THE VOICE OF REASON
Judiciary

  TYRANNY ON THE BENCH!

My July 2, 2008 blog on "The Meaning of Patriotism" has taken some shelling from left-wingers. I had the temerity, you see, to argue that patriotism is not simply a Wizard of Oz fantasy, but has to do with honoring core values, which are religious in nature. How dare any "theocrat," like I am rudely declared to be, wander into the public square and suggest that patriotism and religion are properly interwoven with each other! Shades of civil religion! Have I never heard of the wall of separation between church and state in this country?

Allow me a moment of contemptuous boldness. There is no subject in American public life more obscured by ignorance than church-state relations. In fact, the most serious and outlandish example of misinformation on the subject was exhibited by no other than Justice Hugo Black, pictured above, who authored the Supreme Court's majority opinion in Everson v. Board of Education. The opinion in 1947 constitutionalized Thomas Jefferson's metaphorical "wall of separation."  After pontifically decreeing, in part, that "[n]either a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa," Justice Black proceeded to maintain the following: "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'"

In light of the gravity of the subject matter and the air of certainty in his prose, you may be tempted to exclaim, "Wow! Justice Black certainly zeroed in and pulled the trigger on his target, didn't he?" Yet what if someone were to demonstrate to you that the Justice's words are a perversion of Thomas Jefferson's position on church-state relations? That would be another kind of "Wow!" altogether, wouldn't it? A contrasting spectrum of emotions would then be evoked, including disappointment, disgust, and even anger.

Well, consider this.  In a letter to the Rev. Samuel Miller, dated January 23, 1808, Jefferson explained that he believed the national government to be "interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises." Expounding further, he stated, "This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from [the Tenth Amendment] also which reserves to the states the powers not delegated to the U.S." Jefferson then set forth his conclusion in spades: "Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states . . ." Uh, what's that -- rest with whom? The states!

Thomas Jefferson would never have accepted the idea, propounded by Justice Black, that a state was prohibited under the Constitution from engaging in ecclesiastical activities. The states' sponsorship of such activities, Jefferson thought, involved rights constitutionally reserved to states. He was adamantly opposed to what he termed government "consolidation," the aim of which was to enlarge the powers of the national government at the expense of state government, and thereby "to break down the rights reserved by the constitution to the states . . ."

My critics will hasten to point out that, by the time Justice Black took his seat on the Court, the Fourteenth Amendment to the Constitution had been ratified.  This Amendment, they will contend, provided him with the necessary vehicle to apply the Establishment Clause to the states.  The first section of the Amendment provides that no state may "deprive any person of life, liberty, or property, without due process of law. . ."  But don't you think it is interesting that the application of the Establishment Clause to the states via the Fourteenth Amendment did not so much as occur to the best legal minds in the country until the better part of a century after the Amendment had been adopted?  It's true. If the arm of the Court's jurisdiction could be properly stretched to this extent, then must we not wonder why that realization was so long in dawning upon judges and attorneys?

The Justice's reckless and inapposite appropriation of Jefferson's metaphor has yet another aspect. While the man from Monticello was careful to restrict the constitutional mandate separating church and state to the national level,  he was likewise careful to distinguish church-state relations from the broadscale separation of religion and politics. There is more than ample evidence to suggest that he was anything but offended by the religious dimension in politics. He authored the Declaration of Independence, which he and, later, Abraham Lincoln regarded as America's founding document. Four references to deity are in the document, and two of them were in Jefferson's initial draft of it. Moreover, Jefferson frequently worshipped in the United States House of Representatives while he was President. He worshipped and listened to his friend the Rev. John Leland preach there,  and did so a mere two days after the "wall of separation" metaphor appeared in Jefferson's letter to the Danbury Baptist Association. If the third president had any idea that this metaphor carried the freight Justice Black assigned it, then how do we explain Jefferson's frequent worship in a prominent federal building?  Also, why did he request the American people, in his Second Inaugural Address, to pray for him?  I could add ad infinitum to this list of federally sponsored religious practices of which the great man apparently approved.

Justice Black's opinion in Everson, suffice it to say, was and is historically flawed. It is, in my judgment, a disgrace. When one pauses to think about the demonic mischief that the opinion has unleashed upon American culture, and in particular the way in which the Justice's words have given license to secularists for over sixty years to question and to litigate the legitimacy of this country's religiocultural foundations, I am tempted to revive my suggestion, not all that tongue in cheek, that certain public figures, especially a few jurisprudential icons who have graced the highest court of this land, be exhumed and buried facedown.

July 9, 2008