Yes, Mosques can be Closed & It’s Constitutional!

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Published on: October 22, 2015

Donald Trump was interviewed this week by Stuart Varney of Fox News about how he would deal with the threat of Islam. Varney asked Trump about plans being considered in the UK to deal with the growing menace of the radical religion of Muhammad.

Two of the ideas: seizing the passports of those who leave to fight with ISIS, and closing radical mosques. Varney asked Trump if he, as president, would support such actions in the the United States.

This is the exchange:

“They’ve got a whole new series of proposals to deal with this, including withdrawal of passports from some of these people who’ve gone over just to fight–”

“Absolutely. Good, good.”

“…and closing some mosques. Would you do the same thing in America?”

“I would do that. Absolutely, I think it’s great.”

“Can you do it? Can you close a mosque? We do have religious freedom.”

“Well, I don’t know. I mean, I haven’t heard about the closing of the mosque. It depends, if the mosque is, you know, loaded for bear, I don’t know. You’re going to have to certainly look at it.”

What stumped Trump and got him floundering around in the water was the question about whether the religious freedom guarantees in our Constitution require us to leave mosques alone.

The answer to Varney’s question depends on whether we use the Constitution as crafted by the Founders or as mangled by the courts.

If we understand the term “religion” in the First Amendment to refer to any system of supernatural belief, as activist judges have done, then we have no way to close mosques or even to stop the erecting of giant statues of Satan right next to Ten Commandments monuments on 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.

As the longest serving associate justice in Supreme Court history, Joseph Story, observed in his monumental and definitive history of the Constitution, 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. 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, according to the 10th Amendment, that 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.”

The Founders 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 prohibit the building of mosques 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 but of violence, totalitarianism and death.

Bottom line: The Founders’ Constitution permits States to prohibit the building of mosques. For the safety and security 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.)

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