Replies

For some reason, which you haven't explained, you reject the attempt to look at the issue from the other angle I described. The closest you gave to a reason is that the alternate scenario hasn't happened. I don't see why that should matter.

Actually, I've already addressed it, but I'll put it point-blank for you: there is no such right in the 14'th Amendment that you infer ought to exist, for one very simple reason. Namely, the 14'th Amendment extends the protections of the Bill of Rights by restricting how states may act, and there is no protection from interference in secular ideas within the Bill of Rights that is akin to the First Amendment protection for freedom from interference with religious expression. None. You seems to be implying that such a thing ought logically to exist, but there is absolutely no support for such a notion anywhere in the Constitution, equal protection claims notwithstanding. And despite your apparent advocacy of such a thing, I know you are quite clever enough to recognize that if such a thing as you propose were invented out of whole cloth, it would render the implementation of any sort of public policy impossible, composed of competing secular ideas as they are. And I mean any public policy - it would no longer be possible for politicians to implement their preferred policies if such a thing were to come to pass.

Courts, you say, ought to base their decisions in "rational principles" and evaluate their impact in future situations. I agree. Unfortunately, you have yet to stumble upon a rational principle which you seek to extend - this equal-protection for secular ideas thing ain't it, I assure you, based as it is on no text within the Constitution, no ideas of the founders. Nothing, it appears, at all, save your desire to invent consequences that will act to preserve Judge Moore's illegal and unconstitutional advancement of his own religion at the expense of others.

You asked for direct - you have it, my friend. I respect the heck out of you, but this line of reasoning you are developing is neither tenable, supportable, historical, or Constitutional. And now you may answer my question directly: by what right doeas Judge Moore enjoy the power of the state to promote his religion, while simultaneously denying that freedom to others?

. Namely, the 14'th Amendment extends the protections of the Bill of Rights by restricting how states may act, "

thus saith the Supreme Court .... since the 1950s or so.

"there is no protection from interference in secular ideas within the Bill of Rights that is akin to the First Amendment protection for freedom from interference with religious expression ..."

ON the contrary, the free excercise of religion clause and the freedom of speech clause are directly analogous.

Government may express an opinion on matters or might do things that encourage one idea, but may invoke no coercion in either sphere. The establishment clause further underlines that determination so there is no favored sectarian religion.

CBN.com – Conservatives say the Supreme Court's sodomy ruling is just one more example of judicial activism in the courts, that the Court has gotten too powerful and is creating new laws instead of ruling on the existing ones. David Barton is an expert on U.S. history, and he says the High Court is exercising powers that the Founding Fathers never intended. CBN’s Pat Robertson recently spoke with David Barton on "The 700 Club." PAT ROBERTSON: The Supreme Court, ladies and gentlemen. The eyes have been focused on the Supreme Court. Recent rulings by the court have shown how easily nine people, as a matter of fact, just five people, un-elected, can highjack the laws of an entire nation. Well, as history shows, America’s founders never intended the court to have that kind of far-reaching power. If you read the Constitution, it’s clear. David Barton is just an absolute treasure trove of knowledge about the early history of America, and he joins us now to share what he’s discovered about the early history of the Supreme Court. David, it’s always a joy to have you with us.

DAVID BARTON: Thanks. It’s good to be here.

ROBERTSON: I understand that the Supreme Court originally spent just a couple of weeks in session. How have they expanded their power? What did you find from your research that was the intention of the founders of the Supreme Court?

BARTON: Well, it’s interesting. The founders, when they drafted the Constitution, then gave authorization to have the U.S. Capitol. And in giving authorization for the U.S. Capitol, they laid the city as it exists today, and they even made plans for the Washington Monument back then when Washington was still alive. So they built the White House, the Capitol. They did not build a Supreme Court building. Not at all. So in the original plan, the Supreme Court was under the watchful thumb of Congress. As a matter of fact, in the original Capitol building, when the Supreme Court met, they actually stuck them in a closet. And so it’s kind of unfortunate the Supreme Court has come out of the closet.

ROBERTSON: Hey, that’s a nice place to be. Put them back in the closet.

BARTON: Originally they had a one-week term, and they were in a closet, and that was it. And then as the Capitol expanded, and we had the House move over to a different side, then the Supreme Court came out of the closet, and they got to be in the basement of the Senate. And that is where they stayed until 1935... And FDR in ’35 says, "Why don’t we get a separate building for the court?" And since then, they’ve felt like they are out from under the control of Congress, out from under any kind of jurisdiction.

ROBERTSON: What you’re saying is from your reading, and study and what I’ve seen, the same thing, is that they definitely were to be controlled by Congress. They weren’t this super-legislature that was striking down the laws of Congress.

BARTON: Well, significantly, in the Federalist Papers, it makes it real clear. And we hear today that we have three co-equal branches — the founders object to that. We had three co-sovereign branches, but they were not co-equal. The legislative branch was the most significant, the most important. That was the policy-making branch. The judiciary was the least important, and even in 1935 their term still only went six to eight weeks a year. It was not until you got Earl Warren in there. He said, "Let’s go nine months a year." And so now all the mischief of reviewing 7,000 cases and making a hundred rulings, et cetera, has come from that expanded time.

ROBERTSON: The interesting thing is that the appellate jurisdiction of the court is under the control of Congress.

BARTON: That’s right.

ROBERTSON: And not only that, the number of them, because we’ve had nine, then we had seven, and they went back to nine. And the Congress has the power to expand or contract at will.

BARTON: That’s right.

ROBERTSON: But they don’t seem to know that today.

BARTON: Well, they really don’t know that, and, interestingly enough, when Washington appointed the first justices, he only appointed five associate justices and one chief justice. So he starts with six, and, of course, they were experts. Three signed the Constitution, two ratified it, and one wrote the Federalist Papers. They knew what they were doing, but we’ve seen that change. And most people do not realize the only court in the United States that is constitutional is the U.S. Supreme Court. There is not a federal court in the land that is mandated by the Constitution. Congress tomorrow could pass a law to wipe out every federal judge except the Supreme Court, and it would be completely constitutional. And that was part of the control that Congress had over the courts. They were able to limit the jurisdiction over 200 times. Congress in the past has passed laws that say, we don’t want you guys dealing with [these things] — it could be abortion, it could be the Pledge of Allegiance, it could be anything. But Congress doesn’t do that now.

ROBERTSON: They’re so afraid.

BARTON: Yes.

ROBERTSON: They’re so afraid. I asked a group of them once, "Why don’t you do that?" And Millicent Fenwick of New Jersey, used to smoke cigars, she said, "Well, my colleagues don’t trust each other. They don’t trust themselves, so they want to refer these things over to the court for decision."

BARTON: Well in a political sense, it’s a lot easier to blame it on someone else; because whatever happens now, like with sodomy cases: "Hey, we didn’t have anything to do with that. The court did it."

ROBERTSON: Sure.

BARTON: And so, whether you’re anti-sodomy or pro-sodomy, now you’re off the hook with voters, and so it’s become real easy to defer things over; and that way you don’t make your constituencies mad, ‘cause you had nothing to do with it, which is gutless, basically.

ROBERTSON: Of course.

BARTON: But that’s what Congress should be doing is taking stands on policy, and it was interesting that, back in the beginning, our judges knew that. It’s very significant. One of the verses you used in this Operation Supreme Court is, "Give us judges at the beginning, lawyers as the first, then we’ll be a nation of righteousness," and our original justices, I mean, here’s a paper....

ROBERTSON: Tell me what they did in the early session.

BARTON: Can you imagine the original Supreme Court justices had a three-hour communion service in the Supreme Court. Now, this happens to be a newspaper from 1792, reporting the prayers that were going inside the Supreme Court. They never let a jury deliberate until they had a minister come in and pray over the jury, because they wanted the mind of God in the verdict. So, that’s original judges.

This happens to be the very first law book ever used in the United States. That’s done by signer of the Constitution, James Wolfston. He’s the original judge in the court, and he says that all human law must rest its authority on the authority of that law which is Divine. So we literally had Ezra 7:25 judges, judges who knew the law of God.

ROBERTSON: Well, you know I remember stories saying it never was intended that Christianity would be prostrated to the Muslims and the...

BARTON: That’s right.

ROBERTSON: ...whoever. I forget the exact quote. You probably know it better than I do.

BARTON: Well the story not only said that it would not be prostrated by other religions. Stories significantly said that it was the duty of government to promote Christianity. And at the time, the founding… people argue that today we’re pluralistic, they weren’t back then. That’s nonsense. They had over 30 different religions back then, we even had a founding father that was a Muslim, by the way. Francis Scott Key, who wrote "The Star Spangled Banner," led him to Christ, converted him; but we had a founding father who was a Muslim. It was always the intent to promote the laws of God, to promote the religious and moral standards of God’s Word.

ROBERTSON: It breaks my heart to see how they have departed from that original founding. How did it happen in your opinion? I’ve studied these things, too, but what have you found? Was there a turning point somewhere along the way?

BARTON: There was a turning point. We’ve been stewards of this nation. God gave it to us. He said, "You guys watch over it," and in the 20's and 30's when we told our kids, "You want to do something good for God? Be a pastor, be a missionary, but stay out of this secular stuff like law, and government and politics." So, you pull all of these godly people out of the legal profession, no more do you have the Daniel Websters and the John Quincy Adams and these guys arguing cases. Now you’ve got a whole different genre that comes in, and the Benchman Cardozas, and Rosco Powell, and Oliver Wendell Holmes, Jr., and these guys that are very secularist in their approach, and now they take the court. And so that’s what’s happened as we’ve pulled Christians out of that arena…

ROBERTSON: Sure.

BARTON: And, so that’s what happened, and now we’re 20, 30, 40 years behind the curve. The Court is so far out of touch with where people are. We know there’s 78 percent of people want prayer in schools, and 74 percent want The Ten Commandments up, and 81 percent oppose homosexual relations. But that’s not where these judges are, and Scalia hit it in his dissent on the sodomy case. He said we have a culture in our law schools that is so hostile to these values that most Americans hold dear, and that’s because we pulled ourselves out of the arenas 60 years ago.

ROBERTSON: That was the so-called fundamentalists, Gresham Machen, down there at Princeton who pulled out, he told them "get out," you know, "touch not the unclean thing, come from among them and be separate." That was the rallying cry.

BARTON: That’s right. "Don’t be salt. Don’t be light." And, of course, that’s the preservative, and when you pull it out, it all goes rotten which is what we’re seeing now. We have allowed it to rot, because we got out of the arena.

ROBERTSON: David, I appreciate your clarion call. Ladies and gentlemen, if we can only go back to the way it used to be, and this is the way it is. This was a Christian country. It was founded by Christians. Make no mistake about it. This nation belonged to God, and now people are saying it’s a shock to even talk about his Commandments. David Barton is a great resource. We thank this dear friend for being here with us. You always inspire us. God bless you.

by what right doeas Judge Moore enjoy the power of the state to promote his religion, while simultaneously denying that freedom to others?

For one, the ten commandments is not a relgion. It's a historical document, though this one is a replica of course. So some religions picked up on this and use it in their religions. It was a precedent set for society. Even if it was an old man smokin peyote that thought it up, several of those commandments are used today in modern laws in different interpretations and less definite. Let me ask you this: If the christians worshipped the color blue, and this judge wanted the walls in the halls painted blue, would that be unconstitutional?

How is he denying freedom to others? What freedoms do they have under the Constitution that prevents him from displaying the ten commandments?

Since when can a court make laws and enforce them? I must be misunderstanding but I always thought the laws were created by a legislative branch or a "general assembly" and laws were enforced by the executive branch or the department beneath the executive. This court order crap is an undermining of the other two branches. This governemnt was created to prevent one branch from having more power than the other. It looks like the judicial branch can just do whatever they want. Who can stop the supreme court if they rule everything unconstitutional? Since FDR, the courts have been loaded with liberal judges and they have destroyed any values this nation was founded on by twisting words to thier "interpretation"

there is no such right in the 14'th Amendment that you infer ought to exist

Already you've begun to misread me. There's no "ought" about it. If equal protection means that officials can't make religious displays without allowing other religious displays, then it does (not "ought to") mean that they can't make secular displays without allowing other secular displays. I'll put it simpler form:

Mr. Government Official wants to say P because it's important to him. You want to say Q because it's important to you. Mr. Government Official gets to say P. You don't get to say Q. Inequality, plain and simple. There is no way around that, regardless of the specific nature of P and Q.

Now, you can either talk about the equal-protection clause, or you can talk about the establishment clause. They are not the same. The only possible way that any portion of the Bill of Rights can be covered by the 14th amendment is if it comports with the language thereof. The phrase "equal protection" is left without elaboration. Realistically, it only means just that - equal protection, not equal treatment. But we've accepted the legal fiction that it does mean equal treatment. Furthermore, it's understood to mean equal treatment by any type of law (such as those which impose heavier burdens on certain racial/ethnic groups), not just those that relate to the Bill of Rights. Again, there's no "ought" or "should be" or any of that subjective garbage. It just plain is.

And as I explained yesterday, the courts agree with me about the EP clause. They don't use it as the vehicle for incorporating the BOR. The 11th Circuit court didn't pursue the "equal protection" angle at all. So that makes it seem rather curious to me to hear you talking about "settled" law when you're completely making up your own legal arguments.

And now you may answer my question directly: by what right doeas Judge Moore enjoy the power of the state to promote his religion, while simultaneously denying that freedom to others?

By the same right he'd be able to use the power of the state to promote his secular views while simultaneously denying that same "freedom" to others.