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so in this video lecture, we’re going to talk a little bit more about the bill of rights and the first amendment, which is the particular amendment that applies to religion that is going to be really one of the main focuses going forth in this course. Okay, so two, I guess it was now two video lectures go a few last week, we’ll just say last week, we talked about the Constitution and sort of the lead up to the Constitution and the passing of the Constitution. All right, the US Constitution created the outlines, sort of the general guidelines and very detailed detailed regulations about how our federal government, how the American federal government would be put together and would be run. And you guys have been, we’re going to read a bit of the Constitution each week for the next couple weeks. So the Constitution was written during that Constitutional Congress, or what became, what came to be known as the Constitutional Congress, because many of the elected representatives that were sent there did not know that they were going to be writing the Constitution. They thought that they would just be revising what we’re called the articles of Confederation, but eventually there was sort of a call for a greater, greater power given to a federal government that it was really only possible to keep these states, these independent states united. If there was a strong federal government, central, strong federal government that could sort of oversee the states and that was able to have certain powers that really only a national government can have, right, like the power to declare war, the power to decide about federal taxes, the power to make treaties with other countries, you know, make, you know, contracts negotiations, right, you needed to kind of have that, that national figurehead and that national government. To make those decisions that apply to all the states. But of course, even after the Constitution was written, it had to be ratified by the states, so it still had to be voted on. And there, of course, were people who criticized the Constitution, who either thought that it should be voted against because it was, you know, not a good idea and it’s sort of general purpose. Or because people had specific criticisms of the Constitution, right, either that they didn’t like portions of it, they thought portions of it had gone too far, or they thought that it was missing something. And one of the strongest opposition arguments to the Constitution was that nowhere in the Constitution didn’t lay out what the individual rights would be of every person living in the United States, right, that it didn’t contain a bill of rights. It didn’t contain a list of individual rights that the federal government would be protecting. And of course, in the Declaration of Independence, there was lots of talk about God-given rights, right, that there are certain rights that individuals have that are inalienable, meaning they cannot be taken away, like life, liberty, and the pursuit of happiness. So there was a general consensus that a federal government, or that, you know, was going to not rule over, but govern over a country who had begun its independence based on this premise that everyone is born with certain rights, that the founding documents of that government should list out specifically what those rights are and how the government would be protecting them. And life, liberty, and the pursuit of happiness, yes, those are absolutely, you know, sort of the general outline of those rights. But the criticism was that those were so general, those were so sort of abstract, that you needed a much more specific laying out of those rights that are within your life, you know, life, liberty, and the pursuit of happiness. And also something that’s important to note is that the Declaration of Independence is one of our crucial founding documents in that it is a basic philosophical statement of the reason for the Revolutionary War, the reason that the United States became an independent country. But it’s not a legally binding document, right, it’s not it’s not part of our formal formal documents of the government, right, it’s not the Constitution or the Bill of Rights, it is a philosophical document, right, it’s giving reasons for independence, but it’s not a legally binding document. So there were a lot of a lot of people and elected representatives who said, you know what, I don’t know if I can vote for this Constitution, because it doesn’t have, it doesn’t have a list of rights, it didn’t clearly lay out what are these God given in an in alienable rights that every American has. So in order to get the Constitution to pass, James Madison, who ends up being the main author of the Bill of Rights and sort of folks on his side who wanted the Constitution to be passed, he actually at first was was very critical of this idea and then came around to it and said, yes, actually, you know, the people on the other side of the right, we do need this Bill of Rights. Anyways, in order to get the Constitution passed, there had to be this sort of promise that okay, if you, you know, don’t send us back, right, it took so long to get the Constitution written in the Constitutional Congress and passed through the Congress, right, we already talked about sort of some of the very tense, very heated debates that went on in that Congress. They said, you know, please don’t vote against it because it would be very difficult to go back and try to rewrite this thing, you know, add more to it and still get everyone to pass it. Vote yes on the Constitution and then the very first thing that the first Congress will do is to write this list of individual rights that the federal government will be tasked to protect. So they, the Constitution was ratified, it was passed, it went into effect and they followed through on that promise in the very first session of Congress. These were some of the first, the first bills that were passed was the Bill of Rights. So there are originally a list of 12, there are a list of 12 rights that were put before Congress, 12 of them were passed by Congress, but actually only 10 of them were ratified by the states. So the Bill of Rights is a list of 10, so the Bill of Rights contains 10 individual rights, although as you read through them this week, it’s one of your readings. You’ll see that some of them actually contain multiple rights within a single, within a single amendment. So some just sort of a note on the terminology. So the Bill of Rights is oftentimes thought of as kind of a separate, it’s sort of separate thing, it’s separate entity, a separate document, but it’s important to know that really what the Bill of Rights is is they are the first 10 amendments to the Constitution. So the Constitution itself contains a process by which the Constitution can be amended, meaning that additional laws and regulations and statements can be added to the Constitution. And I should check on this, I actually don’t know off the top of my head. The list of total amendments, it’s in the 20s, it’s something in the 20s, I’m going to say 27, but I’m going to check on that and put the number below the video lecture here. But there is a list that is outlined in the Constitution for how to pass an amendment to the Constitution, something additional. So the Constitution was never meant to be sort of a complete and total document. It was meant to lay out the protocol, the guidelines for how the federal government would be set up and how it would be run. But even in its passing, it was understood that there would be additional portions of it that would be added. But it is, it’s not an easy process to add an amendment to the Constitution, it has any any amendment has to be ratified by two thirds of the states. So two thirds of however many states there are in the union at that time, right, or in the United States at that time, which of course has changed since the time of the passing of the Constitution until now. So, so yeah, so the Bill of Rights is the first 10 amendments to the Constitution. So, so yeah, so just a little bit on the note of rights, if you hear about the amendments and the Bill of Rights, there are more than just 10 amendments. The Bill of Rights simply refers to the first 10 and they’re sort of thought of as their own kind of separate entity because they deal specifically with individual rights protecting individual rights. And they were passed all together. The two amendments, actually the original first amendment and second amendment that the Congress passed, which was not ratified by the states. One has to do with the salary of Congress and one had to do with the number of number of people in the House of Representatives. So those two amendments were actually not passed. One was eventually passed actually in like the 1990s and one has never been passed. But the so basically amendments three through 12 of the original 12 amendments were passed and those are the first the first 10 amendments to the Constitution or the Bill of Rights. So within the first amendment, which technically is the third amendment because the first two didn’t get passed. But in our present day Bill of Rights, the very first amendment starts with the protection of the rights dealing with religion. So it is important to just sort of note the position of this amendment is that it is the very first amendment. So again, you guys are going to read all 10 of the amendments and actually the first amendment contains further protections within the first amendment. But the very first sentence of the first amendment states Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. This statement is crucial to understanding the rest of the history of the relationship between religion and American government and politics. Because the understanding interpretation and protection of this statement is what most of the history of the connection between religion and American government and politics revolves around. So there are two clauses, there are two sections or two, yeah, two parts to this first amendment. And it’s very important to understand what each of these phrases mean and how really the balancing of both has been the central struggle of making laws within the United States with respect to religion. That do not violate either portion of the first amendment. So the first portion of it, the first section of it states that Congress shall make no law respecting an establishment of religion. And so the first section is usually seen as a little bit more straightforward. So the US, the United States of America was never meant to have an established religion. So Congress, federal government can never pass a law that establishes a particular religion. There can be no national religion, no established religion of the United States. So in its very sort of most straightforward, most direct way, right, this simply means that there can never be a law that says, you know, the national religion of the United States is block, right, is Christianity, is Judaism, is Protestantism, is Catholicism, is Islam. So you cannot have an official religion, a national religion, an established religion. In its more implicit ways, right, this also means that the government should not be seen favoring one religion over another, right, that the United States government is supposed to be neutral in respect to religion. That it has no sort of favorite religion, no favored religion, that it is not seen as sort of preferring one religion over another, it is supposed to remain neutral in its stance towards religion in general and to any particular religion. Another part of this that as we will see in the history of the United States and especially in the history of Supreme Court decisions has to do with the role of money in an established religion for countries that have an established religion or a national religion. A major part of what that means is that of course there is a very close connection between the government and the religious establishment, whatever that is church, churches, temples, mosques, synagogues, whatever that is. But it also means that public money can be used to pay for the cost of religion. Religion, religion of course in an abstract way is free, right, religion is ideas and beliefs and practices and things like that. But in another way, religion is not free, right, in order to have a religious institution, most religious institutions have property, they have a house of worship, they have someplace where people can gather together to practice that religious tradition. That cost money, right, just like owning any other building or house would cost money to buy it, to maintain it, to pay taxes on it every year. And if you have any type of person who works as a professional in that religious tradition, a priest, a minister, a rabbi, you also have to pay their salary, right, that’s their job, they have to make a living doing that. So religion, the operation of religion does cost money and when you have an established religion, a national religion in a particular country, the public funds, so basically like taxpayer money, right, when people within the country pay their taxes, they understand that a portion of their taxes are going to go to fund the national religion and the operations of that religious tradition. So part of this means that without an established religion, taxpayer money should not be going to directly fund the operations of a religious institution. And when we start talking about the Supreme Court in religion in either two or three weeks from now, we will see how this has been interpreted in different ways over the past 150 years. Right, how do you sort of respect this basic understanding of what it means to not have an established religion, but also not unnecessarily penalize a institution with a religious nature that is also providing a public service. And that might sound a little confusing and vague right now we’ll get we’ll get into more what we need, what we mean by that. But those are sort of the ways that traditionally the first segment of the first amendment has been interpreted, right, you can’t just flat out make a law saying this is the national religion of the United States, the US government is supposed to have a sort of neutral stance towards religion in general and to all particular religions not favoring one religion over another. And public taxpayer money is not supposed to go to fund the religious operations of a religious institution. That’s the first part of the clause, right, the second part of the clause says that the Congress, the US government can also not make a law that prohibits the free exercise of religion. So they can’t make a law sort of establishing religion, but they also are not allowed to make a law that prohibits the free exercise of religion. So you also can’t make a law saying this religion is illegal, right, or this religious practice is illegal. So they cannot make a law prohibiting the free exercise of one’s religion. And this in general has been meant to definitely protect, you could say sort of freedom of belief, freedom of conscience, right, that people are free to decide for themselves what they believe in, what they don’t believe in. What they, you know, what religious tradition they associate with, right, there’s no loss and you know, you can be a member of this religious tradition, you can’t be a member of this religious tradition, you have to believe this, you can’t believe this, right, you can’t make a law doing that. And also that religious people should be free to practice their religion as they see fit, right, in accordance with their religious beliefs and with their religious institution. And this second part of the clause, right, you know, in general has been interpreted to mean the ways that I just meant, right, that everyone should be free to believe or not believe what they personally choose to, and that they should be free to practice their religion to perform their religious rituals, their religious services, things like that. But the sort of you could say, one of the most important things to remember about the second part of the first amendment that we’ll get more into when we talk about the history of Supreme Court cases dealing with religion is, are there any practices or exercises of religion that can legitimately be prohibited if they are deemed to be harmful to others or to the society in general. And we’ll start by talking about a really interesting case. It’s sort of considered the first Supreme Court case in which religion is a major factor in which the US Supreme Court has to decide whether American Mormons are allowed to practice polygamy, right, the practice of one man marrying more than one woman, because for a very short period of time Mormons did practice polygamy, right. But polygamous marriage was not allowed legally in the United States, only monogamous marriages, one, you know, one in one, right, one person, two people total, two people total in that marriage. And the case one before the Supreme Court, a Mormon man sued the federal government for saying that they were prohibiting the free exercise of his religion, which said that polygamous marriage was completely acceptable. And I won’t tell you how it turned out what the verdict was, you can always look it up online, but that’ll be one of the first cases that we look at, right, because the first amendment of the Constitution says that the Congress cannot prohibit the free exercise of religion. But there absolutely has been a Supreme Court precedent set that says that, well, yes, actually we can, if there is sort of a higher concern in that case, right, that you cannot simply claim free exercise of religion, if what you are doing is part of your religion is harmful to others or harmful to society in general. So trying to balance those things, right, how, how does the United States government balance the first part of the clause, how do we not make any law that establishes a religion or favors one religion over another, right, how do we sort of maintain this, this stance of neutrality towards religion in general and all particular religions. And then how do we, you know, how do we allow the free exercise of religion while also making sure that anyone’s religious practices are not harmful to others or not harmful to American society in general. So that’s the first amendment of the US Constitution, laying out the basic guidelines for what the US government can and cannot do or pass in regards to religion or religious practice. And it’s also important to note, I have it in the first part of the slide over here, sorry, this side. It is important to remember that the Bill of Rights was understood at the time of its passing to only apply to the federal government. So all the rights that were guaranteed in the Bill of Rights, those were understood that that meant that the federal government, there can’t be a federal law that infringes on those rights, but there could absolutely be a state law. James Madison, who was the author of the Bill of Rights for the most part, he of course worked with other people who helped him and helped him revise these, but he was the principal author of them. He actually wanted there to be another amendment that said that all of these rights, the states has to respect them as well, but that was not put up for a final vote. That was considered too contentious because there were absolutely state laws on the books that violated the Bill of Rights and that definitely applied to religion as we saw, right? I mean, Article 6 of the US Constitution says that there can be no religious test for holding national public office. That was passed as part of the US Constitution at the same time that many of the states had religious tests, right, which we’ve talked about already. The First Amendment states that Congress shall make no law respecting an establishment of religion, but several of the states already had an established religion, right? They already said, in the state charter, in the state constitution, this is what the official religion of this state is. They had laws about taxpayer money funding those religious institutions and most likely had laws in the book saying you could only hold state office if you are a member of these of the established religious tradition. So the Bill of Rights was really only limited to federal law until 1868. In 1868, the 14th amendment is passed, which is known as colloquially as incorporation bill or the incorporation amendment in which the sort of officially came to declare that actually everything in the US Constitution, everything in the Bill of Rights, states cannot pass laws that violate the US Constitution. So that has been sort of one of the main reasons for Supreme Court cases since 1868 is that a state would pass a law that some would view as unconstitutional, that some would view as going against the laws that are set out, especially the amendments and the Bill of Rights that are set out in the Constitution. And then the Supreme Court would have to decide does this state law violate the US Constitution? And if so, it has to be declared null and void, right? That the state is not allowed to have that law as part of their, you know, their state body of laws. But it is important to note that it took, let’s see, almost 80, or over 80 years for that to become the law of the land. Before 1868, it was understood that the US Constitution only applied to federal government and federal laws. States could follow their own state constitution, and the two could be in complete contradiction to each other, okay? And that very much happened a lot before 1868. So the Bill of Rights is, I forgot to mention, the Bill of Rights is passed in 1791.
And so, yeah, so, you know, US Constitution has passed a few years before that. The Bill of Rights is one of the first items on the agenda of the very first session of Congress. Those are ratified by the Congress, sent to the states, passed by two -thirds of the state, and so go into effect in 1791. All right, so that’s a little bit on the Bill of Rights, which you’ll read this week, how the First Amendment, along with the other nine amendments.