hoven, 1965.)
                    (E) ``The Ten Commandments, despite the fact that 
                they are the basis of civil law and are depicted in 
                engraved stone in the United States Supreme Court, may 
                not be displayed at a public courthouse.'' (Harvey v. 
                Cobb County. 1993.)
                    (F) ``When a student addresses an assembly of his 
                peers, he effectively becomes a government 
                representative; it is therefore unconstitutional for 
                that student to engage in prayer.'' (Harris v. Joint 
                School District, 1994.)
                    (G) By interpreting the establishment clause to 
                preclude prayer and other religious speech in any 
                public place, the Supreme Court necessarily violates 
the free speech clause of the very same first amendment.
        These rulings of the Court constitute de facto legislation or 
        Constitution-amending. This is a serious violation of the 
        doctrine of separation of powers, as all legislative authority 
        bestowed by the people through the Constitution is bestowed 
        upon the Congress and the Congress alone.
            (6) A fundamental maxim of law is, whenever the intent of a 
        statute or a constitution is in question, to refer to the words 
        of its framers to determine their intent and use this intent as 
        the true intent of the law.
            (7) The intent of the First Amendment was and is clear on 
        these two points: The Federal Government was prohibited from 
        enacting any laws which would favor one religious denomination 
        over another and the Federal Government has no power to forbid 
        or prohibit any mention of religion, the Ten Commandments or 
        reference to God in civic dialog.
            (8) In its rulings to prohibit Americans from saying 
        prayers in school or from displaying the Ten Commandments in 
        public places, the Court has relied heavily upon the metaphor, 
        ``Separation of Church and State''. Note that this phrase is 
        nowhere to be found in the First Amendment or any other place 
        in the Constitution.
            (9) The metaphor, ``Separation of Church and State'', was 
        extracted, out of context, from a letter from Thomas Jefferson 
        to the Danbury Baptists in reply to a letter from them 
        expressing concern that the Federal Government might intrude in 
        religious matters by favoring one denomination over another. 
        Jefferson's reply was that the First Amendment would preclude 
        such intrusion.
            (10) The Court, in its use of Separation of Church and 
        State, has given to this phrase a meaning never intended by its 
        author; it took it out of context and inverted its meaning and 
        intent. The complete text of Jefferson's letter is found in 
        Jefferson, Writings, Vol. XVI, pp. 281-282, to the Danbury 
        Baptist Association on January 1, 1802.
            (11) Justice William Rehnquist made an extensive study of 
        the history of the First Amendment. In his dissent in Wallace 
        v. Jaffree (472 U.S. 38, 48, n. 30 [1984],) he stated: ``There 
        is simply no historical foundation for the proposition that the 
        Framers intended to build the `wall of separation' that was 
        constitutionalized in Everson. . . . But the greatest injury of 
        the `wall' notion is its mischievous diversion of judges from 
        the actual intentions of the drafters of the Bill of Rights. . 
        . . [N]o amount of repetition of historical errors in judicial 
        opinions can make the errors true. The `wall of separation 
        between church and state' is a metaphor based on bad history. . 
        . . It should be frankly and explicitly abandoned. . . . Our 
        perception has been clouded not by the Constitution but by the 
        mists of an unnecessary metaphor. ``It would come as much of a 
        shock to those who drafted the Bill of Rights, as it will to a 
        large number of thoughtful Americans today, to learn that the 
        Constitution, as construed by the majority, prohibits the 
        Alabama Legislature from endorsing prayer. George Washington 
        himself, at the request of the very Congress which passed the 
        Bill of Rights, proclaimed a day of public thanksgiving and 
        prayer, to be observed by acknowledging with grateful hearts 
        the many and signal favors of Almighty God. History must judge 
        whether it was the Father of his Country in 1789, or a majority 
        of the Court today, which has strayed from the meaning of the 
        Establishment Clause.''
            (12) As Justice Rehnquist states, the greatest injury of 
        the ``wall'' notion is its ``mischievous diversion of judges 
        from the actual intentions of the drafters of the Bill of 
        Rights. . . . '' It is necessary to review not only Jefferson's 
        intent in his use of this ``wall'', but his involvement or 
        noninvolvement in the drafting of the First Amendment, and the 
        intent of the framers of the First Amendment.
            (13) Jefferson was neither the author of nor a coauthor of 
        the First Amendment. He cannot be considered as a source of 
        legal authority on this subject. The Court, if it had wished to 
        rely upon Jefferson to determine the true and original intent 
        of the First Amendment, could have served themselves and the 
        American people well by referring to Jefferson's admonition to 
        Judge William Johnson regarding the determination of the 
        original intent of a statute or a constitution: ``On every 
        question of construction, carry ourselves back to the time when 
        the Constitution was adopted, recollect the spirit manifested 
        in the debates, and instead of trying what meaning may be 
        squeezed out of the text, or invented against it, conform to 
        the probable one in which it was passed.'' (Thomas Jefferson, 
        Memoir, Correspondence, and Miscellanies, From the Papers of 
        Thomas Jefferson, Thomas Jefferson Randolph, editor [Boston: 
        Gray and Bowen, 1830, Vol. IV., p. 373,] to Judge William 
        Johnson on June 12, 1823).
            (14) The principal authors of the First Amendment, the 
        record reveals, were Fisher Ames and Elbridge Gerry of 
        Massachusetts, not Thomas Jefferson. Others who participated 
        were John Vining of Delaware, Daniel Carroll and Charles 
        Carroll of Maryland, Benjamin Huntington, Roger Sherman and 
        Oliver Ellsworth of Connecticut and William Paterson of New 
        Jersey and James Madison and George Mason of Virginia. Thomas 
        Jefferson is not found in the record as having participated. 
        (The Debates and Proceedings in the Congress of the United 
        States [Washington, D.C.; Gales and Seaton, 1834], Vol. I, pp. 
        440-948, June 8-September 24, 1789.)
            (15) George Mason, a member of the Constitutional 
        Convention and recognized as ``The Father of the Bill of 
        Rights'', submitted this proposal for the wording of the First 
        Amendment: ``All men have an equal, natural and unalienable 
        right to the free exercise of religion, according to the 
        dictates of conscience; and that no particular sect or society 
        of Christians ought to be favored or established by law in 
        preference to others.'' (Kate Mason Rowland, The Life of George 
        Mason [New York: G.P. Putnam's Sons, 1892,] Vol I, p. 244.)
            (16) The Father of the Constitution, James Madison, 
        submitted the following wording for the First Amendment: ``The 
        civil rights of none shall be abridged on account of religious 
        belief or worship, nor shall any national religion be 
        established.'' (The Debates and Proceedings in the Congress of 
        the United States [Washington, D.C.; Gales and Season, 1834,] 
        Vol. I, p. 451, James Madison, June 8, 1789.)
            (17) The true intent of the First Amendment is reflected by 
        the proposals submitted by Fisher Ames, George Mason and James 
        Madison and the wording finally adopted.
            (18) Justice Joseph Story, considered the Father of 
        American Jurisprudence, stated in his Commentaries on the 
        Constitution: ``The real object of the [First A]mendment was 
        not to countenance, much less to advance Mohometanism [sp], or 
        Judaism, or infidelity by prostrating Christianity; but to 
        exclude all rivalry among Christian sects and to prevent any 
        national ecclesiastical establishment which should give to a 
        hierarchy [a denominational council] the exclusive patronage of 
        the national government. (Joseph Story, Commentaries on the 
        Constitution of the United States [Boston; Hilliard, Gray and 
        Company, 1833], p. 728, par. 1871.)
            (19) Proof that the intent of the framers of the First 
        Amendment did not intend for the Federal Government to restrict 
        the exercise of free speech in religious matters in civic 
        dialog is found in various statements by George Washington, who 
        was President when the Congress adopted the First Amendment. 
        The following is found in his ``Farewell Address'': `` . . . of 
        all the dispositions and habits which lead to political 
        prosperity, religion and morality are indispensable supports. 
        In vain would that man claim the tribute of patriotism who 
        should labor to subvert these great pillars of human 
        happiness.'' (George Washington, Address of George Washington, 
        President of the United States. . . . Preparatory to his 
        Declination [Baltimore: George and Henry S. Keatinge, 1796], 
        pp. 22-23.
            (20) James Wilson was a very active member of the 
        Convention and was later appointed by President George 
        Washington as an original Justice on the United States Supreme 
        Court where he coauthored America's first legal text on the 
        Constitution. Wilson never mentioned a ``separation of church 
        and state''. To the contrary, he declared the correlation 
        between religion and civil laws: Far from being rivals or 
        enemies, religion and law are twin sisters, friends, and mutual 
        assistants. (James Wilson, The Works of James Wilson, Bird 
        Wilson, editor. Philadelphia; Bronson and Chauncey, 1804. Vol. 
        I, pp. 104-106.)
            (21) It was Fisher Ames of Massachusetts who provided, on 
        the 20th of August, 1789, the final wording for the First 
        Amendment as passed by the House of Representatives. Fisher 
        Ames, who should be considered the foremost authority on the 
        intent of the First Amendment, never spoke of a separation of 
        church and state. (Fisher Ames, Works of Fisher Ames, Boston; 
        T.B. Wait & Co. 1809, p. 134, 135.)
            (22) Because the Court does not seem to be disposed to 
        correct this egregious error, it is incumbent upon the Congress 
        of the United States to perform its duty to support and defend 
        the Constitution of the United States, by the use of its 
        authority to apply checks and balances to other branches of the 
        government, when usurpations and the exercise of excesses of 
        power are evident. The Congress must, then, take the 
        appropriate steps to correct egregious problem.

SEC. 3. REMOVAL OF RELIGIOUS FREEDOM-RELATED CASES FROM FEDERAL 
              DISTRICT COURT JURISDICTION.

    (a) In General.--Chapter 85 of title 28, United States Code, is 
amended by adding at the end the following new section:
``Sec. 1369. Exclusion of jurisdiction over religious freedom-related 
              cases
    ``(a) In General.--The district courts of the United States, the 
District Court of Guam, the District Court of the Virgin Islands, and 
the District Court for the Northern Mariana Islands shall not have 
jurisdiction to hear or determine any religious freedom-related case.
    ``(b) Definition.--For purposes of this section, the term 
`religious freedom-related case' means any action in which any 
requirement, prohibition, or other provision relating to religious 
freedom that is contained in a State or Federal statute is at issue.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 85 of title 28, United States Code, is amended by adding at the 
end the following new item:

``1369. Exclusion of jurisdiction over religious freedom-related 
                            cases.''.

SEC. 4. REMOVAL OF RELIGIOUS FREEDOM-RELATED CASES FROM FEDERAL CLAIMS 
              COURT JURISDICTION.

    (a) In General.--Chapter 91 of title 28, United States Code, is 
amended by adding at the end the following new section:
``Sec. 1510. Removal of jurisdiction over religious freedom-related 
              cases
    ``(a) In General.--The United States Court of Federal Claims shall 
not have jurisdiction to hear or determine any religious freedom-
related case.
    ``(b) Definition.--For purposes of this section, the term 
`religious freedom-related case' means any action in which any 
requirement, prohibition, or other provision relating to religious 
freedom that is contained in a State or Federal statute is at issue.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 91 of title 28, United States Code, is amended by adding at the 
end the following new item:

``1510. Removal of jurisdiction over religious freedom-related 
                            cases.''.

SEC. 5. EFFECTIVE DATE.

    The amendments made by this Act shall apply to cases filed on or 
after the date of the enactment of this Act.
                                 <all>