Diary

It's time we reintroduced "Merry Christmas" and "God" back into our public discourse and kicked the Supreme Court out.

I start with the proposition that the time has come for Americans and their elected leaders to put the Supreme Court of this nation on notice that its ban on the use of the words “God” and “Merry Christmas” in public forums by either public or private individuals is without merit or sanction of law. Prayer to God is as much a part of our national heritage as is our representative form government.

Our nation was founded on Judeo/Christian principles and beliefs, and the Supreme Court had no moral or legal right to state otherwise.

Let me state at the outset that I am not an anarchist, nor am I one who believes the courts have no place in our nation’s jurisprudence. They most certainly have a place and a very important voice. But they have abused that voice over and again and the time has come to demand that they stop!

My argument is based on the belief that the Supreme Court of the United States is out of control and that it is up to congress to bring it back into the fold. I offer two examples, each on a different issue, to make my point about the court’s growing arrogance and abuse of power.

The words of the 1964 Civil Rights Act, an Act that the late Sen. Hubert Humphrey, a senior senator and principle supporter of passage of that bill, swore on the floor of the Senate did not contain one single word that would allow any court in any jurisdiction to order forced busing to achieve a racial balance in our schools. So certain was he of this that he said he would eat every page of the Act if it turned out otherwise. Well, not long after its passage the Supreme Court began ordering forced busing to ameliorate the effects of past discrimination and then to achieve racial diversity by — you guessed it — forced busing. A clever distinction without a difference. The court chose the path of liberal social justice over what the law actually forbade. They ignored the law.

More recently the Supreme Court  in a 5-4 ruling in the 2012 case of National Federation of Independent Businesses v. Sebelius, Secretary of Health and Human Services, held that the words of the Affordable Care Act (Obamacare) were not what they said, but rather, being infinitely malleable in the court’s view, meant just the opposite. How can this be?

Congress in its desire to evade the public outcry sure to follow if they passed a new tax to support the very unpopular and controversial Affordable Care Act, declared that the Act did not impose an unpopular tax to pay for the bill , but rather that it imposed a penalty on those who refused to purchase health insurance. The Court ignored congressional intent and specific language of the bill which itself termed funding mechanism, a penalty, and took it upon itself to redefine “penalty”, declaring it to be a “tax”, thus permitting the law to stand, under our nation’s tax laws “because the Constitution permits such a tax.” What? Didn’t the congress reject the term tax?

Justice Roberts writing for the liberal majority, opined that “it is not our role to forbid it (the Act), or to pass upon its wisdom or fairness.” True, but that is exactly what the court did. It judged that the Act, as written, would raise serious constitutional issues if it was interpreted to be a penalty as the congress intended. So the court simply redefined penalty to mean tax.

This dishonest logic is pervasive and never more obvious than when examining how the Supreme Court has literally ripped the moral and religious roots from our founding document, the Declaration of Independence, and ruled that no religious expression may be made in schools, sporting events, or public ceremonies. Neither may the government celebrate days like Christmas or Hanukah with displays in public places, except under strict monitoring by private sponsors. God must be removed from every ceremony and forum where the state either directly or indirectly has a part, lest the government be viewed as endorsing the messages contained therein.

Time and again the court and its “establishment clause” supporters have ignored the fact that while the founders of our nation, most notably Thomas Jefferson, structured the Declaration of Independence on fundamental truths, like: “all men are created equal” and “endowed by their Creator with certain unalienable rights,” and that as justification for their rebellious actions the signers of the Declaration appealed to “the Supreme Judge of the World,”  acting “with a firm Reliance on the protection of divine Providence,”  the religious and moral basis upon which the Declaration and our very Constitution was footed is nonetheless unsuitable for acknowledging in our enlightened age today, and certainly not to be acknowledged in our public schools or anywhere else. Balderdash!

Supporters of the court’s rulings have relied on Thomas Jefferson’s often quoted 1802 letter to the Danbury Baptists of Connecticut in which he opined that “a wall of separation between church and state” existed, which it does. Ironically, this is the very same Thomas Jefferson who, at the very moment our nation was being formed appealed to a “Creator”, the “Supreme Judge of the World”, and “divine Providence,” to guide and protect the colonies through the ordeal they were about to undertake. He apparently saw no conflict between these words and his separation argument. Indeed, he and the Continental Congress relied on Him to guide our nation through its birth.

In spite of this the Supreme Court has advanced the view that any mention of God or a Creator or a Supreme Judge of the World in any public setting, even with no specific reference to any particular God, is prohibited by the First Amendment because someone, somewhere doesn’t believe in God or might take offense to such an acknowledgement, or may feel hurt.

Well, while the Supreme Court may opine that an amendment to the constitution adds to that document, which it does, what it may not do is diminish the foundations upon which the constitution is based: the Declaration of Independence. Our nation, as a matter of historical fact, was founded on the fundamental belief that our unalienable rights derive not from government but from GOD! “We hold these Truths to be self evident, that all Men are created equal, that they endowed by their Creator with certain unalienable rights. . .” and “That to secure these Rights Governments are instituted among Men.” Did you get that?

The very purpose of government was to the secure the rights of men, given by their Creator. These rights not only preexisted organized government but became the basis upon which our founders believed a legitimate government must be structured. It’s not the Rights, however, that I emphasize her, rather it is from whom these Rights originate: a Creator, God.

Based on the above, how can it be seen otherwise than that the Supreme Court has erred in its pronouncements that the First Amendment prohibits that which our foundational document, the Declaration of Independence, firmly embraced? Our founders believed it, they memorialized it in words, a government document, and repeated it time and again in speeches on the floor of the Continental Congress.

The remedy for these repeated errors by the court is simple: the decisions of the Supreme Court on this issue can be put aside by congress as easily as it might be expected to put aside a ruling from the Court declaring that Tuesday will henceforth be known as Thursday. That’s not my view, that’s the view of the Supreme Court, itself, in Marbury v. Madison.

The Supreme Court in this seminal case alluded to an absurd possibility occurring when it noted  in another context, affecting its own jurisdiction, that the very constitution that granted the court original jurisdiction in specific cases could not be interpreted to grant it original jurisdiction in other cases where it was given only appellate jurisdiction. Words have meaning. “If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.”

The obvious meaning.

Put another way, a nation founded upon the belief in a Creator as the bestower of unalienable rights, and dependent on that same Creator for His  divine Providence in guiding our destiny and providing for our protection, cannot abide the misadventures brought on by mischievous and intellectually arcane Supreme Court decisions that declare that the First Amendment’s prohibition against the establishment of a state religion or state interference with the free exercise thereof by individuals, public or private, somehow renders any acknowledgement of  God in a public forum as unconstitutional, as such a reading would lead to a construction that conflicted with the obvious predicate upon which our founders proclaimed this nation’s independence in the first place: the “Laws of Nature and Nature’s God.”

Look, it’s time to end this nonsense from the Supreme Court. The state is not sponsoring a religion when it sets aside a moment of silence to acknowledge God’s goodness or ask His guidance. It establishes a time for acknowledgement, not the acknowledgement itself. A moment of silent prayer and reflection is not a sponsorship of anything other than a moment. But even so, it seems fairly obvious that given everything stated above, a prayer before a sporting event, asking God to watch over the participants, and maybe even give them an edge, is well outside the “establishment” prohibition of the First Amendment. Our founding fathers prayed to and relied upon a Creator to guide them through the ordeal they were about to undertake. But a football squad may not? How ludicrous is that?

If a player or bystander finds it offensive that our nation’s tradition and history includes deference to a Supreme Being, so be it. They can adhere to any religion they chose, or be agnostics and think the whole thing silly. The state establishes nothing for them nor does it take anything away. It merely steps aside and allows individuals to exercise their right of free exercise. What advocates of a complete prohibition may not do, however, and that includes our esteemed courts, is ask that God be written out of our history or that the rest of us be forced to remain silent in giving thanks to Him or in seeking His guidance and support.

But aren’t we bound by the rulings of the courts? Yes, when they comport with the constitution, as the Court reasoned.

Ever since Marbury, as the late James Burnham pointed out in his 1961 book “Suicide of the West,” the Supreme Court and many others who should know better act as if Article VI of the U.S. Constitution says: “This Constitution, and Laws of the United States which shall be made in Pursuance thereof. . .  and all Supreme Court decisions. . . shall be the Supreme Law of the Land.” But that’s not what the Constitution says. It says: “This Constitution, and Laws of the United States which shall be made in Pursuance thereof; and all Treaties made. . .”  shall be the Supreme Law of the Land.”

The Supreme Court, however, in 1958 amended the constitution on its own authority and declared wrongly, I suggest, in Cooper v. Aaron,  and subsequent decisions, that its decisions, too, were “the Supreme Law of the Land”.  Really?  In declaring what federal law, as written,  says, the court merely reaffirms what the law says. It doesn’t, or isn’t supposed to, write a new law on its own. But that is what we see the court doing more and more.

Simply put, the court’s view on its power is quite a leap from the view expressed by Alexander Hamilton, writing under the name, “Publius” in the Federalist, Number 78, where he argued that the Supreme Court “may truly be said to have neither FORCE nor WILL, but merely judgment.” There was scant chance, he argued, that the federal courts would reach for more power since the courts needed the political branches to affirm its arguments.

The above view was vigorously disputed in the anti-Federalist paper, No. 78-79 by the writer, “Brutus”, who warned, in contrast to Hamilton’s view, that the courts might turn out to be the most dangerous branch. He wrote, ” There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself..”  Well, they did kick any mention of God out of the public arena, didn’t they?

As for the court’s position on the First Amendment’s prohibition against state sponsorship of religion, it should seem rather obvious that a claimant who argues that the First Amendment bars any mention, appeal to or acknowledgement of God in a public forum must actually demonstrate that the writers of the amendment intended that a mere acknowledgement of God in a public, as opposed to a private setting, is antithetical to what the writers intended. Remember we are talking about unalienable rights derived not from congress but from a higher authority, a Creator — God.

Let’s look at the First Amendment. “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof”, so says the First Amendment. Hence, no Christmas displays, no moments of silence in public schools, no prayers by players at the opening of sporting events and on and on. Clearly the Supreme Court views the reciting of a morning prayer, or a prayer before a sporting event, or the display of a Menorah or Crèche in a public place as the establishment of a religion by government. So, while our founders unanimously stated that they proceeded with their act of treason against Great Briton with “a firm Reliance on the Protection of divine Providence,” to succeed, a prayer in a public forum like a school sponsored sporting event calling on God for His indulgence or blessing violates the First Amendment. Really?

Common sense suggests that allowing the utterance of a religious belief is an act of tolerance, not the establishment of the religious belief itself.

If tolerance is so objectionable, what are we to make of the repetitive mention of God in the Declaration? A logical reading of the Declaration and the Bill of Rights together suggests that amendments to the constitution should be read to comport with what the intent of the founders was, both in establishing this nation and in the administration of its laws.

Marbury suggests as much when it acknowledges that the Constitution itself was based on the fundamental principle “that the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness”. This the court said “is the basis on which the whole American fabric has been erected. . . The principles, therefore, so established are deemed fundamental. And, as the authority from which they proceed, is supreme . . . they are designed to be permanent.”

The right of the people to establish a government in a  form suitable to their liking is based on clearly stated beliefs in the Declaration of Independence that gave rise to this nation’s birth. Hence, it logically follows, that while the First Amendment prohibits the government from establishing a state religion, it equally prohibits the government from interfering with the right of the people to exercise this right in any forum they choose.

It’s worth noting that the free exercise right contained in the First Amendment is not exclusionary, but broad. Why this broad reading? Because the very basis of our claim for independence, as a historical fact, was predicated on a belief that we were both guided and protected by moral principles handed down to us from a Creator, a supreme judge of the World and divine Providence. From this higher authority, in our founders view, came every unalienable right we enjoy today. That is a fact!

If all this sounds confusing, it is. There is way out of this court created mess, however. Congress has the absolute authority and duty to declare that the Supreme Court is without authority to limit the scope of the First Amendment’s free exercise clause, Marbury v. Madison to the contrary notwithstanding. Congress should make clear that tolerance of religious beliefs, is not the establishment of a religious orthodoxy, as is practiced in some religions, like Islam and countries where, as in England, King Henry VIII declared himself head of what became known as the Church of England, but rather an acknowledgement of what our founders relied upon when they undertook separation from England. They wanted no sponsorship of a state religion while at the same time seeing no contradiction in espousing a belief in God.

Our founders invoked God’s blessings; they relied on His guidance; and they sought His protection. And these were elected officials, mind you, speaking in a government forum, fully endorsed by the powers that gave them standing to speak on behalf of their constituents. I wonder: would the Supreme Court go so far as to prohibit the recitation of the Declaration of Independence in a public forum because its repeated references to a Creator offends some?

I fear they might, or at least they might try. We can’t replace members of the Court, but we can replace members of congress, in both houses, and we can elect a president who, like most Americans, is fed up with the court’s antics and perverse rulings. It’s a thought. And like an acorn from which mighty oaks grow, a thought, too, can take root and sprout the kind of change that is long overdue and necessary. As far as this writer is concerned, it’s time we shelved the Supreme Court’s decisions on this subject and reintroduced God back into our public discourse as our founders intended and as the First Amendment allows.