Flawed Constitutions


The US Constitution implements only an incomplete version of secularism. The Canadian Constitution is worse.

Sommaire en français La Constitution américaine ne met en œuvre qu’une version incomplète de la laïcité. La Constitution canadienne est pire.

Three recent decisions by the Supreme Court of the US (SCOTUS) have been in the news. Each represents a setback for secularism. Together, they bode ill for the future of that country, representing a major victory for the Christian religious right. Their importance for other countries such as Canada and European nations has been exaggerated. After all, they involve legal issues particular to the USA. Nevertheless, they are troubling and must not be ignored. American politics has a nasty habit of spreading its influence well beyond the borders of that country.

These SCOTUS decisions are listed at the end of this blog, along with some media reports. All three grant religious privileges of one form or another and all undermine freedom from religion. Many articles and comments on these decisions contain numerous mentions of how separation between religion and State is being violated. Some commentators even mention the famous “wall of separation.” But apparently no-one has mentioned an obvious fact which greatly exacerbates the problem:

There is no religion/state separation in the US Constitution! Separation is not declared in the First Amendment. Just read the damn thing:

“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.”
— First Amendment to the United States Constitution

First of all, the first 10 words, called the Establishment Clause, simply declare that a State religion cannot be established. Very good! But there is no mention of separation. This just means that no one religion cannot be favoured. The expression “wall of separation” is from a letter by Thomas Jefferson, not from the US Constitution. The Amendment does not prevent favouring religion in general, unless you are lucky enough to get judges who interpret it that way, in the way that Jefferson apparently wanted, but which is not explicit in the Constitution.

Secondly, the following 6 words (“or prohibiting the free exercise thereof”) are called the Free Exercise Clause. They declare unconditional freedom of religious practice, as if freedom of religion were absolute. Freedom from religion is not guaranteed. Thus, religious are privileged.

So, when the Supreme Court majority rules, as it did in the Kennedy v. Bremerton case, that both the Free Exercise and Free Speech Clauses of the First Amendment give the highschool coach the right to pray on the football field, they may, unfortunately, be right. It is, at the very least, a plausible interpretation of the text of the Amendment.

Throughout the history of the USA, some judges of the Supreme Court have endorsed the concept of separation of religion and State, but others have refuted it. There is continuous tension between accommodationists and separationists. Even before this recent spate of disturbing decisions, the accommodationists appeared to be winning.

Thus, the First Amendment of the US Constitution implements an incomplete form of secularism, with just a weak form of religious neutrality (where non-believers are not accounted for) and with no separation. The US Constitution is fundamentally flawed. It is certainly better than the Canadian Constitution. When it was adopted over two centuries ago, in 1791, it was progressive for the time, when Europe was full of monarchies and various degrees of theocracy. But it does not implement full secularism.

Why do so many Americans (and even Canadians!) talk about the First Amendment as if it were some wonderful document, the ultimate reference for secularism? I think there is an enormous quantity of arrogance in that attitude, as if all that can be considered best in the world, the best guarantees of freedom, must necessarily come from the United States of America. This is simply American chauvinism. And beyond the USA, in the English-speaking world in general, an unhealthy Anglo-ethnocentrism engenders a similar attitude of conceit.

Implications for Bill 21

If you think the Supreme Court of Canada should strike down Quebec Bill 21, then you are an objective ally of the bigots who rejoice that the Supreme Court of the US (SCOTUS) has struck down a ban on prayer during highschool sports events, as well as those who rejoice that SCOTUS is forcing taxpayers to fund religious schools in some contexts. In both cases you have a Supreme Court (Canadian or American) using a flawed constitution (Canadian or American) to strike down a secular measure (Bill 21 or secular schooling).

Both the US and Canadian Constitutions are flawed. Neither implements secularism, although the US Constitution goes partway there.

In both cases, judges who are nominated, not elected, have extensive powers. They can approve or strike down legislation passed democratically by the legislative branch of government. Or they can overrule decisions based on such legislation. Or, in the case of abortion, they can arbitrarily withdraw a right which the same court itself endorsed half a century previously. And yet, over 60% of Americans currently agree that abortion should be legal in all or most cases.

Again, the Canadian situation is worse, because the law which is under threat (Bill 21) was passed by a legislature (Quebec National Assembly) which has never approved the 1982 Constitution on which the Supreme Court judges will base their decision. Furthermore, even before arriving at the Supreme Court, Bill 21 is challenged in two Quebec Courts (Quebec Superior Court and Quebec Court of Appeal) and the judges in both those courts are appointed by the federal government, not by Quebec. There is a clear lack of democracy.

The Three US Supreme Court Decisions

  1. 2022-06-27: Prayer During School Sports Kennedy v. Bremerton School District, This Court decision allows a highschool football coach to pray at the end of a game, while encouraging his players to join him.
    Media Reports:
  2. 2022-06-24: Allowing States to Control Abortion Dobbs v. Jackson Women’s Health Organization, This Court decision strikes down the landmark Roe v. Wade decision of 1973, thus rejecting any constitutional right to abortion and allowing individual states to legislate as they wish.
    Media Reports:
    • “In a devastating decision that will reverberate for generations, the U.S. Supreme Court has abandoned its duty to protect fundamental rights and overturned Roe v. Wade, ruling there is no constitutional right to abortion. Today’s decision—which abandons nearly 50 years of precedent—marks the first time in history that the Supreme Court has taken away a fundamental right.” U.S. Supreme Court Takes Away the Constitutional Right to Abortion
    • “On June 24, 2022, the Supreme Court ruled 6–3 to uphold Mississippi’s Gestational Age Act, and 5–4 to overrule Roe and Casey. Similar to the leaked draft opinion, the opinion of the court written by Justice Alito stated that Roe was ‘egregiously wrong from the start’ and its reasoning ‘exceptionally weak’. It also stated that Roe has ‘enflamed debate and deepened division’ and that overruling it would ‘return the issue of abortion to the people’s elected representatives’.[334] The majority opinion relied on a constitutional historical view of abortion rights, saying, ‘The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.’” Wikipedia: Roe v. Wade
  3. 2022-06-21: Funding Religious Schools Carson v. Makin
    Media Reports:
    • “The Supreme Court issued a ruling today in Carson v. Makin that requires the state of Maine to fund religious education at private religious schools as part of its tuition assistance program. The program pays for students to attend private school if their town does not have a public high school. The decision marks the first time that the court has explicitly required taxpayers to support a specifically religious activity — religious instruction — and expands the court’s 2020 ruling in Espinoza v. Montana Department of Revenue. There, the court held that that the Free Exercise Clause prohibited a state from excluding religious schools from private aid programs ‘solely because of their religious character.’” ACLU Comment on Supreme Court Decision in Carson v. Makin
    • “The Supreme Court is bulldozing the Wall of Separation. In a ruling just handed down, the Court’s conservative supermajority ruled that taxpayers can be forced to fund religious education. In Maine, the state pays for students to attend secular private schools if they live in areas without public schools of their own. The Court just ruled that by excluding sectarian schools from this arrangement, the state is in violation of the Free Exercise Clause of the First Amendment.” Taxpayers Forced to Fund Religious Schools

Next blog: The CRTC, Pierre Vallières and Postmodernism

Leave a Reply

Your email address will not be published. Required fields are marked *