Over at the American Spectator, George Neumayr is arguing that the First Amendment does not protect the building of the "Ground Zero Mosque" or the burning of Korans.
The truth is that the First Amendment protects neither the Ground Zero mosque nor Jones's burning of copies of the Koran. How do we know this? Because under the real First Amendment, the one written by the Founding Fathers, local communities within states were perfectly free to pass laws prohibiting the construction of particular religious buildings or pass laws that banned book burnings.
In fact, on his interpretation, the First Amendment should protect us against the "tyranny of the minorities" when it comes to religious matters. His case is that because the various states had preferred state churches when they adopted the Constitution, there's no way that the First Amendment could prevent explicit state preferences for religion:
Six of the thirteen states that signed the Constitution ran established churches. It is a historical fact that the First Amendment was written not to suppress those state churches but to protect them. Those six states would have never signed the Constitution otherwise.
This is an interesting and promising point, one that deserves some consideration. The rule restricts, as stated, Congress, not other legislative bodies or the executive branch. But for a very long time, the restrictions on Congress here were taken to be exemplary for how the rest of all governing bodies and governmental executives were to conduct themselves in the US. Taking it otherwise now contradicts stare decisis about the Constitution. Moreover, it runs counter to what the 'free exercise' clause is supposed to protect. In fact, a state must show compelling interest in restricting any religious expression. So what kind of interest does the state have here?
The notion that the First Amendment requires individual states to treat all religious believers equally was invented out of thin air by judicial activists. . . . The rejection of the real Constitution for the phony "living" one explains today's tyranny of the minority. That tyranny has assumed ironically divergent forms in recent days. In New York City, a majority stands aghast as a group of Muslims tries to build a mosque within blocks of the World Trade Center ruins. In Florida, the majority stands appalled but idle before the pastor of a tiny church who launches an "International Burn-a-Koran Day." Both incidents are, in varying degrees, acts of gross and pointless incivility that do not truly enjoy constitutional protections, but all public officials can mumble in the face of them is the cliché du jour that Americans have a "right to be wrong."
Wow. To say that actions that are gross and uncivil do not deserve First Amendment protection is just about tantamount to saying that you don't understand the First Amendment, isn't it? Seriously, most of the stuff in The American Spectator would fail that test, wouldn't it? Moreover, I will never be able to wrap my head around the idea that Constitutions are written to prevent tyrranies of minorities in a democracy. Again, saying those sorts of things should be an easy tell that someone doesn't understand what they're talking about.