Freedom From Stupidity

Where are True Radicals when you need them?

by Patrick J. Shanahan

How I wish that Clarence Thomas and Antonin Scalia were the radicals that the liberal press makes them out to be! They are fine scholars and jurists, and true conservatives, but even they seem unwilling to do what is needed to right so many of the wrongs and to rectify the stupidities thrust upon a gullible American public by their predecessors.

These thoughts are prompted by our annual Constitutional silly season, in which a variety of nuisance lawsuits are brought by folks seeking to prevent prayer or religion in any form from interfering with our public life. As schools across the country plan for commencement ceremonies the message is loud and clear - don't even think about a prayer, not so much as a convocation, not so much as a moment of silence. To do so would be to violate the wall of separation between church and state, and hence violate the First Amendment.

This line of thinking is so incredibly, obviously wrong that it becomes impossible to grant its proponents the benefit of the doubt. It can't be honest disagreement over the meaning of the First Amendment. The meaning of "Congress shall make no law regarding the establishment of religion, or prohibiting the free exercise thereof" is as plain as the nose on your face. Every piece of history we know, as well as the words actually written, show that the framers intended to prevent the establishment of a "state religion." Most of them had direct experience with governments which either forced people to belong to a preferred religion, made them pay a price for dissent, or frequently taxed them to support the state church. They viewed this coerced religiosity as being incompatible with the premises and architecture of a republican democracy, hence the First Amendment.

To propose that prayer in public schools or crèches on town squares are at odds with the plain intent of the First Amendment requires that one consciously elevate ideology over reason and over the Constitution. Unfortunately, there are plenty of folks out there who have no problem doing just that.

The method used to impose this anti-religious ideology on us all is breathtaking in its simple audacity. All you need to do is to identify an aspect of modern American life with which you disagree - let's say prayer in public schools - but which is so accepted and ingrained as part of American life that nobody has even considered it as a Constitutional issue. After all, nobody for the first 180 years of our country's existence would have dreamt of arguing that the First Amendment prohibited publicly-sponsored prayer. But, that doesn't stop you. All you need to do is find a friendly court willing to ignore the actual Constitution in favor of a fantasy one and rule just one time in your favor, and, presto, instant precedent!

Now those judges and justices who agree with you can cite the precedent in order to advance your agenda, while conservative judges and justices - being conservative - are reluctant to do anything that would overturn a precedent. This is how the Court system becomes tilted in favor of those who wish to change the Constitution against those who seek to preserve it. Thus it is that liberal agenda items such as abortion, gay rights, pornography and anti-religious bigotry have become done deals. We live with them as facts of life because liberal judges support them and conservative judges cannot bring themselves to go against precedent.

We don't need more conservatives on the bench. We need radical judges and justices. We need folks who are willing to call a spade a spade, and overturn precedent if it clearly conflicts with the plain meaning of the Constitution. We need justices who are willing to take the heat for saying things like, "Face it folks, the Constitution has nothing to do with school prayer one way or another. You want to pray? Then pray. You don't? Then don't. But to pretend that the Constitution has anything at all to do with it is fantasy. With all due respect to those who ruled otherwise, they are so at odds with the clear meaning of the Constitution that I cannot in good faith respect their precedent."

Make no mistake, such a jurist would catch hell from all sides. But we need someone with just that sort of courage to undo the stupidities which plague us. We need radicals. I had hoped that Thomas and Scalia were those radicals. Ted Kennedy certainly seemed to think so. But I fear even they are too timid, and they are certainly not enough.

--Patrick J. Shanahan,  May 2002  A View from the Ground