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The 1st Amendment to the U.S. Constitution (Dec 15, 1791)


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The text:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

My first comment is that in Boolean Algebra (granted, something the Founding Fathers didn't know much about), AND takes precedence over OR. That's something that should at least be discussed. It's possible that in 1791, a string of ORs was ended by an AND - whatever was common practice at the time must be honored as intent.

My first question is: Are the last two items ("the right of the people peaceably to assemble" and "to petition the government for a redress of grievances") more strongly linked (because of the AND) than any of the other two items? Or are they all considered equal members in a list?

My second question is: What about the separation of church and state? Does the second clause ("prohibiting the free exercise thereof") mean that Congress is not allowed to pass a law, for example, making human sacrifices illegal, should a new religion be established (see the first clause) that calls for them?

The Constitution, including the Bill of Rights, is *very* poorly worded - I'm sorry to say that, but it's true. These people may have known how to fight, but they didn't know how to write. Yet, here we are, slavishly following a poorly conceived and poorly written document.

The Founding Fathers just weren't all that smart.

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(1) I have never heard anyone suggest that, either from an "original understanding" perspective or from current perspective, the difference between AND and OR there is of any importance.  You are right that it does seem a little odd - you've got three sets of two, with the first two being "OR" sets and the third one being an "AND" set.  I would guess that it just seemed to flow better off the tongue that way, given that the last of the three sets is PRECEDED by an "OR" (because Congress can't do set one, set two, OR set three) and then another "OR" after that would just maybe sound funny.

(2) What we call "separation of church and state" colloquially is mostly understood by most people, I think, as the first clause, the Establishment Clause. (That doesn't mean "establish" in the way you later use it ("... should a new religion be established ..."). It refers instead to "establishment" in the sense of designating an official state religion. 

As for your further question - about free exercise - it's complicated and debated. No one thinks that you could declare yourself the leader of a new religion that involves human sacrifice, and get away with it. The Supreme Court held (5-4) in Employment Division v. Smith (1990) that a state could ban peyote use and - most important - didn't have to allow such use by people for whom it is a religious sacrament. Some people still think that's wrong as a matter of constitutional law. Congress, and lots of states, have since enacted laws that (in grossly oversimplified summary) allow religious exemptions from generally-applicable laws unless there is a compelling government justification for not allowing such an exemption. So, human sacrifice is still a no-go. People are always trying to litigate claims that, as Rastafarian or other more obscure religion, they have the right to smoke pot.

You might ask, "well if Employment Division v Smith is correct, then does the "free exercise" clause mean anything at all?" Yes it does. It still prohibits laws that are either designed to target a specific religion's practices, or that would ban a specific religion outright (something that was unthinkable in this country for some decades of the 20th century so it may be hard for people of our generation to see why you even need to think about prohibiting such a law, but this was not always so.)

Dammit where is MartyL when you need him ...

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