Bryan Fischer
Donald Trump, mosques, and the First Amendment
By Bryan Fischer
November 18, 2015

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

Host of "Focal Point" on AFR Talk, 1-3pm CT, M-F

In the wake of the barbaric attack by Muslims on the city of Paris, presidential candidate Donald Trump said on Monday that shutting down mosques is something we should "strongly consider."

Said Trump during an interview with MSNBC, "Well, I would hate to do it but it's something you're going to have to strongly consider. Some of the absolute hatred is coming from these areas...The hatred is incredible. It's embedded. The hatred is beyond belief. The hatred is greater than anybody understands."

The interior minister of France, dealing with the tragic reality of 129 dead bodies at the hands of the "religion of peace," said much the same thing, calling for the "dissolution of mosques where hate is preached."

There is no question but that we are long past the time when many mosques in America should be shut down. They foment hatred and violence against the United States on a weekly basis and many have become recruiting and training centers for the most radical elements of Islam.

We likewise should ban Islamic chaplains in our prisons, which have become little more than recruiting centers for jihad. Couple angry, bitter, violent inmates with a religion that legitimizes violence against the country that put them behind bars? What could possibly go wrong?

Any discussion about restricting the practice of Islam immediately counters First Amendment objections. Why, we are told, "Muslims have freedom of religion in America under the Constitution just like Christians do! You can't shut down a mosque! That would be unconstitutional!"

Whether it is unconstitutional or not all depends on whether we are using the Constitution as crafted by the Founders or the one mangled beyond recognition by the courts.

As I have written before, everything hinges on what the Founders meant by the term "religion" in the First Amendment. If by it they meant "any supernatural system of belief," as activist judges contend, there may not be much we can do to close mosques or keep giant statues of Satan off government property.

But if we understand "religion" as the Founders did, to refer specifically to Christianity, then there is a perfectly constitutional way to shut down mosques starting today.

The longest serving associate justice in Supreme Court history, Joseph Story, wrote a masterful, majestic and definitive history of the Constitution. It has never been excelled. He wrote in 1833 while the founding era was still fresh in memory. Story was appointed to the Court by James Madison, the Father of the Constitution, in 1811, and thus was a contemporary of those who had crafted the Bill of Rights.

Critically for our purposes, Story observed the First Amendment was written exclusively to protect the free exercise of the Christian religion.

Said Story (emphasis mine throughout):

"The real object of the amendment was, not to countenance, much less to advance Mahometanism, 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 an hierarchy the exclusive patronage of the national government."

"Countenance," according to Merriam-Webster, means "to accept, support, or approve of (something); to extend approval or toleration to."

To put it plainly, the Founders were not accepting, supporting, approving or extending toleration to Islam in the First Amendment. There were neither favoring nor disfavoring the religion of Muhammad. They weren't dealing with it at all.

Story's point is that the Founders were dealing only with Christianity in the First Amendment. They were making no effort to extend constitutional protections to any other religious system of belief. Not only were they not promoting them, they weren't considering them at all.

So while Congress is flatly prohibited by the First Amendment from interfering with the free exercise of the Christian religion, the Constitution is silent regarding Islam. This means that Islam has no fundamental religious liberty claims under the First Amendment. In America, while Muslims may enjoy the privilege of religious exercise until they misuse it, they have no fundamental constitutional right to it.

Since the Founders' Constitution is silent with regard to Islam, this means, according to the 10th Amendment, dealing with Islam is an issue that is reserved to the States.

As Thomas Jefferson put it, "Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states as far as it can be in human authority."

Story confirms Jefferson: "[T]he whole power over the subject of religion is left exclusively to the state government, to be acted upon according to their own sense of justice, and the state constitutions."

The Founders thus gave to the States unilateral authority to regulate religious expression as they saw fit. While I am certainly not advocating for it, this means that, constitutionally, States still today can have established churches if they choose, as ten of them did at the time of the founding. And it also means that States can shut down mosques altogether if they choose.

So the question is this: If States can shut down mosques, should they? According to the Center for Security Policy, 81% of all mosques in America distribute imam-promoted literature which supports the use of violence to advance Islam. And since these are the most well-attended mosques, 95% of all Muslims who attend mosque on a weekly basis attend a mosque that promotes jihad.

As Justice Robert H. Jackson wrote in a 1949 free speech case, echoing Abraham Lincoln, "The Constitution is not a suicide pact." We are not obligated constitutionally or in any other way to tolerate the toxic and corrosive poison of Islam, which is not a religion of peace at all but of violence, totalitarianism, and death.

Franklin Graham wrote the following on his Facebook page last weekend:

In the hours after the horrific attacks some said "TERRORISM HAS NO RELIGION." Do not be fooled. This attack was done in the name of Allah, the god of Islam. Eye witness reports say that the murderers yelled, "Allahu Akbar" before committing their atrocities. Now we know, in their own words, that the Islamic State has claimed the attack on Paris describing the city as "the carrier of the banner of the Cross in Europe." In this case terrorism does have a religion – its name is Islam and its god is Allah.

In another Facebook post, from November 14, Rev. Graham wrote the following:

Islam is not a peaceful religion as George W. Bush told us and as President Barack Obama has said – that is just not true. Our president and our politicians in Washington need to wake up before it's too late. This is not the time to be politically correct. Our nation's security is at stake. The future of our children and grandchildren is at stake

Bottom line: the Founders' Constitution permits States to heed Rev. Graham's warning and do exactly what Mr. Trump is calling for, the shutting down of mosques who threaten our security and liberty. For the safety of the American people, perhaps the time for them to start doing it is now.

(Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)


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