Its Power, Not Prayer
June 20, 2000
The
U.S. Supreme Court strikes again. By a six-to-three vote it has
ruled that student-led pre-game prayers at a public-school football game
in Texas violated the First Amendment of the U.S. Constitution.
The schools policy, the
majority said, involves both perceived and actual endorsement of
religion. Well, so does the First Amendment itself.
The amendment says: Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof.... So religion enjoys a special status and
protection from Congress.
Congress had made no law in this
case. The First Amendment doesnt apply. So in asserting its
jurisdiction over the local school, the Court itself violated the
Constitution by usurping powers not given to the federal government and
therefore, under the Tenth Amendment, reserved to the states and the
people.
The three dissenting justices argued
narrowly that the school hadnt violated the Courts previous
strictures against public-school prayer. But those strictures, established
in 1962, are themselves unconstitutional. They are based on a misreading
of the Fourteenth Amendment, which has served as the basis for
generations of bad jurisprudence.
According to that misreading, known
as the incorporation doctrine, the Fourteenth Amendment
makes the Bill of Rights binding on the states as well as the federal
government. But even if that were true, no right is violated
when a state endorses religion, so long as the free exercise of religion
isnt prohibited. The Fourteenth Amendment didnt repeal the
Tenth Amendment.
The problem here is judicial review
run amok. The whole idea of judicial review was that the judicial branch
of the federal government should offer a protection against usurpations by
the legislative branch. That is, if Congress exercised a power not
delegated to it in the Constitution, citizens could appeal to the courts to
have that power declared void.
But the Court eventually (and not until well into the twentieth
century) found that by invoking a strained interpretation of the Fourteenth
Amendment, it could nullify just about any state law it disliked. Never
mind that this interpretation was dubious on both logical and historical
grounds: the activist judiciary decided that the
Constitution was a living document, whose meaning could
be adapted to current needs which is to say, the
current liberal agenda, which includes banishing religion from public life,
even in the tiniest towns in Texas.
So instead of being a safeguard
against the seizure of new powers by the federal government, judicial
review has been perverted into a device for stripping the states and
localities of their traditional powers, powers previously sheltered under
the Tenth Amendment powers whose constitutionality had never
been questioned.
Thus the federal judiciary, far from
preventing the centralization of power in the federal
government, has become an aggressive agent of such
centralization. The great constitutional design of decentralized powers
has been stood on its head. The states now have powers not by
constitutional right, but by sufferance of an all-powerful sovereign, the
federal government.
This is the grand pattern that has
been obscured by all the hair-splitting arguments over whether this or
that prayer, slogan, or posting of the Ten Commandments is compatible
with the First Amendment. If a local public school chose to have Buddhist
prayers, it might be wrong, but it wouldnt violate the
Constitution.
Liberals dont like the
constitutional plan; they regard it as a reactionary obstacle
to progressive (read: limitless) government. So they have
adopted a clever strategy of arbitrarily inflating a few pet phrases in the
document to nullify the rest, thereby making nonsense of the whole and
frustrating its purpose of preventing monopolistic government.
But conservatives and honest
people generally ought to know better. As James Madison wrote in
The Federalist Papers, No. 45, the powers of the federal
government are supposed to be few and defined, while those
of the states are to be numerous and indefinite. Today
federal powers are potentially infinite: all limits have been removed by
the federal government itself, which has taken control of that instrument
by which it was supposed to be controlled.
Conservatives who think of the
Republican Party as the lesser evil should reflect that four
members of the errant majority in this case were Republican appointees.
So were the three dissenters, all of whom, alas, failed to challenge the
majoritys false premise.
Joseph Sobran
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