An Open Letter to the
Supreme Court of the United States
As an ordinary citizen of the United States I congratulate the members of the Court for serving this great country by taking up the burden and privilege of being the final arbiters of law for us all. It cannot be denied that each of you are distinguished not only in the field of law, but as worthy, honorable and notable scholars of American justice as well. I know that your days and nights must be filled to capacity with the labors of the court but I hope you will find some time to listen to an ordinary citizen about his and other’s honest concerns about the Supreme Court. For example, take the matter of what most people call “common sense”. I realize that when an expert labors exclusively in their field of endeavor, like being a Supreme Court Justice, a job related hazard common to all savants is the gradual, but inexorable, slide into an esoteric world where nuance is regularly raised to equal importance as the rudiments, or perhaps as an ordinary person would say, a loss of “common sense”. In this regard, take the matter of the US Constitution itself. Most ordinary citizens understand that when the Constitution was written, it was the several states that came together and granted, very grudgingly, certain enumerated powers, and only enumerated power, to a federal Government that was to be created. In other words, there was not yet in existence the Federal Government that very grudging granted enumerated power to the several states. Of course this salient is codified by the founders as Amendment X, to wit: The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people. It would seem unnecessary to restate the obvious that the Federal Government serves at the pleasure of the States, i.e., The States do not serve at the pleasure of the Federal government. However, the tenth Amendment has been the most disregarded requirement in the constitution by the Supreme Court, and today, the reality is that the States are now, for all practical purposes, subservient to the Federal Government because of the rulings of the Supreme Court. Perhaps this lack of fidelity to the Constitution is a result of nuance, or at least, expediency (the most deadly sin of all), taking precedence over common sense. While we are on the subject of the Constitution, let’s also restate another obvious fact that most ordinary citizens understand but this fact may have become lost within today’s esoteric world of Constitutional law. The fact is that the Constitution of the United States is an “entrenched” Constitution and this fact along with the requirements of Amendments IX and X, make the argument concerning Strict Construction versus Loose Construction an invalid argument. I believe T. Jefferson supported Strict Construction by saying that if the entrenched Constitution does not grant a power or right, then it is unconstitutional for the legislature, court or anyone else to grant such an unremunerated power or right. I believe A. Hamilton supported the notion of Loose Construction that held if the Constitution did not specifically prohibit a power or right then any unremunerated power or right would be legal and constitutional. The later argument is patently absurd because a free people already enjoy all that they themselves say is not illegal by their Constitution and State, otherwise, they would not be a free people as the Constitution guarantees. This is so because if the Constitution doesn't specifically prohibit a power or right, then Government is free to enact any law they wish that would restrict the inherent right of freedom for the people. A Constitutional loss of individual freedom is exactly what is happening today under the doctrine of Loose Construction because the doctrine does not prohibit anything and this situation can be laid directly on the bench of the United States Supreme Court occupied by those misguided Justices who practice Loose Construction. The doctrine of Loose Construction may be misguided, but it is at least understandable. The practice of the Court to reach across any nuance to confer constitutionality upon a freedom usurping law not only defies common sense, it is not understandable. For example, Justices John Paul Stevens, Steven Breyer, Ruth Bader Ginsburg and David Souter recently dissented the majority decision of the D.C. gun ban. How these learned scholars could deny the unambiguous second Amendment is beyond understanding by the common man unless they purposely found some nuance derived justification for what they personally believed rather than what the Constitution says. Indeed the second Amendment is not really about the right of the people to keep and bear arms, it is about the right of free citizens to form and maintain a Militia. In order to have a Militia, free citizens must have their own arms, after all, that is exactly what the second Amendment says, doesn’t it? And don’t even go the nuance position that the National Guard is the people’s Militia, the National Guard is an arm of the standing United States Army and a standing Army is the very situation that the founding father’s were deathly afraid of. The right to form and maintain an armed Militia was thought to be the final line of defense against a freedom usurping Government and when you rule against the second Amendment you are tearing down the last line of defense for a free people. Other examples that perplex plain citizens like myself is the ongoing Court rulings that support a Loose Construction derived doctrine of separation of Church and State. Just where in the Constitution is the separation of Church and State codified? Indeed, I would hope that when the “cross in the desert” case comes before the court, the court would simply instruct the plaintiffs forthwith: Bring forth to this Court the law respecting an establishment of religion that Congress has made. I believe that the first Amendment is the only reference that the Constitution has made concerning the state and religion, that is, unless you disregard the repeated reference to God and stuff like that. The point of this open letter is that the Supreme Court of the United States is our next to last line of defense against a freedom usurping Government and that next to last line of defense appears to be crumbling before our very eyes as Loose Construction and the personal ideology of the Justice’s serving the court lay waste to our carefully constructed entrenched Constitution. I, and the Citizens of this great freedom loving country, beseech the august court to put politics and personal ideology aside in the greater purpose of service to the fidelity of the Constitution.
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The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. The absence of the phrase in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression the words appeared there and later learned of their mistake. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
ReplyDeleteSome try to pass off the Supreme Court's decision in Everson v. Board of Education as simply a misreading of Jefferson's letter to the Danbury Baptists. That letter, though, played but a small part in the Court's decision. Indeed, the Court mentioned it only in passing after stating its conclusion based on a lengthy and detailed discussion (encompassing many pages and many footnotes) of the historical context in which the First Amendment was developed. The metaphor "separation of church and state" was but a handy catch phrase to describe the upshot of its conclusion. The Court's reading of the First Amendment in this regard was unanimous; all nine Justices agreed on that much, but split 5-4 on whether the Amendment precludes states from paying for transportation of students to religious schools--with the majority allowing states to do that.
Perhaps even more than Thomas Jefferson, James Madison influenced the Court's view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to "[s]trongly guard[] . . . the separation between Religion and Government." Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that old habits die hard and that tendencies of citizens and politicians could and sometimes did lead them to entangle government and religion (e.g., "the appointment of chaplains to the two houses of Congress" and "for the army and navy" and "[r]eligious proclamations by the Executive recommending thanksgivings and fasts"), he considered the question whether these were "consistent with the Constitution, and with the pure principle of religious freedom" and responded: "In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion."
The First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to transform our secular government into some form of religion-government partnership should be resisted by every patriot.