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States' Liberty Party E-BookMorality & the ConstitutionChapter 2 – A government of the people, by the Supreme Court, and for an activist minority
Few would believe that the 1930’s depression and the second world war are the responsible creatures for the “separation of church and state”, a not-so-longstanding concept deeply ingrained in the American psyche. These events helped to bring about the election of Franklin D. Roosevelt as the nation’s president, and an unprecedented four terms in office. Roosevelt, a genuine big government liberal and a socialist, died near the start of his 4th term, replaced by Harry Truman, his chosen successor. Toward completion of that last term the Supreme Court was made up of seven Roosevelt and two Truman appointees, all by Democrats. This is the court that separated religion entirely out of the government, institutionalizing the concept “separation of church and state”. The 1947 decision creating the precedent was Everson v. Board of Education, and it found favorably for religion, but in the process rewrote the First Amendment so that we have two First Amendments, one beginning “Congress”, and the second “A state”. The Court’s justification for the rewrite was the Fourteenth Amendment’s due process clause, or was it the same amendment’s privileges or immunities clause? Scholars are not entirely sure. Noted Yale expert Akhil Amar[1] argues that the policy, called incorporation, is a product of Justice Hugo Black’s thinking, and must be based on a whole reading of the Fourteenth Amendment, combining both the privileges or immunities and due process clauses, but most scholars and the sitting Court attribute the policy to just due process. Amar may have a better argument, for Black’s reference to the due process clause appears after the First Amendment is rewritten; a due process violation occurring when a state fails to abide by the court’s newly created second First Amendment, but since no other clause is referenced, other experts assume the tiny due process clause has accomplished the entire feat. There is a problem with this thinking, for the due process clause must be invoked twice, first to change federal law so that it becomes applicable to the states, and then to hold the state in violation of the new law created at the time of the remedy. This would seem to be beyond the reach of a clause that had intended only to ensure that a fair system of rules is in place and is adhered to by a state. While most experts will agree that a separation of church and state exists, none that I know of actually try and explain how this comes about from a prohibition only against Congress, except to say, without explanation: Fourteenth Amendment or due process; a declaration, not explanation. The few that have, like Amar, will admit that it came about by bad law, from a wrong interpreting of the Constitution. This is generally an unpopular idea, because the wisdom of the educated has the church separation as central to democracy. Legal scholars who suggest that the route was poor law may quickly agree that the outcome was good, even if the method was wrong, sparing the scholar from a life of excommunication from the elite liberal establishment. A legal concept known as substantive due process is the method for stretching a due process clause to more than its intended purpose. The theory is that an action by the government may be so outrageous that the process, itself, is unfair. The Court imagined such a violation, by considering a worst case scenario for a state’s establishing of a religion, and then applied that worst case scenario to every “establishing of a religion”, so that any establishing of religion, even an entirely voluntary classroom exercise requested and paid for by parents, was the worst case scenario, as though it mandated that all people bow down and pray to a hypothetical tyrannical church. While this may have seemed logical on paper, the problem existed only in the minds of justices, not being real. The substantive violation requiring remedial action had occurred only on paper! It was exactly this which happened just a year after Everson, in a decision called McCollum v. Board of Education, striking down an Illinois school education program that was parent initiated and parent funded, open to different religions per parental requests, and was entirely voluntary; parents had to sign up their children in for the program. The classes had been something of a special education program similar to music or speech therapy, excepting that tutors were brought in and paid for by parents. The Court noted that their decision would affect numerous such programs throughout the country. Thomas Jefferson would have been pleased with the parent sponsored initiative, but the Court reversed that, citing a single obscure letter from Jefferson to a Baptist Church, Jefferson assuring the church that a national “wall of separation” between church and state” would prevent the federal government from interfering with or controlling the separate religions. Jefferson was referring to the First Amendment limitations on Congress. The Court’s abuse of due process is rooted in a frustration over an earlier Court’s apparent misrepresenting of the Fourteenth Amendment, seen as having gutted the amendment’s power with a precedent regarding the more direct privileges or immunities clause found in the same amendment.
[1] Yale Law Review, April 1992, Page 1193 “The Bill of Rights and the Fourteenth Amendment”, by Akhil Reed Amar http://www.saf.org/LawReviews/Amar1.html |
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