Free (adj.)—not under the control or in the power of another; able to act or be done as one wishes. – Oxford English Dictionary (OED)
Greetings my fellow Americans!
Before we dive into the next major clause of this amendment, I want to reiterate the importance of the collection of these first ten more as explicit prohibitions of, and limits on, government’s authority and power than on rights being granted to the citizenry and those outside of government. Under the American philosophy, the People have a responsibility to ensure that those whom they elect to represent them within government are not violating those prohibitions, i.e., that those behaviors will be free from persecution and/or prosecution from and by those bestowed with the “consent of the governed” to exercise the powers which the Constitution has enumerated. That our modern political and legal lenses have focused on what the Constitution allows the People to do is a tragic bastardization of the intent of this amazing and divinely inspired document.
“…[n]or prohibit the free exercise thereof.”
I pulled what I believe to be a wholly appropriate definition of free as the lead-in to this installment; for exercise, I’ll state it here: the use or application of a faculty, right or process (also from the OED). While I find the latter’s use of the word “right” a bit murky or misleading in the context I’m trying to set regarding enumerated prohibitions on government, I struggled to find a more appropriate published distinction; I believe eliminating that word would capture the essence of the Founders’ intent. I realize the subtlety of the difference, but, as I’ve stated previously, the implications of viewing this as a right granted by the Constitution on skewing people’s understanding of the original meaning and purpose of our supreme document are significant.
So just what is free exercise in the context of a cohesive, coherent and highly-civilized society? To an increasingly many in our fractured nation today, this generally appears to mean that one may do whatever one wants, and whenever one wants (I defer on parsing this statement for now); it has also come to mean that no one in the private sector is allowed to publicly judge or condemn such exercise unless the government prohibits it. I’ll explore both of these notions further when we get to the so-called “freedom of speech;” in the meantime, I’ll say that what the Constitution is intentionally silent on is the notion of whether such “free exercise” should be exhibited by the citizenry of such a society.
Or prohibit and thereof refer back to the opening seminal components of this amendment (Congress shall make no law and religion). And to prohibit (again from the OED): formally forbid by law, rule, or other authority. So, again, Congress shall not prohibit is what the amendment essentially states, NOT that the People are hereby granted a right to it (more to come on this when I get to Amendments 9 and 10). And this entire amendment is addressing Congress (as the body solely authorized to nationally legislate) explicitly and specifically, which in its original naked form seems to imply that this was intended to pertain to the national government only.
I intend to say much more about Article VI, Section II(2), i.e., “the supremacy clause,” and State sovereignty, in a future writing outside this series; what I will say for clarity now is that the Founders’ left out explicit statements about the required morals and ethics of those called to serve in the national government from the Constitution intentionally, on the premise that those entrusted with the making, executing and judging in accordance of national law would exemplify the morals and ethics of the people and States of and from whom they represented and originated. This is a generalization that is likely to show up frequently as we further analyze the original intent of this and the other amendments in the “Bill of Rights.”
Next: Part 3: Abridging the Freedom of Speech, or of the Press
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