JSMP's Coalition for Judicial Restraint
Free Congress Commentary
Government- Through Judges
by Thomas L. Jipping
From the "Legal Notebook" Television
Court has continued its scorched-earth policy of removing any public religious
expression from our culture. On June 19, the Court voted 6-3 that a public
school even allowing a student the opportunity to pray publicly at a school
event is an "establishment of religion."
The Court long ago abandoned using the real Constitution in deciding such
cases. The First Amendment, as you know, prohibits the federal government
from passing any laws involving an establishment of religion. This means
the federal government may not interfere with how the states deal with religion
and may not itself create an establishment of religion. That's
While the Constitution prohibits
the federal government from establishing religion, the Supreme Court now
prohibits a local school district from even allowing students to offer a
statement that might or might not be a prayer before a football game. How
did we get to this point?
of the Court now believes that they determine what the Constitution means.
For 150 years, Justices believed that those who wrote the Constitution
determined what it means. All the Justices did was uncover that meaning,
apply it to the facts of a case, and announce the result. This approach kept the
Constitution stable, and allowed it to limit and shape what government could
do. The Constitution was law that governed government.
In the 1930s, Americans had a decision to
make. The real Constitution, the one with meaning provided by those who
wrote it, limited the federal government's power to regulate the economy.
The Great Depression, however, created a national economic crisis and President
Roosevelt promised a national economic response. Hence the choice between
what the Constitution allowed government to do and what a growing number of
Americans wanted government to do.
Roosevelt's choice was to get control of the economy by getting control
of the Constitution. He appointed Justices who believed they, and not the
authors of the Constitution, could determine what the document means. That
switch in strategy turned everything upside down. The Constitution no
longer controlled the government; the government, through judges, controlled the
Once the rope connecting
the Constitution to its authors was cut, the balloon was free to drift wherever
the political winds would take it. Judges who could remove restraints on the
federal government's economic power by wiggling a few words would certainly have
no trouble with the First Amendment's religion clauses. Yes, the First
Amendment says that it only applies to the federal government; judges simply
found another amendment that applies other things to the states and said it
incorporates the First Amendment. Yes, the First Amendment only prohibits
an establishment of religion; judges simply said that an endorsement of religion
is an establishment of religion.
the meaning of the Constitution is determined by the political winds of the day,
you know what direction it will take today. That's why the Supreme Court
first banned religious activities or expression which the government directs,
went on to ban those activities or expression in which the government
participates, and now has banned activities or expression which
government merely allows.
can make up the Constitution, then judges run the country. If judges make
up the Constitution, their values define our culture. If judges make up
the Constitution, then we have only the rights they grant us. If judges
make up the Constitution, we have no freedom.
Tom Jipping is the director of the Center for
Law and Democracy at the Free Congress Foundation. For media inquiries, contact Robert McFarland 202.546.3000
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