I

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘First Amendment Res5 toration Act’’.

6 SEC. 2. FINDINGS.

7 Congress finds the following:

8 (1) The freedom to practice religion and to ex9 press religious thought is acknowledged to be one of

10 the fundamental and unalienable rights belonging to

11 all individuals.
2

•HR 5078 IH

1 (2) The Framers of the Constitution delib2 erately withheld, in the main body of that document,

3 any authority for the Federal Government to meddle

4 with the religious affairs or with the free speech of

5 the people. Then, as further and more specific pro6 tection for the people, they added the first amend7 ment, which includes the ‘‘establishment clause’’ and

8 the ‘‘freedom of speech clause’’ which are as follows:

9 ‘‘Congress shall make no law respecting an estab10 lishment of religion or prohibiting the free exercise

11 thereof; or abridging the freedom of speech . . .’’.

12 It is of utmost importance to note that the first

13 amendment is not a grant of authority to the Fed14 eral Government. To the contrary, it is a specific re15 striction upon the exercise of power by the Federal

16 Government.

17 (3) For over 150 years, the Court held to this

18 historically correct position in interpreting the first

19 amendment. During this period, scant mention was

20 made to ‘‘The Separation of Church and State’’.

21 (4) Then, beginning in 1947, and accelerating

22 through the 60’s, the Court abruptly reversed its po23 sition. This was done with no change in the law, ei24 ther by statute or by amendment to the Constitu25 tion. The Court invented the distorted meaning of
3

•HR 5078 IH

1 the first amendment utilizing the separation of

2 ‘‘church and state’’ in 1947 in Everson v. Board of

3 Education when it announced: The First Amend4 ment has erected a wall between church and state.

5 That wall must be kept high and impregnable. We

6 could not approve the slightest breach. (Everson v.

7 Board of Education; 330 U.S. 1, 18 [1947]). Over

8 the past five decades, rulings of the United States

9 Supreme Court have served to infringe upon the

10 rights of Americans to enjoy freedom of speech re11 lating to religious matters. Such infringements in12 clude the outlawing of prayer in schools and of the

13 display of the Ten Commandments in public places.

14 These rulings have not reflected a neutrality toward

15 religious denominations but a hostility toward reli16 gious thought. They have served to undermine the

17 foundation of not only our moral code but our sys18 tem of law and justice.

19 (5) In making this abrupt change, the Court ig20 nored all historical precedent established previously

21 by the Court, the wording of the First Amendment,

22 and the intent of its framers. The rulings are legally

23 irrational and without foundation. Although the

24 Court presumed to rely upon the First Amendment

25 for its authority for these rulings, a review of that
4

•HR 5078 IH

1 Amendment reveals that said rulings could not pos2 sibly have been based upon its original intent. Con3 sequently, it is incumbent upon this Congress to re4 view not only the rulings of the Court which are in

5 question but the wording and history of the First

6 Amendment to determine the intent of its framers.

7 This abrupt change is found in the following court

8 cases:

9 (A) ‘‘A verbal prayer offered in a school is

10 unconstitutional, even if that prayer is both vol11 untary and denominationally neutral.’’ (Engel

12 v. Vitale, 1962, Abington v. Schempp, 1963,

13 Commissioner of Education v. School Com14 mittee of Leyden, 1971.)

15 (B) ‘‘Freedoms of speech and press are

16 guaranteed to students and teachers unless the

17 topic is religious, at which time such speech be18 comes unconstitutional.’’ (Stein v. Oshinsky,

19 1965, Collins v. Chandler Unified School Dis20 trict, 1981, Bishop v. Aronov, 1991, Duran v.

21 Nitsche, 1991.)

22 (C) ‘‘It is unconstitutional for students to

23 see the Ten Commandments since they might

24 read, meditate upon, respect, or obey them.’’

25 (Stone v. Graham, 1980, Ring v. Grand Forks
5

•HR 5078 IH

1 Public School District, 1980, Lanner v.

2 Wimmer, 1981.)

3 (D) ‘‘If a student prays over his lunch, it

4 is unconstitutional for him to pray aloud.’’

5 (Reed v. Van Hoven, 1965.)

6 (E) ‘‘The Ten Commandments, despite the

7 fact that they are the basis of civil law and are

8 depicted in engraved stone in the United States

9 Supreme Court, may not be displayed at a pub10 lic courthouse.’’ (Harvey v. Cobb County.

11 1993.)

12 (F) ‘‘When a student addresses an assem13 bly of his peers, he effectively becomes a gov14 ernment representative; it is therefore unconsti15 tutional for that student to engage in prayer.’’

16 (Harris v. Joint School District, 1994.)

17 (G) By interpreting the establishment

18 clause to preclude prayer and other religious

19 speech in any public place, the Supreme Court

20 necessarily violates the free speech clause of the

21 very same first amendment.

22 These rulings of the Court constitute de facto legis23 lation or Constitution-amending. This is a serious

24 violation of the doctrine of separation of powers, as

25 all legislative authority bestowed by the people
6

•HR 5078 IH

1 through the Constitution is bestowed upon the Con2 gress and the Congress alone.

3 (6) A fundamental maxim of law is, whenever

4 the intent of a statute or a constitution is in ques5 tion, to refer to the words of its framers to deter6 mine their intent and use this intent as the true in7 tent of the law.

8 (7) The intent of the First Amendment was and

9 is clear on these two points: The Federal Govern10 ment was prohibited from enacting any laws which

11 would favor one religious denomination over another

12 and the Federal Government has no power to forbid

13 or prohibit any mention of religion, the Ten Com14 mandments or reference to God in civic dialog.

15 (8) In its rulings to prohibit Americans from

16 saying prayers in school or from displaying the Ten

17 Commandments in public places, the Court has re18 lied heavily upon the metaphor, ‘‘Separation of

19 Church and State’’. Note that this phrase is no20 where to be found in the First Amendment or any

21 other place in the Constitution.

22 (9) The metaphor, ‘‘Separation of Church and

23 State’’, was extracted, out of context, from a letter

24 from Thomas Jefferson to the Danbury Baptists in

25 reply to a letter from them expressing concern that
7

•HR 5078 IH

1 the Federal Government might intrude in religious

2 matters by favoring one denomination over another.

3 Jefferson’s reply was that the First Amendment

4 would preclude such intrusion.

5 (10) The Court, in its use of Separation of

6 Church and State, has given to this phrase a mean7 ing never intended by its author; it took it out of

8 context and inverted its meaning and intent. The

9 complete text of Jefferson’s letter is found in Jeffer10 son, Writings, Vol. XVI, pp. 281–282, to the Dan11 bury Baptist Association on January 1, 1802.

12 (11) Justice William Rehnquist made an exten13 sive study of the history of the First Amendment. In

14 his dissent in Wallace v. Jaffree (472 U.S. 38, 48,

15 n. 30 [1984],) he stated: ‘‘There is simply no histor16 ical foundation for the proposition that the Framers

17 intended to build the ‘wall of separation’ that was

18 constitutionalized in Everson.... But the greatest

19 injury of the ‘wall’ notion is its mischievous diver20 sion of judges from the actual intentions of the

21 drafters of the Bill of Rights.... [N]o amount of

22 repetition of historical errors in judicial opinions can

23 make the errors true. The ‘wall of separation be24 tween church and state’ is a metaphor based on bad

25 history. . . . It should be frankly and explicitly
8

•HR 5078 IH

1 abandoned.... Our perception has been clouded

2 not by the Constitution but by the mists of an un3 necessary metaphor. ‘‘It would come as much of a

4 shock to those who drafted the Bill of Rights, as it

5 will to a large number of thoughtful Americans

6 today, to learn that the Constitution, as construed

7 by the majority, prohibits the Alabama Legislature

8 from endorsing prayer. George Washington himself,

9 at the request of the very Congress which passed the

10 Bill of Rights, proclaimed a day of public thanks11 giving and prayer, to be observed by acknowledging

12 with grateful hearts the many and signal favors of

13 Almighty God. History must judge whether it was

14 the Father of his Country in 1789, or a majority of

15 the Court today, which has strayed from the mean16 ing of the Establishment Clause.’’

17 (12) As Justice Rehnquist states, the greatest

18 injury of the ‘‘wall’’ notion is its ‘‘mischievous diver19 sion of judges from the actual intentions of the

20 drafters of the Bill of Rights. . . . ’’ It is necessary

21 to review not only Jefferson’s intent in his use of

22 this ‘‘wall’’, but his involvement or noninvolvement

23 in the drafting of the First Amendment, and the in24 tent of the framers of the First Amendment.
9

•HR 5078 IH

1 (13) Jefferson was neither the author of nor a

2 coauthor of the First Amendment. He cannot be

3 considered as a source of legal authority on this sub4 ject. The Court, if it had wished to rely upon Jeffer5 son to determine the true and original intent of the

6 First Amendment, could have served themselves and

7 the American people well by referring to Jefferson’s

8 admonition to Judge William Johnson regarding the

9 determination of the original intent of a statute or

10 a constitution: ‘‘On every question of construction,

11 carry ourselves back to the time when the Constitu12 tion was adopted, recollect the spirit manifested in

13 the debates, and instead of trying what meaning

14 may be squeezed out of the text, or invented against

15 it, conform to the probable one in which it was

16 passed.’’ (Thomas Jefferson, Memoir, Correspond17 ence, and Miscellanies, From the Papers of Thomas

18 Jefferson, Thomas Jefferson Randolph, editor [Bos19 ton: Gray and Bowen, 1830, Vol. IV., p. 373,] to

20 Judge William Johnson on June 12, 1823).

21 (14) The principal authors of the First Amend22 ment, the record reveals, were Fisher Ames and El23 bridge Gerry of Massachusetts, not Thomas Jeffer24 son. Others who participated were John Vining of

25 Delaware, Daniel Carroll and Charles Carroll of
10

•HR 5078 IH

1 Maryland, Benjamin Huntington, Roger Sherman

2 and Oliver Ellsworth of Connecticut and William

3 Paterson of New Jersey and James Madison and

4 George Mason of Virginia. Thomas Jefferson is not

5 found in the record as having participated. (The De6 bates and Proceedings in the Congress of the United

7 States [Washington, D.C.; Gales and Seaton, 1834],

8 Vol. I, pp. 440–948, June 8–September 24, 1789.)

9 (15) George Mason, a member of the Constitu10 tional Convention and recognized as ‘‘The Father of

11 the Bill of Rights’’, submitted this proposal for the

12 wording of the First Amendment: ‘‘All men have an

13 equal, natural and unalienable right to the free exer14 cise of religion, according to the dictates of con15 science; and that no particular sect or society of

16 Christians ought to be favored or established by law

17 in preference to others.’’ (Kate Mason Rowland, The

18 Life of George Mason [New York: G.P. Putnam’s

19 Sons, 1892,] Vol I, p. 244.)

20 (16) The Father of the Constitution, James

21 Madison, submitted the following wording for the

22 First Amendment: ‘‘The civil rights of none shall be

23 abridged on account of religious belief or worship,

24 nor shall any national religion be established.’’ (The

25 Debates and Proceedings in the Congress of the
11

•HR 5078 IH

1 United States [Washington, D.C.; Gales and Season,

2 1834,] Vol. I, p. 451, James Madison, June 8,

3 1789.)

4 (17) The true intent of the First Amendment is

5 reflected by the proposals submitted by Fisher

6 Ames, George Mason and James Madison and the

7 wording finally adopted.

8 (18) Justice Joseph Story, considered the Fa9 ther of American Jurisprudence, stated in his Com10 mentaries on the Constitution: ‘‘The real object of

11 the [First A]mendment was not to countenance,

12 much less to advance Mohometanism [sp], or Juda13 ism, or infidelity by prostrating Christianity; but to

14 exclude all rivalry among Christian sects and to pre15 vent any national ecclesiastical establishment which

16 should give to a hierarchy [a denominational council]

17 the exclusive patronage of the national government.

18 (Joseph Story, Commentaries on the Constitution of

19 the United States [Boston; Hilliard, Gray and Com20 pany, 1833], p. 728, par. 1871.)

21 (19) Proof that the intent of the framers of the

22 First Amendment did not intend for the Federal

23 Government to restrict the exercise of free speech in

24 religious matters in civic dialog is found in various

25 statements by George Washington, who was Presi-
12

•HR 5078 IH

1 dent when the Congress adopted the First Amend2 ment. The following is found in his ‘‘Farewell Ad3 dress’’: ‘‘ . . . of all the dispositions and habits

4 which lead to political prosperity, religion and moral5 ity are indispensable supports. In vain would that

6 man claim the tribute of patriotism who should labor

7 to subvert these great pillars of human happiness.’’

8 (George Washington, Address of George Wash9 ington, President of the United

10 States.... Preparatory to his Declination [Balti11 more: George and Henry S. Keatinge, 1796], pp.

12 22–23.

13 (20) James Wilson was a very active member of

14 the Convention and was later appointed by President

15 George Washington as an original Justice on the

16 United States Supreme Court where he coauthored

17 America’s first legal text on the Constitution. Wilson

18 never mentioned a ‘‘separation of church and state’’.

19 To the contrary, he declared the correlation between

20 religion and civil laws: Far from being rivals or en21 emies, religion and law are twin sisters, friends, and

22 mutual assistants. (James Wilson, The Works of

23 James Wilson, Bird Wilson, editor. Philadelphia;

24 Bronson and Chauncey, 1804. Vol. I, pp. 104–106.)
13

•HR 5078 IH

1 (21) It was Fisher Ames of Massachusetts who

2 provided, on the 20th of August, 1789, the final

3 wording for the First Amendment as passed by the

4 House of Representatives. Fisher Ames, who should

5 be considered the foremost authority on the intent of

6 the First Amendment, never spoke of a separation

7 of church and state. (Fisher Ames, Works of Fisher

8 Ames, Boston; T.B. Wait & Co. 1809, p. 134, 135.)

9 (22) Because the Court does not seem to be

10 disposed to correct this egregious error, it is incum11 bent upon the Congress of the United States to per12 form its duty to support and defend the Constitution

13 of the United States, by the use of its authority to

14 apply checks and balances to other branches of the

15 government, when usurpations and the exercise of

16 excesses of power are evident. The Congress must,

17 then, take the appropriate steps to correct egregious

18 problem.

19 SEC. 3. REMOVAL OF RELIGIOUS FREEDOM-RELATED

20 CASES FROM FEDERAL DISTRICT COURT JU21 RISDICTION.

22 (a) IN GENERAL.—Chapter 85 of title 28, United

23 States Code, is amended by adding at the end the fol24 lowing new section:
14

•HR 5078 IH

1 ‘‘§ 1369. Exclusion of jurisdiction over religious free2 dom-related cases

3 ‘‘(a) IN GENERAL.—The district courts of the United

4 States, the District Court of Guam, the District Court of

5 the Virgin Islands, and the District Court for the North6 ern Mariana Islands shall not have jurisdiction to hear or

7 determine any religious freedom-related case.

8 ‘‘(b) DEFINITION.—For purposes of this section, the

9 term ‘religious freedom-related case’ means any action in

10 which any requirement, prohibition, or other provision re11 lating to religious freedom that is contained in a State

12 or Federal statute is at issue.’’.

13 (b) CLERICAL AMENDMENT.—The table of sections

14 at the beginning of chapter 85 of title 28, United States

15 Code, is amended by adding at the end the following new

16 item:

‘‘1369. Exclusion of jurisdiction over religious freedom-related cases.’’.

17 SEC. 4. REMOVAL OF RELIGIOUS FREEDOM-RELATED

18 CASES FROM FEDERAL CLAIMS COURT JU19 RISDICTION.

20 (a) IN GENERAL.—Chapter 91 of title 28, United

21 States Code, is amended by adding at the end the fol22 lowing new section:
15

•HR 5078 IH

1 ‘‘§ 1510. Removal of jurisdiction over religious free2 dom-related cases

3 ‘‘(a) IN GENERAL.—The United States Court of Fed4 eral Claims shall not have jurisdiction to hear or deter5 mine any religious freedom-related case.

6 ‘‘(b) DEFINITION.—For purposes of this section, the

7 term ‘religious freedom-related case’ means any action in

8 which any requirement, prohibition, or other provision re9 lating to religious freedom that is contained in a State

10 or Federal statute is at issue.’’.

11 (b) CLERICAL AMENDMENT.—The table of sections

12 at the beginning of chapter 91 of title 28, United States

13 Code, is amended by adding at the end the following new

14 item:

‘‘1510. Removal of jurisdiction over religious freedom-related cases.’’.

15 SEC. 5. EFFECTIVE DATE.

16 The amendments made by this Act shall apply to

17 cases filed on or after the date of the enactment of this

18 Act.

Æ