Posted on 08/22/2003 5:29:05 PM PDT by Congressman Billybob
Attention all school superintendents, principals, teachers, students and parents: The Pledge of Allegiance has been changed. Effective immediately, please use the following text until further notice:
“I pledge allegiance to the Supreme Court of the United States, and to the Republic which it controls, one nation, under nobody in particular, with liberty and justice for all (or at least for all who can get five Justices to buy their argument).”
That's what it has come to. What are we going to do about it?
This issue has been kicking around the federal courts for decades, fueled primarily by ACLU cases challenging all types of references to “God” in public places and forums. It came to a head last week when a federal court ordered Chief Judge Moore of the Alabama Supreme Court to remove from its building a monument containing the Ten Commandments and quotes from other documents including the Declaration of Independence. Chief Judge Moore asked the Circuit Court and then the Supreme Court to stay that order on an emergency basis. Both refused. Then the other eight judges of his court decided to remove the monument pending appeal – and Chief Judge Moore vowed to continue the case in the Supreme Court.
The various representatives of these anti-“God” cases have claimed on TV and in print that this is a matter of “respecting the First Amendment.” But for 156 years of its existence, the First Amendment was no barrier whatsoever to public mentions of belief in God. Only in 1947, when the Supreme Court announced the doctrine of “separation of church and state” did the First Amendment magically forbid such references.
And, where did that phrase come from? It was borrowed from a private letter that Thomas Jefferson wrote to the Danbury Baptists – and as many commentators have noted, the Court used the phrase out of context from Jefferson's letter which was highly favorable to organized religion. The phrase was grafted into the Constitution by a majority of the Supreme Court, over the detailed and vigorous objection of Dissenters who believed that the Constitution means what it says.
Over the decades the Supreme Court and various lower federal courts have issued various decisions barring prayers before high school games, barring the posting of the Ten Commandments in classrooms, and even barring a “moment of silence” at the beginning of the school day. But equally important are decisions the federal courts have NOT made. They have refused to order legislatures to stop having prayers to begin their business days. They have refused to order the Department of the Treasury to stop putting “In God We Trust” on our money. The have refused to order the federal government to stop having chaplains in the military.
The differences between the orders issued by the federal courts and orders refused, demonstrate that the Supreme Court does not really mean what it says. The logic of its prior cases would lead to an end to prayers in Congress and in state legislatures, an end to the national motto, and an end to chaplains. But the Court knows full well that any such orders would be overwhelmingly ignored by Congress on behalf of the people. The practices would not stop; the Court would simply be embarrassed.
But there are more embarrassments for the Court than that. The central figure in the frieze on the back of the Court's white marble building on Third Street in D.C. is a statue of Moses holding the Ten Commandments. He is flanked by Confucius and Solon, two other great “law-givers.”
Inside the Court's chambers is a relief of a bearded man in a robe, holding two tablets with Hebrew inscriptions. Anyone who did not just fall off the turnip truck knows that is a reference to the Ten Commandments. Also, every meeting of the Court begins with the Clerk announcing, “Oyez, oyez, oyez. God save this honorable Court and the United States of America.” There is not the slightest hint that the Court is about to remove Moses from the outside and inside of its building, or instruct its Clerk to change what he says when the Court is about to take the bench.
In short, exactly as the carved marble of the Court's building suggests, and Chief Judge Moore said in his public remarks last week, the Judeo-Christian tradition and the Ten Commandments are the foundation of British law, American law, and of most legal systems throughout the Western World. To deny this is to deny both history and law. But this court denial is applied only in Alabama, not in D.C.
God, I love the smell of hypocrisy in the morning.
So what are the possible solutions to this problem, which continues to spread state by state and school district by school district? The best solution is in the hands of the Supreme Court itself. It should take the Alabama case. It should decide that its recent prior cases are historically dishonest and legally wrong, and reverse the lot of them. It should start fresh on the basis that the First Amendment forbids government favoritism between one religion and another, but it both permits and protects various forms of recognition that the United States was and is a God-fearing nation.
Should the Court do that? Absolutely. Will it do so? Almost certainly not. So we turn to the second solution.
Under Article III of the Constitution, Congress has authority over the jurisdiction of the federal courts. It has in the past used laws to restrict the power of those courts, most recently (at the backstage behest of Senate Minority Leader Daschle) with respect to fire fighting on federal lands in South Dakota, and South Dakota only. Restrictions have been made before; they can be made again.
With nothing but a law, not a constitutional amendment, Congress can tell the Supreme Court and lower courts to take their hands off all cases concerning the text of the Declaration of Independence (four references to God), of the Constitution (one reference), of the Pledge of Allegiance (one reference), of the National Anthem (the motto, “In God We Trust,” first appeared in its fourth stanza). And for good measure Congress can exempt all historical documents more than three centuries old. That would cover the Mayflower Compact, the Magna Carta, and the Ten Commandments, among many others.
What is going on here has to do not with God, but with jurisprudence. How should judges and Justices approach any case? All of them take an oath to respect and defend the Constitution. But that document in Article V gives the power to amend the Constitution solely to the people, acting through their representatives in Congress and in the states. When courts undertake for themselves to rewrite the Constitution, they are acting contrary to their oath. In an old-fashioned phrase the Framers often employed, they are “usurping power” that does not belong to their branch of government.
Why should Congress act to stop this judicial usurpation? For the same reason that parents should act immediately when they discover their children playing with matches. The solution is not to leave the matches in the children's hands but try to persuade them to be more responsible. It is to take away the matches.
The “God” cases are only one of several areas in which the Supreme Court has arrogated to a minimum of five of its Justices, a power that rightfully belongs only to two-thirds of Congress followed by three-fourths of the states. The Supreme Court has been playing with constitutional matches for seventy years and burning down the Constitution a room at a time. Since the Justices are unlikely to change their behavior any time soon, it is the obligation of Congress on behalf of the people to correct their behavior by taking away their matches.
As soon as that is done, we can return to the original Pledge:
“I pledge allegiance to the flag of the United States of America, and to Republic for which it stands, one nation, under God, with liberty and justice for all.” The nation does not consistently live up to that definition, any more than each of us always lives by the Ten Commandments. But it is important to have higher standards in this world.
Anyway, that's what I think, as a citizen and a lawyer. And that's what the Framers thought, who were also citizens and in many instances, lawyers as well. They were not perfect either, but they were excellent leaders who put present day leaders to shame, as a group, and would roundly condemn the recent actions of the Supreme Court.
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John Armor is an author and civil rights attorney. His next book is on Thomas Paine, a Founding Father who is often (but falsely) described as an atheist.
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