Unconstitutional Court Decision

June 28, 2002

by Bob Webster - Editor at Large

The first ten amendments to the U.S. Constitution (the "Bill of Rights") each affirm limitations of federal government power. Despite the clear enumeration of limited federal government power within the body of the U.S. Constitution, these ten original amendments were passed to specifically identify areas in which any attempt to extend federal power would be considered especially egregious.

In Federalist No. 84, Hamilton wrote:

"I … affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to [federal] powers which are not granted; and, on this very account, would afford a colorable pretext to claim more [federal powers] than were granted. For why declare that things shall not be done which there is no power to do?"

Hamilton recognized that federal zealots could abuse the Bill of Rights by turning them on their head and using them to affirm the very powers they were intended to forbid. He continued, "Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" This was written about one aspect of the first amendment, Article I of the Bill of Rights, which states:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances."

Had Hamilton used the religion clause instead of the free press clause to make his point, he might easily have written: "Why, for instance, should it be said that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, when no power is given by which such establishment or prohibition may be imposed?"

The simple truth is we don't need Hamilton to make the case against federal abuse of Article 1 of the Bill of Rights. The intent and meaning are quite clear. "Congress shall make no law respecting an establishment of religion" means precisely that. Congress has no power to establish a state religion. This "establishment clause" was in response to the repressive excesses of the established Church of England, an official state church in the English law at that time. Indeed, many early colonists left England because they were not free to practice the religion of their choice. The second portion of the religious freedom clause, "… or prohibiting the free exercise thereof" should be sufficient for anyone to recognize that there exists no power by which federal authority may extend to meddling with religious freedom. Yet meddling is exactly what the U.S. Court system has been doing.

The latest travesty perpetrated by U.S. Courts was pronounced on June 26, 2002, when the 9th U.S. Circuit Court of Appeals ruled that the phrase "under God" in the Pledge of Allegiance violates the provisions of Article I of the Bill of Rights. This is precisely the kind of federal meddling Hamilton feared when he warned of identifying specific limitations of federal power when limited powers were clearly enumerated in the body of the U.S. Constitution.

By limiting the right of the people to freely express their acknowledgement of the strong Judeo-Christian footing for the foundation of our nation, the Court essentially exercises the very power Article 1 specifically forbids! In making this ruling, the Court acts unconstitutionally by extending its power to an area where it has been specifically forbidden to tread by Article I.

In a Reuters news story by Andrew Quinn, law professor Michael Shapiro is quoted as saying, "As a purely technical matter, there is nothing drastically wrong with the opinion. This can't be dismissed as a frolic of some flaming left-wing know-nothings."

Oh really? "Nothing drastically wrong with the opinion?" Shapiro sees nothing wrong with an opinion that flies in the face of the very purpose of the religious freedom clause of Article 1 of the Bill of Rights? Shapiro gives new meaning to the expression "legally blind."

The case that prompted this ruling was brought by a father upset that his daughter was exposed to daily recitation of the Pledge in her elementary school. Despite the fact that his daughter was not required to participate in the recitation, he claimed his daughter was being indoctrinated in religious beliefs by the U.S. government.

Reality checks:

1. Recitation was voluntary.
2. Affirmation of the role a belief in God played in the foundation of this nation is not "indoctrination" - it is education.
3. The "U.S. government" had nothing to do with the decision by a local school district to make voluntary recitation of the Pledge part of the daily routine.

Clearly, this case is little more than yet another example of, in Shapiro's words, "a frolic of some flaming left-wing know-nothings."

When is this insanity going to end?

What next? Should the Court declare all U.S. currency is unconstitutional because it contains the phrase "In God We Trust?" That's just as reasonable as the decision handed down by the 9th Circuit Court of Appeals. After all, we must all handle U.S. currency at some time or another. Clearly, by forcing us to handle and use U.S. currency that contains a reference to trusting in God isn't the federal government trying to indoctrinate everyone who handles currency into trusting in God?

Of course, if we declare all U.S. currency unconstitutional, then clearly the IRS is engaged in a wholly unconstitutional endeavor - the collection of a portion of that same unconstitutional currency from every dollar we earn. Don't forget the unconstitutionality of the U.S. Congress who so freely spends those religious indoctrinating dollars.

Sound silly? Of course it does! It's just as silly as the distortion of the prohibition against federal meddling in religious freedom that has marked liberal abuses of our U.S. Constitution for more than a century.

Finally, I was a bit amused by Senator Daschle's denunciation of this recent trampling of constitutional intent. After all, isn't it Daschle who has led the effort to block filling of vast numbers of federal court vacancies by the Bush administration? Ironically, judges the Daschle-led Democrats have stonewalled are the very type we need to see that such nonsense as opined by the 9th Circuit Court would never see the light of day.

All the more reason to vote this fall against Democrat retention of control of the U.S. Senate and the perpetuation of their blockade of federal judge appointments by the Bush administration.