03/27/2011
First Amendment Amendment scholar Eugene Volokh disagrees with Bryan Fischer’s argument that
The First Amendment was written by the Founders to protect the free exercise of Christianity. They were making no effort to give special protections to Islam. Quite the contrary … .Islam has no fundamental First Amendment claims, for the simple reason that it was not written to protect the religion of Islam. Islam is entitled only to the religious liberty we extend to it out of courtesy. While there certainly ought to be a presumption of religious liberty for non-Christian religious traditions in America, the Founders were not writing a suicide pact when they wrote the First Amendment.[ Islam and the First Amendment: privileges but not rights, March 24, 2011]
Volokh points out that this is historically untrue, quoting James Iredell, a contemporary North Carolina legislator and later Justice, and Thomas Jefferson.
"Likewise, Thomas Jefferson wrote that the Virginia statute protecting religious freedom, which he drafted, deliberately covered "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination," and that a proposal to mention Christ in the bill "was rejected by a great majority, in proof that they meant to comprehend" all religions."
Volokh also says
"I know of no sources that suggested that anyone during the Framing era understood the Constitution as excluding “Mahometans,” or non-Christians more generally, from either the Free Exercise Clause or the No Religious Test Clause."
I would say that Volokh is right that the Founders meant to protect all religions, including non-Christian ones — at least as far as the Free Exercise Clause or the No Religious Test Clause is concerned. But there’s more than that involved.
What the Founders did not contemplate was
With that structure in place, Islam becomes a much bigger problem, even if there wasn’t a War On Terror on.
However, while politics don’t actually "stop at the water’s edge", civil rights do. The government is perfectly free, constitutionally, to treat Muslim immigration differently from other immigration. Don’t hold your breath waiting for Barack Hussein Obama to implement that policy.
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