[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4922 Introduced in House (IH)]
107th CONGRESS
2d Session
H. R. 4922
To restore first amendment protections of religion and speech.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 12, 2002
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.
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