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Constitution Need Not Be Amended, but Courts Curbed, to Restore Religious Freedoms

By William D. (Bill) Graves
October 01, 2000

If at the end of World War II the Allies had gotten back only a small portion of the land wrongfully taken by Nazi Germany instead of it all, it would not have been viewed as a victory. If the so-called Religious Freedom Amendment (RFA) proposed by Rep. Ernest Istook (R-OK) becomes law, Americans would be getting back only a very small portion of the religious liberties wrongfully taken from them by federal courts. It would not be a victory. RFA's passage would be a defeat resulting in a substantial net loss of constitutionally protected freedoms. It provides:

To secure the people's right to acknowledge God according to the dictates of conscience: Neither the United States nor any State shall establish any official religion, but the people's right to pray and to recognize their religious beliefs, heritage, or traditions on public property, including schools, shall not be infringed. Neither the United States nor any State shall require any person to join in prayer or other religious activity, prescribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion.

The U.S. Constitution, as written and intended by its Framers, guarantees all the freedoms sought in RFA, but much, much more. The real problem is not a defective Constitution, but judicial tyranny by which that document has been grossly and dishonestly misinterpreted. It is the federal courts, not the Constitution, which need correcting. The Constitution provides appropriate solutions. More about that later. Rep. Istook obviously means well, but RFA raises these disturbing questions.

Passage of RFA Would Be Admission That the Supreme Court's Fallacious "Wall" Doctrine Is Actually a Part of the Constitution
Passage of RFA (HR 66) would be an admission that the Supreme Court was constitutionally correct when it fraudulently held that there is a "wall of separation between church and state" which prohibits government-sponsored prayer. There is in fact, no such wall. The words do not appear in the Constitution. Chief Justice Rehnquist has said the Court's "wall" has "no historical foundation." Absolutely nothing was said in the Congressional debates on the First Amendment about such a wall. That Amendment states only in pertinent part as to religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

The First Amendment Allows Government-Sponsored Prayer
The First Amendment's "free exercise" clause protects prayer and religious observances in public places. After completing its First Amendment work, the first Congress established the Congressional chaplaincy by which daily prayers to God are still offered by government-paid chaplains. It also recommended that President Washington proclaim a national day of prayer and thanksgiving and have a religious service in connection with his inauguration. He did. Is it probable that Congress did this while simultaneously proposing constitutional law to prohibit such activity?

RFA Abandons Common Law Meaning of "Establishment" in Favor of Broader, More Restrictive Meaning
Justice Joseph Story, described as the greatest scholar ever to serve on the Supreme Court, said the "real object of the First Amendment was not to countenance, much less to advance, Mohammedanism 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 a hierarchy the exclusive patronage of the national government." In fact, James Madison, the principal author of the establishment clause, stated in the congressional debates that such a preference, i.e., where one sect is preeminent over others, was exactly and only what he was trying to prohibit.

Moreover, according to Sir William Blackstone, the great expert on the English Common Law, "an establishment of religion," is a Common Law term meaning a "state church," where one religious sect is preferred by government over others. The US Supreme Court held in US v. Smith (1820) that when terms defined at Common Law are included in the Constitution, the definitions "are necessarily included.... as if they stood in the text." Without the Common Law, Chancellor James Kent said the courts could "roam at large in the trackless field of their own imaginations." Tragically, the modern Court has abandoned this guide to correct Constitutional interpretation.

By prohibiting Congress from making a law "respecting an establishment of religion," the first Congress only prohibited the federal government from, 1) establishing a national church, 2) interfering with the then existing official state churches (at least five) in the several states, and 3) interfering with the free exercise of religion. School prayer or Bible study is not an establishment.

Notwithstanding the Common Law and the intent of the Framers, the US Supreme Court, in Everson v. Bd. of Educ. (1947), interpreted "an establishment of religion" to mean a prohibition against government, federal or state, from aiding one religion, all religions, or preferring one religion over another, or participating in the affairs of religious organizations, from taxing to support religious activities, or from teaching religion. The RFA, with its prohibition against establishing "any official religion," would make the Court's misinterpretation an actual part of the Constitution.

RFA Removes Power of States Over Religion
The First Amendment does not prohibit "Congress and the States" from establishing an official church, but so prohibits only Congress. "(T)he whole power over religion," Justice Story said, "is left exclusively to the state governments." Thus, the Supreme Court had held in Barron v. Baltimore (1833) that the Bill of Rights restricted only the federal government and not the states. After enactment of the 14th Amendment in 1868, it was argued that it made the Bill of Rights a restriction on state governments. Since no mention of such "incorporation" appears, express or implied, in the 14th Amendment, this argument was rejected by the Supreme Court for more than 56 years.

Nevertheless, in Gitlow v. New York (1925), the Court suddenly, without explanation, reversed itself and held that the First Amendment was a restriction not only on Congress as to free speech, but the states as well. Gitlow then became the basis for the Court's declaration in Everson, wherein it held that the 14th Amendment "incorporated" the First Amendment and made it a restriction on the states as well as Congress in regard to religion.

Conclusive proof against "incorporation" is the proposed Blaine Amendment. Introduced in Congress in 1875, Blaine would have amended the Constitution by prohibiting the states from making "any law respecting an establishment of religion...." Blaine failed passage 20 different times. In the Congress first considering it were 23 members of the Congress that authored the 14th Amendment. Not one such member ever suggested that the First Amendment was "incorporated" in the 14th Amendment. If so, why was Blaine necessary?

RFA's passage would strip the states of the whole power over religion that is theirs alone by the First Amendment as written and make this Court perversion an actual part of the Constitution.

RFA Would Prohibit Government Encouragement of Christianity and Place All Other Religions on an Equal Basis with It
It is astounding that Christian groups are so supportive of RFA in view of its provision prohibiting discrimination as to religion. Why are they such willing parties in discarding our nation's great Christian heritage? The Constitution itself affirms (in its date) that Jesus Christ is Lord. Justice Story wrote that Christianity was "the great basis" on which republics, such as our own, rest for their support and permanence. The "general if not universal sentiment in America" on enactment of the First Amendment was, he said, "[T]hat Christianity ought to receive encouragement from the State."

For over l00 years after enactment of the First Amendment, the federal government did exactly that by funding the teaching of Christianity to the Indians. The RFA, with its prohibition against "any official religion," would totally prohibit this. Such preferences would constitute unconstitutional discrimination. Thus, the end result of RFA will be to finish changing America from "a Christian nation," as the Supreme Court called it in Church of the Holy Trinity v. US in l892, to an officially pluralistic nation in which Muslims, Hindus, Moonies, Satanists, Secular Humanists, New Agers, Wiccans, pagans, and atheists, etc., will now be on an equal footing with Christianity.

RFA Would Not Bring Back Bible Study and Reading in Public Schools
The RFA does not address the issue of bringing back the study of the Bible in public schools something that was done in over 2,200 public schools in America (and now in Russia) until the Supreme Court wrongly declared the practice unconstitutional in l948. Neither does it bring back public school Bible reading standard practice until the Court declared this invalid in 1963.

School Teachers May Not Lead in Prayer under RFA
Before the Court's prayer cases, teachers lead prayers in public school. Many people see no harm in such government-sponsored prayers, although many have been browbeaten into thinking there is. British educator Sir Walter Moberly has said that it is a fallacy to suppose that by omitting a subject you teach nothing about it. On the contrary, he said, you teach that it is not very important. This is particularly true for very young students most of whom, without the aid of the teacher, are too timid to initiate or lead a prayer. Under RFA most will still not have prayer in school.

RFA's "Equal Access" Provision Would Legitimize Big Government and Ultimately Diminish the Role of Religion in Society
Some commentators are fearful that RFA's prohibiting denial of "equal access to a benefit on account of religion" would require state and federal governments to fund religion just as they now fund secular activities. This would result in a loss of autonomy from government. Fearful of the loss of benefits, churches would ultimately resign their "prophetic role" in society as many have already done out of fear of losing their income tax deductions.

RFA Would Totally Eliminate Any Possibility of Restoring the Religious Freedom Guaranteed by Our Founding Fathers
If RFA becomes law, a future conservative Supreme Court majority, obedient to the real Constitution, could not overturn the Court's fraudulent "wall" doctrine and restore the religious freedom guaranteed by the Framers, because it would be bound by RFA.

Congress Has Authority Under Art. III to Curb Power of Federal Courts
Enactment of RFA would remedy only particular symptoms of our Constitutional illness. It would not cure the primary disease itself, which is judicial tyranny. Moreover, there is a much better way to address the problem than by Constitutional amendment, which requires a two thirds vote of both houses of Congress and approval of three fourths of the states. While Congress may not interfere with the way federal courts rule, it may, under Art. III, by majority vote, take away their power to rule by curbing their jurisdiction, including the Supreme Court's. Without "jurisdiction," courts have no power to rule. It is like trying to fly without wings.

Congress has, under Art. III, § 1 of the Constitution, total control over both the original and appellate jurisdiction of inferior federal courts. In Kline v. Burke Const. Co. (1922), the Supreme Court held that such jurisdiction may "be taken away in whole or in part." Art. III, Sec. 2(2), provides that the Supreme Court (it has very little original jurisdiction) "shall have appellate jurisdiction.... with such Exceptions, and under such Regulations as the Congress shall make."

Chief Justice Oliver Ellsworth, who was a member of the Committee of Detail at the 1787 Constitutional Convention which drafted the "exceptions" clause, declared in Wiscart v. Dauchy in 1796: "If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; if the rule is provided, we cannot depart from it." Chief Justice John Marshall put it even stronger by asserting the "exceptions" power went as far as Congress thinks proper. In Cohens v. Virginia (1821) Marshall said to decline jurisdiction when given, or to usurp that which is not given, "would be treason to the Constitution."

The Supreme Court's appellate jurisdiction was first delineated in the 1789 Judiciary Act. In US v.More (l803), it was held that the Court did not have appellate jurisdiction in criminal cases because the Act did not mention such jurisdiction. Moreover, it was not until l9l4 that Congress authorized Supreme Court review of cases invalidating state conduct on federal grounds.

Under Congress' regulatory power, it could strip all federal courts of jurisdiction to consider cases involving public school prayer, Bible reading, or posting of the Ten Commandments, etc. This would restore much more lost religious freedom than RFA would.

US Supreme Court Has Upheld the "Exceptions" Power
Rep. Istook has told this writer that Congress may not curb the power of federal courts to declare a law unconstitutional. On the contrary, it can and has. In 1868, the Supreme Court had already heard oral arguments in Ex parte McCardle involving the writ of habeas corpus. Congress, fearing that this case would be used by the Court to declare the Reconstruction Acts unconstitutional, passed a law stripping the Court of jurisdiction to decide the case, whereupon the Court declared it no longer had any jurisdiction and dismissed the case.

The Supreme Court has also held in Ohio ex rel. Bryant v. Akron Metro. Park Dist. (1930) that limitations on the use of judicial review do not violate either the Due Process or Equal Protection provisions of the US Constitution. The Court upheld a state constitutional provision requiring the concurrence of all but one of the Justices of the Ohio Supreme Court to hold a law unconstitutional.

Rep. Istook obviously believes the federal courts were meant to be the supreme branch of government. He states that it is "not just mistaken [but] dangerous" for Congress to utilize its Art. III power over the courts. Founding Father Alexander Hamilton would have disagreed. He said (Federalist No. 81) if grants of judicial power resulted in "inconveniences," Congress "will have ample authority" under Art. III, "to obviate or remove" them. Congress would not be usurping authority, but retrieving Constitutional power wrongfully usurped by federal courts.

Use of "Exceptions" Power Does Not Eliminate Judicial Review
Nevertheless, Istook asserts that if Congress can bar federal courts from ruling on religion cases, it can (God forbid) bar review of other Bill of Rights cases. This would not be such a bad thing since, as pointed out above, the Bill of Rights were to be restrictions on the federal government only and not the states. In fact, Chief Justice Marshall would have considered the Court's "incorporation" doctrine "treason to the Constitution." Moreover, stripping federal courts of this power would not leave litigants without judicial review, as Istook implies. Under Art. VI of the Constitution, state judges are bound by the Constitution and would be free to interpret it by its original and true meaning as they did before "incorporation."

It is Not Honoring the Law to Condone Disobedient Courts
Rep. Istook says we must be an orderly society "that believes in honoring the law" and that if we teach children to ignore what courts say, "we are not teaching respect for the law," but "anarchy." Chief Justice John Marshall said the Constitution was a rule for governing courts as well as the legislature. Is it "honoring the law" to teach children that the courts may rule contrary to the words of the Constitution the great bulwark of our civil liberties? Istook apparently believes federal courts, which under the Constitution have no power to make law, but only to interpret laws, should be free to ignore what all other officials are sworn to obey and uphold.

Judge Robert Bork has said that when courts disobey the Constitution they engage "in civil disobedience, a disobedience arguably more dangerous, because more insidious and hence more damaging to democratic institutions, than the civil disobedience of the streets." Thus, the better policy would be to teach children that the Constitution is not what the courts say it is, but that the Constitution is what the Constitution says it is.

Judicial Review vs. the "Exceptions" Power
By claiming that "judicial review" is superior to the Art. III (2) "exceptions" power, Rep. Istook has put on the robes of the judicial imperialist. He claims that judicial review is paramount to the "exceptions" power; that representatives elected by the people are subordinate to unelected judges. While this writer is not challenging judicial review, the renowned constitutional scholar Prof. Raoul Berger has said that it "is derived from questionable implications and debatable history."

For example, the only form of judicial review proposed at the l787 Constitutional Convention was one in which the Judiciary was to be joined with the executive in a Council of Revision that was to have veto power over legislative acts. This was rejected four times by the Convention. Thus, proponents of absolute judicial review power like Istook in effect assert a non sequitur: i.e., that the "exceptions" power, a part of the expressed supreme law of the land in Art. III, is subordinate to judicial review, an unexpressed and strictly court-assumed power!

Judicial Usurpation Destroys Free Governments
Finally, Istook says that while Americans have never accepted the Supreme Court's prayer rulings, it is now practically impossible to persuade the country that the Supreme Court should not be the de facto arbiter of the Constitution. Yet, it is not the people, but the liberal elite who, unable to achieve their radical goals through legislatures elected by and representative of the people, seek change in courts disobedient to the law. These courts, in the guise of interpretation, have for years "legislated" a radical, liberal agenda and in effect rewrote the Constitution in violation of Art. V.

If a Constitutional amendment was passed for every usurpation by the Supreme Court, dozens of amendments would be required. Americans have grown weary of having their rights to govern themselves usurped through judicial imperialism. Our Founding Fathers, who pledged their lives, fortunes, and sacred honor to combat tyranny, would be appalled to know that we have surrendered to another form of it, even though they provided a way in the Constitution's Art. III to prevent it.

George Washington said "usurpation" was "the customary weapon by which free governments are destroyed." Congress should reject RFA and then remove the power of federal courts to decide cases involving prayer and other religious freedoms. Impeachment is available if Congress is disobeyed. Congress should not tinker with a Constitution that British Prime Minister William Gladstone called the greatest thing that had ever been conceived by the mind of man.


Topics: Government, Justice, World History

William D. (Bill) Graves

Bill Graves is an Oklahoma City lawyer and a member of the Oklahoma House of Representatives.

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