Newsmax-June 28, 2000
The Government - Through Judges - Now Controls the Constitution
By Thomas L. Jipping
The Supreme Court has continued its scorched-earth policy of
removing any public religious expression from our culture. On
June 19, the Court voted 6-3 that a public school even allowing a
student the opportunity to pray publicly at a school event is an
"establishment of religion."
The Court long ago abandoned using the real Constitution in
deciding such cases. The First Amendment, as you know, prohibits
the federal government from passing any laws involving an
establishment of religion. This means the federal government may
not interfere with how the states deal with religion and may not
itself create an establishment of religion. That's all.
While the Constitution prohibits the federal government from
establishing religion, the Supreme Court now prohibits a local
school district from even allowing students to offer a statement
that might or might not be a prayer before a football game. How
did we get to this point?
A majority of the Court now believes that they determine what
the Constitution means. For 150 years, Justices believed that
those who wrote the Constitution determined what it means. All
the Justices did was uncover that meaning, apply it to the facts
of a case, and announce the result. This approach kept the
Constitution stable, and allowed it to limit and shape what
government could do. The Constitution was law that governed
government.
In the 1930s, Americans had a decision to make. The real
Constitution, the one with meaning provided by those who wrote
it, limited the federal government's power to regulate the
economy. The Great Depression, however, created a national
economic crisis and President Roosevelt promised a national
economic response. Hence the choice between what the Constitution
allowed government to do and what a growing number of Americans
wanted government to do.
Roosevelt's choice was to get control of the economy by getting
control of the Constitution. He appointed Justices who believed
they, and not the authors of the Constitution, could determine
what the document means. That switch in strategy turned
everything upside down. The Constitution no longer controlled the
government; the government, through judges, controlled the
Constitution.
Once the rope connecting the Constitution to its authors was cut,
the balloon was free to drift wherever the political winds would
take it. Judges who could remove restraints on the federal
government's economic power by wiggling a few words would
certainly have no trouble with the First Amendment's religion
clauses. Yes, the First Amendment says that it only applies to
the federal government; judges simply found another amendment
that applies other things to the states and said it incorporates
the First Amendment. Yes, the First Amendment only prohibits an
establishment of religion; judges simply said that an endorsement
of religion is an establishment of religion.
If the meaning of the Constitution is determined by the political
winds of the day, you know what direction it will take today.
That's why the Supreme Court first banned religious activities or
expression which the government directs, went on to ban those
activities or expression in which the government participates,
and now has banned activities or expression which the government
merely allows.
If judges can make up the Constitution, then judges run the
country. If judges make up the Constitution, their values define
our culture. If judges make up the Constitution, then we have
only the rights they grant us. If judges make up the
Constitution, we have no freedom.
Tom Jipping is the director of the Center for Law and Democracy
at the Free Congress Foundation
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