A way to save our constitution
From judges
By
O. R. ADAMS JR.
Copyright 2004 by O. R. Adams Jr.
Back to Books
Acknowledgment
Grateful acknowledgment is made to my wife Erika for her help in proofreading
and editing suggestions in writing this book.
TABLE OF CONTENTS
PAGES
Introduction
3
Chapter I. Our Runaway Courts
10
Our Federal Courts Are Destroying The Rights Of The People
To Govern Themselves
11
Current Judicial Attacks on Our Judeo-Christian Values
18
The Need to Stem the Flow of Frivolous Lawsuits
23
Chapter II. Determining the Meaning of Writings
29
Contracts
30
Wills
31
Statutes
31
Constitutions
32
Chapter III. General Principles of Construction - U. S. Constitution
37
General Rules of Construction
37
Power of Federal Courts to Declare a Statute Unconstitutional
60
Usurpation of Rights of the People
64
"Right of Privacy"
64
Chapter IV. The Fourteenth Amendment
76
Due Process of Law and the Bill of Rights
Equal Protection of the Laws
77
107
Chapter V. Liberty, Due Process, and Fundamental Rights
108
Chapter VI. Rights of Criminal Defendants
117
Chapter VII. The Death Penalty Cases
139
Chapter VIII. Other Civil Rights Cases
158
Basis of Civil Rights Cases
159
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Women's Rights
160
School Desegregation and Busing
166
Affirmative Action
183
Chapter IX. Abortion Cases
194
Chapter X. Religion Cases
209
Chapter XI. Sodomy Cases
309
Chapter XII. Fixing Our Runaway Courts  Once and For All
340
Recommended Amendment to Constitution
APPENDIX
344
349
Declaration of Independence
349
Constitution of the United
356
TABLE OF CITATIONS
375
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INTRODUCTION
The basis of our political systems is the right of the people to make and
to alter their constitutions of government. But the constitution which at
any time exists, till changed by an explicit and authentic act of the
whole people, is sacredly obligatory upon all. (George Washington,
Farewell Address, September 19, 1796, The Annals of America, Vol. 3, p.
612, Encyclopaedia Britannia, Inc., 1968)
I consider George Washington to be the greatest leader this country ever had. He led his
troops, sharing at all times terrible hardships, including lack of supplies, extreme winters, and
facing an enemy superior in numbers and equipment. He was at times downright stubborn in his
resolve to defeat tyranny. After the revolutionary war was successfully won, he served in the
constitutional convention to form our government and our Constitution – facing great dissension
among the representatives of the various states – and he was an important factor, because of the
great respect afforded him by all of the people, in holding these representatives together until a
great Constitution was formed. His influence helped in getting the states to ratify it. He reluctantly became the first president and served two terms with great respect of his constituents. He
fought against foreign intrigues that might weaken the country. He declined to serve for a third
term, but his Farewell Address reflected his continuing concern for his country. Without some
highly exceptional courage and leadership by Washington and our other founders, we would not
have gained our freedom and our Constitution that is representative of that freedom
The statement, above, by Washington, about the sacred right of the people to govern themselves was shared by all of the founders. The idea that the Supreme Court could change the Constitution was unthinkable.
Washington also said in the same address:
… The very idea of the power and the right of the people to establish government
presupposes the duty of every individual to obey the established government. …
The Supreme Court is not exempted. In fact, each member takes an oath to support and uphold the Constitution.
In the same address, in regard to feared assaults on the Constitution, Washington said:
… One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system and thus to undermine what cannot
be directly overthrown. …
The necessity of reciprocal checks in the exercise of political power, by dividing
and distributing it into different depositories, and constituting each the guardian of
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the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve
them must be as necessary as to institute them. If, in the opinion of the people, the
distribution or modification of the constitutional powers be in any particular wrong,
let it be corrected by an amendment in the way which the Constitution designates.
But let there be no change by usurpation; for, though this, in one instance, may be
the instrument of good, it is the customary weapon by which free governments are
destroyed. The precedent must always greatly overbalance in permanent evil any
partial or transient benefit which the use can at any time yield. … (Emphasis added)
Washington modestly displayed a great intellect all of his life. He foresaw the great problems that could beset his new and beloved nation as it continued its experiment in republican
government. And he indicated ways that problems might be avoided or corrected. Much of his
advice was successfully followed over the years. And now we need to follow some more of his
good advice.
The feared usurpation of the rights of the people is exactly what is being done today by our
federal judiciary, and particularly by the liberal members of the United States Supreme Court. In
Chapter I, I will discuss the well founded fear of Thomas Jefferson that the judiciary, and particularly the Supreme Court, would usurp the rights of the people to change the Constitution, and to
govern themselves. Today, this is intentionally and maliciously being done at a rapid rate. And
the mischief done is indeed destructive. It also rather clearly shows that the common sense and
judgment of the people are far superior to that of a few liberal justices who now mold the Constitution to fit their own personal, political, social, and world views.
The real problem lies in the fact that there have been no rules, but their own, on how a court
should go about interpreting the meaning of a constitutional provision or of a law passed by congress or by a state. And the courts are now changing their own rules at an alarming rate, not expressly, but by their actions. The liberal element of the courts, and that includes the present majority, now commonly engage in the impropriety called judicial legislation, and decide the law
and provisions of the Constitution according to their own personal political and social views.
They thus change our Constitution, which not only usurps this right of the people, but changes
the meaning to something that is completely contrary to the intent and purpose of those who
formed and adopted the provisions of our Constitution.
The people then have the wrongful burden of going through the cumbersome task of changing the constitution to get it back to what it was in the first place. This is gross injustice and misbehavior by the courts.
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When our country was new we were fortunate to have had three great and eminent justices
on our United States Supreme Court. They were Chief Justice John Marshall, appointed by President John Adams in 1801; Bushrod Washington, appointed by Adams in 1799; and Joseph Story, appointed by President James Madison in 1812. These men as well as many others on the early Supreme Court were personally acquainted with many of those who participated in the framing and ratifying of our Constitution, and some members like Marshall, James Wilson, and John
Rutledge actually participated. Marshall, for example, was a member of the Virginia Assembly
and worked for ratification of the Constitution. If anyone knew what the intent and purpose was
of the various provisions of our Constitution, it was these early justices.
Although some, like Thomas Jefferson, were against the Supreme Court having the power to
strike down laws passed by Congress and the states, these early justices established that in construing the meaning of our Constitution, and of laws passed, which was their duty, they necessarily had to determine if laws passed by Congress and the States were Constitutional. They also
held, and I think correctly, that their interpretation of the meaning of a provision was final, and
that the other two branches of our tri-partite system, the Legislative and the Executive, were
bound thereby.
This set up a situation that Jefferson, and anyone else who objectively considered the situation, believed could turn out to be very dangerous, and detrimental to the rights of the people to
govern themselves under our Republican form of government. The justices were appointed for
their lifetime, subject only to their ability to serve and good behavior, and not elected by and responsible to the people. Jefferson thought that this was a flaw that could turn out to be fatal to
our form of government and result in an autocracy of judges.
The greatest problem of all was that the Constitution provided no rules by which it was supposed to be interpreted. This indeed was a dangerous situation. Rules for interpreting the constitution and statutory laws were rules determined by the judges themselves, and the judges had the
power to change their own rules.
Nevertheless, these early judges, led by Marshall, Washington, and Story set up rules for interpreting our Constitution that worked well, and were followed until our modern times. They
chose rules that left legislating and changing the Constitution to the people and their elected representatives, to whom the sole right to change our Constitution was given under Article V. They
considered the meaning of a particular provision of the Constitution to be that which was intended by those who framed and ratified it. If it was necessary to go outside the plain wording of a
provision, they looked to our history, our circumstances at the time, the laws existing in the
states, to the Congressional and legislative records, and the debates on them, to treatises and such
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things as The Federalist papers, which existed at the time of the adoption, to arrive at the intent
and purpose of those responsible for the framing and adoption of a provision. They stated the
rule that a law passed by the states or by Congress should not be determined to be unconstitutional unless there was no reasonable doubt that it was. These are the only methods of interpretation that do not infringe upon and usurp the rights of the people to govern themselves. It prevents
the judges from changing the Constitution by engrafting their personal views onto it.
Due to the integrity of good Supreme Court justices, this worked reasonably well for the
first 150 years of the United States. But then judicial activism began to set in. Then activist judges for a long period of time tried to write their opinions like they were following the established
rules of constitutional construction, but in truth they were doing the opposite. Logic and common
sense has given way to personal views of such judges. They interpret a constitutional provision
to mean what they think it should mean, according to their own biases and prejudices, and not
according to the intent and purpose of those who framed and adopted a provision.
Now the activist judges have dropped all pretense of properly interpreting the Constitution.
To support their opinions they refer to changing circumstances, changing mores, and even to
what other countries, the United Nations, and the World Court (which we have not joined) are
doing on issues under consideration. These may be things that the people and their representatives might consider in determining whether or not a change is necessary. But these factors are
solely within their prerogative, and under our Constitution they are not a concern of the courts.
In the last chapter of this book, I recommend a simple constitutional amendment that would
strongly encourage the courts to discontinue their misbehavior in the future. It should also, over
time, correct much of the damage that has been done by erroneous decisions in the past. It would
bring the meaning of our Constitution back to the intent and purpose of those who formed and
adopted its various provisions. But the courts would still retain their true independence, and
would retain the duty and power to declare unconstitutional acts passed by congress or the states
that are truly unconstitutional.
In addition, this recommended change should help eliminate several other evils that presently exist.
As this is being written, an extremely large amount of time is being wasted in the Senate of
the United States in trying to get judicial appointees of President George W. Bush even voted on
by the Senate. Continual filibusters and other obstructions prevent a vote. Such proceedings were
never intended to come under the terminology, "advice and consent" of the Senate. This would
not take place if each party was not so keenly interested in the political and social views of the
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appointees. If a judge could be depended upon to interpret a provision according to the intent and
purpose of those who passed or adopted it, his personal views should make little difference. This
problem can easily be eliminated by requiring judges to go by the law and the Constitution, instead of their own personal views of what they think is best.
Also, congress and the state legislatures continually have to deal with the results of an overly litigious society, fed by the new ideas and causes of action thought up by activist attorneys,
and supported by activist judges. Some of our lawsuits today are based on rather ridiculous ideas,
and others result in judgments that are exorbitant in amount. Much of this would be curtailed as
judges could then be expected to properly follow the law. Attorneys would be discouraged from
bringing outlandish lawsuits with the hope that some activist judge would go against established
principles and help them invent some new theory to recover money or free a criminal client.
Uniformity in court decisions and in different jurisdictions would be encouraged. The likelihood of a correct decision on the law and the Constitution would be greatly increased, and it
would be less likely to be overruled in the future.
A very large number of our Supreme Court cases, and a great portion of the time spent by
the Supreme Court, is because of conflicts in decisions of our many federal appellate courts,
called Circuit Courts. A proper guide for interpreting the statutory and constitutional law would
tend to cause much more uniformity and validity in our federal district courts and appellate
courts. It would also serve as a guideline for state courts on the many federal issues they are
called upon to decide. The United States Supreme Court would not be called upon so often to
review state court decisions. The workload of all courts would be greatly reduced.
It would be easier for lawyers and judges to figure out what the law really is and predict the
outcome of litigation. We would no longer have to look at the political views and biases of the
individual judges to predict the outcome of a case. We could truly assess a case by studying the
relevant common, statutory, and constitutional law. This in itself would greatly reduce caseloads.
It would go far in curbing the excesses of a society that has become so excessively litigious.
Enforcement of this provision would help take politics out of judging. And judges would be
encouraged to try to become true jurists of integrity.
Above all, this would put changing the Constitution back in the hands of the people and
their representatives, as provided by Article V of our Constitution. It would restore the right of
the people to run their own governments in the manner intended by our Founders.
In this book the concrete examples of the misbehavior of the Courts in various legal areas
are shown in detail, with proof that unlawful decisions are being made. The cases and authorities
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establishing the time honored rules that should be followed by the courts are also shown in detail. I believe that the matters presented may be easily understood by any interested person, and
that they will withstand the most critical examination by any good constitutional lawyer.
All that would be required is that the courts follow time honored rules for construing laws
and constitutional provisions according to their plain wording, and if further construction is required on a particular issue, to determine the intent and purpose of those who framed and enacted
or adopted the provision in question.
If a judge wants to legislate, he should remove his robe and run for a legislative office.
---------------------------------------------------------Form and Style Used
A number of authors use different, although acceptable, forms and styles. A comment on
the uses in this book may be helpful. I have tried to be as accurate as possible in conveying factual information. I also try to give the source of facts that are not from my own personal
knowledge, and to indicate the ideas of others. Information derived from video tapes or websites
will of course not have page references. Where information is obtained from a book or a writing,
it will be indicated by quotations, or by references where exact quotes are not used, with page
references, if from lengthy material. The references may pertain to several preceding sentences,
or several preceding paragraphs.
My own ideas and comments will be indicated either by statements without references, or by
putting my statements in parentheses where they are included with material being referred to.
My statements placed within exact quotations will be only for the purpose of giving the substance of or an explanation of omitted material, or explaining words quoted (unless clearly indicated as my comments), and will be in brackets.
The common method of using ellipses (...) indicates that material within a sentence quoted
from has been omitted. An ellipsis before a complete sentence quoted indicates that prior wording, immediately before that sentence, in the paragraph quoted from, was omitted. An ellipsis
followed by a space and a period (... .) indicate that source material within and at the end of a
sentence has been omitted. A period, a space, and an ellipsis (. ...) indicate that after the end of
a full sentence quoted, subsequent material from the same paragraph of the source was omitted.
When one or more paragraphs are left out of quotations, it will be indicated by an ellipsis of
three asterisks (***) in the center of the page, after a paragraph, or in a paragraph.
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Also, in many instances, a number of references to a particular subject, writing, book, or
tape, are separated from material which is not about that particular subject or work by a series of
dashes (-----------), in the center of the page.
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CHAPTER I
OUR RUNAWAY COURTS
The judiciary of the United States is the subtle corps of sappers and
miners constantly working under ground to undermine the foundation
of our confederated fabric. (Thomas Jefferson. Democracy, selected and
arranged by Saul K. Padover, Ph.D., D. Appleton-Century Co., New York
and London (1939), pp. 97-98)
Jefferson wrote the above in 1820, eleven years after his presidency. He was then well settled on his ideas about the judiciary and his fear of what it could do to our Constitution. In the
same writing he said:
Having found from experience that impeachment is an impractical thing, a mere
scare-crow, they consider themselves secure for life, they skulk from responsibility
to public opinion. ...
A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.
In 1820 and 1821, he wrote:
To consider the judges the ultimate arbiters of all constitutional questions [is] a
very dangerous doctrine indeed, and one which would places us under the despotism
of an oligarchy. Our judges are as honest as other men, and not more so. They have,
with others, the same passions for party, for power, and the privilege of their corps.
Their maxim is "bosnis judicis est amplaire jurisdictionem," and their power the
more dangerous as they are in office for life. . . . The constitution has erected no such
single tribunal, knowing that to whatever hands confided, with the corruptions of
time and party, its members would become despots.
It has long been my opinion ... that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body ... working like gravity by night and by day, gaining a little to-day and a little to-morrow,
and advancing its noiseless step like a thief, over the field of jurisdiction, until all
shall be usurped from the states, and the government of all consolidated into one. ...
(Ibid., pp. 98-99)
The official reports of United States Supreme Court Cases are in the United States Reports,
which is designated as U.S. in the case headings, as in the following case.
In 1803, the United States Supreme Court decided one of the most important cases in our
history, Marbury v. Madison, 5 U.S. 137 (1803), in an opinion written by our most famous and,
by many, most respected, Chief Justice of the United States Supreme Court, John Marshall. The
case was brought by Marbury and others against James Madison, Secretary of State under President Thomas Jefferson, asking for a writ ordering the Secretary to issue papers of appointment to
them as justices of the peace of the District of Columbia pursuant to their appointment by Presi10
dent Adams, and advised and consented to in due form by the senate. The Supreme Court held
that petitioners were fully entitled to their appointment, but then examined the power of the
Court to grant the writ. It noted that this was not a case in which the Supreme Court was given
the original jurisdiction necessary to decide the case and issue the writ under the Constitution.
Congress had passed an act to establish the judicial courts of the United States and authorizing
the Supreme Court "to issue writs of mandamus, in cases warranted by the principles and usages
of law, to any courts appointed, or persons holding office, under the authority of the United
States." In examining that act the Supreme Court held that it was unconstitutional, as the original
jurisdiction of the Supreme Court was extended beyond that allowed by Article III of the Constitution.
I will argue in Chapter III that Marbury v. Madison was a correct decision, but Jefferson
disagreed that members of the Supreme Court, appointed for life, and not responsible to the people, should have such a great power. Certainly the matter is reasonably arguable with valid points
on both sides. But one thing is certain, and beyond doubt, Jefferson's fear of a usurping judiciary
destroying the rights of the people to govern themselves, both at the state and federal level; and
changing provisions of the Constitution to meanings contrary to the intent and purpose for which
they were formed and adopted, was extremely well founded. This misbehavior by the courts has
progressed at a very rapid rate, and in a very destructive way, during the past fifty years. There
was particularly great damage during the time that Earl Warren was Chief Justice (1953-1969).
The floodgate having been opened, and precedent laid down, the destruction has continued unabated – unconstitutional precedent building on unconstitutional precedent.
Most legal scholars have given up all hope of ever undoing much of the past damage to our
Constitution – they only strive to stem it in the future by getting good judges appointed, but even
in this, they are continually thwarted by the liberal element, which loves activist judges who pay
no attention to the true meaning of the Constitution.
Our Federal Courts Are Destroying
The Rights of the People to Govern Themselves
Phyllis Schlafly is a lawyer and served as a member of the Commission on the Bicentennial
of the U.S. Constitution, 1985-1991, appointed by President Reagan. She has testified before
more than 50 Congressional and State Legislative committees on constitutional, national defense,
and family issues. Mrs. Schlafly is a Phi Beta Kappa graduate of Washington University, received her J.D. from Washington University Law School, and received her Master's in Political
Science from Harvard University. An articulate and successful opponent of the radical feminist
movement, she appears in debates on college campuses more frequently than any other conserva11
tive. She was named one of the 100 most important women of the 20th century by the Ladies'
Home Journal. She is head of the Eagle Forum, and writes the periodical, The Phyllis Schlafly
Report. The following is from her article in that report for September, 2003:
Congress should Stand Up and Be Counted.
Federal court decisions banning the Pledge of Allegiance and the Ten Commandments, and the possibility raised in Lawrence v. Texas that marriage may no
longer be defined as the union of a man and a woman, show that the time has come
to curb the Imperial Judiciary. We should not allow federal judges to overturn principles that are at the heart of the American character, culture, and Constitution.
Mrs. Schlafly noted that Alexander Hamilton, in the Federalist Papers, 78, 81, and 82,
wrote that Congress could use its authority to make exceptions and regulations to the jurisdiction
of the federal courts to keep them the "least dangerous" of the three branches of government. She
noted that congress has used this power many times in the past, and argued that it should now be
done to curb our runaway federal courts, and in particular the United States Supreme Court.
She notes that since the Supreme Court decision in Stone v. Graham, 449 U.S. 39 (1980),
that caused the removal of the Ten Commandments from public school classrooms, the American Civil Liberties Union has even announced a scavenger hunt with a prize for anyone who
finds another Ten Commandments monument that the ACLU can sue to get removed.
She states:
The Ten Commandments showdown is in Montgomery, Alabama, where Chief
Justice Roy Moore placed a Ten Commandments monument in the state courthouse.
Despite a vitriolic hammering by the media, he has the public on his side and a
crowd of 10,000 gathered in Montgomery on August 16 to support him.
(Since Mrs. Schlafly wrote this article, federal courts have forced the removal of the Ten
Commandments monument, and Roy Moore has been removed as Chief Justice of the Supreme
Court of Alabama, because he refused to remove it after being ordered to. Our founders would
never have dreamed that the First Amendment would ever be warped to the extent that it is used
as a weapon to destroy our traditional religion, and even the history surrounding it.)
The federal courts have now banned the saying of grace at evening meals at Virginia Military Institute; and The Citadel announced that it will ban prayers rather than risk the expense of a
lawsuit. (Later in this book, I will show the reasons why these things are truly a violation of the
Constitutional rights of these students to exercise their religion.)
She also states: It is only a matter of time before the anti-religion movement attacks our national motto "In God We Trust."
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Mrs. Schlafly notes that the United States Supreme Court recently voided the Texas sodomy law with no rational justification in our Constitution, and that pursuant to this the "prohomosexual commentary in the media has been preparing the public for court rulings that legalize same-sex marriages and invalidate the Defense of Marriage Act (DOMA)."
Mrs. Schlafly cites examples of the far leftist leanings of Supreme Court Justice Ruth Bader
Ginsburg.
... Ginsburg bragged that the Supreme Court is "becoming more open to international
law perspectives," looking to United Nations treaties and foreign courts for guidance
in deciding gay rights, death penalty and affirmative action cases.
She explains what an extreme feminist Ginsburg is, even advocating the sex integration of
the Boy and Girl Scouts. Evolving "out of the social preferences of the shifting majorities of the
justices and their pandering to the liberal elite, they have established a constitutional right to engage in sodomy, and rights to reverse discrimination, without any basis in our Constitution."
She wonders:
When will the American people call a halt to the tyranny of the Imperial Judiciary and restore "all legislative powers" to the legislatures? Will that happen if some
court invents a new right of same-sex marriage?
(Since Mrs. Schlafly wrote this article, the Supreme Judicial Court of Massachusetts has
now declared a constitutional right to same-sex marriage. This unbelievable extreme in court ordained immorality has now been reached.)
She ponders: Can Globalism Amend Our Constitution?
Justice Breyer gleefully told George Stephanopoulos on ABC News how the
United States is changing "through commerce and through globalization ... [and]
through immigration," and that this change is having an impact on the courts. He
speculated on "the challenge" of whether our U.S. Constitution "fits into the governing documents of other nations."
More on Breyer:
In a dissent in Knight v. Florida, Breyer said it was "useful" to consider court
decisions on allowable delays of execution in India, Jamaica and Zimbabwe. Zimbabwe, indeed, has had a lot of experience with executions, but it's hardly a country
from which we should get guidance about due process.
As to Kennedy:
Justice Kennedy couldn't find any language in the U.S. Constitution to justify
overturning the Texas sodomy law in Lawrence v. Texas, so he invoked "other authorities" in "Western civilization," namely, the European Court of Human Rights,
which invalidated EU countries' domestic laws proscribing homosexual conduct.
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Kennedy also cited an amicus brief filed by Mary Robinson, former United Nations
high commissioner for human rights. Kennedy wrote, "The right the petitioners seek
[to engage in sodomy] has been accepted as an integral part of human freedom in
many other countries," and he emphasized the "values we share with a wider civilization." In fact, most other countries do not share American values, and we don't want
to share theirs.
Reading foreign court decisions no doubt contributed to Kennedy's reliance on
"emerging awareness ... in matters pertaining to sex" instead of on the U.S. Constitution. Four justices joined in Kennedy's majority decision without distancing themselves from his globalist reasoning or his false recitation of U.S. history of sodomy
laws.
Showing the extent that the left has captured our legal community:
Instead of condemning Kennedy's use of foreign courts to change U.S. laws, the
American Bar Association president opined that "the concept of fundamental law
knows no national boundaries." Sounding off from left field, Harvard professor Laurence Tribe chimed in to "applaud" the "important insights" of the "global legal
community."
On Stevens:
In Atkins v. Virginia, Justice John Paul Stevens' majority opinion cited an amicus brief from the European Union. The EU warned us, Stevens wrote, that "within
the world community, the imposition of the death penalty for crimes committed by
mentally retarded offenders is overwhelmingly disapproved." Scalia retorted, "The
views of other nations cannot be imposed upon Americans." But five justices did impose foreign views on us.
Mrs. Schlafly reflects on the present ridiculous situation in the senate, on trying to get
Bush's judicial appointees even voted on (It not only was going on in September 2003, but still
continues):
It's obvious why the Democrats filibuster any judicial nominee they suspect of
being a strict constructionist. The Democrats love an activist judiciary because court
decisions can make fundamental changes that the American people and our elected
representatives don't want.
It's also obvious why the Democrats like United Nations treaties. Activist judges
can use them to circumvent our Constitution and laws.
Phyllis Schlafly states a cogent argument for curbing our runaway courts, but it would take
many volumes to fully cover the real extent of the abuses. These were only some of the recently
disturbing things.
Article V of the Constitution provides for initiating changes in our Constitution by either
Congress or the states when as many as two thirds deem it necessary. It then must be ratified by
three fourths of the state legislatures or by conventions in three fourths of the states. Federal
judges and justices, who are appointed for life, and are not responsible to the people for their actions, were not given that right for a very good reason. Our founders firmly believed, and it is
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reflected throughout our Constitution, that the essence of republican government was the right of
the people to govern themselves. They were through with European tyranny by kings and emperors. And they certainly did not intend to create an oligarchy of several judges.
No one can intelligently argue that this right of the people to govern themselves should be
usurped in any degree by judges and justices taking it on themselves to change our Constitution.
Yet this is exactly what is being done, and it is being blatantly done. They admit they are doing
it, but say it is to keep pace with changing circumstances and social progress. But changing the
Constitution when needed is the sole prerogative of the people and their representatives, when a
sufficient number believe that there should be changes. And it is they, and only they, who have
the right to decide on the nature and kind of changes that may be needed, and when they may be
needed.
When a law is passed or a constitutional provision is adopted, the people, or their representatives for them, have a particular intent and purpose as to its meaning and what it is to accomplish. Logically, it is quite obvious that as of that time the law or provision acquires that
meaning, and that it cannot properly change until those with authority make a change. A judge
(and the term, judge, is meant to include a justice) who gives it any other meaning necessarily
changes it.
Thomas Sowell is a well known writer and syndicated Columnist. He is a professor of Economics, and a Senior Fellow of the Hoover Institution. Although he is an economist and not an
attorney, his writing on judicial activism would do credit to any constitutional lawyer. The following is a review of parts of his article, "Judicial Activism Reconsidered,"
www.amatecon.com/etext/jar/jar.html (2003):
Judicial Activism Reconsidered
1989
Advocates of judicial activism often refer to changes which have taken place,
and others deemed desirable, as reasons for going beyond the original cognitive
meanings of laws, including the Constitution. According to Justice William J. Brennan:
Those who would restrict claims of right to the values of 1789 specifically
articulated in the Constitution turn a blind eye to social progress and eschew
adaptation of overarching principles to changes of social circumstances
(William J. Brennan Jr., one our most liberal and activist justices, served on the United
States Supreme Court from 1956 to 1990.)
Sowell makes this common sense statement:
Judicial activists who depict the Constitution as a morally groping document, crying
out plaintively for the aid of judges, ... have nothing on which to base this vision,
other than their own self-serving assumptions. Although a junkyard owner may
choose to regard General Motors as his raw material supplier, that in no way justifies
imputing to General Motors an "original intent" to play such a role.
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He also says: "The question for society today is whether one chooses to continue to live under the existing constitutional government, which includes the right to urge changes, or to usurp
the power to make changes unilaterally."
Sowell concludes:
The claim that judicial activism is necessary to rescue us from bondage to the
past—from having the writers of the Constitution "rule us from the grave"—defies
both logic and history. There is no contest between the living and the dead. The contest is between those living individuals who wish to see control of change in judicial
hands and those who wish to see it in other hands. There has been no argument that
either statutory or constitutional laws are not to change. The only meaningful question is: Who is to change them? ...
Associate Professor of Law, Gregory C. Sisk, Drake University, wrote
(www.firstthings.com/ftissues/ft9511/articles/sisk.html, 1995):
The Moral Incompetence of the Judiciary
A society so riven that the spirit of moderation is gone, no court can save; . .
. a society where that spirit flourishes, no court need save; . . . in a society
which evades its responsibility by thrusting upon the courts the nurture of
that spirit, that spirit in the end will perish.
– Judge Learned Hand
During the past three decades, a vision of the federal judiciary as the moral tutor
appointed for a recalcitrant society has become dominant in the American legal
academy and increasingly within the courts themselves. ***
Professor Sisk reviews the powerful influences on the Supreme Court by liberal elements of
our society, the American legal academy and the media. He notes: Michael J. Perry, a leading
legal scholar, argues that judicial review should serve the role of "prophecy," calling us to a
deeper understanding of ourselves through moral exhortation by the Supreme Court. (My comment is that this argument by Perry is unadulterated drivel.) Sisk says:
The Supreme Court lacks the moral competence to promote a certain vision of
American moral aspiration, rather than dutifully enforcing particular values already
incorporated into our national charter. The judiciary lacks competence both in the
sense of its authority to assume such an elevated role and in its qualification for and
ability to carry out such a mission. As Michael Stokes Paulsen reminds us, "The legitimacy of the Supreme Court in our constitutional system rests not on its ability to
fashion social and political compromises but on its ability to render decisions that the
public readily can recognize as straightforward interpretations of a constitutional or
statutory text." We do not choose the members of our judiciary because of their eminence as philosophers or their insight as moralists. Although each member of the
16
bench properly dons the black robe of the judge, the white robe of the prophet ought
to rest uneasily upon his shoulders.
Sisk again refers to one of the most respected federal judges we have had: "As Judge
Learned Hand once observed, we have not anointed the Justices of the Supreme Court to rule us
as a 'bevy of Platonic Guardians.'"
Sisk says: "John Hart Ely writes that the Supreme Court 'is under an obligation to trace its
premises to the charter from which it derives its authority' before it may make any constitutional
pronouncement." {The late John Hart Ely was considered a prominent authority on constitutional
law.)
(The infamous case Roe v. Wade, 410 U.S. 113 (1973), declaring a constitutional right to
abortion, was bereft of any basis in the Constitution. I will discuss the case at length later in the
book.) Sisk notes:
If the right to abortion announced by the Supreme Court in Roe and adhered to
in Casey were truly grounded in the text or history of the Constitution rather than reflecting what Justice White termed an "exercise of raw judicial power," moral
qualms would provide no basis for avoiding the constitutional directive. I do not expect to find my moral philosophy codified in the Constitution, and others may find
the moral claim of fetal life outweighed by compelling interests of equality and individual autonomy. But if we are to have a lively and fully textured exploration of matters of moral seriousness, both sides of the debate must figure in the calculation. By
pointedly neglecting one side of the issue, Roe v. Wade stands as an obstacle to
meaningful moral deliberation. Moreover, this was an occasion upon which the Constitution was silent. The Court thus lacked any warrant for projecting its commanding voice into the moral discourse about abortion. (Emphasis added.)
Professor Sisk concludes:
The Constitution begins with the words, "We the People of the United States."
We, the People, still grow up in families, live in neighborhoods, attend local schools,
and belong to churches, synagogues, and voluntary organizations. It is here, in our
local communities, that we must nourish values and a sense of belonging. It is here,
where the moral bonds of voluntary attachment have not yet been stretched beyond
the breaking point, that true moral discourse can be maintained, especially, as Michael W. McConnell says, "over the highest things – matters of ultimate truth and
value." It is here that we must seek and realize our aspirations for the future.
But the right of "we the people of the United States" to govern ourselves, is fast being eroded by the self declared oligarchy – the United States Supreme Court.
Current Judicial Attacks On Our Judeo-Christian Values
17
The following is from a newsletter of October, 2003, by Donald Paul Hodel, President and
CEO, Focus on the Family, relating to a talk made by Dr. James Dobson, founder of Focus on
the Family, on the courthouse steps in Montgomery Alabama, in support of the besieged Chief
Justice Roy Moore, because of Moore's refusal to remove the Ten Commandments monument
from the courthouse.
(www.family.org/docstudy/newsletters/a0028469.html)
Hodel says:
Undeterred ..., an unelected, unaccountable federal judiciary appears to be doing
everything in its power to weaken the foundation upon which our country was built.
Repeatedly, the Supreme Court has exercised judicial tyranny by declaring perfectly
legitimate laws enacted by the citizens of states by direct votes "unconstitutional."
The decision ordering the removal of the Ten Commandments monument from the
State Judicial Center in Montgomery has gone the final step. The judge has ruled that
a state does not have the right to acknowledge God even though the preamble to the
state constitution invokes His name! ***
It is time for Congress to exercise its authority to rein in this out-of-control federal judiciary and if the courts refuse to abide by congressional limits, then Congress
must impeach those runaway judges. ***
The following are excerpts from quotes from Dr. Dobson's speech at the courthouse:
The liberal elite and the federal court judges and some members of the media,
are determined to remove every evidence of faith in God from this entire culture.
They are determined to control more and more of our private lives, and it is time that
we said, "Enough is enough."
They want to redefine us as a nation and deny the spiritual heritage that brought
us to this point. On the United States Supreme Court building are three depictions to
the same Ten Commandments and to Moses. The sergeant of arms has opened every
workday since 1777 by shouting, "God bless the United States and this Court."
The National Archives building displays the Constitution, the Bill of Rights and
the Declaration of Independence. In order to see them, you have to walk past the Ten
Commandments. There are evidences of early faith in God throughout the Capitol
building in Washington, where I was yesterday, in the inscriptions, in the statues, in
the art displayed on the walls and in the chamber of the House of Representatives.
Written behind the speaker are the words "In God We Trust."
Surrounding that chamber are depictions of the great lawgivers down through
history. They are all facing away from the speaker. They're all looking at the person
in the center. Moses is depicted there. He is the only one that is shown full-face,
looking down on the Speaker and the representatives. The rest are looking to him,
because our law is based on the Judeo-Christian system of values.
18
Throughout Washington, you see evidences of faith. In Philadelphia, the Liberty
Bell has a Scripture inscribed from the book of Leviticus. The other examples are evident throughout the historic monuments and governmental buildings. If the ACLU
and if the People for the American Way and if Americans United for the Separation
of Church and State and all the other liberal organizations are going to accomplish
their goal, they're going to have to sandblast half the buildings in Washington. And
we're not going to let them do that.
So, we are here today to defend the things we believe. Now why has this confrontation occurred in Montgomery? Why didn't the leftist organizations start by removing references to God in Washington? Why did they come down here to beat up
on the people of Alabama? The reason is because they were afraid to do it elsewhere.
That will be done later when the nation has been "softened up"! Thus, they have
come to Alabama, and they think they can intimidate you. But we must not allow
that to happen.
The question is, what is the legal basis for these attacks on religious faith? It is
the liberal interpretation of the Constitution. Everything that represents God or things
that are holy are considered to be unconstitutional. The Ten Commandments represent our historic spiritual heritage on which all other law is based.
It's been a 41-year struggle that started in 1962 with prayer in public schools.
And in 1963, they removed Bible reading from the public schools, and most of us sat
in silence. Christians are a people that reverence the law and abide by the rule of law.
So we said nothing. And the liberals were on a roll then. They removed voluntary
prayer from the schools, and then banned prayer at graduations and even silent prayer. In the 1980s, they required the state of Kentucky to take down the Ten Commandments from high school bulletin boards.
And it's gone from one thing to the other until it reached a low point last year
when Judge Goodwin of the 9th Circuit in California ruled that school children could
not say the Pledge of Allegiance because it contained those "offensive" words "under
God." Everybody was shocked by the audacity of that decision. It was terrible, and in
fact, it frightened members of Congress. They came stumbling out of the Capitol
building, trying to get to the microphones to say they were opposed to Judge Goodwin's order. ***
Both Jefferson and Franklin submitted designs for the seal of the United States,
and they each suggested depictions of Moses. ***
It is mostly about an unelected, unaccountable, arrogant, imperious judiciary
that is appointed for life and is determined to make all of us dance to their music.
That is not the way a democracy is supposed to function. We need to go to the Congress and demand — absolutely demand — that they rein in this runaway court. ***
Most recently, the Justices have ruled that homosexuals have the constitutional
right to practice sodomy. Writing for the majority was Justice Anthony Kennedy,
whom I consider to be one of the most dangerous men in this country. Somebody
ought to tell him he could be impeached.
19
The Court appears to be headed straight as an arrow for the sanction and supposed constitutionality of same-sex marriage. That is what will happen if we don't
act to stop this out-of-control Court. What they are doing is wrong, and we must oppose it. It will destroy the family and bring down this nation if a family can consist
of gay marriage or "group marriage." If marriage means everything, it ceases to
mean anything. We must stop this movement in its tracks.
The best way to protect the family is with the passage of the Federal Marriage
Amendment. Congress needs to give that message to the Court. Time is very short.
I'm absolutely convinced of that. This country could very easily be like Canada is today, where pending legislation could one day make it illegal to ever preach the first
chapter of Romans.
There was a time, when I was younger that it stung me to be called a "right
winger." There was a time when I didn't want to take that heat. There was a time
when I wanted to say what I needed to say, but then I tried to keep my head down.
I've got to tell you. Those days are over.
Dr. D. James Kennedy is one of the prominent Christian leaders in America. He is Senior
Minister of Coral Ridge Presbyterian Church in Ft. Lauderdale, Florida, President of Coral Ridge
Ministries, and founder of Reclaiming America. Several articles were posted by these organizations during the latter part of 2003.
An article of Reclaiming America, August 25, 2003, by Sam Kastensmidt, was on the U. S.
Court of Appeals, Eleventh Circuit, upholding the removal of the Ten Commandments in the
Roy Moore matter. The court considered it particularly damaging that Justice Roy Moore, at the
unveiling of the monument on August 1, 2001, described the purpose to remind all who entered
the building that we must invoke the favor and guidance of Almighty God.
It was also pointed out in the article that the first line of the Alabama Constitution reads:
"We, the people of the State of Alabama, in order to establish justice, insure domestic tranquility,
and secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution and form of government for the State of Alabama." (Emphasis added.)
Some interesting supporting history is also noted in the article:
Interestingly, at the Constitutional Convention, Benjamin Franklin, a signer of
the Constitution, made the following statement: "In the beginning of the contest
with Great Britain, when we were sensible of danger, we had daily prayers in this
room for divine protection. Our prayers, sir, were heard and they were graciously answered. All of us endangered in the struggle must have observed frequent instances
of a superintending Providence in our favor. And have we now forgotten that powerful Friend? Or do we imagine that we no longer need His assistance? I have lived,
sir, a long time, and the longer I live, the more convincing proofs I see of this truth—
20
that God governs in the affairs of men. And if a sparrow cannot fall to the ground
without His notice, is it probable that an Empire can rise without His aid?" ***
Noah Webster, who was the author of the American Dictionary and was largely
responsible for much of the Constitutional Convention, stated, "The opinion that
human reason left without the constant control of Divine laws and commands will…
give duration to a popular government is as chimerical [unlikely] as the most extravagant ideas that enter the head of a maniac. Where will you find any code of laws
among civilized men in which the commands and prohibitions are not founded
on Christian principles?" ***
In 1892, another court did reach a much different conclusion. The United
States Supreme Court, in the case of Church of the Holy Trinity v. United States,
ruled, "This is a religious people. These are not individual sayings, declarations of
private persons: they are organic utterances; they speak the voice of the entire people… These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.
***
In 1983, the United States Supreme Court ruled in the case of Marsh v.
Chambers. Their ruling upheld a lower court ruling. The lower court ruling declared, "To invoke divine guidance on a public body entrusted with making the
laws is not, in these circumstances, a violation of the Establishment Clause; it is
simply a tolerable acknowledgment of beliefs widely held among the people of
this country." ***
These things rather clearly point out that our federal courts have now dramatically changed
directions. Where once the courts clearly upheld the right of the people to recognize their traditional roots, both in government and in schools, they are now trying to eliminate any recognition
of our religious roots in government or in schools. Not only that, our federal courts are now
showing a clear bias against religion.
In response to the Alabama Court of the Judiciary ordering the removal of Chief Justice Roy
Moore, Dr. D. James Kennedy responded with a press release, Coral Ridge Ministries, November 13, 2003, stating in part:
For too long, too many elected officials have bowed in submission to lawless federal
court edicts that set aside life and liberty. They have stood by as, case by case, God
and biblical morality have been removed from public life. At some point, the representatives of the people must defend the rule of law and oppose tyranny. Today, the
Alabama Court of the Judiciary missed their opportunity to do so.
This country was founded when a few brave colonial leaders defied a tyrant. The
signers of the Declaration of Independence put their lives on the line in 1776 to defy
the 'rule of law' of King George III. They understood the difference between the rule
of law and the rule of man. They based their claim to independence on the 'laws of
nature and of nature's God' and launched an experiment in liberty unmatched in hu21
man history.
Roy Moore's struggle, like the conflict that launched our nation, is a conflict between tyranny and freedom. The outcome may well settle the question of whether we
will return to freedom or be confirmed in our emerging status as subjects of our
'robed masters.'
An article of Reclaiming America, November 24, 2003, by Sam Kastensmidt, states in part:
Immediately following the Massachusetts Supreme Court's decision to overturn the
state's ban on same-sex "marriage," Governor Mitt Romney vowed to push for a constitutional amendment that would legally define marriage as the union of "one man
and one woman."
Similar court rulings were experienced in Hawaii and Alaska; both state legislatures were forced to pass constitutional amendments to preserve traditional marriage.
Governor Mitt Romney told reporters, "I think we have to do the same thing to preserve the institution [of marriage]."
Gov. Romney stressed, "I agree with 3,000 years of recorded history. Marriage
is an institution between a man and a woman… and our Constitution and laws should
reflect that."
The following reviews and article by Richard Lessner, executive director of The American
Conservative Union, in The Washington Times, August 10, 2003:
Judicial Tyranny
One of the greatest contemporary threats to the survival of republican government arises from the courts. Increasingly, judges are behaving like black-robed autocrats, not simply ruling upon the law, but making law.
Lessner relates some examples of some of the recent offensive court decisions:
In California, the U.S. 9th Circuit Court of Appeals found the Pledge of Allegiance unconstitutional because it refers to "One Nation, Under God," allegedly violating the First Amendment's "establishment clause."
In Florida, the state supreme court threw out a law requiring parents of minor
girls to be notified before their daughters obtain an abortion, this despite overwhelming public support for such a common-sense provision.
Although voters in Nevada twice in the 1990s passed an amendment to the state
constitution calling for a two-thirds supermajority of the legislature to pass any tax
increase, the Silver State's supreme court ordered legislators to pass a $1 billion tax
increase by a simple majority. This ruling effectively disenfranchised the voters of
Nevada, stood the constitution on its head, and made a mockery of popular selfgovernment.
In her opinion in the University of Michigan affirmative action case, U.S. Supreme Court Justice Sandra Day O'Connor admitted that the plain language of the
15th Amendment prohibits the government from making any discrimination among
citizens on the basis of race. Nonetheless, Justice O'Connor asserted that a "compel22
ling state interest" in diversity trumps the plain meaning of the Constitution.
In Lawrence vs. Texas, the Supreme Court kicked open the door, as Justice Antonin Scalia noted in his scorching dissent, to legalized same-sex marriage, polygamy and other unconventional relationships, thereby setting up a revolution in social
norms despite the unwillingness of the American people to undertake such an upheaval. Any day now the Massachusetts Supreme Court is expected to legitimize
same-sex marriage.
These and other outrageous cases -- will we soon forget the U.S. Supreme Court
rewriting the rules of golf for the PGA? -- suggest our American system of separated
powers, checks and balances, is seriously out of balance. Although many of the people's elected representatives are perfectly willing, even eager, to punt some of the
most incendiary issues to courts, the Framers of the Constitution never intended for
Americans to live under a judicial oligarchy in which berobed despots issue decrees
like so many Mogul potentates. ***
Speaking of possible remedies, Lessner says that amending the Constitution would be a
waste of time in the face of an activist court "determined to run roughshod over the basic law."
He suggests that the executive branch should begin using its constitutional responsibility to
check a "rogue judiciary." He notes that: "... the executive, no less than the judicial, has sworn an
oath to defend the Constitution. Thomas Jefferson refused to enforce the Alien and Sedition Acts
even though the Supreme Court held those egregious laws to be constitutional. And Abraham
Lincoln refused to abide by Dred Scott, holding that the court's rulings were binding only upon
the immediate parties to the case. As Lincoln noted, if the Supreme Court's decisions irrevocably
resolve issues, the people will have ceased to be their own rulers and resigned their government
into the hands of judges."
In later chapters in this book I will specifically discuss a large number of United States Supreme Court cases, and the proclivities of various liberal judges. One of the worst was Chief Justice Earl Warren, who was appointed as Chief Justice of the United States Supreme Court by
President Dwight Eisenhower, in 1953, and served until 1969. Eisenhower thought he was appointing a conservative, but Warren turned out to be one of the worst liberal activists who ever
sat on the court. Eisenhower was later quoted as saying that the Warren appointment was "my
biggest damn fool mistake" (M. Dean Sutton, "Earl Warren, 1891-1974,"
http://mdeansutton.com).
The Need to Stem the Flood of Frivolous Lawsuits
Many things have contributed to our "litigious society." Civil rights statutes have been
passed by congress and by states that encourage the filing of lawsuits that were unheard of before. The growth of the insurance industry has led the public to believe that all businesses and
many individuals are insured for about anything that may occur that causes any harm or discom23
fort, and plaintiffs and their lawyers are continually after the "deep pockets" of corporations. Individual responsibility is fast disappearing.
No activist lawyer can think up any new kind of action that is too outrageous for some activist judge and appellate court to support.
When I became an attorney in 1954, the doctrine of contributory negligence prevailed in the
country. Under that doctrine, substantial negligence of a defendant that contributed to his accident and injuries barred any court recovery by him. This fundamental principle of common law
cut down greatly the cases and amounts of damages that plaintiffs could recover, and with it the
income of trial lawyers. Subsequently the attorneys and legal writers proposed the doctrine of
comparative negligence. Judges began to support this new idea at common law, and liberal politicians (and some not so liberal) got comparative negligence made the law by state legislatures.
On this theory, the negligence of the plaintiff and the defendant was compared in various ways,
according to the law adopted. And the defendant was no longer denied recovery because his own
negligence was a proximate cause of his accident and injuries. This alone opened the floodgate to
myriad lawsuits. Many legal writers considered this more fair, reasoning that defendants were
usually in a better financial position to bear the burden of losses than plaintiffs. My view, however, is that the responsibility one should have for his own misdeeds and negligence has been
unfairly reduced.
Attorneys have well learned the value of nuisance suits. Many defendants settle claims fore
the sole reason of avoiding expensive litigation, resulting for undeserved recoveries for many
plaintiffs and their attorneys.
Trial lawyers have developed elaborate and expensive schemes of presenting cases to juries,
using comprehensive exhibits, videos, computer enhanced presentations – their schemes of
presentation are limited only by their imagination. Expensive use of focus groups are becoming
common. Everything is pitched toward winning a lawsuit – justice has little to do with the matter. Impressing and inflaming the jury is the goal.
Medical malpractice has been a lucrative field for trial lawyers, and enormous and in many
cases, exorbitant, verdicts are obtained. Many states have seen the costs of medicine rise, because of the malpractice verdicts and resulting increase in malpractice insurance premiums, to
the extent that caps have been put on medical malpractice suits. The federal government is getting more and more into the field of furnishing medical care, and it is faced with enacting tort
reform so that the cost of furnishing care becomes more reasonable.
24
Class action theories have grown at an alarming rate, and have been the means of financially
bankrupting a number of companies. In cases like the tobacco lawsuits liberal local governments
join in the hope of gaining money from the big tobacco companies. The fact that tobacco was
harmful to people has been well known since I was a child, and that's a long time. Any sane person knows this when he or she chooses to use tobacco. I will say, however, that it appeared to me
that there was some evidence that some tobacco companies may have been intentionally using
ingredients to make their product more addictive, and certainly anything of that nature deserves
severe punishment.
New and ingenious product liability theories are continually developed – many without
sound legal basis.
Gun manufacturers and gun dealers are being sued for acts of criminals in using guns. These
suits have no just basis in the law, but are encouraged by liberals and liberal judges who do not
believe in our Second Amendment right to bear arms. They are trying to destroy that right by
frivolous and expensive class action lawsuits. They have not been successful in getting the people to do away with the right to bear arms. This kind of wrongful litigation should be stopped by
congress immediately. Not only are there individual suits, but liberal cities and counties, taking
the lead of the tobacco cases, think that they might not only accomplish their liberal goal of destroying our constitutional right to bear arms, but recover large amounts of money from the gun
manufacturers.
The following is from an article, "It's Time for Congress to End Lawsuits Against Gun
Manufacturers," by H. Sterling Burnett, Ph.D., National Center For Policy Analysis,
(http://www.ncpa.org/edo/sb/2003/sb032103.html):
Since 1997, more than 30 cities and counties have sued firearm manufacturers in
an attempt to force manufacturers to change the way they make and sell guns.
Burnett's article notes that more than thirty states have already passed laws banning city
lawsuits against gun manufactures; and that in the courts, more than a third of the suits have been
dismissed or dropped. "It is the responsibility of the legislature(s), not the courts, to regulate firearm production and sales; and manufacturers of legal products are not responsible for the criminal misuse of those products." However much more is needed, it is explained that a bi-partisan
bill has been introduced in the Senate to prohibit these spurious lawsuits. He explains that these
lawsuits could bankrupt the whole industry (which is of course exactly what liberal activists
want). It is noted that some appellate courts, which are inclined to "preempt the legitimate role of
the legislature and make law, rather than uphold precedent and traditional common law princi25
ples of tort in the area of firearms policy," are allowing some of these unfounded lawsuits, even
after they have been properly dismissed by trial courts.
As to some of the reasons why congress should prohibit these lawsuits, Burnett further
states:
Federal intervention is merited for a number of reasons. These lawsuits are an
attempt to circumvent the will of the majority as expressed through the legislature
with the determinations of the judiciary. Several of the mayors and district attorney's
have admitted as much by stating that the lawsuits are not really about money but rather about changing the way the firearm industry does business. Shaping an industry's business practices is regulation pure and simple - and regulation is the proper
province of the legislature.
In addition, each Congressman swears to uphold the Constitution of the United
States, and this bill is a step in satisfying that pledge. How so? The Second Amendment to the Constitution guarantees the individual's "right to keep and bear arms."
However, as mentioned above, the firearms industry is relatively small. These lawsuits have already helped push two companies into bankruptcy. If the industry as a
whole is forced into bankruptcy, the "the right to keep and bear arms," becomes academic.
Spurred on by their success in the tobacco lawsuits, the trial lawyers are now taking aim at
businesses such as McDonalds and filing lawsuits claiming that hamburgers and fries are making
people fat. How astounding! Are there any parents, or even children old enough to choose what
and where they eat, that do not know that when they choose to eat hamburgers and french fries
that they are eating fattening food.
As I said before, there is no lawsuit so unreasonable and ridiculous that some activist trial
lawyer will not bring it, and some activist judge will not construe the law in support of it.
Tort reform is a must in this country – both at federal and at state levels. Expensive frivolous lawsuits are becoming a real burden to our country.
Even where there is a just basis for lawsuits the impact of class action lawsuits can get
enormously out of proportion.
Asbestos was an important produce in this country and in Europe for centuries. In the 1960's
the breathing of asbestos fibers was determined to be more dangerous than originally thought,
and the use of asbestos was largely discontinued. About the only present use of importance is
insulating the solid fuel boosters of the space shuttles.
(http://www.weshar.com/history%20of%20asbestos.htm) This material is so fireproof that I
would not at all be surprised if in the future science finds a way to make it again a useful product. But when it was determined that the breathing of the tiny hooked asbestos fibers had caused
26
both an incurable cancer and a debilitating condition called asbestosis, the flood of lawsuits began.
In an editorial, "The asbestos crisis / congress must end the flood of lawsuits," Pittsburgh
Post-Gazette, September 23, 2003 it is stated:
The U.S. Supreme Court has implored Congress to do something about the "elephantine mass of asbestos cases" in the courts. It is now time for lawmakers to corral
this pachyderm, which for years has run wildly and destructively in defiance of reason.
The best means to do this is a proposal called the Fairness in Asbestos Injury
Resolution Act, or Senate Bill 1125.
The article goes on to explain that according to a study by the Rand Corp. the staggering
costs of the litigation could amount to more than $264 billion.
The study also showed that: Some 65 percent of the compensation paid over the last decade
was to people claiming noncancerous conditions -- a trend that was swelling the asbestos caseload. This is not cause for celebration. As the report said, "There is widespread agreement that
the majority of the claimants without cancer are functionally unimpaired." The editorial further
states:
Whatever is done in Congress, the human victims of the scourge must be left
with a system that offers fair compensation. At the moment, they must take their
chances in a litigation lottery, with no guarantee that the companies they are suing
will not be bankrupted. At least 67 companies have failed already, a dozen of them in
Pennsylvania. ***
The litigation explosion has itself become a cancer, with plaintiff attorneys
searching for new defendants with deeper pockets who are not directly related to the
production of asbestos. They like to file their suits in states where they think juries
are most sympathetic (West Virginia is a favorite). ***
This is but one example of how true justice can go far awry, when lawsuits are looking only
toward big money and not to true justice for injured parties.
I have not read the book, The Rule of Lawyers: How the New Litigation Elite Threatens
America's Rule of Law, by Walter K. Olson. However, the title and a book review I read on the
Center For Individual Freedom website coincide with my observations of what the trial lawyers
and activist judges are doing to this country. The review states:
Starting with the $246 billion tobacco settlement, The Rule of Lawyers covers
the big-city suits against gun manufacturers, the spurious silicone breast-implant affair and the past and ongoing asbestos suits, among others. In each case, Olson exposes the trial bar's dirty tricks-of-the-trade and explains how lawyers were able to
27
manipulate the legal and political systems to bring down entire industries and force
the largest redistribution of wealth ever seen in this country.
The review reflects on what the trial lawyers consider their role in society:
With an unlimited amount of money, well-heeled judicial and political allies, an
adoring press and an endless stream of industries to wage war on, the nation's new
"litigation elite" sees itself as "rescuing the process of lawmaking from the lawmakers."
There is a growing element in the legal profession that has no real respect for our Constitution, and much less for our republican form of government. Although greed is a large factor in
their impetus, that is only a part of it. They are also a part of the liberals, who consider themselves "elite." An element that seems bent on destroying everything worthwhile in our country.
The destruction of the rights of the people to govern themselves, along with the rights of the
states, is detrimental to one of the great things intended by our founding fathers, which is the
having of different laws in different states. This could be very important on controversial subjects – allowing the people to compare the benefits and determents of different approaches. Such
things as abortion, homosexuality, and the death penalty are some of the examples. The Supreme
Court has usurped these rights as to abortion and homosexuality, as in many other areas, unconstitutionally making itself the supreme arbiter. As we will see later in the book, it attempted to
eliminate the death penalty, but ran into such an uproar that it substantially reversed itself on that
issue. But most of the liberal justices are still intent on eliminating the death penalty, even
though it is specifically recognized as valid, several times, in our Bill of Rights.
Looking at the whole picture of unfounded lawsuits and destruction to our Constitution by
unlawful court decisions, it is clear that activist lawyers and judges have earned the disrespect
held for them by many people in this country. In fact they have given the whole legal profession
a bad name.
It should now be clear to all of us that the time has come to put a stop, once and for all, to
the destruction of our rights by activist courts.
28
Chapter II
Determining The Meaning Of Writings
The Constitution is a written instrument. As such its meaning does not alter.
That which it meant when adopted, it means now. Being a grant of powers to a
government, its language is general; and, as changes come in social and political
life, it embraces in its grasp all new conditions which are within the scope of the
powers in terms conferred. In other words, while the powers granted do not
change, they apply from generation to generation to all things to which they are
in their nature applicable. This in no manner abridges the fact of its changeless
nature and meaning. Those things which are within its grants of power, as those
grants were understood when made, are still within them; and those things not
within them remain still excluded. (Justice Brewer, State of South Carolina v. U.
S., 199 U.S. 437 (1905))
We should first look at the matter of the meaning of writings on the basis of common sense
and logic, which is the true basis of legal interpretation.
Let us consider a contract made between two people. What is it? It is a writing the two parties have joined in to set forth their intention and purpose of an intended relationship or transaction. If a disagreement arises, and the court must determine its meaning, it first looks to its plain
wording to arrive at the intent and purpose of the parties. If there are ambiguities, that intent and
purpose may have to be determined by other circumstances, or from extrinsic evidence in some
cases. But always, the object is to determine the true intent and purpose of the parties at the time
the contract was made. It is not the intent and purpose of the court, and it is not the intent and
purpose that some judge may think is best for the community. One certainly does not need to be
a lawyer to see the logic of this.
Next consider a person's will. A person sets forth in a will how and among whom he or she
wants their estate distributed at death. The person that owns the property is the one who has the
sole right to determine what will be done with it. It is his "will" or choice, not someone else's.
What a travesty of justice it would be if some judge substitutes his intention for that of the testator. How long would people put up with such miscarriages of justice? It has been correctly said
that the intent of the testator is the polestar of the court.
What about a statute passed by congress or a state? The exact common sense and logic applies. Those who enact a law, whether it be by the representatives of the people, or by direct vote
of the people, have a particular purpose in mind. If there is any ambiguity or any wording in the
law that requires a court to determine the meaning, the duty of the court is to determine the intent
of those who enacted the law. The courts substituting their own ideas as to what the law should
be is patently wrong and unacceptable. The court should first look to the four corners of the stat29
ute, just as in any other writing, to first try to determine the intent of the people or their representatives. If this cannot reasonably be done, the history and other factors should be considered.
As to states, how far the factors outside the wording of the law may be considered varies among
the states, often depending on how well legislative records, committee records and reports, and
such matters are recorded and kept. As to determining the intent of congress where federal statutes are concerned, all such matters of record have been used. What is said in legislative debates
is sometimes considered, particularly by those who write, who propose, and who are proponents
of the bill.
Now we consider our constitutions, federal and state. These are far more important than a
contract, a will, or a statute. Should we now abandon common sense and logic? We shouldn't,
but, sadly, our courts often do, particularly as to the Constitution of the United States – by far our
most important legal document. Why is this? It is because activist judges, and particularly federal
judges appointed for life and therefore not responsible to the people, cannot seem to restrain
themselves from substituting their own views for those of the people or their representatives who
enacted a particular provision of the Constitution. When a judge (and this term includes a justice
or a chief justice) takes it on himself to change a provision from the meaning intended by those
who enacted it, at the time it was enacted, he grievously violates both his oath and his duty. This
wrong and destructive affront to the rights of the people should not be tolerated by them.
The two most complete and highly respected encyclopedia type treatises on the law are Corpus Juris Secundum (C.J.S.) and American Jurisprudence, Second, (Am. Jur. 2d). Listed under
the headings below are excerpts from these authorities, pertaining to the subject headings:
Contracts
Contracts, § 308, 17A C.J.S. 321-322:
The primary and overriding purpose of contract law is to ascertain and give effect to the intentions of the parties, and the parties' intent controls the interpretation
of a contract, as far as that may be done consistently with legal principles, statutes,
good morals, or public policy. A contract is to be construed according to what is fairly to be assumed to be the understanding of the parties. The fundamental question to
be determined in the construction of any contract, therefore, is what the real intention
of the parties was at the time of execution of the contract.
Contracts, § 336, 17A Am. Jur. 2d 342:
A contract is to be enforced as the parties made and understood it unless, because of some statutory provisions, the courts are required to give it a construction or
effect which the parties did not intend. In the absence of a statute the only duty of the
courts is to discover the meaning of a specific contract and to enforce it without a
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leaning in either direction, where the parties stood on an equal footing and were free
to do what they chose.
Wills
Wills, § 831, 96 C.J.S. 2d., 95-96:
The cardinal rule in the construction of wills and codicils is that the intention of
the testator must be ascertained if possible, and, if it is not in contravention of some
established rule of law or public policy, must be given effect. Such is the rule although the court considers the result unjust or absurd, and the disposition of the testator's estate inequitable, unwise, or capricious. ...
The chief object and purpose of the construction of a will is to discover and carry out the intent of the testator as expressed in the will, and this is the prime duty of
the court, and its sole function or province. In other words, the intention of the testator is the prime or paramount consideration, controlling factor or element, main
guide in the interpretation of a will, or polestar to guide the court to which the problem is presented in the construction of every will. ...
Wills, § 998, 80 Am. Jur.2d 218-219:
It is the primary function and duty of the courts, with respect to the construction
of wills, to ascertain the intention of the testator as to the disposition of his or her
property, and if that intention is legal, to carry it into effect. The duty of the court is
to interpret the will, not to construct it or make a new one. The court may not speculate upon what the testator may have intended to do, but rather must give strict effect
to the testator's words.
Wills, § 997, 80 Am. Jr. 2d 218, also makes the observation:
As a rule, the testator's intent must be ascertained from the will itself and extrinsic evidence is generally not admissible to vary, contradict, or add to the terms of a
will, or to show an intention different from that disclosed by the language of the will.
However, under the law of some jurisdictions, extrinsic evidence as to the testator's
intent is admissible to explain a latent ambiguity in the will.
Statutes
Statutes, § 306, 82 C.J.S. 385:
The purpose of all rules or maxims that are used in the construction or interpretation of statutes is to discover the true intention of the law. The rules or canons of
statutory construction are merely aids for ascertaining legislative intent. ...
(As to liberal construction, p. 387):
... However, since the true purpose of the liberal construction doctrine is to carry
out the intention of the legislature, the doctrine does not allow a court to delete vital
provisions or supply vital omissions in a statute; no matter what the legislature may
have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.
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The terms of a statute cannot be extended unreasonably, even under liberal construction principles. The rules allowing liberal construction of a statute therefore normally
does not permit statutory provisions to be ignored entirely, no does the rule permit
enlargement of plain provisions of the statute. ...
Statutes, § 61, 73 Am. Jur. 2d 277-278:
In the interpretation of statutes, the legislative will is the all-important or controlling factor. Indeed, it is sometimes stated in effect that the intention of the legislature constitutes the law. Accordingly, the primary rule of construction of statutes is
to ascertain and declare the intention of the legislature, and to carry such intention into effect to the fullest degree. Thus, a construction adopted should not be such as to
nullify, destroy, or defeat the intention of the legislature.
Statutes, § 62, 73 Am. Jur. 2d 278-279:
In the interpretation of a statute, the intention of the legislators is gathered from
the provision enacted by the application of sound and well settled canons of construction. ...
However, since all rules for the interpretation of statutes of doubtful meaning
have for their sole object the discovery of the legislative intent, every technical rule
as to the construction of a statute must yield to the expression of the paramount will
of the legislature.
Constitutions
Constitutional Law, § 20, 16 C.J.S. 70-74:
The function of the Court, in construing a constitutional provision or and
amendment, the importance of which has been variously characterized, is to ascertain
and give effect to the intent of the framers and the people who adopted it. In carrying
out this function, the court should consider the object sought to be accomplished by
the adoption of the provision, and proper regard should be given to the situation
sought to be accomplished by the adoption of the provision, and proper regard
should be given to the situation sought to be prevented or remedied, and the remedy
sought to applied.
The intent of the framers of a constitution is to be found in the instrument itself,
at least in the absence of ambiguity calling for the permissible extrinsic aids. Accordingly, effect should be given to the purpose indicated by a fair interpretation of the
language used, and that construction which effectuates, rather than that which destroys a plain intent or purpose of a constitutional provision, is not only favored but
will be adopted. In construing a constitution, it is presumed that the language has
been employed with sufficient precision to convey the intention, although the intent
may be shown by implications as well as by express provisions.
While it is said that the construction of a constitutional provision should neither
be liberal nor strict, it is quite generally held that in arriving at the intent and purpose
the construction should be broad or liberal, or equitable, as the better method of ascertaining that intent, rather than technical. The construction should not, however, be
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so liberal as to result in nullifying a plain mandatory provision of the organic law, or
as to result in a statute becoming the higher law.
Constitutional Law, § 21, 16 C.J.S. 75-76:
It is not for the courts to pass on the question whether a constitutional provision
or amendment is wise or unwise, and questions as to the wisdom, expediency, or justice of constitutional provisions afford no basis for construction where the intent to
adopt such provisions is expressed in clear and unmistakable terms. An unexpressed
policy may not be read into a constitutional provision by means of construction, and
the remedy for unwise or unjust constitutional provisions is to be found in amendments.
Constitutional Law, § 60, 16 Am. Jur. 2d. 428-430:
In line with the rule that the determination of the constitutionality of legislation
is for the courts, it is held that although those who are charged with official duties,
whether executive, legislative, or judicial, must necessarily construe the constitution
in some instances, the construction of the constitution is, generally, the peculiar
province of the courts whose duty it is to follow and give effect to its plain and unambiguous language and to construe only those parts of the constitution which are
not plain and unambiguous, and where a court of last resort has construed a constitutional provision, such construction is binding on all departments of government, including the legislature.
... A constitutional provision which is positive and free from all ambiguity must
be accepted by the courts as it reads, and should be applied rather than construed. In
such a case no construction is permissible, and there is no excuse for interpolation or
addition. Instead, constitutional provisions should be given a reasonable and practical interpretation in accordance with common sense.
The courts have no right, by construction, to substitute their ideas of legislative
intent for that unmistakably held by the legislature and unmistakably expressed. In
other words, the courts are not at liberty to search for its meaning beyond the instrument, or to amend a constitution by judicial decision. The aim of judicial construction, and also its limitation, is to determine the meaning of what has been
written―not to delete sections from the constitution on the theory that if conditions
had been different, they would not have been written.
Constitutional Law, § 61, 16 Am. Jur. 2d 431-432:
An elementary rule of construction is that, if possible, effect should be given to
every part and every word of a constitution, and that no portion of the fundamental
law should be treated as meaningless or superfluous, unless there is some clear reason to the contrary. The legal intendment is that every word and every clause has
been inserted for some useful purpose, and, when rightfully understood, has some
practical operation; each word, it has been said, must be presumed to have been carefully chosen and intentionally placed, as though it had been hammered into place.
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Therefore, it is not to be presumed that any clause in a constitution was intended to
be without effect.
In the following chapter, we will look at writings of eminent scholars and writers on the
construction and interpretation of the United States Constitution, and review cases, old and new,
regarding proper construction. In following chapters a very large number of Supreme Court cases
will be reviewed for the purpose of looking at examples of cases using exemplary integrity in
arriving at the intent of those who framed and adopted our Constitution, the Bill of Rights, and
subsequent amendments.
We will also review cases that are specific examples of decisions by courts that have
usurped the sole right of the people to change our constitution, and intentionally and maliciously
changed the Constitution to fit their own political and moral biases. They have changed the Constitution to what they think it should be, and disregarded the intent and purpose of those who
framed and adopted particular provisions.
A review of properly considered cases will show that the common sense and logic outlined
in the first few paragraphs of this chapter are diligently followed. Their polestar is the intent and
purpose of those who framed and enacted a provision. What a particular judge thinks is best or
equitable has no relevance at all. That is not his job. We will see the things that a judge should
look at to properly determine the intent and purpose behind the adoption of a particular constitutional provision.
When a provision of the Constitution is so general that the Court must find the intent and
purpose to determine if it prohibits or allows a particular legislative action, how should the determination be made? Again a proper search for that intent requires nothing more and nothing
less than continuing to use common sense and logic. To determine the intent of congress in proposing and the states in adopting our Constitution and our Bill of Rights, and amendments to
them, we need to look at the circumstances, and what was said by those who participated in these
actions. We do not need judges to imagine and speculate on what was intended – that leads only
to wrongful decisions. The following are things that good cases show are relevant to determining
the circumstances, thinking, and what those who participated said about particular provisions.
1. Primary consideration shall be given to the plain wording of the provision. Phrases and
ideas of judges shall not be engrafted and treated as a part of the constitution which are not a part
any provision. Where the wording needs further construction for application to a particular question, the following additional factors shall be considered to the extent needed.
2. Reliable and relevant legal and general history of this country, and of Great Britain,
where applicable, up to the date of ratification.
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3. Relevant debates, speeches, and writings of our founders, framers, and those who took
part in ratification.
4. Relevant matters of official record, including congressional records, legislative records,
and other official records.
5. Extraneous matters such as personal views of judges and justices, events at a later date,
changes in conditions, and what other countries may be doing in like cases shall not be considered, as those are matters for the people and their representatives, who have the sole prerogative
to change the Constitution when changes are needed.
Our country had adopted the English common law and principles of the English Magna
Carta before we had a United States, and the common law of England, that was in effect when
our Constitution was formed, became the common law of the United States. Many of the Magna
Carta principles went into our Bill of Rights, and some of our better justices have looked at the
Magna Carta as a part of the relevant history bearing on the meaning of some of our rights. That
early history can be important for those reasons. It is not difficult for judges to arrive at the intent
of provisions, if they really want to. We had a rich history, and we have many important documents to look at. It is amazing how many written records and historical articles there are that
were made by a rather amazing people who lived in the latter part of the Seventeen Hundreds.
After the Constitution was proposed, we even have The Federalist Papers written by Alexander
Hamilton, John Jay, and James Madison, constituting their arguments as to why the states should
adopt the Constitution. These were all published. We have the laws and constitutions of the
states, prior to the adoption of the Constitution, which are relevant to understanding the meaning
of various parts of our federal Constitution We have records of relevant proceedings in Congress
and in the state legislatures. We have a rich and relevant history to look at to determine the intentions of these people.
In the numbered paragraphs above , when a court goes outside the first four factors, it necessarily gets into the improper realm of the fifth. Again, these are merely matters of logic and
common sense.
I think it will be clear, after reviewing all of the better legal writings and all of the properly
decided cases, that the above simple rules apply to all cases in determining the meaning of a constitutional provision.
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Chapter III
General Principles of Construction – U. S. Constitution
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy,
of these laws. The decision of that question belonged to the political or law-making power; to those
who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the
instrument they have framed, with the best lights we can obtain on the subject, and to administer it
as we find it, according to its true intent and meaning when it was adopted. ***
No one, we presume, supposes that any change in public opinion or feeling, in relation to this
unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give
to the words of the Constitution a more liberal construction in their favor than they were intended to
bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a
mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered,
it must be construed now as it was understood at the time of its adoption. It is not only the same in
words, but the same in meaning, and delegates the same powers to the Government, and reserves
and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it
spoke when it came from the hands of its framers, and was voted on and adopted by the people of
the United States. Any other rule of construction would abrogate the judicial character of this court,
and make it the mere reflex of the popular opinion or passion of the day. This court was not created
by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must
not falter in the path of duty. *** (Opinion of Chief Justice Roger Taney, Scott v. Sandford, 60 U.S. 393
(How.) (1856))
General Rules Of Construction
The above, from the opinion of Chief Justice Roger Taney, is a quote from one of the most
important and controversial United States Supreme Court cases ever decided. It was the famous
Dred Scott case. If there is a case of greater importance and controversy, it would have to be
Chief Justice John Marshall's opinion in Marbury v. Madison, 5 U.S. 137 (1803), holding that
the Supreme Court had the power to declare unconstitutional an act of Congress.
The above quotation from the case sets forth the sacred duty of the justices to abide by
their oath in upholding the Constitution. And it is a gross violation of their oath, and a direct violation of our Constitution, for judges to alter it in anyway, thereby usurping the
power of the people to whom belongs the sole power to change that document. Protecting
and setting forth the right of the people to govern themselves, providing the republican
form of government to do it, and permanently guarding against those rights and their individual freedoms being infringed by the government, was the purpose of our Constitution.
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The Dred Scott decision was on the most divisive issue this country has ever faced, and at
the most explosive time in our history – the dissension among the states on slavery, which resulted in the Civil War.
I consider it an outstanding example of judicial construction by all of the nine justices who
all had something to say on this very difficult and divisive case. The case had one salutary effect.
It clearly delineated the problems inherent in our Constitution when it came to making the
thoughtful changes needed to do away with slavery, the legality of which was clearly recognized
in our Constitution; and to giving full freedom, rights, and citizenship to former slaves as well as
black freemen. Subsequently, all of this was properly done by the people; and in a much more
meaningful way than could ever have been done by the court. It illuminates the foresight of our
founders in setting up our tri-partite form of government, with its limited powers in each department, with its checks and balances.
Our activist judges today have completely forsaken the judicial integrity shown by the justices in the Dred Scott case, and generally shown by most all of our judiciary until modern times.
This situation has now become a national disgrace.
Due to the importance of the Dred Scott case, both as to the history of our country, and to
the primary issue of this book – judicial construction by courts – it merits a discussion of both
the correctness of the decision and methods used by the nine judges to arrive at their opinions.
There has been a great amount of legal writing and discussion as to the correctness of the
decision. Such writing was greatly influenced by the explosiveness of the issue involved, and by
the fact that decision was against the freedom sought by a slave. The sentiment of all must be for
that sacred freedom, but slavery was clearly recognized and provided for in our Constitution.
These two diametrically opposing factors make it difficult for even the criticism to be objective,
and it is not sufficiently relevant to the subject of this book to go into the many writings about
the decision. It is also difficult to say at this late date which side is really correct from an objective standpoint in light of our Constitution at that time. First we should review what those relevant provisions were.
Article I, Section 8, of the Constitution included the provision that Congress was to establish
"an uniform Rule of Naturalization." (This removed that right as to citizenship from the states.)
Article I, Section 9 provided in part: "The Migration or Importation of such Persons as any
of the States now existing shall think proper to admit, shall not be prohibited by the Congress
prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on
such importation, not exceeding ten dollars for each Person." (This provision, as shown by the
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history and debates, clearly applied to the continued importation of slaves. It was equally clear
that slaves were not citizens and entitled to the rights of citizens.)
Article IV, Section 2 included the provision: "No Person held to Service or Labour in one
State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of
the Party to whom such Service or Labour may be due." (This applied to slaves, and was put in
the Constitution at the insistence of the slave States.)
Article V, on amending the Constitution, includes the provision: "Provided that no Amendment which shall be made prior to the Year One thousand eight hundred and eight shall in any
Manner effect the first and fourth Clauses in the Ninth section of the first article." (The first
clause of Article I, Section 9 is the one quoted above on the importation of slaves. No where in
the Constitution is Congress given the right to eliminate slavery, and I believe that all real legal
scholars would agree that slavery could only be eliminated by a constitutional amendment, as
was eventually done in 1865.).
Certainly, it is sad that those provisions were in our Constitution, but without them there
would have been no United States and no Constitution. Slavery was common in the world at that
time, and, in fact, still exists today. The major blot on our history was slavery, and its end in this
country came as a result of Christian influences in this country. "Abolitionism as an organized
force began in England in the 1780s, when William Wilberforce and a group of wealthy evangelical Anglicans began agitating against the African slave traffic. Their success stimulated further
political assaults on slavery itself. Parliament abolished West Indian slavery in 1833." (Encarta
98 Desk Encyclopedia) "In the United States, antislavery activity began in colonial days. During the 1680s, Quakers in Pennsylvania condemned slavery on moral grounds. In the late 1700s,
several leaders of the American revolutionary movement, including Thomas Jefferson and Patrick Henry, spoke out against slavery." (World Book Encyclopedia, 1997) The elimination of
slavery in this country in 1865 also encouraged other countries to abolish this abominable practice.
These provisions of the Constitution were critical to properly deciding the Dred Scott case.
From the many statements in the opinions in the Dred Scott case, and from history of our
country, we see that even in the non-slave states, free blacks were treated differently than whites.
Even Abraham Lincoln, who did more to eliminate slavery than anyone, said:
But Judge Douglas [Lincoln's political opponent] is especially horrified at the thought of the mixing of blood by the white and black races. Agreed for once; a thousand times agreed. There are white
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men enough to marry all the white women, and black men enough to marry all the black women; and so
let them be married. On this point we fully agree with the judge. ...
A separation of the races is the only perfect preventive of amalgamation; but, as an immediate
separation is impossible, the next best thing is to keep them apart where they are not already together.
If white and black people never get together in Kansas, they will never mix blood in Kansas. ... ("The
Dred Scott decision and the Declaration of Independence," Abraham Lincoln, The Annals of America,
Encyclopaedia Britannica, Vol. 8, pp. 464-465)
One issue in the Scott decision was Section 8 of the Missouri Enabling Act of 1820, also
called the Missouri Compromise, which provided:
And be it further enacted, that in all that territory ceded by France to the United States, under
the name of Louisiana, which lies north of 36°30' N latitude, not included within the limits of the state,
contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of
crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited:
Provided always, that any person escaping into the same, from whom labor or service is lawfully
claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.
This Missouri Act was and extremely controversial piece of legislation. Many thought it
good legislation. Others though it was not only unconstitutional, but could be the undoing of the
Union.
The following relates to the ideas of John Quincy Adams on the matter:
The complexity of the issues involved in the debate about the Missouri Compromise is revealed
in the selection that appears below from the diary of John Quincy Adams, dated March 3, 1820, only
three days before the Missouri Enabling Act went into effect. President James Monroe had assembled
his cabinet (Adams was secretary of state) for advice before signing the bills admitting Maine and Missouri, and Adams recommended their acceptance. He did so despite the fact that he believed that slavery was a profound moral evil. At the same time, however, he was convinced that the Constitution did
not give the federal government the power to abolish the institution. "The abolition of slavery where it
is established must be left entirely to the people of the state itself," he declared in a letter of the same
date to Governor Jonathan Jennings of Indiana. ...
Included in the diary entries were:
I have favored the Missouri Compromise, believing it to be all that could be effected under the
present Constitution, and from the extreme unwillingness to put the Union at hazard. .. If the Union be
dissolved, slavery is precisely the question upon which it ought to break. For the present, however, this
contest is laid asleep. (The Annals of America, Encyclopaedia Britannica, Vol. 4, p. 589)
Thomas Jefferson, although he was against slavery, not only thought that the Missouri Act
of 1820 exceeded the power of Congress, but that it would result in the dissolution of the Union.
Jefferson believed that slavery would die a natural death if left alone. In a prophetic letter of
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April 22, 1820, to John Holmes, one of the few Northern congressmen that voted against the
Tallmadge Amendment that would have excluded slavery from Missouri, itself, Jefferson said:
I thank you, dear sir, for the copy you have been so kind as to send me of the letter to your constituents on the Missouri question. It is a perfect justification to them. I had for a long time ceased to
read newspapers, or pay any attention to public affairs, confident they were in good hands, and content
to be a passenger in our bark to the shore from which I am not distant. But this momentous question,
like a firebell in the night, awakened and filled me with terror. I considered it at once as the knell of the
Union. ...
...This certainly is the exclusive right of every state, which nothing in the Constitution has taken
from them and given to the general government. Could Congress, for example, say that the nonfreemen of Connecticut shall be freemen, or that they shall not emigrate into any other state?
I regret that I am now to die in the belief that the useless sacrifice of themselves by the generation of 1776, to acquire self-government and happiness to their country, is to be thrown away by the
unwise and unworthy passions of their sons, and that my only consolation is to be that I live not to weep
over it. If they would but dispassionately weigh the blessings they will throw away against an abstract
principle more likely to be effected by union than by scission, they would pause before they would perpetrate this act of suicide on themselves, and of treason against the hopes of the world. To yourself, as
the faithful advocate of the Union, I tender the offering of my high esteem and respect. ... (The Annals of
America, Encyclopaedia Britannica, Vol. 4, p. 603-604)
The Missouri Act of 1820 was declared unconstitutional in the Scott case, on agreement of
six of the nine justices, including Chief Justice Taney.
Some of the relevant facts of the case are:
In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, Dr. Emerson took the plaintiff from the
State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as
a slave until the month of April or May, 1836. At the time, Dr. Emerson removed the plaintiff
from the military post at Rock Island to the military post at Fort Snelling, situate on the west
bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United
States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and
north of the State of Missouri. (This was in the territory covered by the Missouri enabling Act of
1820) Dr. Emerson held the plaintiff in slavery at Fort Snelling, until the year 1838.
In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration,
was the negro slave of Major Taliaferro, who belonged to the army of the United States. [60 U.S.
393, 398] In that year, 1835, Major Taliaferro took Harriet to Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and
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delivered her as a slave at Fort Snelling to Dr. Emerson. Dr. Emerson held Harriet in slavery at
said Fort Snelling until the year 1838.
In the year 1836, the plaintiff (Scott) and Harriet at Fort Snelling, with the consent of Dr.
Emerson, who then claimed to be their master and owner, intermarried, and took each other for
husband and wife. Eliza and Lizzie, named in the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of
the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years
old, and was born in the State of Missouri, at the military post called Jefferson Barracks.
In the year 1838, Dr. Emerson removed the plaintiffs from Fort Snelling to the State of Missouri, where they have ever since resided.
Before the commencement of this suit, Dr. Emerson sold and conveyed the plaintiff, Harriet,
Eliza, and Lizzie, to the defendant (Sandford), as slaves, and the defendant has ever since
claimed to hold them and each of them as slaves.
Prior to this action in the federal court, Scott and his family brought a suit against Dr. Emerson in the Sate court of Missouri, claiming their freedom on the basis that they had been taken to
states and the Missouri territory, where slavery was prohibited. A jury decided for the plaintiffs,
but the decision was reversed and remanded by the Supreme Court of Missouri in 1852 (Dred
Scott v. Emerson, 15 Missouri R., 682, 1852). That Court held that the plaintiffs remained slaves.
After the Missouri Supreme Court decision, and while it was still pending in the lower court, this
federal action was brought.
In the lower court in the federal case the jury returned a verdict for the defendant, Sandford,
holding that the plaintiffs were still slaves. However, the judge had instructed the jury that "upon
the facts in this case, the law is with the defendant." Appeal was then taken to the United States
Supreme Court.
The majority opinion in the case was written by Chief Justice Roger Taney. He and Justices
Wayne, Grier, Daniel, Campbell, and Catron not only held that the plaintiffs were slaves and not
citizens, but declared the Eighth Section of the Missouri Act unconstitutional and beyond the
power of Congress, because slavery was specifically recognized and provided for in the Constitution, and that Congress had no authority to eliminate slavery. Additional reasons given were
that interpreting the issue as the dissent did would be the taking of property of the defendant
without due process of law, in violation of the Fifth Amendment. (Criticism of this part of the
decision has been made on the premise that plaintiffs were treated as "mere property." The hard
41
truth is that slaves were treated as property. They were held, sold, and traded as valuable property.)
Justice Nelson gave his opinion, assuming jurisdiction of the Court, and deciding that the
plaintiffs were still slaves, affirming the court below. He abstained from giving an opinion on the
constitutionality of Section 8 of the Missouri enabling Act.
Justices Mclean and Curtis dissented giving their opinion that the Court had jurisdiction and
that the plaintiffs should be given their freedom.
It is difficult for a person to now determine what the law was and which side was right at the
time the Dred Scott case was decided 148 years ago. I wonder how many of those who criticize
this case actually undertook the tedious task of researching the relevant history, debates, writings, and prior cases – state and federal – necessary to arrive at an intelligent decision on this extremely complicated matter, as all of the judges in the case did. The nine opinions took about 250
pages in the U.S. Reporter. This decision was a book in itself.
I have not studied the case to the extent I would if I were a judge having to decide it, or an
attorney handling it for a party. I will primarily limit my remarks to the content of the opinions,
for purposes of this book.
I will comment on a couple of criticisms of the case. FindLaw is a dependable legal source
on the internet. An article it has on the case states in part:
... So the first question the Supreme Court had to decide was whether it had jurisdiction to rule over this case. If Scott had standing - that is, a legal right - then the
Court had jurisdiction, and the justices could go on to decide the merits of his claim.
But if, as a slave, Scott did not have standing, then the Court could dismiss the suit
for lack of jurisdiction.
The Court ruled that Scott, a slave, could not achieve U.S. citizenship and therefore could not exercise the privilege of a free citizen to sue in federal courts. That
should have been the end of the case, but then Chief Justice Taney and the other
southern sympathizers on the Court hoped that a definitive ruling would settle the issue of slavery in the territories once and for all. They therefore continued on to rule
that the Missouri Compromise of 1820 was unconstitutional since Congress could
not forbid citizens from taking their property, i.e., slaves, into any territory owned by
the United States. A slave, Taney ruled, was property, nothing more, and could never
be a citizen.
Dred Scott's case holds a unique place in American constitutional history as an
example of the Supreme Court trying to impose a judicial solution on a political
problem. The ruling, which helped to precipitate the Civil War, has long been considered one of the court's great "self-inflicted" wounds.
http://supreme.courttv.findlaw.com/supreme_court/landmark/dredscott.html
42
The writer of the above gives no reference for the conclusion that the majority judges were
"southern sympathizers," and that this was the reason for their decisions. A reading of the opinions shows well researched bases for them. The writer offers no specifics on what he thinks
would have been a proper decision, nor does he state any particular errors in the case.
The statement that the ruling precipitated the civil war is not supported by history. The Missouri Enabling Act of 1820 was one of the many things that caused Southern states to commence
withdrawing from the Union. The decision, if anything would have encouraged them to withhold
such action. Jefferson's prophecy that the Act of 1820 was "the knell of the Union" was far more
correct.
When he was debating Douglas, Abraham Lincoln criticized the Dred Scott Decision in his
speech referred to above. But when he was elected President and was facing a possible civil war,
he said in his First Inaugural Address (March 4, 1861):
... I have no purpose to interfere with slavery in the states where it exists. ...
... That the maintenance inviolate of the rights of the states, and especially the right of
each state to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our
political fabric depend ... . ***
... I understand a proposed amendment to the Constitution―which amendment
however, I have not seen―has passed Congress, to the effect that the federal government shall
never intefere with the domestic insitutions of the states, including that of persons held to
service. To avoid misconception of what I have said, I depart from my purpose not to speak of
particular amendments so far as to say that, holding that such a provision to now be implied
constitutional law, I have no objection to its being made express and irrevocable. *** (Abraham
Lincoln – Selections From His Speeches and Writings; edited by J. G. De Roulhac Hamilton; Scott,
Foreman and Company, 1922; republished by Palladium Press, Birmingham, 2003)
I will now give my own ideas on the Dred Scott case. Not having researched the history, debates, and other relevant writings on the issue when our Constitution was formed and adopted,
and the many prior relevant cases, to the extent that these nine justices appear to have done, I
will not venture which opinions were right or wrong. I will give some of my passing thoughts on
reading the opinions.
Perhaps the Findlaw criticism was right insofar as just dismissing the case once it was determined that there was no jurisdiction, and not going further and declaring the Missouri Enabling Act unconstitutional. Certainly the Court should not usually decide the merits of a case,
once it is determined that it does not have jurisdiction. However, this case is peculiar in that for
43
all practical purposes the Court has to determine the merits of the case to find lack of jurisdiction. If the plaintiffs were slaves, there was no jurisdiction; and whether or not they were slaves
depended on the effect of them being taken into non-slave states and into the territory which
Congress had declared non-slave. So it is hard to get away from Taney's reasoning, even though
one's sympathy must be with the plaintiffs. But a judge's sympathy or bias toward one side of a
case should not enter into a decision. That is exactly what is wrong with our activist courts today.
I also consider it clear that the law of Missouri, in whose jurisdiction the plaintiffs were in,
should determine whether or not they were slaves when they retuned there, and that the relevant
law was determined by the Missouri Supreme Court against Dred Scott when he sued Emerson;
and that, as Justice Nelson clearly pointed out, along with others, consistent decisions were made
before and after the Scott v. Emerson decision by the Missouri Supreme Court.
The dissenting justices, McLean and Curtis, seemed to recognize that state law in each state
controlled the status of slaves, and cited state law at length, both Missouri law and decisions of
other states, but in this case they indicated their dissatisfaction with the application of the most
recent Missouri law, claiming that for a long period of time, including some of the time the
plaintiffs were in Missouri, the law was contrary of the latest cases. So they decided that the latest decisions of the Supreme Court of Missouri should not be applicable to this case, but that the
earlier ones, being similar to laws of some of the other states, should apply to this particular case.
I cannot see the validity of this reasoning, but the apparent idea was that during the earlier period
Plaintiffs were legally free, and that this freedom should not lapse when the law changed. The
problem is that the meaning of the applicable law is determined by the highest court in the state,
and it was decided against the plaintiffs on the very facts involved in this case.
Taken together, the opinions in the Dred Scott case are a textbook of examples of the proper
and logical methods good judges should use to arrive at a decision in a case. In Chapter 2, five
principles were given as guidelines that should be used in determining constitutional issues. The
judges in this case extensively and completely followed all of them, even though both sides
could not be right. If personal biases affected any of the opinions, it was not disclosed by their
methods, because each gave reasoned bases for their opinions. These opinions went into the history and circumstances relevant to the reasons for and meanings of the provisions in our Constitution. They went clear back to the English Magna Carta, and relevant English history, at length.
They referred to the English and American common law at length for its bearing on the meaning
of wording and rights included in our Constitution. They considered relevant writings, speeches
and debates relating to the formation and adoption of provisions of the Constitution. Extensive,
44
complete, and lengthy examination was made of cases and precedent. Authorities such as Blackstone and Justice Joseph Story were given as references.
This extremely lengthy decision is available to anyone on the internet – FindLaw being one
source (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=
us&vol=60+&page=393). It contains very good examples of all of the rules for properly determining the meaning of a constitutional provision, or a statute, that are set forth in this book as
being proper non-activist construction.
The opinions in the Scott case certainly did not have the marks of the decisions of activist
judges of today, who are unlawfully appropriating the rights of the people to govern themselves.
Absurd statements like the Constitution is a "living document" were not made. They did not say
nor imply that their rulings are influenced by "changing conditions" in the country. They did not
refer to foreign cases, or what foreign countries were doing in similar situations. These improper
phrases and statements themselves show that judges are considering factors that are completely
beyond their authority, and only within the realm of what the people and their representatives
may consider in determining whether or not our Constitution should be changed.
The initial quote from Chief Justice Taney's opinion shows the impropriety of using these
modern day excuses for decimating our Constitution with personal biases of judges.
In Chapter II, the two foremost encyclopedic authorities were referred to for general principles of construing the Constitution in a logical and proper manner. Let us now proceed to consider further authorities on this matter.
-------------------------------------------------The following is further information from and comments on the article of Thomas Sowell
referred to in Chapter I.
"Judicial Activism Reconsidered," www.amatecon.com/etext/jar/jar.html (2003):
Sowell refers to Sir William Blackstone, one of the oldest and most recognized legal authorities, and his famous Commentaries on the Laws of England
Blackstone, for example, provided an explicitly numbered serial order of steps toward carrying
out those "intentions at the time when the law was made." First, the words were "to be understood in
their usual and most known signification."
Only when "words happen to be still dubious" was it permissible, according to Blackstone, to go
on to the second step and try to "establish their meaning from the context." ...
Even when Blackstone moved on to the third step in the interpretive process, determining what
was "in the eye of the legislator," he used this only as a guide to the cognitive meaning of words still undetermined by the first two steps. Only where words still had no significance or "a very absurd significa45
tion" did Blackstone proceed to the fourth step in which "we must a little deviate from the received
sense," so that a law, for example, against shedding blood in the street should not apply to a surgeon
treating an injured man.
It was only "lastly" in the process of "discovering the true meaning of a law, when the words are
dubious" that the judge was justified in "considering the reason and spirit of it" or "the cause which
moved the legislator to enact it." In all these steps, singly and collectively, the judge's role was the carrying out of instructions, with a meaning already given, whether given clearly or in a manner requiring further steps of discovery. It did not involve conceiving new meanings, whether based on later insights,
judicial conscience, or the philosophical values presumed to motivate the original law. [Emphasis added]
(These principles have been recognized ever since we have had a court system in the United
States, and are still followed when courts properly follow the law. Our United States Supreme
Court and our other courts have often referred to Blackstone, and his writings were one of the
many references in the Dred Scott case. The importance of Blackstone in the field of law today is
reflected by the Avalon Project of Yale Law School, which has made his complete Blackstone's
Commentaries of the Law of England available to the public on its website,
(http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm))
Sowell related the following in regard to Oliver Wendell Holmes, Jr. (An eminent legal
writer, Chief Justice of the Massachusetts Supreme Court, and United States Supreme Court Justice):
[Holmes said:] "I do not expect or think it desirable that judges should undertake to renovate
the law." He said, "This is not their province."
Holmes wrote a classic entitled "The Common Law." As to the common law (judge made
law), Holmes realized that since it was "Judge-made law," judges do and must legislate to that
extent judges are called upon to make the "sovereign prerogative of choice" in "doubtful cases."
(But even as to the common law, he was an advocate of "judicial restraint.") He said they should
make changes only "interstitially." (Common law, and the rules for construing, it are not a subject covered in this book. Legislative law, and even more so, constitutional provisions, supersede
any common law on the subject, and the courts have no power to make changes in the Constitution or legislative law. They can only properly interpret them. Common law is sometimes referred to as an aid in determining the meaning of words used in particular legislation.)
As to explicit legislation Holmes says:
I think the proper course is to recognize that a state Legislature can do whatever
it sees fit to do unless it is restrained by some express prohibition in the Constitution
of the United States or of the State, and that Courts should be careful not to extend
46
such prohibitions beyond their obvious meaning by reading into them conceptions of
public policy that the particular Court may happen to entertain. (Tyson &Brother v,
Blanton, 273 U.S. 418, at 445-46)
Sowell reviews the ideas of a number of writers who advocate judicial activism, such as
Ronald Dworkin, Laurence H. Tribe, and Justice William Brennan Jr., and clearly shows how
contrary their ideas are to our Constitution.. Sowell rightly says: "There has been no argument
that either statutory or constitutional laws are not to change. The only meaningful question is:
Who is to change them?"
----------------------------------------------------Who is to change them is set forth in Article V of our Constitution. Judges are not included.
Only the people and their representatives may lawfully change the Constitution.
When Edwin Meese III was Attorney General of the United States under President Ronald
Reagan, he made a speech before the American Bar Association on July 9, 1985, from which the
following is an excerpt:
What, then, should a constitutional jurisprudence actually be? It should be a Jurisprudence of Original Intention. By seeking to judge policies in light of principles,
rather than remold principles in light of policies, the Court could avoid both the
charge of incoherence and the charge of being either too conservative or too liberal.
A jurisprudence seriously aimed at the explication of original intention would
produce defensible principles of government that would not be tainted by ideological
predilection. This belief in a Jurisprudence of Original Intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. To
allow the courts to govern simply by what it views at the time as fair and decent, is a
scheme of government no longer popular; the idea of democracy has suffered. The
permanence of the Constitution has been weakened. A constitution that is viewed as
only what the judges say it is, is no longer a constitution in the true sense.
Those who framed the Constitution chose their words carefully; they debated at
great length the most minute points. The language they chose meant something. It is
incumbent upon the Court to determine what that meaning was.
This is not a shockingly new theory; nor is it arcane or archaic.
Joseph Story, who was in a way a lawyer's Everyman–lawyer, justice, and
teacher of law–had a theory of judging that merits reconsideration. Though speaking
specifically of the Constitution, his logic reaches to statutory construction as well:
In construing the Constitution of the United States, we are in the first
instance to consider, what are its nature and objects, its scope and design, as
apparent from the structure of the instrument, viewed as a whole and also
47
viewed in its component parts. Where its words are plain, clear and determinate, they require no interpretation....Where the words admit of two senses, each of which is conformable to general usage, that sense is to be adopted, which without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument.
A Jurisprudence of Original Intention would take seriously the admonition of
Justice Story's friend and colleague, John Marshall, in Marbury that the Constitution
is a limitation on judicial power as well as executive and legislative. That is what
Chief Justice Marshall meant in McCulloch when he cautioned judges never to forget
it is a constitution they are expounding.
The ideas of judicial interpretation have become so confused, contrary and controversial that
any reconciliation is impossible. A FindLaw article recognizing this is entitled, "Judicial Review." It states on this issue:
Constitutional Interpretation.--In a system such as the one in the United
States in which there is a written constitution, which is law and is binding on government, the practice of judicial review inherently raises questions of the relationship
between constitutional interpretation or construction and the Constitution--the law-which is construed. The legitimacy of construction by an unelected entity in a republican or democratic system becomes an issue whenever the construction is controversial, as it was most recently in the 1960s to the present. Full consideration would carry us far afield, in view of the immense corpus of writing with respect to the proper
mode of interpretation during this period.
The article also states another critically important principle that has been abandoned by our
activist courts today:
Presumption of Constitutionality.--''It is but a decent respect to the wisdom,
integrity, and patriotism of the legislative body, by which any law is passed,'' wrote
Justice Bushrod Washington, ''to presume in favor of its validity, until its violation of
the Constitution is proved beyond a reasonable doubt.'' A corollary of this maxim is
that if the constitutional question turns upon circumstances, courts will presume the
existence of a state of facts which would justify the legislation that is challenged. It
seems apparent, however, that with regard to laws which trench upon First Amendment freedoms and perhaps other rights guaranteed by the Bill of Rights such deference is far less than it would be toward statutory regulation of economic matters.
(http://supreme.lp.findlaw.com/constitution/article03/13.html)
The MSN Encarta Encyclopedia states:
The most important judicial figure in U.S. history, [Chief Justice] Marshall is
justly famed as the "great chief justice." Before his appointment to the bench, the
Supreme Court was regarded as ineffectual. By the force of his personality and the
wisdom of his decisions, Marshall raised the Court to a position of great power in the
48
federal government. He succeeded in making it the ultimate authority in constitutional matters.
It also states:
As a member of the Virginia Assembly from 1782 to 1791, Marshall worked for
ratification of the U.S. Constitution and became a prominent member of the Federalist Party.
Marshall well knew the intended meaning of the various provisions of the United States
Constitution. In Osborn v. Bank of the United States, 22 U.S. 738 (1824), Chief Justice Marshall
said:
Courts are the mere instruments of the law, and can will nothing. When they are
said to exercise a discretion, it is a mere legal discretion, a decision to be exercised in
discerning the course prescribed by law; and, when that is discerned, it is the duty of
the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the
Legislature; or, in other words, to the will of the law.
Chief Justice Marshall also said:
The question, whether a law be void for its repugnancy to the constitution, is, at
all times, a question of much delicacy, which ought seldom, if ever, to be decided in
the affirmative, in a doubtful case. The court, when impelled by duty to render such a
judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague
conjecture that the legislature is to be pronounced to have transcended its powers,
and its acts to be considered as void. The opposition between the constitution and the
law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. (Fletcher v. Peck, 10 U.S. 87 (1810)
Bushrod Washington was a favored nephew and heir of George Washington. He was appointed as an Associate Justice in the United States Supreme Court by President John Adams in
1799 and served in that capacity until his death in 1829. He became a well respected jurist, and
served on the court with Chief Justice John Marshall, who served from 1801 to 1835. His full
statement, referred to above by FindLaw, in regard to the weight that should be given to legislative action by the courts, is an important one. He stated:
I shall now conclude this opinion, by repeating the acknowledgment which candour compelled me to make in its commencement, that the question which I have
been examining is involved in difficulty and doubt. But if I could rest my opinion in
favour of the constitutionality of the law on which the question arises, on no other
ground than this doubt so felt and acknowledged, that alone would, in my estimation,
be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond
49
all reasonable doubt. This has always been the language of this Court, when that subject has called for its decision; and I know that it expresses the honest sentiments of
each and every member of this bench. I am perfectly satisfied that it is entertained by
those of them from whom it is the misfortune of the majority of the Court to differ on
the present occasion, and that they feel no reasonable doubt of the correctness of the
conclusion to which their best judgment has conducted them. (Ogden v Saunders, 25
U.S. 213 (1827))
If the Courts had followed these well founded principles, stated by sincere judges at a time
when there were people living who personally knew what the founders of our country intended
as the role of the courts under our Constitution, we would not have the problems we have today.
Joseph Story, who served as a Justice from 1812 to 1845. with Chief Justice John Marshall (until
1835), was such a person. And there is really no good reason for the misbehavior of the activist
judges today, other than the fact that it is willful on their part. It is not really difficult to find the
intent and purpose behind the various provisions of our Constitution. We have a rich and available history on the matter. Activist judges are now bent on engrafting their own personal ideas
onto our Constitution. The have no regard for the people and their representatives, and actually
they have no respect for our Constitution. Their improper actions are destroying its true meaning
at a rapid rate.
Some later cases will now be examined to further expound on the rules that should be followed by courts in construing our Constitution.
Reference was made at the beginning of Chapter II to the cases of State of South Carolina v.
U.S., 199 U.S. 437 (1905). The record indicates that Chief Justice Melville Fuller II and Justice
Oliver Wendell Holmes joined in the majority opinion of Justice Brewer, since they were not
listed with the three dissenters. As shown by the cases, Holmes did not hesitate to dissent or give
his own views if he was dissatisfied with a decision. The opinion is another example of the Court
using the time honored methods of arriving at the meaning of provisions of the Constitution. The
decision held that agents of the state of South Carolina were subject to a federal liquor license
tax, on the basis that "whenever a state engages in a business which is of a private nature, that
business is not withdrawn from the taxing power of the nation."
That quotation from the case, at the beginning of Chapter II stated that the Constitution, being a written instrument, permanently acquired its meaning at the time of adoption. It quoted a
part of the opinion of Sandford v. Scott, supra. This case so clearly and succinctly covers so
many of the long accepted logical methods of construction set forth in Chapter II, that the additional quotations are considered helpful. Note the references to history and common law.
50
It must also be remembered that the framers of the Constitution were not mere
visionaries, toying with speculations or theories, but practical men, dealing with the
facts of political life as they understood them; putting into form the government they
were creating, and prescribing, in language clear and intelligible, the powers that
government was to take. Mr. Chief Justice Marshall, in Gobbons v. Ogden, 9 Wheat.
1, 188, 6 L. ed. 23, 68, well declared:
'As men whose intentions require no concealment generally employ the
words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people
who adopted it, must be understood to have employed words in their natural
sense, and to have intended what they have said.'
One other fact must be borne in mind, and that is that in interpreting the Constitution we
must have recourse to the common law. As said by Mr. Justice Matthews in Smith v. Alabama,
124 U.S. 465, 478 , 31 S. L. ed. 508, 512, 1 Inters. Com. Rep. 804, 809, 8 Sup. Ct. Rep. 564,
569: [199 U.S. 437, 450] 'The interpretation of the Constitution of the United States in necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.'
And by Mr. Justice Gray in United States v. Wong Kim Ark, 169 U.S. 649, 654 , 42 S. L.
ed. 890, 892, 18 Sup. Ct. Rep. 456, 459:
'In this, as in other respects, it must be interpreted in the light of the common
law, the principles and history of which were familiarly known to the framers of the
Constitution. Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627; Ex parte Wilson, 114
U.S. 417, 422 , 29 S. L. ed. 89, 91, 5 Sup. Ct. Rep. 935; Boyd v. United States, 116
U.S. 616, 624 , 625 S., 29 L. ed. 746, 748, 749, 6 Sup. Ct. Rep. 524; Smith v. Alabama, 124 U.S. 465 , 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564.
The language of the Constitution, as has been well said, could not be understood
without reference to the common law. 1 Kent, Com. 336; Bradley, J., in Moore v.
United States, 91 U.S. 270, 274 , 23 S. L. ed. 346, 347.'
To determine the extent of the grants of power, we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants.
***
... The exemption of the state's property and its functions from Federal taxation
is implied from the dual character of our Federal system and the necessity of preserving the state in all its efficiency. In order to determine to what extent that implication
will go we must turn to the condition of things at the time the Constitution was
framed. What, in the light of that condition, did the framers of the convention intend
should be exempt? Certain is it that modern notions as to the extent to which the
functions of a state may be carried had then no hold. Whatever Utopian theories may
have been presented by any writers were regarded as mere creations of fancy, and
had no practical recognition. It is true that monopolies in respect to certain commodi51
ties were known to have been granted by absolute monarchs, but they were not regarded as consistent with Anglo-Saxon ideas of government. The opposition to the
Constitution came not from any apprehension of danger from the extent of power reserved to the states, but, on the other hand, entirely through fear of what might result
from the exercise of the powers granted to the central government. While many believed that the liberty of the people depended on the preservation of the rights of the
states, they had no thought that those states would extend their functions beyond
their then recognized scope, or so as to imperil the life of the nation. As well said by
Chief Justice Nott, delivering the opinion of the court of claims in this case (39 Ct.
Cl. 284):
'Moreover, at the time of the adoption of the Constitution, there probably
was not one person in the country who seriously contemplated the possibility of government, whether state or national, ever descending from its
primitive plane of a body politic to take up the work of the individual or
body corporate. The public suspicion associated government with patents of
nobility, with an established church, with standing armies, and distrusted all
governments. Even in the high intelligence of the convention, there were
men who trembled at the power given to the President, who trembled at the
power which the Senate might usurp, who feared that the life tenure of the
judiciary might imperil the liberties of the people. Certain it is that if the
possibility of a government usurping the ordinary business of individuals,
driving them out of the market, and maintaining place and power by means
of what would have been called, in the heated invective of the time, 'a legion of mercenaries,' had been in the public mind, the Constitution would
not have been adopted, or an inhibition of such power would have been
placed among Madison's amendments.'
Looking, therefore, at the Constitution in the light of the conditions surrounding
at the time of its adoption, it is obvious that the framers, in granting full power over
license taxes to the national government, meant that that power should be complete;
and never thought that the states, by extending their functions, could practically destroy it. ***
It has often been said that the federal government has no police power, such as
the states, except in connection with the security of the nation, including the security
of the president; and in connection with the specified powers given to the government, such as coining money. For example, the Secret Service enforces the counterfeit laws in protection of our currency, although it is probably more famous for protecting the safety of the president and vice-president, and members of their families.
However, such clauses as the commerce clause and the taxing power have been used
to set up what in substance are police powers. This has greatly expanded cases
worked on by the Federal Bureau of Investigation and the Treasury Department. And
the governmental power has drifted much further than the restrictions set forth in the
following important case.
The case of U.S. v. Butler, 297 U.S. 1 (1936), is an interesting case from several standpoints.
It involves the "general welfare" clause of the Constitution, the limited power of the federal gov52
ernment; and it is a good example of the factors to be considered in determining whether or not a
statute is constitutional, and the function of the Court. The quotes from the opinion will show the
extent to which historical precedent was reviewed in arriving at the answer on a very complicated question. The Court ruled the Agricultural Adjustment Act, 1933, unconstitutional. The act
was a combination of regulating agricultural production, and taxing of products in support of the
regulation. The opinion states in part:
There should be no misunderstanding as to the function of this court in such a
case. It is sometimes said that the court assumes a power to overrule or control the
action of the people's representatives. This is a misconception. The Constitution is
the supreme law of the land ordained and established by the people. All legislation
must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution
which is invoked beside the statute which is challenged and to decide whether the
latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called,
is the power of judgment. This court neither approves nor condemns any legislative
policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution;
and, having done that, its duty ends. ***
... Indeed, the government does not attempt to uphold the validity of the act on
the basis of the commerce clause, which, for the purpose of the present case, may be
put aside as irrelevant.
The clause thought to authorize the legislation, the first, confers upon the Congress power 'to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts
and provide for the common Defence and general Welfare of the United States. ...' It
is not contended that this provision grants power to regulate agricultural production
upon the theory that such legislation would promote the general welfare. The government concedes that the phrase 'to provide for the general welfare' qualifies the
power 'to lay and collect taxes.' The view that the clause grants power to provide for
the general welfare, independently of the taxing power, has never been authoritatively accepted. Mr. Justice Story points out that, if it were adopted, 'it is obvious that
under color of the generality of the words, to 'provide for the common defence and
general welfare', the government of the United States is, in reality, a government of
general and unlimited powers, notwithstanding the subsequent enumeration of specific powers.' The true construction undoubtedly is that the only thing granted is the
power to tax for the purpose of providing funds for payment of the nation's debts and
making provision for the general welfare.
Nevertheless, the government asserts that warrant is found in this clause for the
adoption of the Agricultural Adjustment Act. The argument is that Congress may appropriate and authorize the spending of moneys for the 'general welfare'; that the
phrase should be liberally construed to cover anything conducive to national welfare;
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that decision as to what will promote such welfare rests with Congress alone, and the
courts may not review its determination; and, finally, that the appropriation under attack was in fact for the general welfare of the United States.
The Congress is expressly empowered to lay taxes to provide for the general
welfare. Funds in the Treasury as a result of taxation may be expended only through
appropriation. Article 1, 9, cl. 7. They can never accomplish the objects for which
they were collected, unless the power to appropriate is as broad as the power to tax.
The necessary implication from the terms of the grant is that the public funds may be
appropriated 'to provide for the general welfare of the United States.' These words
cannot be meaningless, else they would not have been used. The conclusion must be
that they were intended to limit and define the granted power to raise and to expend
money. How shall they be construed to effectuate the intent of the instrument?
Since the foundation of the nation, sharp differences of opinion have persisted
as to the true interpretation of the phrase. Madison asserted it amounted to no more
than a reference to the other powers enumerated in the subsequent clauses of the
same section; that, as the United States is a government of limited and enumerated
powers, the grant of power to tax and spend for the general national welfare must be
confined to the enumerated legislative fields committed to the Congress. In this view
the phrase is mere tautology, for taxation and appropriation are or may be necessary
incidents of the exercise of any of the enumerated legislative powers. Hamilton, on
the other hand, maintained the clause confers a power separate and distinct from
those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by
the requirement that it shall be exercised to provide for the general welfare of the
United States. Each contention has had the support of those whose views are entitled
to weight. This court has noticed the question, but has never found it necessary to
decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and
commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers
it, and not in those of section 8 which bestow and define the legislative powers of the
Congress. It results that the power of Congress to authorize expenditure of public
moneys for public purposes is not limited by the direct grants of legislative power
found in the Constitution.
But the adoption of the broader construction leaves the power to spend subject
to limitations.
As Story says: 'The Constitution was, from its very origin, contemplated to be
the frame of a national government, of special and enumerated powers, and not of
general and unlimited powers.'
Again he says: 'A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to
those objects. It cannot constitutionally transcend them.'
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That the qualifying phrase must be given effect all advocates of broad construction admit. Hamilton, in his well known Report on Manufactures, states that the purpose must be 'general, and not local.' Monroe, an advocate of Hamilton's doctrine,
wrote: 'Have Congress a right to raise and appropriate the money to any and to every
purpose according to their will and pleasure? They certainly have not.' Story says
that if the tax be not proposed for the common defense or general welfare, but for
other objects wholly extraneous, it would be wholly indefensible upon constitutional
principles. And he makes it clear that the powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare.
As elsewhere throughout the Constitution the section in question lays down
principles which control the use of the power, and does not attempt meticulous or detailed directions. Every presumption is to be indulged in favor of faithful compliance
by Congress with the mandates of the fundamental law. Courts are reluctant to adjudge any statute in contravention of them. But, under our frame of government, no
other place is provided where the citizen may be heard to urge that the law fails to
conform to the limits set upon the use of a granted power. When such a contention
comes here we naturally require a showing that by no reasonable possibility can the
challenged legislation fall within the wide range of discretion permitted to the Congress. How great is the extent of that range, when the subject is the promotion of the
general welfare of the United States, we need hardly remark. But, despite the breadth
of the legislative discretion, our duty to hear and to render judgment remains. If the
statute plainly violates the stated principle of the Constitution we must so declare.
We are not now required to ascertain the scope of the phrase 'general welfare of the
United States' or to determine whether an appropriation in aid of agriculture falls
within it. Wholly apart from that question, another principle embedded in our Constitution prohibits the enforcement of the Agricultural adjustment Act. The act invades
the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government.
The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end.
From the accepted doctrine that the United States is a government of delegated
powers, it follows that those not expressly granted, or reasonably to be implied from
such as are conferred, are reserved to the states or to the people. To forestall any
suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose
is forbidden. ***
In this U.S. v. Butler case, it should noted that there was a dissent by three strong and respected justices, Justice Stone wrote the dissenting opinion in which Justices Brandeis and
Cardozo joined. Their views reinforced the generally accepted view that in doubtful cases the
courts should defer to the wisdom of Congress, being elected representatives of the people. The
dissent includes the following:
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The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with
their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the
only check upon our own exercise of power is our own sense of self-restraint. For the
removal of unwise laws from the statute books appeal lies, not to the courts, but to
the ballot and to the processes of democratic government. ***
A tortured construction of the Constitution is not to be justified by recourse to
extreme examples of reckless congressional spending which might occur if courts
could not prevent-expenditures which, even if they could be thought to effect any national purpose, would be possible only by action of a legislature lost to all sense of
public responsibility. Such suppositions are addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative
action. ***
Who is right on the "general welfare clause"? Because of the wording of the Constitution, I
lean toward the majority opinion in U.S. v. Butler, but the drift to more centralized governmental
power has been even further than is even indicated in the dissenting opinion. An article in
FindLaw states: "Little if any constitutional controversy marks the debate over the modern exercise of the spending power. There are, of course, 'general restrictions,' the first of which is that
the power must be used in pursuit of the general welfare. However, great deference is judicially
accorded Congress' decision that a spending program advances the general welfare, and the
Court has suggested that the question whether a spending program provides for the general welfare may not even be judicially noticeable."
(http://supreme.lp.findlaw.com/constitution/article01/26.html) My observation is that modern
activist judges, of whom there are and have been many, like big centralized government. As we
shall see on examining their decisions, what they very much dislike are our traditional American
values based on Judeo-Christian principles.
However, as interesting as the meaning of the "general welfare cause" may be, the real importance of U.S. v. Butler to the subject of this book are commendable examples set forth by both
the majority and dissenting opinions on what the Courts should use to arrive at an opinion on a
constitutional question, and the prohibition against the courts changing the Constitution according to their own views.
Another important case in this regard is Flemming v. Nestor, 363 U.S. 603 (1960), in which
the court upheld the denial of Nestor's old-age benefits under an amendment (in 1954) to the Social Security Act which provided for termination of old-age benefits to an alien who is deported
on certain grounds, one of which was being a member of the Communist Party. Nestor was de56
ported for being a member of the Communist Party from 1933 to 1939, and his old-age benefits,
for which he became eligible in 1955, were terminated. The District Court of the District of Columbia held that this was a violation of Nestor's rights under the Due Process clause of the Fifth
Amendment. The Supreme Court reversed, upholding the termination of the benefits. In the five
to four decision, Justice Harlan wrote the short majority opinion, which stated in part:
To engraft upon the Social Security system a concept of "accrued property
rights" would deprive it of the flexibility and boldness in adjustment to everchanging conditions which it demands. ***
This is not to say, however, that Congress may exercise its power to modify the
statutory scheme free of all constitutional restraint. The interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause. In judging the permissibility of the cut-off provisions of 202 (n) from this standpoint, it is not within
our authority to determine whether the Congressional judgment expressed in that
section is sound or equitable, or whether it comports well or ill with the purposes of
the Act. "Whether wisdom or unwisdom resides in the scheme of benefits set forth in
Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom."
Helvering v. Davis, supra, at 644. Particularly when we deal with a withholding of a
noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute
manifests a patently arbitrary classification, utterly lacking in rational justification.
***
We observe initially that only the clearest proof could suffice to establish the
unconstitutionality of a statute on such a ground. Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind
objective manifestations it becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it
over that which will save it. "[I]t is not on slight implication and vague conjecture
that the legislature is to be pronounced to have transcended its powers, and its acts to
be considered as void." Fletcher v. Peck, 6 Cranch 87, 128. ***
Justices Black and Douglas wrote separate dissenting opinions, and Justice Brennan wrote a
dissenting opinion in which Justice Douglas and Chief Justice Earl Warren joined. In my opinion, Justice Brennan was one of our worst activist judges, and his opinions show that he cares
little for the intent and purpose behind our Constitution. His opinion contains no historical precedent as reference. It is based on his own ideas. Justice Black was of a different stripe, and his
opinion covered considerable valid precedent. He went at length into the history of the Social
Security Act, and recognized however that it was not within the province of the Court to question
the wisdom of Congress, but he felt there was no rational basis for taking Nestor's benefits away.
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Although I lean toward the majority opinion, I think that Douglas wrote a very commendable
opinion. He went to Article I, Section 9 of our original Constitution which prohibits the passing
of a Bill of Attainder or ex post facto law, and clearly explained, with cited precedent, why he
considered the amendment in question a bill of attainder. He went into committee reports on the
proposed Social Security Act. He went into early American and constitutional history, and cited
Madison's views on the reasons for a bill of attainder, and what it was. He even went into the debates in Virginia on the ratification of the Constitution, where Patrick Henry was against ratification because it then contained no Bill of Rights, and in the ensuing argument Randolph taunted
Henry for his having induced the Virginia legislature to pass a bill of attainder condemning a
traitor, John Phillips, to death. I will later criticize some of Justice William O. Douglas's judicial
activism, but, although I tend to believe his opinion was wrong, it was a commendable opinion,
using proper and long supported methods in arriving at it.
It is abundantly clear that the meaning of the various provisions of our Constitution should
be interpreted to be what was intended by those who framed and adopted the provisions, and
what they considered the purposes for them, when they were adopted. What a particular judge or
group of judges think of the wisdom of the provisions, or what they think might be best is wholly
irrelevant and immaterial.
Power of Federal Courts to Declare a Statute Unconstitutional
From cases covered already it is clear that the United States Supreme Court decides the constitutionality of both federal and state statutes. We will see later that this court even overrules
state constitutional provisions it considers contrary to the federal constitution. The United States
Supreme Court also has the power to overrule the highest court in a state on a federal question.
Our Constitution, Article III, Section 2, provided in part: "The judicial power shall extend to
all cases in Law and Equity, arising under the Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;―to all cases affecting
Ambassadors, other public Ministers and Consuls;―to all Cases of admiralty and maritime Jurisdiction;―in Controversies to which the Untied States shall be a Party;―to Controversies between two or more States; ―[between a State and Citizens of another State;―] between Citizens
of different States,―between Citizens of the same State claiming Lands under Grants of
differnee States, [and between a State, or the Citizens thereof, and foreign States, Citizens or
Subjects.] (The bracketed parts were eliminated by the Eleventh Amendment, ratified on February 7, 1795.)
The second paragraph of Article VI states: "The Constitution and the Laws of the United
States which shall be made in Pursuance thereof; and all Treaties made or which shall be made,
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under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding."
It is clear from the wording of these applicable provisions that it was intended that the Supreme Court should have a wide area of jurisdiction in its original and appellate jurisdictional
capacities.
As explained in Chapter I, The Supreme Court, in Marbury v. Madison, 5 U.S. 137 (1803),
decided that the Court had the Power to declare a statute passed by Congress unconstitutional.
Chief Justice Marshall reasoned:
The question, whether an act, repugnant to the constitution, can become the law
of the land, is a question deeply interesting to the United States; but, happily, not of
an intricacy proportioned to its interest. It seems only necessary to recognise certain
principles, supposed to have been long and well established, to decide it.
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, is the
basis on which the whole American fabric has been erected. The exercise of this
original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed
to be permanent. ***
... there is no middle ground. The constitution is either a superior, paramount
law, unchangeable by ordinary means, or it is on a level with ordinary legislative
acts, and like other acts, is alterable when the legislature shall please to alter it. ***
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in
other words, though it be not law, does it constitute a rule as operative as if it was a
law? This would be to overthrow in fact what was established in theory; and would
seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive
a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases, must of necessity expound
and interpret that rule. If two laws conflict with each other, the courts must decide on
the operation of each. So if a law be in opposition to the constitution: if both the law
and the constitution apply to a particular case, so that the court must either decide
that case conformably to the law, disregarding the constitution; or conformably to the
constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. ***
The judicial power of the United States is extended to all cases arising under the
constitution. Could it be the intention of those who gave this power, to say that, in
using it, the constitution should not be looked into? That a case arising under the
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constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained. ***
It is also not entirely unworthy of observation, that in declaring what shall be the
supreme law of the land, the constitution itself is first mentioned; and not the laws of
the United States generally, but those only which shall be made in pursuance of the
constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other
departments, are bound by that instrument.
I hesitate to go against the ideas of Thomas Jefferson, who strongly thought the federal
judges, being appointed for life, and not subject to the will of the people, should not have the
power to declare unconstitutional acts of Congress. But I believe that Marshall's reasoning is fully supported by the Constitution. If Congress exceeds its authority under the Constitution, it
should logically be corrected, and by the wording of the Constitution, I believe that the courts are
authorized to thus protect the Constitution and the rights of the people under it.
The Federalist is a large group of writings by Alexander Hamilton, James Madison, and
John Jay, written and published for the purpose of explaining the meaning and effect of the Constitution, and reasons why the states should ratify it. These writings have often been referred to
for authority by the United States Supreme Court and other courts. In the Federalist No. 78,
Hamilton states:
We proceed now to an examination of the judiciary department of the proposed
government.***
The complete independence of the courts of justice is peculiarly essential in a
limited constitution. By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall
pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind
can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the
constitution void. Without this, all the reservations of particular rights or privileges
would amount to nothing. ***
This power of the Courts is a good thing for our Constitutional government – it is the abuse
of the power by the Courts that should now be corrected. Jefferson's fear of the courts' usurpation
of the authority of the people to govern themselves has certainly proved to be true. But it can
easily be corrected.
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In November 1811, President James Madison appointed Joseph Story as a Justice to the
United Supreme Court. "[Joseph Story] associate justice of the United States Supreme Court
(1811-45) ... joined Chief Justice Marshall in giving juristic support to the development of American nationalism." (Encyclopedia Britannica, www.britannica.com)
Early in his career, Justice Story wrote the opinion in the important decision, Martin v.
Hunter's Lessee, 14 U.S. 304 (1816), holding that the United States Supreme Court had appellate
authority over the highest state courts in cases involving the federal Constitution, laws, and treaties. The cases related to a parcel of land in Virginia the ownership of which depended in part on
the treaty of peace of 1783 (with Great Britain, ending the Revolutionary War). The original defendant claimed the land under the will of Lord Fairfax, a British subject. The trial court gave
judgment for the defendant, and the Court of Appeals of Virginia (its highest court), reversed and
gave judgment for the plaintiff. The case was previously then appealed to the United States Supreme Court, under the 25th section of the act of congress setting up the federal courts, expressly
allowing such an appeal, and the Supreme Court reversed the Virginia Court of Appeals, giving
judgment for the defendant as decided by the trial court. However, the Virginia Court of Appeals
refused to honor the Supreme Court's mandate to it, and held that the act purporting to create this
appellate jurisdiction in the Supreme Court was itself unconstitutional
The matter was finalized by the United States Supreme Court again reversing the Virginia
Court of Appeals, in this decision written by Justice Story. The opinion stated in part:
But it is plain that the framers of the constitution did contemplate that cases
within the judicial cognizance of the United States not only might but would arise in
the state courts, in the exercise of their ordinary jurisdiction. With this view the sixth
article declares, that 'this constitution, and the laws of the United States which shall
be made in pursuance thereof, and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any
state to the contrary notwithstanding.' It is obvious that this obligation is imperative
upon the state judges in their official, and not merely in their private, capacities.
From the very nature of their judicial duties they would be called upon to pronounce
the law applicable to the case in judgment. They were not to decide merely according
to the laws or constitution of the state, but according to the constitution, laws and
treaties of the United States-'the supreme law of the land.'
On the whole, the court are of opinion, that the appellate power of the United
States does extend to cases pending in the state courts; and that the 25th section of
the judiciary act, which authorizes the exercise of this jurisdiction in the specified
cases, by a writ of error, is supported by the letter and spirit of the constitution. We
find no clause in that instrument which limits this power; and we dare not interpose a
limitation where the people have not been disposed to create one.
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Strong as this conclusion stands upon the general language of the constitution, it
may still derive support from other sources. It is an historical fact, that this exposition of the constitution, extending its appellate power to state courts, was, previous to
its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings, both in and out of the state conventions. It is an historical fact, that at the time when the judiciary act was submitted to
the deliberations of the first congress, composed, as it was, not only of men of great
learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that constitution, the same exposition was explicitly declared and
admitted by the friends and by the opponents of that system. It is an historical fact,
that the supreme court of the United States have, from time to time, sustained this
appellate jurisdiction in a great variety of cases, brought from the tribunals of many
of the most important states in the union, and that no state tribunal has ever breathed
a judicial doubt on the subject, or declined to obey the mandate of the supreme court,
until the present occasion. This weight of contemporaneous exposition by all parties,
this acquiescence of enlightened state courts, and these judicial decisions of the supreme court through so long a period, do, as we think, place the doctrine upon a
foundation of authority which cannot be shaken, without delivering over the subject
to perpetual and irremediable doubts.
The reasoning of Justice Story has long been considered sound, and since these decisions by
Marshall and Story, The United States Supreme Court has overruled the decisions of the highest
state courts, and has declared state statutes and state constitutional provisions unconstitutional
under the federal Constitution, as well as acts of Congress.
This is a great power that should not be abused.
Usurpation of Rights of the People
This subject has already been covered directly and indirectly in prior parts of this book, and
it will be covered in detail in subsequent chapters. In fact, subsequent chapters, except the last
one, all involve specific cases of misbehavior of activist judges in changing the Constitution to
fit their own particular political and moral beliefs, in complete disregard of Article V of our Constitution which reserves that right solely to the people and their representatives.
We should always keep in mind that our Constitution was formed by the people for the people, and they have the sole prerogative to change it. The first paragraph of the Constitution states:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution for the United States of America.
Judges were not given the power to change our Constitution for a very good reason. Judges
who usurp that power of the people commit a grave violation to uphold our Constitution.
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I will cover in the next section some particular cases on the so-called "Right of Privacy,"
which exemplifies some of the most flagrant misbehavior of this nature in which a Court can engage.
"Right of Privacy"
The activist courts, and the writers who support them, never truthfully admit that the courts
are changing our constitution in contravention of the rights of the people. They insidiously writ
opinions designed to conceal their malicious misbehavior.
But let us use a little common sense. The people have had the right to prescribe the death
penalty for many centuries before we had a Constitution. The death penalty was in effect when
our Constitution was formed and adopted, and our Constitution itself expressly recognizes capital punishment in four different places. In 1972, as will be explained in detail in Chapter VII, the
Supreme Court took it upon itself to declare the death penalty unconstitutional. It should not take
a genius to understand that the case changed our Constitution.
England, from whom many of our laws came, had laws making sodomy a crime, and at
times the penalty was death. Sodomy was a criminal offense at common law and was forbidden
by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the
Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy
laws. By 1961, all 50 States outlawed sodomy, and in 1986, 25 States and the District of Columbia continued to provide criminal penalties for sodomy. As will be explained in detail in Chapter
XI, in 1986 the United States Supreme Court upheld the right of the states to prohibit sodomy.
During the last forty years the homosexual movement with its lobbyists got many states to repeal
their sodomy laws, which under our Constitution they have every right to do. But in 2003, while
thirteen states still had laws prohibiting sodomy, the United States Supreme Court declared that
there was a constitutional right to engage in sodomy. It does not take a genius to understand that
this case changed our Constitution.
Under what guise did the Supreme Court add the constitutional right to engage in sodomy to
our Constitution? It had previously, in 1965, invented a "right of privacy" and added it to our
Constitution. This was a constitutional right, invented by the Court with no basis whatsoever in
the Constitution, as we shall see below. Since it was invented by the Court without basis, there is
no historical precedent to support it, and no one really knows what it covers. That is what an activist judge loves. He can now say that it covers whatever he thinks it should. In 2003, six activist liberal supreme court justices declared that the right to engage in sodomy was one of the privacy rights, as an activist court had previously done with abortion.
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These are glaring examples of the worst kind of judicial misbehavior that wrongfully takes
from the people the right to govern themselves, which was the primary purpose of our Constitution. It is something the framers and our forefathers undertook to avoid. And actually our Constitution did prohibit such action by the Courts by giving the sole right to change the Constitution
to the people and their elected representatives. But activist judges show no respect for the Constitution.
The courts well know that what they are doing is wrong, and try to conceal from the people
what they have actually done by making a pretense that their decisions are supported by the Constitution. And, sadly, there are some so gullible as to believe them.
Let us now consider some the underhanded and deceptive methods used by the Court to undermine our Constitution. This Court invented "Right of Privacy" is one of the best examples.
The cases of the United States Supreme Court in regard to this subject show insidious and
malicious methods used by the Court to try to make the people believe that their decisions are
supported. The cases will show how the Court has cited prior cases for propositions that were not
even the subject of those cases. Such misbehavior cannot be unintentional nor through ignorance.
The judges who engaged in this misbehavior definitely knew better. They wrote like there was
history and precedent in support of their decisions, when in truth there was none.
The Right of Privacy is not in our Constitution, is not supported by history or precedent at
the time our founders framed and adopted it, and is completely an invention of activist judges
engaging in deceit. It is an ingenious method of extending the power of the court far beyond its
constitutional bounds. Since the "Right of Privacy" is not in the constitution and is not supported
by history and precedent when the Constitution was framed and adopted, or when the Fourteenth
Amendment was framed and adopted, there is no valid precedent to determine what it means or
what it covers. This leaves it wide open for the Court to place whatever meaning they choose in a
particular case, and have it cover whatever they want it to at a particular time. This is the ultimate in flagrant judicial misbehavior, and is a disgrace to our Constitution and to our Country.
The cases will show that today the misbehavior of the judges has become so flagrant and
blatant, that they no longer even really try to find history and precedent supporting the meaning
of constitutional provisions when they were framed and adopted. They cite such things as
changed conditions, changes in mores, and the laws of other countries, the United Nations, and
World Court, that could not have been considered as a part of the intent and purpose behind the
framing and adoption of the provisions. They were later things that did not even exist when the
provisions were framed or adopted. These activist judges obviously no longer have any fear of
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impeachment by the people and their representatives whose rights they are usurping. They well
know that impeachment is difficult, must be applied to individual cases, and even the few times
it has been used it has only a temporary effect, and does nothing to eliminate the major problem
of usurpation of powers.
Let us now trace the insidious and unlawful procedure by which the Right of Privacy was
invented.
Strangely enough we need to consider three of the original Amendments to the Constitution,
which in truth have nothing whatsoever to do with any "right of privacy," but the intent and purpose of a provision means nothing to activist judges, who are interested only in finding wording
to conceal the fact that they are deciding constitutional provision based on nothing but their own
ideas.
One is the Fourth Amendment, which provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
You will note that no "right of privacy" is mentioned, and this right against unlawful searches and seizures is an old and fundamental right, which was why it was put in our original Bill of
Rights. It is another of our rights that can probably be traced back to the English Magna Carta.
The wording is plain and clear, and there is no reason to add anything to it to arrive at its plain
meaning.
Amendment IX provides:
The enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.
FindLaw comments:
Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a
declaration of fundamental rights by arguing that inasmuch as it would be impossible
to list all rights it would be dangerous to list some because there would be those who
would seize on the absence of the omitted rights to assert that government was unrestrained as to those. (The Federalist No. 84 (Modern Library ed. 1937). Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ''It has been objected also against a bill of rights, that, by enumerating
particular exceptions to the grant of power, it would disparage those rights which
were not placed in that enumeration; and it might follow by implication, that those
rights which were not singled out, were intended to be assigned into the hands of the
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General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this
system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.'' (1 Annals of
Congress 439 (1789)) It is clear from its text and from Madison's statement that the
Amendment states but a rule of construction, making clear that a Bill of Rights might
not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right
or a proscription of an infringement. 3 [About overlapping of Ninth and Tenth
Amendments] Recently, however, the Amendment has been construed to be positive
affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.
The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court [United Public Workers v. Mitchell, 330 U.S. 75, 94 -95 (1947), etc.]
until it became the subject of some exegesis by several of the Justices in Griswold v.
Connecticut [381 U.S. 479 (1965)]. There a statute prohibiting use of contraceptives
was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the ''specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that help give
them life and substance.'' The opinion was joined by Chief Justice Warren and by
Justices Clark, Goldberg, and Brennan. Thus, while privacy is nowhere mentioned
[in the Amendments referred to by the majority], it is one of the values served and
protected by the First Amendment, through its protection of associational rights, and
by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to
the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.
(http://caselaw.lp.findlaw.com/data/constitution/amendment09/)
Amendment X provides:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
FindLaw comments:
''The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United
States were reserved to the States or to the people. It added nothing to the instrument
as originally ratified.'' (United States v. Sprague, 282 U.S. 716, 733 (1931). ''The
amendment states but a truism that all is retained which has not been surrendered.
There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been
established by the Constitution before the amendment or that its purpose was other
than to allay fears that the new national government might seek to exercise powers
not granted, and that the states might not be able to exercise fully their reserved
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powers.'' 2 (United States v. Darby, 312 U.S. 100, 124 (1941). ''While the Tenth
Amendment has been characterized as a 'truism,'' stating merely that 'all is retained
which has not been surrendered,' [citing Darby], it is not without significance. The
Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system.'' Fry v. United States, 421 U.S. 542, 547 n.7 (1975).
This policy was effectuated, at least for a time, in National League of Cities v. Usery,
426 U.S. 833 (1976). That this provision was not conceived to be a yardstick for
measuring the powers granted to the Federal Government or reserved to the States
was firmly settled by the refusal of both Houses of Congress to insert the word ''expressly'' before the word ''delegated,'' Annals of Congress 767-68 (1789) (defeated in
House 17 to 32); 2 B. Schwartz, The Bill of Rights: A Documentary History 1150-51
(1971) (defeated in Senate by unrecorded vote). and was confirmed by Madison's
remarks in the course of the debate which took place while the proposed amendment
was pending concerning Hamilton's plan to establish a national bank. ''Interference
with the power of the States was no constitutional criterion of the power of Congress.
If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the
States.'' (2 Annals of Congress 1897 (1791). Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate commerce, to enforce the Fourteenth Amendment, and to lay and collect taxes.
http://supreme.lp.findlaw.com/constitution/amendment10/
In any event, it should be clear that the Tenth Amendment was not intended as a device to
be used by judges to think up new rights such as the "Right of Privacy."
On the power of the courts, Justice Joseph Story said:
It has been finely remarked by Mr. Chief Justice Marshall, that "the judicial department has no will in any case. Judicial power, as contradistinguished from the
power of the laws, has no existence. Courts are the mere instruments of the law, and
can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and,
when that is discerned, it is the duty of the court to follow it. Judicial power is never
exercised for the purpose of giving effect to the will of the judge; but always for the
purpose of giving effect to the will of the legislature; or, in other words, to the will of
the law." (Osborne v. Bank of United States, 9 Wheat. R. 806) (Commentaries on
The Constitution of The United States; Book III, § 1568)
History shows that the Bill of Rights was for the purpose of protecting our fundamental
rights, and that those were the rights set forth in it. That was its purpose. It is also true that it was
argued that if some rights were overlooked and not put in the Bill of Rights, it might be construed that these overlooked rights did not exist. One thing is certain, and that is that if there were
any rights that were overlooked and not included in the Bill of Rights they had to have existed at
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the time and someone had to know about them. This is particularly true if they were fundamental
rights. They could be found in our history and precedent when the Constitution was adopted, if
they did exist. And there is no question that it was not intended that judges would have the legislative power of creating rights they think should exist, and engrafting them on our Constitution
under the fiction that they came under the Ninth or Tenth Amendment.
Another thing is equally clear – which is that the states had the right to pass laws upholding
the moral values of the community. They had such laws when our Constitution was framed and
adopted. All of our founders knew of those laws and most of them participated in passing them.
To say that the right to pass such laws somehow disappeared in favor of new rights such as the
"Right of Privacy" thought up in the minds of a few judges is patently false. There is no history
or valid precedent upholding such decimation of our Constitution.
Some of the cases will now be examined to show how the Court deceitfully changes our
Constitution.
In the cases of Mapp v Ohio, 367 U.S. 643 (1961), the appellant was convicted in state court
of having various pornographic items which were admittedly obtained by an unlawful search and
seizure. The Ohio Supreme Court upheld the conviction, on the basis of state law that allowed
the evidence. (There are other remedies against unlawful searches and seizures, without turning
loose guilty people by excluding admissible evidence because the police erred in their methods
of obtaining it.) The Supreme Court overruled the Ohio Supreme Court, holding the evidence
inadmissible. It also overruled a prior United States Supreme Court case that held the opposite.
Four justices dissented in two dissenting opinions. I also consider the majority decision clearly
wrong. The Court cited no real historical precedent to support the decision. The Court in effect
recognized the right of the states to have their own rules of evidence, and cited state cases, but
took it upon itself to add this rule forcing states to exclude unlawfully obtained evidence under
the Fourth Amendment (as applied to the States through the Fourteenth Amendment), when there
is no such provision in the Fourth Amendment. It is an unlawful addition by the Court, because
to this particular Court, it "makes very good sense." Whether it made very good sense to the
people of Ohio, or to the people of the United States, whose sole prerogative it is to change the
Constitution, makes no difference to this activist court. This was the beginning of the real activism of the Court under Earl Warren who became Chief Justice in 1953, and concurred in this decision.
However, something else was done in this Mapp case, and looking back I wonder if it was
intentionally done, with an ulterior motive. Several times in the opinion this right against unlawful search and seizure was referred to as a "right of privacy." Since these words are not in the
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Fourth Amendment, they could only have been descriptive of the actual right, which is against
unlawful search and seizure. That is the one constitutional right on which the case was based.
That wording is not included in the Fourth Amendment or in any other part of the Constitution.
Was this activist Court here trying to create a new right by the use of this unnecessary descriptive wording. This particular wording as used in this case could not even rise to being obiter dictum, which is a legal term for an official sounding statement of the court which cannot be considered a part of the law of the case, because this was not the basis of the decision, or necessary
to the decision.
One of the more deceitful things about the approach of the activist judges in the Mapp case
is the use of unnecessary and inapplicable language in a case, which they will later refer to as if it
is fundamental law. Under the Fourth Amendment, it is clear that searches and seizures can be
made, in a person's home or anywhere else, if a lawful warrant is issued. So what happens to the
"right of privacy" in that case? There of course is none. It is merely deceitful language used by
the Court of obfuscate its misbehavior.
It is similar to the Fifth Amendment, under which a person's life, liberty, or property may
not be taken without due process of law. Conversely, the State or Federal governments can take
even a person's life, liberty or property with due process of law.
But activist courts do not take direct and clear approaches to these provisions in our Constitution. Their purpose is to usurp two basic rights of the people, and deceive the people as to what
they are actually doing. One of these basic rights is the most important one in our Constitution,
which is the right to self government by passing laws they consider proper for the community.
The other is the sole right given to the people, directly in some cases and through their elected
representatives in other cases, to change our Constitution when they (and not the courts) shall
"deem it necessary" as provided by Article V.
Throughout the history of our Country we have had laws passed by the people upholding the
traditional morals of the community, and recognized as valid by the courts. In fact that is the
primary basis of most of our laws. Some examples are laws against bigamy, polygamy, incest,
sodomy, adultery, fornication, pornography, lewdness, and age of consent laws. It was long ago
recognized that states had a wide latitude in this regard. All of those laws listed relate to the private matters of individuals. Most all laws passed to uphold the morals of the community prohibit
certain "private" behavior. Now, case by case, the Courts are unlawfully removing these rights
from the people, and giving them to themselves. Examination of the cases will also show that the
courts are doing great damage to other rights in our Constitution – examples being freedom of
religion, speech, and press.
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We must also consider another fundamental aspect of our Constitution which is that the
States, acting for their citizens, have the right to determine the wisdom of their own laws, as long
as a fundamental right under the federal Constitution is not clearly violated. And that there is a
strong presumption that a State law is valid; and the United States Supreme Court should not
overturn a State law unless its invalidity is shown beyond reasonable doubt. This as a fundamental principle in construing constitutional law, and the only one that effectively prevents the courts
from usurping this right from the people. It is a principle long recognized by legal scholars, and
long honored by the United States Supreme Court. Modern activist courts have forsaken this
time honored rule, and, in truth, consider themselves bound by no rules except those that they
make up as they go along to arrive at whatever answer they personally want in a particular case.
Griswold v. Connecticut, 381 U.S. 479 (1965), followed and cited Mapp in the creation of
the fallacious "right of privacy" – an invention of the Court that would use to strike down state
laws passed to uphold and further the traditional morals or the community that were in effect
when our Constitution was formed and ratified. Such laws were not only known to exist by our
founders, but many of the founders would undoubtedly have participated in passing the laws. To
say that laws like this were intended by them to become unconstitutional under the Constitution
defies all reason and common sense.
In this Griswold case, Appellants, the Executive Director of the Planned Parenthood League
of Connecticut, and its medical director, a licensed physician, were convicted as accessories for
giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute as applied violated the Fourteenth Amendment. An
intermediate appellate court and the State's highest court affirmed the judgment. In his dissenting
opinion, Justice Stewart pointed out that Connecticut had the law on its books since 1879. It
would have been there when our Constitution was adopted. The case does not say, but probably
other states had similar laws. Yet this Supreme Court overturned the law, taking this right away
from all of the states and their citizens, with no sound basis whatsoever.
The question is not whether the law is a wise one – but whether the people have the right to
make these public policy judgments, or whether the Courts should take it from them. In this case,
in a dissent joined in by Justice Black, Justice Stewart said, "I think this is an uncommonly silly
law." But he clearly recognized that the Court did not have the right to substitute its wisdom for
that of the people of Connecticut, and all of the other states in the union.
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Justice Douglas wrote the majority opinion in Griswold. On its face, a close examination
shows that not one case was cited that supports the decision; and no historical precedent was
considered, because all would have been contrary to the decision. Many cases were deceitfully
cited as supporting the decision, but not one does. Let us explore some examples.
Pierce v, Society of Sisters, 268 U.S. 510 (1925) was cited. Oregon had passed a law requiring all parents and guardians to send their children to public schools. This case concerned the
right of parents to send their children to a parochial school conducted by a Catholic Sisters organization, and the destructive aspect of the law to property, without due process of law, of the
organization that had been caring for orphans and educating them, and conducting academies and
schools that gave both secular and religious education. This law would have eliminated the right
of parents and guardians to have their children educated in a religious atmosphere. The case did
not have the slightest relation to Griswold.
Boyd v. United states, 116 U.S. 616 (1886), was cited, and Douglas baldly makes the false
statement that the Boyd case stood for "protection against all governmental invasions 'of the
sanctity of a man's home and privacies of life.'" No case could possibly stand for such a thing, as
explained above relating to the Fourth and Fifth Amendments. Douglas had to know that is
statement was false. This Boyd case merely held that proceedings instituted for the purpose of
declaring the forfeiture of a man's property by reason of offenses committed by him in connection with it, though they may be civil in form, are in their nature criminal, and that the defendant
could not be made to be a witness against himself by forcing him to produce his private records
to be used against him. The court held that this violated both the Fourth Amendment as an unreasonable search and seizure, and the Fifth Amendment by compelling a person to be a witness
against himself. The issues in this case were altogether different than the ones in the Griswold
case, and were no precedent for it at all.
Poe v. Ullman, 367 U.S. 497 (1961) was cited in regard to Justice Harlan's dissent. This was
also a contraceptive in which three married women brought an action complaining that a Connecticut law was prohibiting them from getting advice from their doctors about contraceptives.
Although the law was upheld by the State court in 1940, the criminal case was later dismissed,
and no cases had been prosecuted under the statute. The Supreme Court stated there appeared to
be no immediate threat of prosecution and abstained from hearing it, and dismissed the appeals.
There were several dissents. Justice Harlan dissented, stating the cases should be heard and the
statute overturned. He also stated: "I consider that this Connecticut legislation, as construed to
apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a
criminal offense for married couples to use contraceptives is an intolerable and unjustifiable in71
vasion of privacy in the conduct of the most intimate concerns of an individual's personal life."
No precedent is cited for the statement, and a mere statement in a dissent is not the law of any
case that constitutes precedent.
The Mapp case is then cited for the "right of privacy" language, when that was a search and
seizure case with no application. Douglas then makes the completely irrelevant statement:
"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs
of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the
marital relationship." Statements by a court could not be any more irrelevant and misleading.
This Griswold case had nothing whatsoever to do with any search and seizure, or the wrongful
obtaining of evidence in any manner.
We should also keep in mind how the court dwelled on and emphasized the privacy of the
marital relation. We will see that they then used this unlawful decision as precedent for holding
that this "right of privacy" applied to a contraceptive case in which there was no marital relation.
Justice Black was never considered a really conservative judge, but even he recognized the
clear invalidity of the majority decision. Like Stewart he said that he did not like the Connecticut
law and that it was personally offensive to him. But he had the judicial integrity to dissent, stating:
The due process argument ... that this Court is vested with power to invalidate
all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive,
or on this Court's belief that a particular state law under scrutiny has no "rational or
justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean the same thing, are to prevail,
they require judges to determine what is or is not constitutional on the basis of their
own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no
provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to
hold unconstitutional those laws which they believe unwise or dangerous. ***
... The Constitution makers knew the need for change and provided for it.
Amendments suggested by the people's elected representatives can be submitted to
the people or their selected agents for ratification. That method of change was good
for our Fathers, and being somewhat old-fashioned I must add it is good enough for
me. ***
In Eisenstadt v. Baird, 405 U.S. 438 (1972), a defendant was convicted under a Massachusetts law for giving a woman a contraceptive at the close of his lecture to students on contraception. Justice Brennan, an advocate of activism by the courts, and one of the worst, wrote the majority opinion. All of the talk about sanctity of the family, and the marital relationship in Gris72
wold is now discarded. This new court invented constitutional right of privacy is now entrenched. In this case they now decide that "the rights must be the same for the unmarried and the
married alike." Even Griswold did not go this far. There is no historical precedent or any other
valid precedent in support of this case. It can only be described as further unlawful overreaching
by the United States Supreme Court. Chief Justice Warren Burger dissented, stating:
But since the Massachusetts statute seeks to protect health by regulating contraceptives, the opinion invokes Griswold v. Connecticut, 381 U.S. 479 (1965), and
puts the statutory classification to an unprecedented test: either the record must contain evidence supporting the classification or the health hazards of the particular contraceptive must be judicially noticeable. This is indeed a novel constitutional doctrine and not surprisingly no authority is cited for it. ***
It is revealing, I think, that those portions of the majority and concurring opinions rejecting the statutory limitation on distributors rely on no particular provision
of the Constitution. I see nothing in the Fourteenth Amendment or any other part of
the Constitution that even vaguely suggests that these medicinal forms of contraceptives must be available in the open market. ***
This court invented right of privacy has now been completed by our United States Supreme
Court. A right which was and is not in our Constitution, and was not in any way contemplated by
those who framed and adopted any of our constitutional provisions as coming under any of the
provisions.
These contraceptive cases may seem inconsequential, and perhaps so if this was all they affected, but great damage was done to our Constitution and to the rights of the people to govern
themselves under it. And a right was invented that only the courts can know what it covers, or
even what it means, as they invented it with no precedent. But the great damage comes from the
spread of the concept.
The idea of a right of privacy in the Constitution is not only false, but meaningless. The
words are always used in connection with some other claimed right such as use of contraceptives, abortion, and sodomy. Incest, use and sale of drugs, adultery, spousal abuse, and many
other crimes may be committed in private and in the most private place there is – the home. Does
that create a constitutional right to engage in such behavior? The answer is obvious. There is of
course no constitutional "right of privacy."
Nevertheless, using this "Right of Privacy," the United States Supreme Court has now created two new constitutional rights which are in truth direct contraventions of the rights of people to
govern themselves under our Constitution. These are the constitutional rights to have abortions,
and the constitutional right to commit sodomy. These will each be covered in more detail in
Chapters IX and XI. Our founders necessarily knew of and sanctioned both prohibitions. They
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could not possibly have intended them to be against our Constitution. Laws prohibiting both
were on the books of the states when our Constitution was framed and adopted, and have been in
effect ever since, until struck down by our Court.
The people should no longer put up with this kind of misbehavior by our courts.
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CHAPTER IV
THE FOURTEENTH AMENDMENT
It is claimed that such a law is repugnant ... [t]o that part of amendment 14
which ordains that no State shall 'deprive any person of life, liberty, or property
without due process of law, nor deny any person within its jurisdiction the equal
protection of the laws.' ***
Every statute is presumed to be constitutional. The courts ought not to declare
one to be unconstitutional unless it is clearly so. If there is doubt, the expressed
will of the legislature should be sustained. ***
While this provision of the amendment is new in the Constitution of the United
States, as a limitation upon the powers of the States, it is old as a principle of
civilized government. It is found in Magna Carta, and, in substance if not in
form, in nearly or quite all the constitutions that have been from time to time
adopted by the several States of the Union. By the Fifth Amendment, it was introduced into the Constitution of the United States as a limitation upon the
powers of the national government, and by the Fourteenth, as a guaranty
against any encroachment upon an acknowledged right of citizenship by the legislatures of the States. ***
When one becomes a member of society, he necessarily parts with some rights
or privileges which, as an individual not affected by his relations to others, he
might retain. ... This is the very essence of government ... . From this source
come the police powers, which, as was said by Mr. Chief Justice Taney in the
License Cases, 5 How. 583, 'are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern
men and things.' Under these powers the government regulates the conduct of
its citizens one towards another, and the manner in which each shall use his own
property, when such regulation becomes necessary for the public good. ***
We conclude therefore that the statute in question is not repugnant to the Constitution of the United States. (Chief Justice Morrison Waite, in Munn v. State of
Illinois, 94 U.S. 113 (1876))
In Barron v. City of Baltimore, 32 U.S. 243 (1833), The Supreme Court decided, in an opinion written by Chief Justice John Marshall, that the Fifth Amendment (and by analogy the Bill or
Rights) did not apply to the states. He stated:
But it is universally understood, it is a part of the history of the day, that the
great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that
those powers which the patriot statesmen, who then watched over the interests of our
country, deemed essential to union, and to the attainment of those invaluable objects
for which union was sought, might be exercised in a manner dangerous to liberty. In
almost every convention by which the constitution was adopted, amendments to
guard against the abuse of power were recommended. These amendments demanded
75
security against the apprehended encroachments of the general government – not
against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed
by the required majority in congress, and adopted by the states. These amendments
contain no expression indicating an intention to apply them to the state governments.
This court cannot so apply them.
This was supported by some of the wording of the Bill or Rights. The First Amendment begins, "Congress shall make no law." And it is supported by the history relating to the Bill of
Rights.
Due Process of Law and the Bill of Rights
The Fourteenth Amendment has now been generally interpreted as incorporating the Bill of
Rights and thereby applying them to the States. But the Fourteenth Amendment did not create
any previously unknown new set of rights for people.
History reflects that the primary purposes of the 13th, 14th, and 15th Amendments were to get
rid of slavery and to give all blacks, whether slaves or freemen, the same rights as had been enjoyed by white citizens. In doings so, it was necessary to place restrictions on the State governments similar to those which had been placed on the federal government by our original Bill of
Rights. It certainly was not the purpose to set up some new and undefined rights for judges to
later define according to their own views. Such a preposterous idea has no support in history, or
in the legislative records and debates relating to the framing by Congress and the adoption of the
amendments by the states.
In this book, the primary concern is with Section 1 of Amendment XIV, which provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It has been argued, and with some substance, that the background of the Fourteenth
Amendment does not even show the intention that the Bill of Rights, which was originally only
applicable to the federal government, would be applied to the states. If it had been intended by
the framers that this was the case, they could easily have plainly put that provision in there. Also,
if was intended that the Fifth Amendment was to be incorporated, why would a part of the wording in the Fifth Amendment ("life, liberty or property, without due process of law") need to be
repeated?
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On the other hand, the wording, "[n]o state shall ... abridge the privileges and immunities of
citizens of the United States," must have some meaning and must put some new restraints on the
states in favor of rights of the people.
In light of the historical record, I therefore think it reasonable to conclude that this language
incorporates the first eight amendments of the Bill of rights in the United States Constitution,
which seems to be the consensus of the better reasoned cases on the subject. These are all fundamental rights of the people, and they were known and existing when the Fourteenth Amendment was framed.
The problem has been in interpreting the meaning of those rights and restrictions on the federal and state governments. Another very large problem has been that activist courts try to read
something into "due process of law" which is not there. In both the Fifth Amendment and the
Fourteenth Amendment, these words are used in the very same way. By their plain wording they
do not purport to be any new rights, but a mere procedure that must be met before the enumerated rights, expressly stated in the same sentences, just prior to where the words, "without due process of law," are stated in both provisions.
One thing that the courts and all of us should keep in mind is that "due process of law" was
in the Fifth Amendment before the same words were put in the Fourteenth Amendment, and that
the meaning of the words was well known to the people who framed and adopted our Constitution. The meaning would also have been known to those who framed and those who advocated
the ratification of the Fourteenth Amendment. There is nothing mysterious about it, and it is
clear that life, liberty, and property, may be taken with due process of law. Activist courts have
falsely tried to make it appear that the Fourteenth Amendment gave rise to some new undefined
set of rights by which they may apply their own personal and political views on a case by case
basis.
The misuse of these words by activist courts, and by activist legal writers who want judges
to usurp legislative rights to further politically liberal causes, has developed a term they call
"substantive due process." This is merely a misguided fiction in the minds of such people, and
has no support in applicable history, or in the records and debates on either our Bill of Rights or
Amendment XIV, or in any other proper legal precedent. These activists clearly wish to substitute the "wisdom" of the courts, which they erroneously think is superior, for the rights of the
people to govern themselves. It is merely a part of the judicial disease eating into and destroying
the very backbone of our Constitution, which is the right of the people to govern themselves and
to pass laws that in their collective wisdom is best for the community. More will be said about
this theory in the next chapter, as the due process of law clause that activists use try to create new
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constitutional theories has exactly the same wording in both the Fifth and Fourteenth Amendments.
Another factor to consider is that Congress passed The Civil Rights Act of 1866, April 9,
1866, over President Andrew Johnson's veto, which provided in part:
That all persons born in the United States and not subject to any foreign power,
excluding Indians not taxed, are hereby declared to be citizens of the United States;
and such citizens, of every race and color, without regard to any previous condition
of slavery or involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall have the same right, in every State and
Territory in the United States, to make and enforce contracts, to sue, be parties, and
give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal
property, and to full and equal benefit of all laws and proceedings for the security of
person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
A number of those with legal knowledge thought that the Act was unconstitutional due to its
interference with the rights of the States, even though the Thirteenth Amendment outlawing
slavery was ratified on December 6, 1865. It was so declared by several courts it came up before.
Then in the debates on the Fourteenth Amendment, it was argued that it was needed to provide the rights set forth in that Civil Rights Act. This was considered as giving further light on
what rights were intended by the Fourteenth Amendment. That Civil Rights act did set forth a
broad array of rights.
--------------------------------------Professor Horace Edgar Flack, Ph.D., write the book, The Adoption of the Fourteenth
Amendment, The John Hopkins Press (1908); reprinted 1965; republished by The Library of
American Freedoms, Palladium Press, Birmingham (2003). References below to this book will
be by page number, only.
My main interest in the book was the comprehensive research information on the circumstances and debates relating to the framing and adopting of the amendment.
In Chapter 1, The Freedman's Bureau and Civil Rights Bill, he includes discussions on the
Civil Rights Act of 1866, and ties it in to the later consideration of the Fourteenth Amendment,
and the rights intended to be included in Section 1.
I was particularly interest in the congressional debates and arguments shedding light on
what rights it was Congress intended to be included.
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" ... December 5, 1865, Mr. Stevens, the Republican leader in the House, introduced a joint
resolution proposing an Amendment to the Constitution of the United States. It was in the following form: 'All national and state laws shall be equally applicable to every citizen, and no discrimination shall be made because of race or color.'" The next day Mr. Bingham, of Ohio, introduced a resolution to accomplish the same object, only giving Congress the power to make laws
to accomplish those purposes. (p. 56) Many discussions took place and various proposed changes
were made, but in the end Section 1 was nearer to the form first introduced by Stevens, although,
as we see from the information below, Mr. Bingham had a great influence on the rights of the
people and restrictions on the states that finally resulted.
Early in Chapter 1, Professor Flack summarizes the statements of Mr. Bingham. It meant
nothing less than the conferring upon Congress the power to enforce, in every State of the Union,
the Bill of Rights as found in the first eight Amendments. (pp. 56-57, 58-59)
However, there were many delays and postponements before the Fourteenth Amendment
was ever agreed on by Congress, and the record of the debates and explanatory statements show
that it was finally decided that a statement of rights should be included in Section 1 of the
Amendment. "The radical leaders were as aware as anyone of the attachment of the great majority of the people to the doctrine of State's Rights―not the right of secession to be sure, but the
right of the States to regulate their own affairs, including the question of suffrage. (p. 68)
My best assessment would be in agreement with Professor Flack, that this same set of rights
first stated by Bingham was intended to be included in Section 1.
Mr. Bingham persisted in his views as to what should be included in section 1. (p. 68) Although many later claimed authorship of the Fourteenth Amendment, "[t]he statement was made
several times during the campaign of 1855 that Mr. Bingham was the author of the amendment."
"This was true only as regards the first section." (pp. 69-71)
That the amendment was intended by the framers to have a broad coverage of all people is
indicated by the following: "Mr. Bingham ... said ... that there had been a want in the Constitution which it would supply. That want he declared to be 'The power in the people, the whole
people of the United States, by express authority of the Constitution to do that by congressional
enactment which hitherto they have not had the power to do, and have never even attempted to
do; that is, to protect by national law the privileges and immunities of all the citizens of the republic and the inborn rights of every person within its jurisdiction whenever the same shall be
abridged or denied by the unconstitutional act of any State'"
A form of the bill for the amendment was passed by the house on May 10, 1866. (p. 83)
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A joint resolution proposing the Fourteenth Amendment had been introduced in the Senate
on April 30, 1866. Senator Howard of Michigan, on the Reconstruction Committee, was assigned to take charge of the Bill, and he opened debate on May 23. (p. 84)
As to what is meant by the phrase, "privileges or immunities of citizens of the United
States," Howard said, speaking of our then existing Constitution, these privileges, immunities,
and rights, guaranteed by the second section of Article Four and the first eight Amendments had
been by judicial construction secured to the citizen solely as a citizen of the United States and as
a party to the Federal Courts. "They (the provisions of the Constitution referred to) do not operate in the slightest degree as a restraint or prohibition upon state legislation." (pp. 85-86) Mr.
Howard said that if the Fourteenth Amendment were adopted by the states, the first section taken
in connection with the fifth would prevent the states from trenching upon the fundamental privileges which pertained to citizens of the United States. (p. 87)
"Many of the Senators and speakers did not refer to the first section at all, while several
barely mentioned it. The speeches of Messrs. Poland, Henderson, Jackson, and Howe, while not
saying that the Amendment would have the effect ascribed to it by Howard, support the position
taken by him, especially since none of them questioned his statements." (p. 94)
"In conclusion, we may say that Congress, the House and the Senate, had the following objects and motives in view for submitting the first section of the Fourteenth Amendment to the
States for ratification:
1. To make the Bill of Rights (the first eight Amendments) binding upon, or applicable to
the States.
2. To give validity to the Civil Rights Bill.
3. To declare who were citizens of the United States. "
The Amendment passed Congress June 13, 1866. (p. 140)
On the consideration and ratification of the Amendment by the people and the States, Professor Flack states:
The question the people had to decide or to determine in the election was not a
simple, but a complicated one. The first section, the most important of all, was largely lost sight of in the general excitement. Furthermore, the people were not in a
frame of mind to consider any question calmly and deliberately, and it was certainly
a most inopportune time to secure the sober judgment of the people in changing the
fundamental law of the country.
It may cause surprise that the people and the States were willing to increase the
power of the Central Government to the extent contemplated by the framers of the
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Amendment, but it does not seem so strange when we consider the circumstances.
The people were made to feel and believe that the preservation of the Union was
again at stake; that if the Amendment was not adopted, the "Rebels" would soon be
in control of the Government at Washington ... . (p. 208)
Some of the States rejected the Amendment, and California was the only state
that never rejected or ratified it. (pp 204-207)
On July 20, 1868, U. S. Secretary Seward issued a proclamation that the necessary three-fourths of the States had ratified the Amendment, and declared it a part of
the Constitution of the United States. (Actually, Alabama, which ratified it on July 9,
1868, made the sufficient number of states for ratification.) (p. 191)
--------------------------------------------------------I would now like to present for consideration the case, Den Ex De. Murray v. Hoboken Land
& Imp. Co., 59 U.S. 272 (1855).This case observes the clear meaning of the phrase, "due process
of law" as used in the Fifth Amendment, which would necessarily by applicable to the same
words used in the proposed Fourteenth Amendment eleven years later. It is a reasonable and well
supported meaning made before activist courts tried to change it for their own purposes. The case
upheld the validity of a levy on and sale of land by a U. S. Marshall under a distress warrant issued by the solicitor of the treasury under an act of Congress of May 15, 1820. The act also provided that a lien for the amount due would exist on the lands of the debtor from the time the levy
is recorded in the District Court of the United States in the proper district. No court procedure
was required for the levy and sale. The Court held that this did not amount to the taking of property without due process of law. The opinion went at length into the English history and common
law, American history and common law on collection of debts and taxes, and the history of statutes of the States on those matters. It is another example of the matters a court should consider in
arriving at its interpretation of a provision of the Constitution. The Court's own ideas of what
was just, reasonable, and fair under the circumstances were of course not considered. Justice
Curtis wrote the unanimous opinion of the Court holding that the procedure complied with due
process of law. The following are excerpts:
The words, 'due process of law,' were undoubtedly intended to convey the same
meaning as the words, 'by the law of the land,' in Magna Charta. Lord Coke, in his
commentary on those words, (2 Inst. 50,) says they mean due process of law. The
constitutions which had been adopted by the several States before the formation of
the federal constitution, following the language of the great charter more closely,
generally contained the words, 'but by the judgment of his peers, or the law of the
land.' The ordinance of congress of July 13, 1787, for the government of the territory
of the United States northwest of the River Ohio, used the same words.
The constitution of the United States, as adopted, contained the provision, that
'the trial of all crimes, except in cases of impeachment, shall be by jury.' When the
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fifth article of amendment containing the words now in question was made, the trial
by jury in criminal cases had thus already been provided for. By the sixth and seventh articles of amendment, further special provisions were separately made for that
mode of trial in civil and criminal cases. To have followed, as in the state constitutions, and in the ordinance of 1787, the words of Magna Charta, and declared that no
person shall be deprived of his life, liberty, or property but by the judgment of his
peers or the law of the land, would have been in part superfluous and inappropriate.
To have taken the clause, 'law of the land,' without its immediate context, might possibly have given rise to doubts, which would be effectually dispelled by using those
words which the great commentator on Magna Charta had declared to be the true
meaning of the phrase, 'law of the land,' in that instrument, and which were undoubtedly then received as their true meaning.
That the warrant now in question is legal process, is not denied. It was issued in
conformity with an act of Congress. But is it 'due process of law?' The constitution
contains no description of those processes which it was intended to allow or forbid. It
does not even declare what principles are to be applied to ascertain whether it be due
process. It is manifest that it was not left to the legislative power to enact any process
which might be devised. The article is a restraint on the legislative as well as on the
executive and judicial powers of the government, and cannot be so construed as to
leave congress free to make any process 'due process of law,' by its mere will. To
what principles, then, are we to resort to ascertain whether this process, enacted by
congress, is due process? To this the answer must be twofold. We must examine the
constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of
our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.
We apprehend there has been no period, since the establishment of the English monarchy, when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues. ***
Tested by the common and statute law of England prior to the emigration of our
ancestors, and by the laws of many of the States at the time of the adoption of this
amendment, the proceedings authorized by the act of 1820 cannot be denied to be
due process of law, when applied to the ascertainment and recovery of balances due
to the government from a collector of customs, unless there exists in the constitution
some other provision which restrains congress from authorizing such proceedings.
***
The power to collect and disburse revenue, and to make all laws which shall be
necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some
such means should be forbidden in some other part of the constitution. ...
As we have already shown, the means provided by the act of 1820, do not differ
in principle from those employed in England from remote antiquity-and in many of
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the States, so far as we know without objection- for this purpose, at the time the constitution was formed. ***
We see from this case, and from the historical background of our Bill of Rights, that "due
process of law" means more than simply complying with procedures in court, or even compliance with a statute, but can require an examination as to whether the statute itself provides for
the taking of life, liberty, or property, without due process of law.
But when a statute is regularly passed, it is presumed to be constitutional, and it must be
shown that some fundamental right has been violated. For both the definition of such rights and
for what kinds of laws Congress and the States have the power to pass, we look first to the plain
wording of our Constitution, and, if need be, to historical precedent, as was done in the above
referred to cases.
It is the wisdom of the people and their representatives in framing and adopting our Constitution, and in passing particular laws that is controlling. It is not what a particular judge or group
of judges may think is best under the circumstances when a decision is made in a particular case.
Let us now explore a few of the important cases under the Fourteenth Amendment.
In the case, In Re Slaughterhouse Cases, 83 U.S. 36 (1873), the Supreme Court in a five to
four decision, held against the theory of the Fourteenth Amendment incorporating the fundamental rights set forth in our Bill of Rights for all citizens. It relied on the primary purpose of the
Fourteenth Amendment being for freeing negroes, and insuring them equal rights. The case was
on a Louisiana law of 1869 that created a state corporation for the slaughtering of livestock. The
corporation was given exclusive power to slaughter livestock, and all other private slaughterhouses were required to close. Independent butchers could use the corporation facilities for a
charge, but could not conduct independent operations. The Court affirmed the decision of the
Supreme Court of Louisiana, which upheld the law. Justice Miller in the majority opinion stated:
The language is, 'No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.' It is a little remarkable, if
this clause was intended as a protection to the citizen of a State against the legislative
power of his own State, that the word citizen of the State should be left out when it is
so carefully used, and used in contradistinction to citizens of the United States, in the
very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose. ***
In the light of the history of these amendments, and the pervading purpose of
them, which we have already discussed, it is not difficult to give a meaning to this
clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class,
was the evil to be remedied by this clause, and by it such laws are forbidden.
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If, however, the States did not conform their laws to its requirements, then by
the fifth section of the article of amendment Congress was authorized to enforce it by
suitable legislation. We doubt very much whether any action of a State not directed
by way of discrimination against the negroes as a class, or on account of their race,
will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its
application to any other. ***
Chief Justice Chase, and Justices Field, Swayne, and Bradley dissented in several dissenting
opinions, and they pointed the way for the proposition of the Fourteenth Amendment incorporating the fundamental rights of the Bill of Rights and applying them against the states for all people. The dissents would be positions that would later be followed, and not the majority decision.
Justice Field said:
The question presented is, therefore, one of the gravest importance, not merely
to the parties here, but to the whole country. It is nothing less than the question
whether the recent amendments to the Federal Constitution protect the citizens of the
United States against the deprivation of their common rights by State legislation. In
my judgment the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it. ***
... The provisions of the fourteenth amendment, which is properly a supplement
to the thirteenth, cover, in my judgment, the case before us, and inhibit any legislation which confers special and exclusive privileges like these under consideration.
The amendment was adopted to obviate objections which had been raised and
pressed with great force to the validity of the Civil Rights Act, and to place the
common rights of American citizens under the protection of the National government. It first declares that 'all persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside.' It then declares that 'no State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States, nor
shall any State deprive any person of life, liberty, or property, without due process of
law, nor deny to any person within its jurisdiction the equal protection of the laws.'
***
The terms, privileges and immunities, are not new in the amendment; they were
in the Constitution before the amendment was adopted. They are found in the second
section of the fourth article, which declares that 'the citizens of each State shall be
entitled to all privileges and immunities of citizens in the several States,' and they
have been the subject of frequent consideration in judicial decisions. In Corfield v.
Coryell, ... Mr. Justice [Bushrod] Washington said he had 'no hesitation in confining
these expressions to those privileges and immunities which were, in their nature,
fundamental; which belong of right to citizens of all free governments, and which
have at all times been enjoyed by the citizens of the several States which compose
the Union, from the time of their becoming free, independent, and sovereign;' and, in
considering what those fundamental privileges were, he said that perhaps it would be
more tedious than difficult to enumerate them, but that they might be 'all compre84
hended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind,
and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.'
This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all
free governments. Clearly among these must be placed the right to pursue a lawful
employment in a lawful manner, without other restraint than such as equally affects
all persons. In the discussions in Congress upon the passage of the Civil Rights Act
repeated reference was made to this language of Mr. Justice Washington. It was cited
by Senator Trumbull with the observation that it enumerated the very rights belonging to a citizen of the United States set forth in the first section of the act, and with
the statement that all persons born in the United States, being declared by the act citizens of the United States, would thenceforth be entitled to the rights of citizens, and
that these were the great fundamental rights set forth in the act; and that they were
set forth 'as appertaining to every freeman.'
Justice Bradley, in his dissenting opinion, added:
But we are not bound to resort to implication, or to the constitutional history of
England, to find an authoritative declaration of some of the most important privileges
and immunities of citizens of the United States. It is in the Constitution itself. The
Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms,
only a few of the personal privileges and immunities of citizens, but they are very
comprehensive in their character. The States were merely prohibited from passing
bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and
perhaps one or two more. But others of the greatest consequence were enumerated,
although they were only secured, in express terms, from invasion by the Federal
government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against
unreasonable searches and seizures, and above all, and including almost all the rest,
the right of not being deprived of life, liberty, or property, without due process of
law. These, and still others are specified in the original Constitution, or in the early
amendments of it, as among the privileges and immunities of citizens of the United
States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not. ***
Admitting, therefore, that formerly the States were not prohibited from infringing any of the fundamental privileges and immunities of citizens of the United
States, except in a few specified cases, that cannot be said now, since the adoption of
the fourteenth amendment. In my judgment, it was the intention of the people of this
country in adopting that amendment to provide National security against violation by
the States of the fundamental rights of the citizen. ***
In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does
deprive them of liberty as well as property, without due process of law. ***
85
In a case like the In Re Slaughterhouse Cases, both sides cannot be correct, but again, I
think all of the opinions are remarkable in the way they searched into historical precedent and
circumstances, both federal and state, that existed and were known at the time the Fourteenth
Amendment was adopted. Neither side could be accused of any attempt at judicial legislation.
All were well reasoned opinions in a very difficult case. We should compare this to the judicial
activism that later takes place. We will see that there was one earlier attempt at using the "due
process clause" as an excuse to try to make substantive law in accordance with the views of particular judges. We will see how the Court itself somewhat straightened out the first attempts. But
now, beginning in the 1960s, with the so-called "right of privacy" and the cases attempting to
expand the rights of criminals beyond that provided in the Constitution, together with an activist
frontal attack on traditional religious values, and on religion itself, we indeed have a judicial crisis that cries out for correction.
In Munn v. State of Illinois, 94 U.S. 113 (1876), I consider the majority opinion by Chief
Justice Waite to be a well balanced statement of the law. It recognizes the Fourteenth Amendment as incorporating provisions of the Bill of Rights, but it balances this out with the right of
the people and their representatives to govern themselves. The quote from the opinion at the beginning of this chapter shows this.
The case was on a provision of the Constitution of Illinois, and subsequent authorized legislation regulating elevators and warehouses where grain and other property is stored. Pursuant to
the Constitutional provision the legislature passed an act on April 25, 1871, requiring licenses for
public warehouses and elevators storing grain, and regulating the accounting for and care of the
grain, and requiring the publishing of storage rates, and regulating the amount of increases in
price. The Supreme Court of Illinois upheld the statute, and the United States Supreme Court
held that it did not violate the federal Constitution.
The case is another example of the way a court should reach a decision on a constitutional
issue. It follows all of the Rules for Interpretation set out in Chapter II.
The case, Davidson v. City of New Orleans, 96 U.S. 97 (1877), is interesting from the standpoint of the statement made by the Court about the proliferation of cases under the Fourteenth
Amendment, with a restriction on the States that had restricted the federal government ever since
we had a Constitution. Under statutes of Louisiana, New Orleans made an assessment against
certain property for draining swampland in the areas of the property. The Supreme Court of Louisiana upheld the assessment, and appeal was made to the United States Supreme Court, on the
ground this procedure amounted to the taking of property without due process of law. The decision of the Louisiana Supreme Court was affirmed. The opinion written by Justice Miller stated:
86
The prohibition against depriving the citizen or subject of his life, liberty, or
property without due process of law, is not new in the constitutional history of the
English race. It is not new in the constitutional history of this country, and it was not
new in the Constitution of the United States when it became a part of the fourteenth
amendment, in the year 1866. ***
It is not a little remarkable, that while this provision has been in the Constitution
of the United States, as a restraint upon the authority of the Federal government, for
nearly a century, and while, during all that time, the manner in which the powers of
that government have been exercised has been watched with jealousy, and subjected
to the most rigid criticism in all its branches, this special limitation upon its powers
has rarely been invoked in the judicial forum or the more enlarged theatre of public
discussion. But while it has been a part of the Constitution, as a restraint upon the
power of the States, only a very few years, the docket of this court is crowded with
cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law.
There is here abundant evidence that there exists some strange misconception of the
scope of this provision as found in the fourteenth amendment. In fact, it would seem,
from the character of many of the cases before us, and the arguments made in them,
that the clause under consideration is looked upon as a means of bringing to the test
of the decision of this court the abstract opinions of every unsuccessful litigant in a
State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due
process of law, in terms which would cover every exercise of power thus forbidden
to the State, and exclude those which are not, no more useful construction could be
furnished by this or any other court to any part of the fundamental law. ***
... the party complaining here appeared, and had a full and fair hearing in the
court of the first instance, and afterwards in the Supreme Court. If this be not due
process of law, then the words can have no definite meaning as used in the Constitution. ***
It is also said that part of the property of plaintiff which was assessed is not benefited by the improvement. This is a matter of detail with which this court cannot interfere, if it were clearly so; but it is hard to fix a limit within these two parishes
where property would not be benefited by the removal of the swamps and marshes
which are within their bounds. ***
Justice Bradley wrote an opinion, concurring in the result, but considered the statement on
the Fourteenth Amendment too narrow, stating:
It seems to me that private property may be taken by a State without due process
of law in other ways than by mere direct enactment, or the want of a judicial proceeding. If a State, by a its laws, should authorize private property to be taken for
public use without compensation (except to prevent its falling into the hands of an
enemy, or to prevent the spread of a conflagration, or, in virtue of some other imminent necessity, where the property itself is the cause of the public detriment), I think
87
it would be depriving a man of his property without due process of law. The exceptions noted imply that the nature and cause of the taking are proper to be considered.
***
Louisville & N. R. Co. v. Barber Asphalt Pav. Co., 197 U.S. 430 (1905), was a case on enforcing an assessment lien for grading, curbing, and paving with asphalt the carriage way of part
of an avenue in Louisville. The lot in question was owned by the plaintiff, which claimed that the
pavement was of no benefit to it and that it would be hurt by the increase in travel close to its
tracks. It claimed a violation of the equal protection of laws clause under the Fourteenth
Amendment. Justice Holmes wrote the majority opinion, stating:
... it is important for this court to avoid extraction from the very general language of the 14th Amendment a system of delusive exactness in order to destroy
methods of taxation which were well known when that amendment was adopted, and
which it is safe to say that no one then supposed would be disturbed. It now is established beyond permissible controversy that laws like the one before us are not contrary to the Constitution of the United States. ***
... We are not called on to say that we think the assessment fair. But we are
compelled to declare that it does not go beyond the bounds set by the 14th Amendment of the Constitution of the United States.
We are now entering the period when I consider the following cases as showing a moderate
degree of judicial activism setting in. The majority opinions seem to ignore the long established
principle of presuming a statute to be constitutional unless the contrary is clearly shown, and begins to substitute the Court's judgment for policy questions that should be left to the legislatures.
In Chapter III, we alluded to the eminence of Oliver Wendell Holmes as a legal scholar and jurist. We will see him begin to dissent in an effort to try to keep the Court on an established path
that courts should follow. John Harlan was another highly respected Justice, who served from
1877 to 1911.
In Muhlker v. New York & H. R. Co., 197 U.S. 544 (1905), the plaintiff sued to enjoin the
use of a certain elevated railroad structure on Park avenue, in the city of New York, in front of
his premises, unless upon payment of the fee value of certain easements of light, air, and access,
and other rights appurtenant to his premises. He also asks damages for injury sustained from the
year 1890 to the time of trial. The Supreme Court of New York held against the plaintiff. In a
five to four decision, reversing in favor of the plaintiff, Justice McKenna said:
... However, we need not go farther than the present case demands. When the
plaintiff acquired his title those cases were the law of New York, and assured to him
that his easements of light and air were secured by contract as expressed in those
cases [cases cited by the Court], and could not be taken from him without payment
of compensation.
88
Justice Holmes wrote the dissenting opinion in which Chief Justice Melville Fuller, and Justices White and Peckham joined. He states:
... . Now still considering distinctions which might be taken between this and the
earlier cases, it was possible for the New York courts to hold, as they seem to have
held, that the easement which they had declared to exist is subject to the fullest exercise of the primary right out of which it sprang, and that any change in the street for
the benefit of public travel is a matter of public right, as against what I have called
the parasitic right which the plaintiff claims. Scranton v. Wheeler, 179 U.S. 141 , 45
L. ed. 126, 21 Sup. Ct. Rep. 48; Gibson v. United States, 166 U.S. 269 , 41 L. ed.
996, 17 Sup. Ct. Rep. 578. ***
What the plaintiff claims is really property, a right in rem. It is called contract
merely to bring it within the contract clause of the Constitution. It seems to me a
considerable extension of the power to determine for ourselves what the contract is,
which we have assumed when it is alleged that the obligation of a contract has been
impaired, to say that we will make the same independent determination when it is alleged that property is taken without due compensation. But it seems to me that it
does not help the argument. The rule adopted as to contract is simply a rule to prevent an evasion of the constitutional limit to the power of the states, and, it seems to
me, should not be extended to a case like this. Bearing in mind that, as I have said,
the plaintiff's rights, however expressed, are wholly a construction of the courts, I
cannot believe that whenever the 14th Amendment, or Article I., 10, is set up, we are
free to go behind the local decisions on a matter of land law, and, on the ground that
we decide what the contract is, declare rights to exist which we should think ought to
be implied from a dedication or location if we were the local courts. I cannot believe
that we are at liberty to create rights over the streets of Massachusetts, for instance,
that never have been recognized there. If we properly may do that, then I am wrong
in my assumption that, if the New York courts originally had declared that the laying
out of a public way conferred no private rights, we should have had nothing to say.
But if I am right, if we are bound by local decisions as to local rights in real estate,
then we equally are bound by the distinctions and the limitations of those rights declared by the local courts. If an exception were established in the case of a decision
which obviously was intended to evade constitutional limits, I suppose I may assume
that such an evasion would not be imputed to a judgment which four justices of this
court think right.
... Not every such limitation, restriction, or diminution of value amounts to a
taking in a constitutional sense. I have a good deal of doubt whether it has been made
to appear that any right of the plaintiff has been taken or destroyed for which compensation is necessary under the Constitution of the United States. [Citing cases]
The case of Lochner v, People of New York, 198 U.S. 45 (1905), was on a section of the labor law of the State of New York, providing that no employees shall be required or permitted to
work in bakeries more than sixty hours in a week, or ten hours a day. A conviction under the law
was affirmed by the Supreme Court of New York.
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The United States Supreme Court reversed the Supreme Court of New York, holding the
general right to make a contract in relation to his business is part of the liberty protected by the
Fourteenth Amendment, and this includes the right to purchase and sell labor; and that this law
was not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary
and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution.
What was arbitrary and unlawful was the majority holding in this case. The majority opinion
admits: "If the contract be one which the state, in the legitimate exercise of its police power, has
the right to prohibit, it is not prevented from prohibiting it by the 14th Amendment. Contracts in
violation of a statute, either of the Federal or state government, or a contract to let one's property
for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution, as coming under the liberty of person or of free contract." The Court then
clearly takes it upon itself to submit its own policy judgment for that of the people of New York.
As is often done by a Court that exceeds its authority, this Court cited inapplicable prior cases as
precedent. An example was Allgeyer v. Louisiana, 165 U.S. 578 (1897), where the Court stated
that "the mere fact that a citizen may be within the limits of a particular state does not prevent his
making a contract outside its limits while he himself remains within it." It obviously did not even
involve whether the state could bar such a contract made within the state. There is no fundamental right to contract set forth in our Constitution, and no historical precedent was cited showing
that a right such as in this New York case was contemplated by those who framed and adopted
our Constitution. Policy judgments on a particular law are for the people and their representatives to make, and they are not within the province of the Court.
The dissenting opinions in this case later became the law of the land. It is now widely recognized that not only may the State and federal governments regulate working hours of employees, but they can also pass minimum wage laws.
Justice Harlan wrote a dissenting opinion in which Justices White and Day joined, in which
he stated:
... As stated in Crowley v. Christensen, 137 U.S. 86, "the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the
governing authority of the country essential to the safety, health, peace, good order,
and morals of the community."
... In Jacobson v. Massachusetts, 197 U.S. 11, ... we said that the power of the
courts to review legislative action in respect of a matter affecting the general welfare
exists only 'when that which the legislature has done comes within the rule that, if a
statute purporting to have been enacted to protect the public health, the public mor90
als, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental
law,' [citing cases] If there be doubt as to the validity of the statute, that doubt must
therefore be resolved in favor of its validity, and the courts must keep their hands off,
leaving the legislature to meet the responsibility for unwise legislation. ***
I take leave to say that the New York statute, in the particulars here involved,
cannot be held to be in conflict with the 14th Amendment, without enlarging the
scope of the amendment far beyond its original purpose, and without bringing under
the supervision of this court matters which have been supposed to belong exclusively
to the legislative departments of the several states when exerting their conceded
power to guard the health and safety of their citizens by such regulations as they in
their wisdom deem best. Health laws of every description constitute, said Chief Justice Marshall, a part of that mass of legislation which 'embraces everything within
the territory of a state, not surrendered to the general government; all which can be
most advantageously exercised by the states themselves.' Gibbons v. Ogden, 9
Wheat. 1, 203, 6 L. ed. 23, 71. A decision that the New York statute is void under the
14th Amendment will, in my opinion, involve consequences of a far-reaching and
mischievous character; for such a decision would seriously cripple the inherent power of the states to care for the lives, health, and wellbeing of their citizens. Those are
matters which can be best controlled by the states. The preservation of the just powers of the states is quite as vital as the preservation of the powers of the general government. ***
In a separate dissent, Justice Holmes added:
... I think that the word 'liberty,' in the 14th Amendment, is perverted when it is
held to prevent the natural outcome of a dominant opinion, unless it can be said that
a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our
people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it
a proper measure on the score of health. ...
Truax v, Corrigan, 257 U.S. 312 (1921), was a case in which the plaintiffs owned a restaurant in Arizona, and the defendants were cooks and waiters formerly employed by the plaintiffs,
together with labor unions and trade assemblies to which they belonged. A strike resulted when
the plaintiffs would not agree to terms and conditions of employment proposed by the unions.
The lawsuit by plaintiffs against the defendants alleged actions of the defendants included picketing, displaying banners, advertising the strike, denouncing plaintiffs as 'unfair' to the union, and
appealing to customers to stay away from the 'English Kitchen,' and the circulation of handbills
containing abusive and libelous charges against plaintiffs, their employees, and their patrons, and
intimations of injury to future patrons. Substantial damages were claimed and alleged. The defendants relied for immunity on an Arizona statute which prevented the issuing of restraining
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order and injunctions in labor disputes of this kind, unless necessary to prevent irreparable injury
to property or a property right. The lower Arizona court dismissed the complaint, and the Supreme Court of Arizona affirmed. The United States Supreme Court reversed.
The majority opinion by Chief Justice William Taft held that under these circumstances the
plaintiffs were denied equal protection of the law, in violation of the Fourteenth Amendment. As
usual, many cases are cited for the conclusion, but I do not believe that the principle can be
traced back to valid historical precedent supporting the idea that such regulation of the states by
the federal government was contemplated by those who framed and adopted the Fourteenth
Amendment. It seems contrary to all I have read. Also, the Supreme Court would later recognize
that both federal and state legislatures had a wide range in labor relations and in allowing strikes
and picketing.
Justices Holmes, Pitney, Clark, and Brandeis dissented. Holmes said:
I think further that the selection of the class of employers and employees for
special treatment, dealing with both sides alike, is beyond criticism on principles often asserted by this court. And especially I think that without legalizing the conduct
complained of the extraordinary relief by injunction may be denied to the class. Legislation may begin where an evil begins. If, as many intelligent people believe, there
is more danger that the injunction will be abused in labor cases than elsewhere I can
feel no doubt of the power of the Legislature to deny it in such cases. I refer to two
decisions in which I have stated what I understand to be the law sanctioned by many
other decisions. Carroll v. Greenwich Ins. Co., 199 U.S. 401, 411, 26 S. Sup. Ct. 66;
Quong Wing v. Kirkendall, 223 U.S. 59, 32 Sup. Ct. 192.
... There is nothing that I more deprecate than the use of the Fourteenth
Amendment beyond the absolute compulsion of its words to prevent the making of
social experiments that an important part of the community desires, in the insulated
chambers afforded by the several states, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect. I agree with
the more elaborate expositions of my Brothers PITNEY and BRANDEIS and in their
conclusion that the judgment should be affirmed.
Justice Pitney, joined in with Justice Clark, said:
The use of the process of injunction to prevent disturbance of a going business
by such a campaign as defendants here have conducted, is in the essential sense a
measure of police regulation. And just as the states have a broad discretion about establishing police regulations, so they have a discretion, equally broad, about modifying and relaxing them. They may adopt the common law, or some other system, as
their own judgment of the interests of their people may determine. They have general
dominion, and saving as restricted by particular provisions of the federal Constitution, complete dominion over all persons, property, and business transactions within
their borders; and in regulating its internal affairs a state may establish by legislation
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a policy differing in one or more respects from those of other states, just as it might
establish a like difference through the decisions of its courts. ***
I am unable to conclude that paragraph 1464 either deprives plaintiffs in error of
liberty or property without due process of law, or denies to them the equal protection
of the laws, within the meaning of the Fourteenth Amendment.
Justice Brandeis, in his dissent, said:
A state is free since the adoption of the Fourteenth Amendment, as it was before, not only to determine what system of law shall prevail in it, but also by what
processes legal rights may be asserted, and in what courts they may be enforced.
Missouri v. Lewis, 101 U.S. 22, 31; Iowa, [257 U.S. 312, 374] Central Railway Co.
v. Iowa, 160 U.S. 389, 16 Sup. Ct. 344. As a state may adopt or reject trial by jury,
Walker v. Sauvinet, 92 U.S. 90; or, adopting it, may retain or discard its customary
incidents, Hayes v. Missouri, 120 U.S. 68, 7 Sup. Ct. 350; Brown v. New Jersey, 175
U.S. 172, 20 Sup. Ct. 77; Maxwell v. Dow, 176 U.S. 581, 20 Sup. Ct. 448, 494. As a
state may grant or withhold review of a decision by appeal, Reetz v. Michigan, 188
U.S. 505, 23 Sup. Ct. 390; so it may determine for itself, from time to time, whether
the protection which it affords to property rights through its courts shall be given by
means of the preventive remedy or exclusively by an action at law for compensation.
***
... What Congress can do in curtailing the equity power of the federal courts,
state Legislatures may do in curtailing equity powers of the state courts, unless prevented by the Constitution of the state. In other words, states are free since the adoption of the Fourteenth Amendment, as they were before, either to expand or to contract their equity jurisdiction. The denial of the more adequate equitable remedy for
private wrongs is in essence an exercise of the police power, by which, in the interest
of the public and in order to preserve the liberty and the property of the great majority of the citizens of a state, rights of property and the liberty of the individual must
be remolded, from time to time, to meet the changing needs of society. ***
Adkins v. Children's Hospital of the District of Columbia. 261 U.S. 525 (1923), is a case
where the United States Supreme Court improperly imposed a restriction on Congress, striking
down an act of 1918 providing for the fixing of minimum wages for women and children. Justice
Sutherland wrote the majority opinion. Although it is certainly not that radical, the opinion
smacks of practices of the activist courts of today. The opinion states the long accepted rule:
... The judicial duty of passing upon the constitutionality of an act of Congress is
one of great gravity and delicacy. The statute here in question has successfully borne
the scrutiny of the legislative branch of the government, which, by enacting it, has
affirmed its validity, and that determination must be given great weight. This court,
by an unbroken line of decisions from Chief Justice Marshall to the present day, has
steadily adhered to the rule that every possible presumption is in favor of the validity
of an act of Congress until overcome beyond rational doubt.
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But then the Court does the opposite, and substitutes its "wisdom" for that of Congress. It
says:
... That the right to contract about one's affairs is a part of the liberty of the individual protected by this clause [Fifth Amendment] is settled by the decisions of this
court and is no longer open to question. ***
There is, of course, no such thing as absolute freedom of contract. It is subject to
a great variety of restraints. But freedom of contract is, nevertheless, the general rule
and restraint the exception, and the exercise of legislative authority to abridge it can
be justified only by the existence of exceptional circumstances. Whether these circumstances exist in the present case constitutes the question to be answered. It will
be helpful to this end to review some of the decisions where the interference has
been upheld and consider the grounds upon which they rest.
The Court then refers to Lochner v. New York, supra, and follows the reasoning of that and
similar cases. However the dead giveaway of the Court's activism is the following:
... In view of the great - not to say revolutionary - changes which have taken place
since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences
have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we
cannot accept the doctrine that women of mature age, sui juris, require or may be
subjected to restrictions upon their liberty of contract which could not lawfully be
imposed in the case of men under similar circumstances. To do so would be to ignore
all the implications to be drawn from the present day trend of legislation, as well as
that of common thought and usage, by which woman is accorded emancipation from
the old doctrine that she must be given special protection or be subjected to special
restraint in her contractual and civil relationships. In passing, it may be noted that the
instant statute applies in the case of a woman employer contracting with a woman
employee as it does when the former is a man. [Emphasis added] ***
The "revolutionary changes" and "present day trend" could not possibly have been in the
mind and consideration of those who framed and adopted the Fifth Amendment, since they did
not then exist. There is therefore no way they could have been within the intent and purpose of
the Amendment. These are matters for consideration of the people and their representatives – but
they are not the business of the Court.
Justice Brandeis took no part in the decision. Chief Justice Taft and Sanford dissented in an
opinion written by Taft, and they joined in Justice Holmes' dissent. Taft said:
... But it is not the function of this court to hold congressional acts invalid simply because they are passed to carry out economic views which the court believes to
be unwise or unsound. ...
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The right of the Legislature under the Fifth and Fourteenth Amendments to limit
the hours of employment on the score of the health of the employee, it seems to me,
has been firmly established. ***
Holmes added:
The earlier decisions upon the same words in the Fourteenth Amendment began
within our memory and went no farther than an unpretentious assertion of the liberty
to follow the ordinary callings. Later that innocuous generality was expanded into
the dogma, Liberty of Contract. Contract is not specially mentioned in the text that
we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do
some things that they want to do, and contract is no more exempt from law than other acts. ***
I confess that I do not understand the principle on which the power to fix a minimum for the wages of women can be denied by those who admit the power to fix a
maximum for their hours of work. I fully assent to the proposition that here as elsewhere the distinctions of the law are distinctions of degree, but I perceive no difference in the kind or degree of interference with liberty, the only matter with which we
have any concern, between the one case and the other. ***
The criterion of constitutionality is not whether we believe the law to be for the
public good. ***
As previously explained, the views of Holmes and the other dissenters, would later be the
recognized law of this country. This first stab at court activism was, fortunately for the country,
overcome by later decisions to the contrary, and our Constitution was restored to that extent.
However, modern day activism has decimated our Constitution to a degree that it can only be
repaired by a constitutional amendment by the people.
To save getting into the long tedious details of the labor relations cases, and the federal acts
enacted during the 1930s, in President Roosevelt's term, for the purpose of helping the country
out of the depression, I want to briefly summarize some of the problems here. In Chapter III the
striking down of the Agriculture Adjustment act in U.S. v. Butler, 297 U.S. 1 (1936), was discussed. In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Supreme
Court Struck down the National Industrial Recovery Act, on the basis that it was not authorized
under the commerce clause in the case in question, and that it unconstitutionally granted legislative power to the President. There were no dissents, but the respected Justices Cardozo and Stone
both wrote concurring opinions emphasizing the nature of those flaws in the law. Roosevelt's
trouble with the Supreme Court caused him to threaten to appoint as many as six more justices to
the Supreme Court, to try to get a majority for his legislation, but nothing ever really came of
this. He was accused of wanting to "pack' the Supreme Court. Congress passed the National La95
bor Relations Act (The Wagner Act), which gave Unions unprecedented rights, and this act was
upheld. Later, in 1947, Congress passed the Taft-Hartley Act, to give some balance to the rights
of employers. Both of these labor laws are still in effect.
I think that covering several more of the Fourteenth Amendment and "due process" cases,
may be helpful in understanding the evolution in the courts.
Justice Holmes wrote the unanimous opinion in Jackman v. Rosenbaum Co., 260 U.S. 22
(1922), upholding a Pennsylvania statute, under which the city of Pittsburgh required a party
wall to be redone which it did not consider safe. Holmes said:
The Fourteenth Amendment, itself a historical product, did not destroy history
for the States and substitute mechanical compartments of law all exactly alike. If a
thing has been practiced for two hundred years by common consent, it will need a
strong case for the Fourteenth Amendment to affect it, ... .
... In a case involving local history as this does we should be slow to overrule
the decision of Courts steeped in the local tradition even if we saw reasons for doubting it, which in this case we do not.
I consider Meyer v .State of Nebraska, 262 U.S. 390 (1923) an erroneous case that has never
been expressly overruled. The case struck down a Nebraska statute that prohibited any school
teaching any language other than English, prior to a child passing the eighth grade. The plaintiff
had been convicted under the statute of having violated the law by teaching German in a parochial school. In a well written majority opinion, Justice McReynolds states:
While this court has not attempted to define with exactness the liberty thus
guaranteed [under the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it
denotes not merely freedom from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges
long recognized at common law as essential to the orderly pursuit of happiness by
free men. Slaughter-House Cases, 16 Wall. 36; [citing a number of other cases.] ...
The American people have always regarded education and acquisition of
knowledge as matters of supreme importance which should be diligently promoted.
The Ordinance of 1787 declares:
'Religion, morality and knowledge being necessary to good government and
the happiness of mankind, schools and the means of education shall forever
be encouraged.'
Corresponding to the right of control, it is the natural duty of the parent to give
his children education suitable to their station in life; and nearly all the states, including Nebraska, enforce this obligation by compulsory laws. ***
96
The desire of the Legislature to foster a homogeneous people with American
ideals prepared readily to understand current discussions of civic matters is easy to
appreciate. Unfortunate experiences during the late war and aversion toward every
character of truculent adversaries were certainly enough to quicken that aspiration.
But the means adopted, we think, exceed the limitations upon the power of the state
and conflict with rights assured to plaintiff in error. The interference is plain enough
and no adequate reason therefor in time of peace and domestic tranquility has been
shown. ***
Justices Holmes and Sutherland dissented, but wrote no opinions. Their reasons may easily
be gleaned from some of their other opinions, and I consider obvious. The right to learn a language is not a fundamental right set forth in our Constitution. Had the statute prohibited the
teaching of religion, or the going to a parochial school, I would agree with such a decision, and I
am sure Justices Holmes and Sutherland would have, too. But here, I believe the Court wrongfully substituted its ideas on what was best for the judgment of the people of Nebraska.
This Meyers case has been often cited for all kinds of new rights, including the right of privacy, for the obvious reason that it sets up a constitutional right that is not named in the Constitution, and certainly it is not one of the rights sufficiently fundamental to be one named in the Constitution as a specific right that is not to be abridged, like freedom of religion. It is a right thought
by the Court to come under "liberty." But, both the Fifth and Fourteenth Amendments provide,
by their express wording, that liberty can be taken with "due process of law." This case, and the
ones that then cite it, are a prime example of how some nebulous right is thought up by the
Court, and then built on to create "rights" that have nothing whatsoever to do with parents' important right to have their children educated in the manner they think best. This is the natural detrimental result when courts fail to follow the intent and purpose of those who framed and adopted the various provisions of our Constitution, and instead substitute their own personal ideas as
to what is best.
In a unanimous decision, Pierce v. Society of the Sisters of The Holy Names of Jesus and
Mary, 268 U.S. 510 (1925), the Supreme Court overturned an Oregon statute. Justice McReynolds, writing for the Court, states:
The challenged act, effective September 1, 1926, requires every parent, guardian, or other person having control or charge or custody of a child between 8 and 16
years to send him 'to a public school for the period of time a public school shall be
held during the current year' in the district where the child resides; and failure so to
do is declared a misdemeanor. There are exemptions-not specially important here-for
children who are not normal, or who have completed the eighth grade, or whose parents or private teachers reside at considerable distances from any public school, or
who hold special permits from the county superintendent. The manifest purpose is to
compel general attendance at public schools by normal children, between 8 and 16,
97
who have not completed the eight grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees'
business and greatly diminish the value of their property. ***
Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 29 A. L.
R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with
the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the
Constitution may not be abridged by legislation which has no reasonable relation to
some purpose within the competency of the state. The fundamental theory of liberty
upon which all governments in this Union repose excludes any general power of the
state to standardize its children by forcing them to accept instruction from public
teachers only. The child is not the mere creature of the state; those who nurture him
and direct his destiny have the right, coupled with the high duty, to recognize and
prepare him for additional obligations. ***
... Generally, it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise
of proper power of the state upon the ground that he will be deprived of patronage.
But the injunctions here sought are not against the exercise of any proper power. Appellees asked protection against arbitrary, unreasonable, and unlawful interference
with their patrons and the consequent destruction of their business and property. ***
Why did Justice Holmes, who was still on the Court, not dissent? I am sure that he thought,
as do I, that the statute was unconstitutional. But I do wish the Court had not cited the Meyers
case, although, since it was a decided case, it was precedent. Aside from the fact that the Court
also thought that there was an unlawful taking or interference with property, I think that there
was a clear violation of the First Amendment, applied to the states by the Fourteenth Amendment, for the reason that the statute prevented the parents from the "free exercise" of their religion, by preventing them from having their children educated in a religious atmosphere with religious instruction. This is a basic fundamental right expressly stated in our Constitution. Oddly
enough, in the Meyers case, one of the reasons stated for the opinion was the right to "establish a
home and bring up children" and "to worship God according to the dictates of his own conscience." But this was not even mentioned by the Court in this Pierce case.
Another case where the dissents later became the law of the country, is Tyson & Bro.-United
Theatre Ticket Offices v. Banton, 273 U.S. 418 (1927). Justices Holmes, Brandeis, Stone, and
Sanford dissented. The case overturned a New York statute that prohibited the reselling of theatre and other tickets for more than fifty cents above the price printed on the ticket. Such "scalping" laws are now prevalent, and obviously now considered lawful. Holmes said in his dissent:
We fear to grant power and are unwilling to recognize it when it exists. The
States very generally have stripped jury trials of one of their most important characteristics by forbidding the judges to advise the jury upon the facts (Graham v. United
98
States, 231 U.S. 474, 480, 34 S. Ct. 148), and when Legislatures are held to be authorized to do anything considerably affecting public welfare it is covered by apologetic phrases like the police power, or the statement that the business concerned has
been dedicated to a public use. ... But police power often is used in a wide sense to
cover and, as I said, to apologize for the general power of the Legislature to make a
part of the community uncomfortable by a change.
I do not believe in such apologies. I think the proper course is to recognize that a
state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that
Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may
happen to entertain. ***
It is refreshing to find a majority opinion during this period that uses time honored methods
of constitutional construction, such as Near v. State of Minnesota Ex Re. Olson, 283 U.S.697
(1931). This case overturned a statute that made it an enjoinable nuisance to publish, distribute,
or possess:
(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or
(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical ... .
There were four dissents, but Justice Holmes was with the majority. Justice Hughes, writing
for the majority, said:
This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not unique, and raises questions of grave importance transcending
the local interests involved in the particular action. It is no longer open to doubt that
the liberty of the press and of speech is within the liberty safeguarded by the due
process clause of the Fourteenth Amendment from invasion by state action. It was
found impossible to conclude that this essential personal liberty of the citizen was
left unprotected by the general guaranty of fundamental rights of person and property. ... Liberty of speech and of the press is also not an absolute right, and the state
may punish its abuse. Whitney v. California, supra; Stromberg v. California, supra.
Liberty, in each of its phases, has its history and connotation, and, in the present instance, the inquiry is as to the historic conception of the liberty of the press and
whether the statute under review violates the essential attributes of that liberty. ***
The question is whether a statute authorizing such proceedings in restraint of
publication is consistent with the conception of the liberty of the press as historically
conceived and guaranteed. In determining the extent of the constitutional protection,
it has been generally, if not universally, considered that it is the chief purpose of the
guaranty to prevent previous restraints upon publication. The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the
censorship of the press. The liberty deemed to be established was thus described by
Blackstone: 'The liberty of the press is indeed essential to the nature of a free state;
but this consists in laying no previous restraints upon publications, and not in free99
dom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to
destroy the freedom of the press; but if he publishes what is improper, mischievous
or illegal, he must take the consequence of his own temerity.' 4 Bl. Com. 151, 152.
See Story on the Constitution, 1884, 1889. The distinction was early pointed out between the extent of the freedom with respect to censorship under our constitutional
system and that enjoyed in England. Here, as Madison said, 'the great and essential
rights of the people are secured against legislative as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions
paramount to laws. This security of the freedom of the press requires that it should
be exempt not only from previous restraint by the Executive, as in Great Britain, but
from legislative restraint also.' Report on the Virginia Resolutions, Madison's Works,
vol. IV, p. 543. This Court said, in Patterson v. Colorado, 205 U.S. 454, 462, 27 S.
Ct. 556, 558, 10 Ann. Cas. 689: 'In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had
been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. ***
... Madison, who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, thus described the practice and sentiment which led
to the guaranties of liberty of the press in State Constitutions: 'In every State, probable, in the Union, the press has exerted a freedom in canvassing the merits and
measures of public men of every description which has not been confined to the
strict limits of the common law. On this footing the freedom of the press has stood;
on this footing it yet stands. ... Some degree of abuse is inseparable from the proper
use of everything, and in no instance is this more true than in that of the press. It has
accordingly been decided by the practice of the States, that it is better to leave a few
of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy
be doubted by any who reflect that to the press alone, chequered as it is with abuses,
the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source the
United States owe much of the lights which conducted them to the ranks of a free
and independent nation, and which have improved their political system into a shape
so auspicious to their happiness? Had 'Sedition Acts,' forbidding every publication
that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures,
been uniformly enforced against the press, might not the United States have been
languishing at this day under the infirmities of a sickly Confederation? Might they
not, possibly, be miserable colonies, graning under a foreign yoke?'
The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications
relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right. ***
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In West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), we find a definite change of direction in the majority of the Supreme Court. In a majority decision written by Justice Hughes, a
minimum wage law of the State of Washington was upheld, and Adkins v. Children's Hospital,
supra, was expressly overruled. Justice Hughes said:
... The statute was sustained by the Supreme Court of the District in the Adkins
Case. Upon appeal the Court of Appeals of the District first affirmed that ruling, but
on rehearing reversed it and the case came before this Court in 1923. The judgment
of the Court of Appeals holding the act invalid was affirmed, but with Chief Justice
Taft, Mr. Justice Holmes, and Mr. Justice Sanford dissenting, and Mr. Justice
Brandeis taking no part. The dissenting opinions took the ground that the decision
was at variance with the principles which this Court had frequently announced and
applied. ***
The principle which must control our decision is not in doubt. The constitutional
provision invoked is the due process clause of the Fourteenth Amendment governing
the states, as the due process clause invoked in the Adkins Case governed Congress.
In each case the violation alleged by those attacking minimum wage regulation for
women is deprivation of freedom of contract. What is this freedom? The Constitution
does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of
its phases has its history and connotation. But the liberty safeguarded is liberty in a
social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which
is reasonable in relation to its subject and is adopted in the interests of the community is due process. This essential limitation of liberty in general governs freedom of
contract in particular. More than twenty-five years ago we set forth the applicable
principle in these words, after referring to the cases where the liberty guaranteed by
the Fourteenth Amendment had been broadly described
'But it was recognized in the cases cited, as in many others, that freedom of
contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty
does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the
power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions
imposed in the interests of the community.' Chicago, Burlington & Quincy
R. Co. v. McGuire, 219 U.S. 549, 565, 262.
... In Nebbia v. New York, 291 U.S. 502, 89 A.L.R. 1469, dealing with the New
York statute providing for minimum prices for milk, the general subject of the regulation of the use of private property and of the making of private contracts received
an exhaustive examination, and we again declared that if such laws 'have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminato101
ry, the requirements of due process are satisfied'; that 'with the wisdom of the policy
adopted, with the adequacy or practicability of the law enacted to forward it, the
courts are both incompetent and unauthorized to deal'; that 'times without number we
have said that the Legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though
the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power.' Id., 291 U.S. 502, at pages
537, 538, 516, 89 A.L.R. 1469. ***
Our conclusion is that the case of Adkins v. Children's Hospital, supra, should
be, and it is, overruled. The judgment of the Supreme Court of the state of Washington is affirmed.
We see that the Supreme Court has made a change in course into the more constitutional
path of recognizing that both Congress and the states have considerable leeway in applying their
legislative powers, and the courts should not be making policy judgments. But this does not
mean that close scrutiny will not be made to cases that appear to violate fundamental rights set
forth in the Constitution.
In Lovell v. City of Griffin, Ga., 303 U.S. 444 (1938), the Court held unconstitutional a city
ordinance making it a nuisance and an offense for distributing, either by hand or otherwise, circulars, handbooks, advertising, or literature of any kind, whether said articles are being delivered
free, or whether same are being sold, within the limits of the City of Griffin, without first obtaining written permission from the City Manager of the City of Griffin. The Court's opinion by Justice Hughes states:
The violation, which is not denied, consisted of the distribution without the required permission of a pamphlet and magazine in the nature of religious tracts, setting forth the gospel of the 'Kingdom of Jehovah.' Appellant did not apply for a permit, as she regarded herself as sent 'by Jehovah to do His work' and that such an application would have been 'an act of disobedience to His commandment.'
Upon the trial ... appellant ... moved to dismiss it upon a number of grounds,
among which was the contention that the ordinance violated the Fourteenth Amendment of the Constitution of the United States in abridging 'the freedom of the press'
and prohibiting 'the free exercise of petitioner's religion.' ***
Freedom of speech and freedom of the press, which are protected by the First
Amendment from infringement by Congress, are among the fundamental personal
rights and liberties which are protected by the Fourteenth Amendment from invasion
by state action. ***
We think that the ordinance is invalid on its face. ***
In United States v. Carolene Products Co., 304 U.S. 144 (1938), the Court upheld an act of
Congress which prohibited the shipment in interstate commerce of skimmed milk compounded
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with any fat or oil other than milk fat, so as to resemble milk or cream. Justice Stone delivered
the opinion of the Court, stating:
... Such regulation is not a forbidden invasion of state power either because its
motive or its consequence is to restrict the use of articles of commerce within the
states of destination, and is not prohibited unless by the due process clause of the
Fifth Amendment. ***
But such we think is not the purpose or construction of the statutory characterization of filled milk as injurious to health and as a fraud upon the public. There is no
need to consider it here as more than a declaration of the legislative findings deemed
to support and justify the action taken as a constitutional exertion of the legislative
power, aiding informed judicial review, as do the reports of legislative committees,
by revealing the rationale of the legislation. Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory
legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is
of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. ***
There was, however, a footnote in this case that I would like to comment on. It was:
[Footnote 4] There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition
of the Constitution, such as those of the first ten Amendments, which are deemed
equally specific when held to be embraced within the Fourteenth. See Stromberg v.
California, 283 U.S. 359, 369, 370 S., 51 S.Ct. 532, 535, 536, 73 A.L.R. 1484; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, decided March 28, 1938.
Thus it would appear that when one of the fundamental rights set forth in the Bill of Rights
appears to have been violated, the presumption of the validity of legislation would still exist, but
would be narrower in scope. This seems reasonable to me, and I believe it fits the better reasoned
court decisions.
Justice William O. Douglas was appointed as an Associate Justice to the United States Supreme Court by President Franklin D. Roosevelt, and the last thing Roosevelt wanted was an activist judge at that time when he was trying to get his New Deal and other laws enacted. As was
previously stated, he was quite disturbed with the Court overturning some of the acts he had gotten passed. Douglas served from 1939 to 1975. There is no doubt that he was a legal scholar, and
he new the rules of law, how to arrive at a decision, and how to write an opinion. His first opinions were exemplary, and showed no signs of any innate liberal activism. But later, particularly
during the Warren court, he became one of the Court's worst liberal activists. Anyone who compares some of his early opinions with some of his later ones, can see some striking differences.
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Douglas wrote the unanimous opinion of the Court in Olsen v. State of Nebraska Ex Rel.
Western Reference & Bond, 313 U.S. 235 (1941). In reliance upon Ribnik v. McBride, 277 U.S.
350, the Supreme Court of Nebraska held, one judge dissenting, that a statute of that state fixing
the maximum compensation which a private employment agency might collect from an applicant
for employment was unconstitutional under the due process clause of the Fourteenth Amendment. The United States Supreme Court reversed. The opinion states:
We are not concerned, however, with the wisdom, need, or appropriateness of
the legislation. Differences of opinion on that score suggest a choice which 'should
be left where ... it was left by the Constitution-to the states and to Congress.' Ribnik
v. McBride, supra, ... dissenting opinion. There is no necessity for the state to
demonstrate before us that evils persist despite the competition which attends the
bargaining in this field. In final analysis, the only constitutional prohibitions or restraints which respondents have suggested for the invalidation of this legislation are
those notions of public policy embedded in earlier decisions of this Court but which,
as Mr. Justice Holmes long admonished, should not be read into the Constitution.
Tyson & Brother v. Banton, supra, 273 U.S. at page 446, 47 S.Ct. at page 433, 58
A.L.R. 1236; Adkins v. Children's Hospital, supra, 261 U.S. at page 570, 43 S.Ct. at
page 405, 24 A.L.R. 1238. Since they do not find expression in the Constitution, we
cannot give them continuing vitality as standards by which the constitutionality of
the economic and social programs of the states is to be determined.
In Day-Brite Lighting, Inc., v. Missouri. 342 U.S. 421 (1925), the Court held that a statute
which provided that any employee entitled to vote may absent himself from his employment for
four hours between the opening and closing of the polls on election days and that any employer
who deducts wages for that absence is guilty of a misdemeanor, does not violate the Due Process
or Equal Protection Clause of the Fourteenth Amendment or the Contract Clause of Art. I, 10, of
the Federal Constitution. Writing the unanimous opinion, Douglas stated:
... Our recent decisions make plain that we do not sit as a super-legislature to
weigh the wisdom of legislation nor to decide whether the policy which it expresses
offends the public welfare. The legislative power has limits, as Tot v. United States,
319 U.S. 463, holds. But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor
field, so long as specific constitutional prohibitions are not violated and so long as
conflicts with valid and controlling federal laws are avoided.
In Williamson v. Lee Optical Co., 348 U.S 483 (1955), the Court unanimously upheld an
Oklahoma statute making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances,
except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist. Douglas said:
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The day is gone when this Court uses the Due Process Clause of the Fourteenth
Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular
school of thought. ***
In Ferguson v. Skrupa, 372 U.S. 726 (1963), in a unanimous opinion, the Court held that a
Kansas statute making it a misdemeanor for any person to engage "in the business of debt adjusting," except as an incident to "the lawful practice of law," does not violate the Due Process
Clause of the Fourteenth Amendment. Justice Black said:
... There was a time when the Due Process Clause was used by this Court to
strike down laws which were thought unreasonable, that is, unwise or incompatible
with some particular economic or social philosophy. In this manner the Due Process
Clause was used ... . This intrusion by the judiciary into the realm of legislative value
judgments was strongly objected to at the time, particularly by Mr. Justice Holmes
and Mr. Justice Brandeis. Dissenting from the Court's invalidating a state statute
which regulated the resale price of theatre and other tickets, Mr. Justice Holmes said,
"I think the proper course is to recognize that a state legislature can do
whatever it sees fit to do unless it is restrained by some express prohibition
in the Constitution of the United States or of the State, and that Courts
should be careful not to extend such prohibitions beyond their obvious
meaning by reading into them conceptions of public policy that the particular Court may happen to entertain." ***
... We refuse to sit as a "superlegislature to weigh the wisdom of legislation,"
and we emphatically refuse to go back to the time when courts used the Due Process
Clause "to strike down state laws, regulatory of business and industrial conditions,
because they may be unwise, improvident, or out of harmony with a particular school
of thought." Nor are we able or willing to draw lines by calling a law "prohibitory"
or "regulatory." Whether the legislature takes for its textbook Adam Smith, Herbert
Spencer, Lord Keynes, or some other is no concern of ours. The Kansas debt adjusting statute may be wise or unwise. But relief, if any be needed, lies not with us but
with the body constituted to pass laws for the State of Kansas.
In the cases reviewed in this Chapter, we have seen the relationship between the Bill of
Rights and the Fourteenth Amendment; and we have seen that the "due process" clause was not
new to the Fourteenth Amendment, but already existed in the Fifth Amendment. Its meaning was
known when our Constitution and Bill of Rights were framed and adopted. Cases have been covered that use both proper and improper methods for arriving at the meaning of a constitutional
provision. In the following chapters, I will deal primarily with cases that I consider examples of
judicial activism that is doing great damage to our Constitution.
Equal Protection of the Laws
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Equal protection of the laws has been interpreted to include equal rights under the laws. This
book is primarily about judicial abuse and activism, and trying to delineate all that has occurred
in regard to this part of the Fourteenth Amendment would be far to lengthy and repetitive for my
purposes. A few that I consider more important will be covered in later chapters. But since this
clause at the end of Section 1, that no state shall "deny to any person within its jurisdiction the
equal protection of the laws," is such an important civil right, I would like to make some summary comments on it. By its wording, when considered with Section 1 and the rest of the civil
war amendments, it obviously prohibits unlawful discrimination by a state, particularly based on
race.
Section 5 of the Fourteenth Amendment provides: "The Congress shall have power to enforce by appropriate legislation, the provisions of this article." And so much civil rights legislation has been passed that the discrimination prohibited by the "equal protection" clause is often
intertwined with the statutory discrimination laws.
Some of the statutory discrimination laws have been based on Section 5, and many are
based on the Commerce Clause of the Constitution. The Fourteenth Amendment prohibits discrimination by the states, and it does not apply to private organizations and individuals.
The most far-reaching civil rights legislation since the reconstruction period is the Civil
Rights Act of 1964, and the many amendments to it. It included discrimination in public establishments affording such things as public accommodations, extending to hotels, restaurants, taverns, places of entertainment and many others.
Employment discrimination was included applying to employers with more than 15 employees, labor organizations, and employment agencies. The act was made applicable to schools that
accepted federal funding.
It has now been extended to include a myriad of categories including, religion, age, sex, national origin, voting rights, and others. There are those who continue to try to expand it.
Amendments are continually being presented by liberal legislators to include discrimination
against homosexuals. Such legislation has been passed by a number of states.
Affirmative action programs were encouraged by the Equal Employment Opportunity
Commission, and a number of those were held to violate both the Civil Rights Act and the Fourteenth Amendment because they amounted to reverse discrimination.
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Chapter V
Liberty, Due Process, and Fundamental Rights
... But is it 'due process of law?' The constitution contains no description of
those processes which it was intended to allow or forbid ... It is manifest that it
was not left to the legislative power to enact any process which might be devised. ... To what principles, then, are we to resort to ascertain whether this
process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in
conflict with any of its provisions. If not found to be so, we must look to those
settled usages and modes of proceeding existing in the common and statute law
of England, before the emigration of our ancestors, and which are shown not to
have been unsuited to their civil and political condition by having been acted on
by them after the settlement of this country. ***
Tested by the common and statute law of England prior to the emigration of
our ancestors, and by the laws of many of the States at the time of the adoption
of this amendment, the proceedings ... cannot be denied to be due process of law
... . *** (Justice Curtis, unanimous opinion including C.J. Taney, Den Ex De. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272 (1855))
The Due Process of Law clause in the Fourteenth Amendment is exactly the same as in the
Fifth Amendment. The above wording and rules of construction apply equally to both.
Statements such as the above that "it is not left to the legislature to enact any process which
might be devised" have led to what a number of authors and cases call "substantive due process
of law." The Courts have used this to unlawfully create rights that were never before heard of in
our law. This is because they have ignored the historic precedent which the Court, in the above
referenced case, stated should be considered in determining an issue.
Den Ex De. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272 (1855) was considered at
length in Chapter IV. In that material, and in the above quote, we see that if there is a violation of
due process of law, there must have been a determinable historical precedent at the time the Fifth
Amendment was adopted. To determine this we must look to the law in place, including "the
common and statute law of England prior to the emigration of our ancestors, and the laws of
many of the States at the time of the adoption of this amendment." So if there is a fundamental
right protected by due process, substantive or procedural, it was an established and known right
existing when the Fifth Amendment was adopted. This means that if it existed, there was known
historical precedent for it. It also means that if there were existing laws to the contrary, such as
those prohibiting abortion, adultery, and sodomy, those acts could not possibly be included in the
liberty protected by the due process clause. It is also clear that those who framed and adopted the
Fourteenth Amendment had no intention of adding any new unheard of rights. And it was in107
tended that the Courts, including the Supreme Court, would continue interpreting both statutory
and constitutional law according to either its plain wording or by the intentions of those who
made the law. How could anything be intended by those who enacted it if it was not known, and
even more so if it was contrary to existing precedent and not even mentioned?
In Hurtado v. People of State of California, 110 U.S. 516 (1884), the Court followed the
above referred to Murray case (the first party was called Murray's Lessee), quoting much of the
first paragraph of this chapter. The Court also stated:
It follows that any legal proceeding enforced by public authority, whether sanctioned
by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of
liberty and justice, must be held to be due process of law.
In this Hurtado case, the Court upheld a statute in California that allowed the defendant,
Hurtado, to be tried for murder on an information, rather than requiring an indictment by a grand
jury, as required by the Fifth Amendment. Justice Harlan wrote an interesting and well founded
dissent. He agreed with all of the rules and tests set forth in the Murray and Hurtado cases, but
presented precedent under those rules supporting his premise that the right to a grand jury indictment was a fundamental right and procedure when our Bill of Rights was adopted. The idea
that the Fourteenth Amendment applied the federal Bill of Rights to the states lends strong support to Justice Harlan's dissent. But both his dissent and the majority opinion fully support the
basic principle of determining the intent of those who framed and adopted our Fifth Amendment,
and the liberty protected and due process required.
Justice Field, in a unanimous opinion of the Court in Barbier v. Connolly, 113 U.S. 27
(1846), upheld a municipal ordinance in San Francisco that imposed certain requirements on persons doing laundry and cleaning work. The petitioners claimed that the ordinance discriminated
between them and others similarly situated in other businesses in violation of the Fourteenth
Amendment and provisions of the State constitution. The opinion states:
The fourteenth amendment, in declaring that no state 'shall deprive any person
of life, liberty, or property without due process of law, nor deny to any person within
its jurisdiction the equal protection of the laws,' undoubtedly intended not only that
there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of
property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should
be equally entitled to pursue their happiness, and acquire and enjoy property; that
they should have like access to the courts of the country for the protection of their
persons and property, the prevention and redress of wrongs, and the enforcement of
contracts; that no impediment should be interposed to the pursuits of any one, except
as applied to the same pursuits by others under like circumstances; that no greater
108
burdens should be laid upon one than are laid upon others in the same calling and
condition; and that in the administration of criminal justice no different or higher
punishment should be imposed upon one than such as is prescribed to all for like offenses.
But neither the amendment – broad and comprehensive as it is – nor any other
amendment, was designed to interfere with the power of the state, sometimes termed
its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people ... .
The Justices supporting Justice Field's opinion in this Barbier case were Chief Justice Morrison Waite, and Justices Harlan, Miller, Bradley, Woods, Mathews, Gray, and Blatchford. These
are settled rules to protect both our constitutional rights and the rights of the people to govern
themselves that have been completely eliminated by our modern activist courts.
Justice Harlan, writing for the Court in Mugler v. Kansas, 123 U.S. 623 (1887), which is also discussed in Chapter IX, said:
... Indeed, it is a fundamental principle in our institutions, indispensable to the
preservation of public liberty, that one of the separate departments of government
shall not usurp powers committed by the constitution to another department. And so,
if, in the judgment of the legislature, the manufacture of intoxicating liquors for the
maker's own use, as a beverage, would tend to cripple, if it did not defeat, the efforts
to guard the community against the evils attending the excessive use of such liquors,
it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. ... Such a right does
not inhere in citizenship. Nor can it be said that government interferes with or impairs any one's constitutional rights of liberty or of property ... . Those rights are best
secured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No
one may rightfully do that which the law-making power, upon reasonable grounds,
declares to be prejudicial to the general welfare. Those rights are best secured, in our
government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully
do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare. ***
Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers
of the state, and to determine, primarily, what measures are appropriate or needful
for the protection of the public morals, the public health, or the public safety.
`
It does not at all follow that every statute enacted ostensibly for the promotion
of these ends is to be accepted as a legitimate exertion of the police powers of the
state. There are, of necessity, limits beyond which legislation cannot rightfully go.
While every possible presumption is to be indulged in favor of the validity of a statute, ... the courts must obey the constitution rather than the law-making department
109
of government, and must, upon their own responsibility, determine whether, in any
particular case, these limits have been passed. ... They are at liberty, indeed, are under a solemn duty, to look at the substance of things, whenever they enter upon the
inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public
morals, or the public safety, has no real or substantial relation to those objects, or is a
palpable invasion of rights secured by the fundamental law, it is the duty of the
courts to so adjudge, and thereby give effect to the constitution.
... [T]he courts cannot, without usurping legislative functions, override the
will of the people as thus expressed by their chosen representatives. They have
nothing to do with the mere policy of legislation. Indeed, it is a fundamental
principle in our institutions, indispensable to the preservation of public liberty,
that one of the separate departments of government shall not usurp powers
committed by the constitution to another department. And so, if, in the judgment
of the legislature, the manufacture of intoxicating liquors for the maker's own use, as
a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquors, it is not for the
courts, upon their views as to what is best and safest for the community, to disregard
the legislative determination of that question. ... No one may rightfully do that which
the law-making power, upon reasonable grounds, declares to be prejudicial to the
general welfare. [Emphasis added]
This conclusion is unavoidable, unless the fourteenth amendment of the
constitution takes from the states of the Union those powers of police that were
reserved at the time the original constitution was adopted. But this court has
declared, upon full consideration, Barbier v. Connolly 113 U.S.31, that the fourteenth amendment had no such effect. *** [Emphasis added]
The principal that no person shall be deprived of life, liberty, or property without due process of law, was embodied, in substance, in the constitutions of nearly all,
if not all, of the states at the time of the adoption of the fourteenth amendment ... .
***
We see from these cases that it was not intended that the Fourteenth Amendment take from
the people any of their rights of self-government and give them to the federal courts. Just the opposite. And this is consistent with the debates on forming and adopting that Amendment.
When we consider these older cases that took into consideration the intent and purpose of
the Fourteenth Amendment, we see that our more modern cases that have used this idea of "substantive due process" to invent new rights such as a "right to privacy," right to abortion, and a
constitutional right to engage in sodomy, have no sound basis in the law. Worse, they unlawfully
decimate our Constitution by engrafting such rights, some of them abhorrent, on our Constitution, and making them a part of it.
110
Activist judges, and activist writers who support them, believe in disregarding history and
historical precedent to arrive at the intent and purpose of a constitutional provision. That is because they are not interested in the intent and purpose if it is contrary to their own ideas and political views, which is usually the case. They therefore use the phrase, "substantive due process,"
and lift words and phrases out of context from cases to support their own ideas. The opinions
they write, falsely making it look like they are supported by precedent, are a sham on the public.
Any law passed by a state upholding morals of the community necessarily restricts liberty.
But before such a law may properly even be questioned, it must impinge upon a fundamental
Constitutional right. Generally, if not always, a fundamental right is a specific right set forth in
the Bill of Rights, such as freedom of religion, freedom of speech, and right to bear arms. There
is also little question that those who framed our Bill of Rights intended to put all fundamental
rights in it that were not already expressly stated in the Constitution. That is the very reason
many either insisted on a Bill of Rights before they would ratify the Constitution, or relied on the
promise of Madison and other founders that they would introduce and support a Bill of Rights as
amendments to the Constitution. What is the use of being so insistent on a Bill of Rights setting
out our fundamental rights, and then not putting them in it?
Following the established principles on the right of the people to pass laws upholding the
morals of the Community, The Supreme Court in Marvin v. Trout, 199 U.S. 212 (1905). The
Unanimous opinion states in part:
For a great many years past gambling has been very generally in this country regarded as a vice, to be prevented and suppressed in the interest of the public morals and
the public welfare. The power of the state to enact laws to suppress gambling cannot
be doubted; and, as a means to that end, we have no doubt of its power to provide
that the owner of the building in which gambling is conducted, who knowingly looks
on and permits such gambling, can be made liable in his property which is thus used,
to pay a judgment against those who won the money, as is provided in the statute in
question.
Is there really a fundamental constitutional right to engage in the destructive acts of abortion
or sodomy, but not to go out and have a drink and play the slot machines or a little poker for
amusement. Our law has become absurd when it gets to its present state where it prohibits the
people from enacting laws against abortion and sodomy, both of which were regarded as destructive and abhorrent at the time both of our due process clauses were enacted, yet allows them to
enact laws that prohibit the much less harmful things. I know that many will disagree with my
ideas on which is worse, but who is it has the right to decide? It is clearly only the people and
their representatives under our Constitution. It is none of the Court's business.
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At this point I would like to point out something that can be confusing. We have had two
John Marshall Harlans as Supreme Court Justices. The second was son of the first. The first
served from 1877 until 1911. The second served from 1955 to 1971. In my opinion the son never
gained the stature as a jurist that his father did. Activist Judges like to quote the younger Harlan's
dissent in the Poe case, and I often wonder if they are trying to confuse us with the known stature
of his father. I do not consider the younger Harlan, though, to really be one of our liberal activist
judges. But I do not think he wrote a well supported dissenting opinion in the Poe case.
I want to further discuss Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497 (1961).
This was the Connecticut contraceptive case which the Supreme Court dismissed for lack of a
justiciable controversy. Justice Harlan dissented on the ground that he thought there should be
full consideration given, and the case and the statute overturned. His primary grounds were:
... I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of
the most intimate concerns of an individual's personal life. ***
... Certainly, Connecticut's judgment is no more demonstrably correct or incorrect than are the varieties of judgment, expressed in law, on marriage and divorce, on adult consensual homosexuality, abortion, and sterilization, or euthanasia and suicide. If we had a case before us which required us to decide simply,
and in abstraction, whether the moral judgment implicit in the application of the present statute to married couples was a sound one, the very controversial nature of
these questions would, I think, require us to hesitate long before concluding that the
Constitution precluded Connecticut from choosing as it has among these various
views. Cf. Alberts v. California, 354 U.S. 476, 500 -503 (concurring opinion). ***
(Emphasis added)
... This enactment involves what, by common understanding throughout the Englishspeaking world, must be granted to be a most fundamental aspect of "liberty," the
privacy of the home in its most basic sense, and it is this which requires that the statute be subjected to "strict scrutiny." ***
I think the sweep of the Court's decisions, under both the Fourth and Fourteenth
Amendments, amply shows that the Constitution protects the privacy of the home
against all unreasonable intrusion of whatever character. ***
I believe that Justice Harlan's ideas here are unsupported in Constitutional law. The primary
authorities he cites for support are search and seizure Fourth Amendment cases. They are not applicable. Any home is subject to search and seizure on a proper warrant. It is not protected by
any "right of privacy." These are just words courts have used describing the protections of the
Fourth Amendment. No illicit acts are authorized within the home by it.
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I do think that the sanctity of marriage between one man and one woman is probably a fundamental right that one could find support for in true historical precedent. For example, a spouse
may not be required to testify against the other. This is a federal rule, and probably universal in
our state law. It is long recognized. For example, I doubt the government has the authority to
prescribe how a married couple conducts their intimate relations. But it is only due to the sanctity
of the marriage relation. But Justice Harlan did not support his ideas with any acceptable historical precedent. I also think it is certain that it is constitutionally permissible for states to enact
laws prohibiting the sale of contraceptives.
In Whitney v. People of State of California, 274 U.S. 357 (1927), The Supreme Court unanimously upheld the state Criminal Syndicalism Act. The defendant, a woman, was convicted and
sentenced to imprisonment for joining the Communist Party whose stated purposes included
overthrowing our government and establishing a Proletariat Dictatorship by revolutionary and
other means. She took part in the forming of resolutions and other matters to further the purposes. From the Court's opinion:
That the freedom of speech which is secured by the Constitution does not confer
an absolute right to speak, without responsibility, whatever one may choose, or an
unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom; and that a
State in the exercise of its police power may punish those who abuse this freedom by
utterances inimical to the public welfare, tending to incite to crime, disturb the public
peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question. Gitlow v. New York, 268 U.S.
652, 666, 668 S., 45 S. Ct. 625, and cases cited.
The following is from Justice Brandeis' concurring opinion, in which Justice Holmes joined:
Despite arguments to the contrary which had seemed to me persuasive, it is
settled that the due process clause of the Fourteenth Amendment applies to matters
of substantive law as well as to matters of procedure. Thus all fundamental rights
comprised within the term liberty are protected by the federal Constitution from invasion by the states. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights. [Citing cases] These may not be denied or
abridged. But, although the rights of free speech and assembly are fundamental, they
are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. [Emphasis added]
So we see that even one of our most fundamental rights, guarded by the First Amendment, is
subject to state action which the people properly consider reasonable under the circumstances.
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I agree with Justices Brandeis and Holmes, as well as many other legal scholars that as to
the idea that the due process clauses apply "to matters of substantive law as well as matters of
procedure", "arguments to the contrary," are "to me persuasive." But in any event, more important than any terminology used, is that it is not constitutionally permissible for judges to make
law instead of interpreting the law, made by those with authority to make it, to arrive at its intent
and purpose when made.
One other thing is certain. If a fundamental right existed that was intended by our Founders
to be protected by the Constitution, they necessarily had to know about. Otherwise, how could
they intend that it is to be protected?
When our courts, as our activist judges are doing today, make up constitutional rights such
as "privacy," right to abortion, right to engage in sodomy, they are necessarily a farce. Not only
are they not supported by any historical precedent whatsoever – each and every one is directly
contrary to existing precedent when our Bill of rights was enacted. Our Founders could not possibly have intended that these were fundamental rights intended to be protected.
The idea of Substantive Due Process is only used today when the Court wishes to engraft its
own ideas and prejudices onto our Constitution.
We were early given common sense rules for defining "due process" by great and reputable
judges, many of whom had intimate knowledge of the intent and purpose of our founders, and
who were not acting to impose their own personal views on our Constitution. They told us that
we look to the statutory and common law of England, and of the states at the time our Bill of
Rights was adopted. The same is true of the "liberty" protected by due process. This is a simple
common sense approach, supported by all valid jurisprudence, that should be followed by anyone who truly respects our Constitution.
It is the only procedure that prevents judges from making law to fit their own whims in violation of the express provisions of Article V, and the basic principle of our whole Constitution –
the right of the people to govern themselves. It requires judges to be judges, instead of being
despotic rulers. The people should now impose the rules on our judiciary. The liberty they have
taken to make up and follow contrary rules has been very destructive.
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Chapter VI
Rights of Criminal Defendants
Although the English reports, prior to the separation, are almost devoid of
decisions applying the principles stated by Lord Hale, Hawkins, and Gilbert,
both the opinion of Lord Mansfield in Rex v. Rudd (1775) Cowp. 333, and that
of Mr. Justice Wilson, some years after the separation, in Lambe's Case (1791)
2 Leach (4th Ed.) 552, make it certain that the rule as stated by Hawkins, Gilbert, and Hale was considered in the English courts as no longer open to question, and as one of the fundamental principles of the common law. Looking at
the doctrine as thus established, it would seem plainly to be deducible that as
the principle from which, under the law of nature, it was held that one accused
could not be compelled to testify against himself, was in its essence comprehensive enough to exclude all manifestations of compulsion, whether arising from
torture or from moral causes, the rule formulating the principle with logical accuracy came to be so stated as to embrace all cases of compulsion which were
covered by the doctrine. As the facts by which compulsion might manifest itself,
whether physical or moral, would be necessarily ever different, the measure by
which the involuntary nature of the confession was to be ascertained was stated
in the rule, not by the changing causes, but by their resultant effect upon the
mind,-that is, hope or fear,-so that, however diverse might be the facts, the test
of whether the confession as voluntary would be uniform,-that is, would be ascertained by the condition of mind which the causes ordinarily operated to create. The well-settled nature of the rule in England at the time of the adoption of
the constitution and of the fifth amendment, and the intimate knowledge had by
the framers of the principles of civil liberty which had become a part of the
common law, aptly explain the conciseness of the language of that amendment.
And the accuracy with which the doctrine as to confessions as now formulated
embodies the rule existing at common law, and imbedded in the fifth amendment, was noticed by this court in Wilson v. U. S., supra, where, after referring
to the criteria of hope and fear, speaking through Mr. Chief Justice Fuller, it
was said: 'In short, the true test of admissibility is that the confession is made
freely, voluntarily, and without compulsion or inducement of any sort.' 162 U.S.
623, 16 Sup. Ct. 899. (Bram v. U.S., 168 U.S. 532 (1897))
The Fourth, Fifth, and Sixth Amendments are material to this chapter. They are set out in
full below:
Amendment 4: Search and arrest warrants
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment 5: Rights in criminal cases
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No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand jury, except in cases arising in the land or
naval forces, or in the militia, when in actual service in time of war or public danger;
nor shall any person be subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation.
Amendment 6: Rights to a fair trial
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense.
This Chapter deals with the admission of evidence obtained from criminal defendants, and
primarily with the admission of confessions or incriminating statements from the defendants
themselves. Tracing the evolution back just a little ways shows that we start out in the 1800s
with fair and reasonable rules, but as they evolved into modern times, we see that they have become damaging both as to our country and our Constitution. Criminal defendants, even murderers, have been freed by rules made up by the Warren Court purporting to be based on the Constitution, when in truth those decisions were contrary to our Constitution.
For example, one of the important provisions in issue is the part of the Fifth Amendment
that provides that no person "shall be compelled in any criminal case to be a witness against himself." History teaches us that one of the primary reasons for this is to avoid the Old World rack
and torture chamber procedures. Even today, torture is a common investigative tool in some
countries.
An annotated article in FindLaw says"
Not until the latter part of the eighteenth century did there develop a rule excluding
coerced confessions from admission at trial; prior to that time, even confessions obtained by torture were admissible. As the rule developed in England and in early
United States jurisprudence, the rationale was the unreliability of the confession's
contents when induced by a promise of benefit or a threat of harm. In its first decision on the admissibility of confessions, the Court adopted the common-law rule,
stressing that while a ''voluntary confession of guilt is among the most effectual
proofs in the law, from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution.'' ''[T]he presumption upon which weight
is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature,
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held out by one in authority, touching the charge preferred, or because of a threat or
promise by or in the presence of such person, which, operating upon the fears or
hopes of the accused, in reference to the charge, deprives him of that freedom of will
or self-control essential to make his confession voluntary within the meaning of the
law.''
(http://supreme.lp.findlaw.com/constitution/amendment05/09.html#2)
In addition, English and American courts have been interested in getting at the truth in a
case, and often coerced testimony is not reliable. Usually, however, there are no politics involved, and it is puzzling why there should be so much judicial activism in this area, but it is
clear that there has been – probably because often activist judges labor under the misconception
that they are doing great things by imposing their views on society. And I have never seen an
activist judge, nor any group of them, that truly had the common sense of the society about them.
Another problem is that courts have usually been the primary judges as to what is admissible
evidence in their particular courts, and rules are commonly set by the highest court in the jurisdiction. The United States Supreme Court has been faced with the problem that certain of their
activist judges have wanted to impose their ideas of fairness on the states. The state courts are the
ones that have basic jurisdiction over rules in their courts, so the United States Supreme Court
resorts to imposing rules that they declare are required by the Constitution, thereby further decimating our federal Constitution, as well as doing great damage to law enforcement in the states.
Also, great damage has been done to the country by making law enforcement more difficult
and less effective. For example the rule thought up by the Warren Court that when a suspect is in
custody, before he may be questioned, he most be told his rights, including the right that not only
does he have the right to remain silent, but that he has a right to have an attorney present, and
that if he cannot afford an attorney, the state will furnish him one. Common sense will tell you,
as will any good criminal investigator, that the best time to get the truth out of a suspect is immediately upon catching him and getting him in custody. He has not yet had full opportunity to
think up defenses and alibis. The truth can often be quickly obtained with no legal coercion at
all. But after he has had time to think about how best to avoid prosecution, the truth is much
more difficult to obtain. After he has a lawyer – forget it. If a client is guilty, no competent lawyer will allow him to talk. Not only that, the sad truth is that some criminal lawyers will think up
completely fictitious defenses for their clients. I have heard lawyers blatantly admit that they tell
a client at the outset that they are not interested in being told whether or not the client is guilty.
They don't want to know. They will then relate possible defenses that they think might work under the circumstances, and then a completely fictitious defense is born. Such things are a deplorable perversion of truth and justice. I, personally, have never heard of an attorney being disbarred
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for putting on fictitious defenses for his client. And it is done all of the time. Other attorneys
say, "well, you have to believe what your client tells you," which is of course asinine.
For purposes of chronology, in this chapter, I will consider both cases on right of counsel
and self incrimination, without separating them into groups, as they somewhat tie in.
The quote at the beginning of this chapter is from a case at a time before this damaging activism had not set in, Bram v. U.S., 168 U.S. 532 (1897). More than one hundred years after our
Constitution was adopted, the Supreme Court was still looking back into English and American
history and common law to determine the meaning intended by our forefathers in framing and
adopting the Fifth Amendment. There is no question that the conclusions in the case, and the basis for it, are the correct ones. The case involved a murder on the high seas, thus the federal jurisdiction. Bram was convicted of murder and sentenced to death. The statement in question,
admitted at the trial, was to a detective, who testified:
"When Mr. Bram came into my office, I said to him: 'Bram, we are trying to unravel this horrible mystery.' I said: 'Your position is rather an awkward one. I have had Brown in this office, and
he made a statement that he saw you do the murder.' He said: 'He could not have seen me.
Where was he?' I said: 'He states he was at the wheel.' 'Well,' he said, 'he could not see me from
there.' I said: 'Now, look here, Bram, I am satisfied that you killed the captain from all I have
heard from Mr. Brown. But,' I said, 'some of us here think you could not have done all that crime
alone. If you had an accomplice, you should say so, and not have the blame of this horrible
crime on your own shoulders.' He said: 'Well, I think, and many others on board the ship think,
that Brown is the murderer; but I don't know anything about it.' He was rather short in his replies.
Although this was no outright confession, it was treated under the rules applying to confessions and admissions, as to the admissibility. Another important factor was that the defendant
was stripped of his clothing, and questioned by the detective in the nude. The majority opinion
reversed the case, sending it back for a new trial, stating, "the impression is irresistibly produced
that it must necessarily have been the result of either hope or fear, or both, operating on the
mind." No warnings to the defendant of his rights are disclosed by the record. The Court also
recognized the rule: "In this court also it has been settled that the mere fact that the confession is
made to a police officer, while the accused was under arrest in or out of prison, or was drawn out
by his questions, does not necessarily render the confession involuntary; but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining
whether or not the statements of the prisoner were voluntary."
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Chief Justice Melville Fuller and Justice Brown joined in an opinion written by Justice
Brewer dissenting on the ground that the evidence did not show coercion, and on the further
ground, that any error as to its admission had not been properly preserved.
In Powell v. State of Alabama, 287 U.S. 45 (1932), the conviction and sentence to death of
three negroes for raping two white girls, was upheld by the Alabama Supreme Court. The three
cases were combined in the United States Supreme Court, which reversed in an opinion for the
majority by Justice Sutherland. The opinion states:
The only one of the assignments which we shall consider is the second, in respect of the denial of counsel; and it becomes unnecessary to discuss the facts of the
case or the circumstances surrounding the prosecution except in so far as they reflect
light upon that question. ***
It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice. Not
only was that not done here, but such designation of counsel as was attempted was
either so indefinite or so close upon the trial as to amount to a denial of effective and
substantial aid in that regard. This will be amply demonstrated by a brief review of
the record. ***
In arriving at the decision that the right to counsel in such a case was a fundamental right
that should be applied to the states under the Fourteenth Amendment, the opinion reviewed our
legal history and Blackstone's Commentaries, as well as various early state constitutions. It is
another good example of the proper methods to be used in arriving at the meaning of our constitutional provisions. It is interesting that in this case, the Court did not recognize the incorporation
of the First Eight Amendments by the Fourteenth Amendment, but that the right to counsel was a
fundamental right provided by the Fourteenth Amendment. The Court concluded:
... Evidently this court, in the later cases enumerated, regarded the rights there
under consideration as of this fundamental character. That some such distinction
must be observed is foreshadowed in Twining v. New Jersey, 211 U.S. 78, 99, 29
S.Ct. 14, 19, where Mr. Justice Moody, speaking for the court, said that: ' ... It is possible that some of the personal rights safeguarded by the first eight Amendments
against national action may also be safeguarded against state action, because a denial
of them would be a denial of due process of law. Chicago, Burlington & Quincy
Railroad v. Chicago, 166 U.S. 226 , 17 S.Ct. 581. If this is so, it is not because those
rights are enumerated in the first eight Amendments, but because they are of such a
nature that they are included in the conception of due process of law.' While the
question has never been categorically determined by this court, a consideration of the
nature of the right and a review of the expressions of this and other courts makes it
clear that the right to the aid of counsel is of this fundamental character. ***
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However, in order to trace the evolution of the incorporating of the Bill of rights under the
Fourteenth Amendment as applied to criminal cases, we need to go to a First Amendment case of
freedom of the press, Grossjean v. American Press Co., 297 U.S. 233 (1936). The Court held
invalid a Louisiana law that required a license, imposed a tax, and regulations on publications
having a circulation of over 20,00 copies per week. The Court went at length into early English
and American legal history on such matters, as well as early state law. The Court somewhat extended the language in the Powell case, supra, stating:
But in Powell v. State of Alabama, ... we held that in the light of subsequent decisions the sweeping language of the Hurtado Case could not be accepted without
qualification. We concluded that certain fundamental rights, safeguarded by the first
eight amendments against federal action, were also safeguarded against state action
by the due process of law clause of the Fourteenth Amendment, and among them the
fundamental right of the accused to the aid of counsel in a criminal prosecution. ***
In the light of all that has now been said, it is evident ... that by the First
Amendment it was meant to preclude the national government, and by the Fourteenth
Amendment to preclude the states, from adopting any form of previous restraint upon printed publications, or their circulation, including that which had theretofore
been effected by these two wellknown and odious methods.
It seems to me that it is reasonable to say that at this point the Fundamental rights set forth
in the first eight amendments of the Bill of Rights has been applied by the Fourteenth Amendment to the states.
In Crooker v. California, 357 U.S. 433 (1958), Petitioner, a 31-year-old college graduate
who had attended the first year of law school and had studied criminal law, was convicted of
murder and sentenced to death, and his conviction was affirmed by the California Supreme
Court. He claimed that his conviction violated the Due Process Clause of the Fourteenth
Amendment, because (1) the confession admitted in evidence over his objection was coerced,
and (2) even if it was voluntary, it occurred while he was without counsel because of denials of
his requests for an opportunity to obtain counsel. During the 14 hours between his arrest and
confession, he asked several times for an opportunity to get counsel, but this was denied until
after he had confessed. Meanwhile, he refused to take a lie detector test, refused to answer many
questions, and showed full awareness of his right to be silent. He was advised by a police lieutenant that he need not answer any questions he did not wish to answer. The questioning by several police officers was intermittent, and petitioner was given coffee, milk and a sandwich and
allowed to smoke whenever he liked. The Supreme Court upheld the conviction. Justice Clark
wrote the majority opinion. Stating:
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The right of an accused to counsel for his defense, though not firmly fixed in our
common-law heritage, is of significant importance to the preservation of liberty in
this country. See 1 Cooley's Constitutional Limitations (8th ed. 1927) 696-700; 2
Story on the Constitution (4th ed. 1873) 1794. That right, secured in state prosecutions by the Fourteenth Amendment guaranty of due process, includes not only the
right to have an attorney appointed by the State in certain cases, but also the right of
an accused to "a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53 (1932); Chandler v. Fretag, 348 U.S. 3 (1954).
... state refusal of a request to engage counsel violates due process not only if
the accused is deprived of counsel at trial on the merits, Chandler v. Fretag, supra,
but also if he is deprived of counsel for any part of the pretrial proceedings, provided
that he is so prejudiced thereby as to infect his subsequent trial with an absence of
"that fundamental fairness essential to the very concept of justice." Lisenba v. California, 314 U.S. 219, 236 (1941). ***
... Refusal by state authorities of the request to contact counsel necessarily
would then be an absolute bar to conviction. On the other hand, where an event has
occurred while the accused was without his counsel which fairly promises to adversely affect his chances, the doctrine suggested by petitioner would have a lesser
but still devastating effect on enforcement of criminal law, for it would effectively
preclude police questioning - fair as well as unfair - until the accused was afforded
opportunity to call his attorney. Due process, a concept "less rigid and more fluid
than those envisaged in other specific and particular provisions of the Bill of Rights,"
Betts v. Brady, 316 U.S. 455, 462 (1942), demands no such rule.
Chief Justice Earl Warren, Justices Black and Brennan joined in a dissenting opinion of
Douglas. This opinion primarily consisted of ideas of justice and fairness, but no historical precedent is given.
In Cicenia v. Legay, 357 U.S. 504 (1958), the defendant was convicted in New Jersey on a
plea of non vult, a plea similar to nolo contendere and carrying the implication of a guilty plea.
Claiming that his conviction of murder violated the Due Process Clause of the Fourteenth
Amendment, petitioner applied to a Federal District Court for a writ of habeas corpus, which was
denied. He had retained counsel before his arrest; but, while being questioned by state police, he
was repeatedly denied the right to consult his counsel until he had confessed. He was not permitted to inspect his confession before pleading to the indictment. The Supreme Court upheld the
conviction. Brennan took no part, and Warren, Douglas, and Black dissented on grounds similar
to the Crooker dissent.
Now we skip forward to some cases disclosing the successful activism of the Warren Court.
We also see how important the makeup of the Supreme Court is. John F. Kennedy became President in 1961. Felix Frankfurter and Charles Whittaker retired from the United States Supreme
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Court in 1962, and they were replaced by Byron White and Arthur Goldberg. This is what I call
the beginning of the Activism of the Warren Court.
I hesitate to try to label judges, because at times, and for reasons known only to themselves,
they make decisions that even a knowledgeable court watcher cannot fathom. Also, the views of
some judges seem to change from a more conservative to a more liberal view, and vice-versa. As
has already been indicated, the national attitude of the bar and current legal writers seems to effect them, which tends to have been liberal during the past fort-five years. But usually, you can
see in their decisions their reflected philosophies. I will give my ideas as to the philosophical
makeup of the Court after the 1962 appointments.
Chief Justice Earl Warren, and Justices Douglas, Brennan, and Goldberg are indeed liberal
activist judges. Justice Black appears to me have been a moderate who became much more liberal along with the activist group, at this time. You will see from the following cases that he often
went with the liberal group. I would consider Clark, Harlan, White, and Stewart, to be the moderate to conservative group. None were the type of real non-activists that we find in some of the
later judges, such as Burger, Rehnquist. Scalia, and Thomas. I do admire how White did take
strong stands against some of the more clearly activist decisions of the majority.
However, I fully agree with Justice Douglas' concurring opinion in the following referred to
case.
In Gidean v. Wainright, 372 U.S. 335 (1963), Gidean was convicted of a breaking and entering felony. He appeared in court without funds and asked the Court to appoint him a lawyer. The
Judge refused, saying that under the laws of Florida, counsel could only be appointed for an indigent defendant in a capital case. Justice Black wrote the opinion of the Court reversing the
conviction. He said:
... While the Court at the close of its Powell opinion did by its language, as this
Court frequently does, limit its holding to the particular facts and circumstances of
that case, its conclusions about the fundamental nature of the right to counsel are
unmistakable. Several years later, in 1936, the Court reemphasized what it had said
about the fundamental nature of the right to counsel in this language:
"We concluded that certain fundamental rights, safeguarded by the first
eight amendments against federal action, were also safeguarded against
state action by the due process of law clause of the Fourteenth Amendment,
and among them the fundamental right of the accused to the aid of counsel
in a criminal prosecution." Grosjean v. American Press Co., 297 U.S. 233,
243-244 (1936).
Following is the entire concurring opinion (without footnotes) of Justice Douglas:
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While I join the opinion of the Court, a brief historical resume of the relation between the Bill of Rights and the first section of the Fourteenth Amendment seems
pertinent. Since the adoption of that Amendment, ten Justices have felt that it protects from infringement by the States the privileges, protections, and safeguards
granted by the Bill of Rights.
Justice Field, the first Justice Harlan, and probably Justice Brewer, took that position in O'Neil v. Vermont, 144 U.S. 323, 362 -363, 370-371, as did Justices
BLACK, DOUGLAS, Murphy and Rutledge in Adamson v. California, 332 U.S. 46,
71 -72, 124. And see Poe v. Ullman, 367 U.S. 497, 515 -522 (dissenting opinion).
That view was also expressed by Justices Bradley and Swayne in the SlaughterHouse Cases, 16 Wall. 36, 118-119, 122, and seemingly was accepted by Justice
Clifford when he dissented with Justice Field in Walker v. Sauvinet, 92 U.S. 90, 92.
Unfortunately it has never commanded a Court. Yet, happily, all constitutional questions are always open. Erie R. Co. v. Tompkins, 304 U.S. 64. And what we do today
does not foreclose the matter.
My Brother HARLAN is of the view that a guarantee of the Bill of Rights that is
made applicable to the States by reason of the Fourteenth Amendment is a lesser version of that same guarantee as applied to the Federal Government. Mr. Justice Jackson shared that view. But that view has not prevailed and rights protected against
state invasion by the Due Process Clause of the Fourteenth Amendment are not watered-down versions of what the Bill of Rights guarantees.
The reason that I fully agree with Douglas is that I believe that the historical precedent – the
debates in Congress in particular – shows that those who framed and those who gave consideration to it, believed that Section I of the Fourteenth Amendment would incorporate the first eight
Amendments of the Bill of Rights. And that includes the right to a jury trial in a criminal case
provided by the Sixth Amendment. In Gideon v. Wainwright. This was also the more liberal side
of this case.
In Massiah v. United States, 377 U.S. 201 (1964), federal agents, while continuing to investigate narcotics activities including those of petitioner, who had retained a lawyer and was free
on bail after indictment, without petitioner's knowledge secured an alleged confederate's consent
to install a radio transmitter in the latter's automobile. An agent was thereby enabled to overhear
petitioner's damaging statements which, despite his objection, were used in the trial which resulted in his conviction. The majority decision of the United States Supreme Court held that the incriminating statements thus deliberately elicited by federal agents from the petitioner, in the absence of his attorney, deprived the petitioner of his right to counsel under the Sixth Amendment;
therefore such statements could not constitutionally be used as evidence against him in his trial.
This is a new twist that is not supported by any prior cases cited, and certainly is not supported
by any historical precedent indicating that any of the Bill of Rights was intended to have such an
effect.
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Justices Clark and Harlan joined in the dissenting opinion of Justice White, which stated:
It is therefore a rather portentous occasion when a constitutional rule is established barring the use of evidence which is relevant, reliable and highly probative of
the issue which the trial court has before it – whether the accused committed the act
with which he is charged. Without the evidence, the quest for truth may be seriously
impeded and in many cases the trial court, although aware of proof showing defendant's guilt, must nevertheless release him because the crucial evidence is deemed inadmissible. This result is entirely justified in some circumstances because exclusion
serves other policies of overriding importance, as where evidence seized in an illegal
search is excluded, not because of the quality of the proof, but to secure meaningful
enforcement of the Fourth Amendment. Weeks v. United States, 232 U.S. 383; Mapp
v. Ohio, 367 U.S. 643. But this only emphasizes that the soundest of reasons is necessary to warrant the exclusion of evidence otherwise admissible and the creation of
another area of privileged testimony. With all due deference, I am not at all convinced that the additional barriers to the pursuit of truth which the Court today erects
rest on anything like the solid foundations which decisions of this gravity should require.
When the defendant made the statements in question, there was no coercion whatsoever.
This case strikes at the very heart of undercover investigation, which is a critically necessary tool
in effective law enforcement. It is a court added element to our Constitution that is only the result
of activist philosophy.
As in many other areas of the law, we now see unconstitutional precedent cited to support
further unconstitutional precedent. That is an unfortunate aspect of the rule of stare decisis,
which is a rule that once a matter has been decided, that case is precedent and establishes the law
for later cases on the same issue. It is efficient and saves time, but one erroneous decision becomes the foundation for continuing error. I do not believe that substantial error should be continued merely because of case precedent. On cases involving our Constitution, the Courts should
look at sound historical precedent showing the intent and purpose behind the provision in question, or only to prior cases founded on that basis.
In Escobedo v. Illinois, 378 U.S. 478 (1964), the defendant, a 22-year-old of Mexican extraction, was arrested with his sister and taken to police headquarters for interrogation in connection with the fatal shooting, about 11 days before, of his brother-in-law. He had been arrested
shortly after the shooting, but had made no statement, and was released after his lawyer obtained
a writ of habeas corpus from a state court. Petitioner made several requests to see his lawyer,
who, though present in the building, and despite persistent efforts, was refused access to his client. Petitioner was not advised by the police of his right to remain silent and, after persistent
questioning by the police, made a damaging statement to an Assistant State's Attorney which was
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admitted at the trial. Convicted of murder, he appealed to the State Supreme Court, which affirmed the conviction. The United State Supreme Court held that under the circumstances of this
case, where a police investigation is no longer a general inquiry into an unsolved crime but has
begun to focus on a particular suspect in police custody who has been refused an opportunity to
consult with his counsel and who has not been warned of his constitutional right to keep silent,
the accused has been denied the assistance of counsel in violation of the Sixth and Fourteenth
Amendments; and no statement extracted by the police during the interrogation may be used
against him at a trial. Crooker v. California, 357 U.S. 433, and Cicenia v. Lagay, 357 U.S. 504,
were effectively overruled.
This is one more judge invented right afforded criminal defendants that substantially detracts from effective law enforcement. There are those legal theorists that argue that it is not a
serious barrier to good law enforcement, but such arguments belie common sense, and any experienced law enforcement officer knows the problems presented. Whenever there is an attorney
between a guilty defendant and the law officer, the truth will not be obtained from that defendant. Otherwise, the attorney himself would be guilty of malpractice. Those are just the cold hard
facts of life. Not only that, later cases will still further expand the impediment by excluding evidence obtained from leads an officer may have gotten in what the courts may consider an improper manner. Even though the evidence is not obtained form the defendant, the activist courts
will call it "tainted." They like to use the high sounding phrase, "fruit from the branches of the
poisoned tree." We have now left the realm of common sense and fairness envisioned by our
founders and entered a world of technical obstacles that are purely from the minds of the judges
who invent them. Our Constitution, and particularly the paramount basic right of the people to
govern themselves, has given way to this "judicial oligarchy."
What the Court has now done in this Escobedo case is to apply the right of a defendant to
have an attorney represent him in a criminal trial, as provided by the Sixth Amendment, back to
the investigative stage of a case covered by the Fifth Amendment, which merely provides that a
person shall not be compelled to be a witness against himself. My study of the ability of our
founders convinces me that they were a blessed and uniquely qualified group, and that we have
not since been blessed with a group as well qualified. And I consider this Warren group of activists to be far inferior to them. They do not compare to Washington, Adams, Jefferson, Madison,
Morris, Hamilton, Jay, and many other truly great men of that group. Those patriots loved their
country to the extent that they literally put their life on the line by even proposing that the people
of this country should be a free people. And they hammered out a great instrument for us. I am
entirely confident that had our founders wanted the right to an attorney to apply to the investiga125
tive stage of law enforcement, they certainly would have put that right in the Fifth Amendment
as well as in the Sixth Amendment. The fact that the right was in the Sixth Amendment establishes their familiarity with it. This Escobedo court attributes to our founders an inability to say
what they wanted to say and what they did say, which is nothing but gross misbehavior of these
activist judges. Not only is the decision against the plain wording of these Amendments, which
plain wording requires no extraneous construction, but the decision is contrary to historical precedent, had proper historical precedent been examined and relied on.
The majority opinion was written by Justice Goldberg. Not only does the case fail to refer
to any supporting historical precedent showing that any one of the amendments constituting our
Bill of Rights was intended to afford such a protection, but no majority decision was referred to
that supported it. And two prior Supreme Court decisions to the contrary were overturned. This
was the clear engrafting of a new judge made provision on our Constitution that did not exist,
and it was nothing but the idea of this activist court.
Justices Harlan, Stewart, White, and Clark dissented in three opinions.
Justice Harlan said:
I would affirm the judgment of the Supreme Court of Illinois on the basis of
Cicenia v. Lagay, 357 U.S. 504, decided by this Court only six years ago. Like my
Brother WHITE, post, p. 495, I think the rule announced today is most ill-conceived
and that it seriously and unjustifiably fetters perfectly legitimate methods of criminal
law enforcement.
Justice Stewart states:
... Under our system of criminal justice the institution of formal, meaningful judicial proceedings, by way of indictment, information, or arraignment, marks the
point at which a criminal investigation has ended and adversary proceedings have
commenced. It is at this point that the constitutional guarantees attach which pertain
to a criminal trial. Among those guarantees are the right to a speedy trial, the right of
confrontation, and the right to trial by jury. ...
The confession which the Court today holds inadmissible was a voluntary one.
It was given during the course of a perfectly legitimate police investigation of an unsolved murder. The Court says that what happened during this investigation "affected" the trial. I had always supposed that the whole purpose of a police investigation
of a murder was to "affect" the trial of the murderer, and that it would be only an incompetent, unsuccessful, or corrupt investigation which would not do so. The Court
further says that the Illinois police officers did not advise the petitioner of his "constitutional rights" before he confessed to the murder. This Court has never held that
the Constitution requires the police to give any "advice" under circumstances such as
these.
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Supported by no stronger authority than its own rhetoric, the Court today converts a routine police investigation of an unsolved murder into a distorted analogue
of a judicial trial. It imports into this investigation constitutional concepts historically
applicable only after the onset of formal prosecutorial proceedings. By doing so, I
think the Court perverts those precious constitutional guarantees, and frustrates the
vital interests of society in preserving the legitimate and proper function of honest
and purposeful police investigation.
Like my Brother CLARK, I cannot escape the logic of my Brother White's conclusions as to the extraordinary implications which emanate from the Court's opinion
in this case, and I share their views as to the untold and highly unfortunate impact
today's decision may have upon the fair administration of criminal justice. I can only
hope we have completely misunderstood what the Court has said.
The following is Justice White's complete opinion:
In Massiah v. United States, 377 U.S. 201, the Court held that as of the date of
the indictment the prosecution is disentitled to secure admissions from the accused.
The Court now moves that date back to the time when the prosecution begins to "focus" on the accused. Although the opinion purports to be limited to the facts of this
case, it would be naive to think that the new constitutional right announced will depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainright, 372 U.S. 335; Griffin v. Illinois, 351 U.S. 12; Douglas v. California, 372 U.S.
353, or has asked to consult with counsel in the course of interrogation. Cf. Carnley
v. Cochran, 369 U.S. 506. At the very least the Court holds that once the accused becomes a suspect and, presumably, is arrested, any admission made to the police
thereafter is inadmissible in evidence unless the accused has waived his right to
counsel. The decision is thus another major step in the direction of the goal which
the Court seemingly has in mind – to bar from evidence all admissions obtained from
an individual suspected of crime, whether involuntarily made or not. It does of
course put us one step "ahead" of the English judges who have had the good sense to
leave the matter a discretionary one with the trial court. I reject this step and the invitation to go farther which the Court has now issued.
By abandoning the voluntary-involuntary test for admissibility of confessions,
the Court seems driven by the notion that it is uncivilized law enforcement to use an
accused's own admissions against him at his trial. It attempts to find a home for this
new and nebulous rule of due process by attaching it to the right to counsel guaranteed in the federal system by the Sixth Amendment and binding upon the States by
virtue of the due process guarantee of the Fourteenth Amendment. Gideon v. Wainwright, supra. The right to counsel now not only entitles the accused to counsel's advice and aid in preparing for trial but stands as an impenetrable barrier to any interrogation once the accused has become a suspect. From that very moment apparently
his right to counsel attaches, a rule wholly unworkable and impossible to administer
unless police cars are equipped with public defenders and undercover agents and police informants have defense counsel at their side. I would not abandon the Court's
prior cases defining with some care and analysis the circumstances requiring the
presence or aid of counsel and substitute the amorphous and wholly unworkable
127
principle that counsel is constitutionally required whenever he would or could be
helpful. Hamilton v. Alabama, 368 U.S. 52; White v. Maryland, 373 U.S. 59; Gideon
v. Wainwright, supra. These cases dealt with the requirement of counsel at proceedings in which definable rights could be won or lost, not with stages where probative
evidence might be obtained. Under this new approach one might just as well argue
that a potential defendant is constitutionally entitled to a lawyer before, not after, he
commits a crime, since it is then that crucial incriminating evidence is put within the
reach of the Government by the would-be accused. Until now there simply has been
no right guaranteed by the Federal Constitution to be free from the use at trial of a
voluntary admission made prior to indictment.
It is incongruous to assume that the provision for counsel in the Sixth Amendment was meant to amend or supersede the self-incrimination provision of the Fifth
Amendment, which is now applicable to the States. Malloy v. Hogan, 378 U.S. 1.
That amendment addresses itself to the very issue of incriminating admissions of an
accused and resolves it by proscribing only compelled statements. Neither the Framers, the constitutional language, a century of decisions of this Court nor Professor
Wigmore provides an iota of support for the idea that an accused has an absolute
constitutional right not to answer even in the absence of compulsion – the constitutional right not to incriminate himself by making voluntary disclosures.
Today's decision cannot be squared with other provisions of the Constitution
which, in my view, define the system of criminal justice this Court is empowered to
administer. The Fourth Amendment permits upon probable cause even compulsory
searches of the suspect and his possessions and the use of the fruits of the search at
trial, all in the absence of counsel. The Fifth Amendment and state constitutional
provisions authorize, indeed require, inquisitorial grand jury proceedings at which a
potential defendant, in the absence of counsel, is shielded against no more than compulsory incrimination. Mulloney v. United States, 79 F.2d 566, 578 (C. A. 1st Cir.);
United States v. Benjamin, 120 F.2d 521, 522 (C. A. 2d Cir.); United States v. Scully, 225 F.2d 113, 115 (C. A. 2d Cir.); United States v. Gilboy, 160 F. Supp. 442
(D.C. M. D. Pa.). A grand jury witness, who may be a suspect, is interrogated and his
answers, at least until today, are admissible in evidence at trial. And these provisions
have been thought of as constitutional safeguards to persons suspected of an offense.
Furthermore, until now, the Constitution has permitted the accused to be fingerprinted and to be identified in a line-up or in the courtroom itself.
The Court chooses to ignore these matters and to rely on the virtues and morality of a system of criminal law enforcement which does not depend on the "confession." No such judgment is to be found in the Constitution. It might be appropriate
for a legislature to provide that a suspect should not be consulted during a criminal
investigation; that an accused should never be called before a grand jury to answer,
even if he wants to, what may well be incriminating questions; and that no person,
whether he be a suspect, guilty criminal or innocent bystander, should be put to the
ordeal of responding to orderly noncompulsory inquiry by the State. But this is not
the system our Constitution requires. The only "inquisitions" the Constitution forbids
are those which compel incrimination. Escobedo's statements were not compelled
and the Court does not hold that they were.
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This new American judges' rule, which is to be applied in both federal and state
courts, is perhaps thought to be a necessary safeguard against the possibility of extorted confessions. To this extent it reflects a deep-seated distrust of law enforcement
officers everywhere, unsupported by relevant data or current material based upon our
own experience. Obviously law enforcement officers can make mistakes and exceed
their authority, as today's decision shows that even judges can do, but I have somewhat more faith than the Court evidently has in the ability and desire of prosecutors
and of the power of the appellate courts to discern and correct such violations of the
law.
The Court may be concerned with a narrower matter: the unknowing defendant
who responds to police questioning because he mistakenly believes that he must and
that his admissions will not be used against him. But this worry hardly calls for the
broadside the Court has now fired. The failure to inform an accused that he need not
answer and that his answers may be used against him is very relevant indeed to
whether the disclosures are compelled. Cases in this Court, to say the least, have
never placed a premium on ignorance of constitutional rights. If an accused is told he
must answer and does not know better, it would be very doubtful that the resulting
admissions could be used against him. When the accused has not been informed of
his rights at all the Court characteristically and properly looks very closely at the surrounding circumstances. See Ward v. Texas, 316 U.S. 547; Haley v. Ohio, 332 U.S.
596; Payne v. Arkansas, 356 U.S. 560. I would continue to do so. But in this case
Danny Escobedo knew full well that he did not have to answer and knew full well
that his lawyer had advised him not to answer.
I do not suggest for a moment that law enforcement will be destroyed by the
rule announced today. The need for peace and order is too insistent for that. But it
will be crippled and its task made a great deal more difficult, all in my opinion, for
unsound, unstated reasons, which can find no home in any of the provisions of the
Constitution.
As the substance of the dissenting opinions indicates, the activist majority substituted what
it considers its "wisdom" for the clear provisions of our Constitution. But there is still more of
this blatant misbehavior to come, as predicted by the dissenting justices.
Miranda v. Arizona, 384 U.S. 436 (1966), has now made law enforcement so complicated
that law enforcement officers now have to carry a card or a piece of paper around with them to
read all of the court invented rights to a possible defendant who is taken into custody. Among
those rights commonly read are: You have a right to remain silent and any statement you make
may be used against you; you have a right to have an attorney present to represent you, and if
you cannot afford an attorney, you have a right to have an attorney appointed for you by the
court. Some enforcement agencies have even gone so far as to have the suspect sign a statement
that he has been read these rights, and that he waives the right to have counsel present at questioning, particularly after there have been charges filed. The Miranda case is the epitome of un129
supported case precedent built on unsupported case precedent. In this case it appears that a number of state cases were argued together, and that the convictions in all would be reversed. Miranda, himself was convicted of rape. I did not find what charges were involved in the others. The
majority opinion written by Chief Justice Warren states:
Our holding will be spelled out with some specificity in the pages which follow
but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. By custodial interrogation, we mean questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person
must be warned that he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to
consult with an attorney before speaking there can be no questioning. Likewise, if
the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered
some questions or volunteered some statements on his own does not deprive him of
the right to refrain from answering any further inquiries until he has consulted with
an attorney and thereafter consents to be questioned. ***
... Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have
counsel present during any questioning if the defendant so desires. ***
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him
during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can
be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of
this right will suffice to stand in its stead: Only through such a warning is there ascertainable assurance that the accused was aware of this right. *** [Emphasis added]
... The limits we have placed on the interrogation process should not constitute
an undue interference with a proper system of law enforcement.. *** [Emphasis added]
Her we see the Court blatantly admitting that these limits on law enforcement are the Court's
invention. They do no even purport to be supported by the Constitution, by historical precedent
behind the constitutional provisions, and not even by prior case precedent, although a long and
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obfuscated opinion is written citing such cases as the Escobedo case with its Court invented
rights. Then they have the audacity to say that these Court invented ideas are under the Fifth and
Sixth Amendments.
Clark, Harlan, Stewart, and White dissent. Clark said:
The ipse dixit of the majority has no support in our cases. Indeed, the Court admits that "we might not find the defendants' statements [here] to have been involuntary in traditional terms." Ante, p. 457. In short, the Court has added more to the requirements that the accused is entitled to consult with his lawyer and that he must be
given the traditional warning that he may remain silent and that anything that he says
may be used against him. Escobedo v. Illinois, 378 U.S. 478, 490 -491 (1964). Now,
the Court fashions a constitutional rule that the police may engage in no custodial interrogation without additionally advising the accused that he has a right under the
Fifth Amendment to the presence of counsel during interrogation and that, if he is
without funds, counsel will be furnished him. ***
Joined by Justices Stewart and White, Justice Harlan's dissent said:
... precedent reveals that the Fourteenth Amendment in practice has been construed to strike a different balance, that the Fifth Amendment gives the Court little
solid support in this context, and that the Sixth Amendment should have no bearing
at all. Legal history has been stretched before to satisfy deep needs of society. In this
instance, however, the Court has not and cannot make the powerful showing that its
new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on
every State and county in the land. ***
In conclusion: Nothing in the letter or the spirit of the Constitution or in the
precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities.
The foray which the Court makes today brings to mind the wise and farsighted words
of Mr. Justice Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (separate opinion):
"This Court is forever adding new stories to the temples of constitutional law,
and the temples have a way of collapsing when one story too many is added."
(Emphasis added.)
Later, after Rehnquist and Scalia were placed on the Court, some efforts were made to reduce and limit the unconstitutional reach of the Miranda case, but no real restoration of the damage to our Constitution has been made. The few limits placed on the far reaching consequences
of that case are not of great effect. Both Miranda and Escobedo should be overruled. I do not see
how our Constitution can ever be restored, unless it is changed by the people to require that
courts will interpret it according to the intent and purpose of the relevant provisions when they
were formed and adopted.
131
Even our conservative judges feel bound at least to some degree by stare decisis, and are reluctant to overrule prior cases.
I do not want to burden those who are not lawyers with the case by case details of the progeny of Miranda, and the limitations and refinements to it; but I will review the case of Dickerson
v. United States, 530 U.S. 428 (2000), which contains a good summary of those developments,
plus the effective striking down of a statute passed by Congress to curb the detrimental unconstitutional elements of the Miranda decision. It is easy to find the full text of the case on the internet, one reference being:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=530&page=48
Miranda was decided June 13, 1966, and within two years the Country was sufficiently disgusted with the overreaching of the Supreme Court that Congress, on June 19, 1968, passed a
statute, 18 U.S.C. 3501, for the purpose of to some extent counteracting the decision. It set up
rules for the admissibility of a confession of a defendant. It provided that before a confession
was admitted in evidence, the judge would conduct a hearing, outside the presence of the jury, to
determine whether or not the confession was voluntary; and that all of the elements set up by Miranda would be considered, including whether or not the defendant had been informed that he
was not required to make a statement, and whether he had been told he was entitled to counsel,
and that counsel would be furnished if he could not afford an attorney. It provided that: "The
presence or absence of any of the above-mentioned factors to be taken into consideration by the
judge need not be conclusive on the issue of voluntariness of the confession." If the judge found
that the statement was voluntary, it would be admitted, the jury allowed to hear relevant evidence
of voluntariness, and the jury instructed "to give such weight to the confession as the jury feels it
deserves under all the circumstances."
This statute would have set up rights for a defendant that went further than was required by
our Constitution, although not to the unconstitutional extreme set up by Miranda. Nevertheless
the Dickerson case struck down the statute as being unconstitutional. I have the utmost respect
for Chief Justice William Rehnquist, but he wrote the opinion for the majority in this case, with
which I cannot agree. I think that far too much emphasis was placed on stare decicis, and that the
Court gave far too much emphasis to effects and circumstances that are within the prerogative of
the people to determine whether or not constitutional changes should be made, but these things
are not for the court to consider. The following are excerpts from the majority opinion in Dickerson, supra:
... We hold that Miranda, being a constitutional decision of this Court, may not
be in effect overruled by an Act of Congress, and we decline to overrule Miranda
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ourselves. We therefore hold that Miranda and its progeny in this Court govern the
admissibility of statements made during custodial interrogation in both state and federal courts. ***
This Court declines to overrule Miranda. Whether or not this Court would agree
with Miranda's reasoning and its rule in the first instance, stare decisis weighs heavily against overruling it now. Even in constitutional cases, stare decisis carries such
persuasive force that the Court has always required a departure from precedent to be
supported by some special justification. ***
We do not think there is such justification for overruling Miranda. Miranda has
become embedded in routine police practice to the point where the warnings have
become part of our national culture. See Mitchell v. United States, 526 U. S. 314,
331-332 (1999) (Scalia, J., dissenting) (stating that the fact that a rule has found
"`wide acceptance in the legal culture' " is "adequate reason not to overrule" it).
While we have overruled our precedents when subsequent cases have undermined
their doctrinal underpinnings, see, e.g., Patterson v. McLean Credit Union, 491 U. S.
164, 173 (1989), we do not believe that this has happened to the Miranda decision. If
anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned
statements may not be used as evidence in the prosecution's case in chief. ***
Justice Thomas joined with the dissent of Justice Scalia, which states:
... Miranda was objectionable for innumerable reasons, not least the fact that
cases spanning more than 70 years had rejected its core premise that, absent the
warnings and an effective waiver of the right to remain silent and of the (thitherto
unknown) right to have an attorney present, a statement obtained pursuant to custodial interrogation was necessarily the product of compulsion. See Crooker v. California, 357 U. S. 433 (1958) (confession not involuntary despite denial of access to
counsel); Cicenia v. Lagay, 357 U. S. 504 (1958) (same); Powers v. United States,
223 U. S. 303 (1912) (lack of warnings and counsel did not render statement before
United States Commissioner involuntary); Wilson v. United States, 162 U. S. 613
(1896) (same). Moreover, history and precedent aside, the decision in Miranda, if
read as an explication of what the Constitution requires, is preposterous. ***
For these reasons, and others more than adequately developed in the Miranda
dissents and in the subsequent works of the decision's many critics, any conclusion
that a violation of the Miranda rules necessarily amounts to a violation of the privilege against compelled self-incrimination can claim no support in history, precedent,
or common sense, and as a result would at least presumptively be worth reconsidering even at this late date. But that is unnecessary, since the Court has (thankfully)
long since abandoned the notion that failure to comply with Miranda's rules is itself
a violation of the Constitution. ***
Scalia then went on to list a considerable number of cases where, since Miranda, the Court
has made exceptions and refinements. A few of the examples are:
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As the Court today acknowledges, since Miranda we have explicitly, and repeatedly, interpreted that decision as having announced, not the circumstances in
which custodial interrogation runs afoul of the Fifth or Fourteenth Amendment, but
rather only "prophylactic" rules that go beyond the right against compelled selfincrimination. Of course the seeds of this "prophylactic" interpretation of Miranda
were present in the decision itself. See Miranda, supra, at 439 (discussing the "necessity for procedures which assure that the [suspect] is accorded his privilege"); id.,
at 447 ("[u]nless a proper limitation upon custodial interrogation is achieved--such as
these decisions will advance--there can be no assurance that practices of this nature
will be eradicated"); id., at 457 ("[i]n these cases, we might not find the defendants'
statements to have been involuntary in traditional terms"); ibid. (noting "concern for
adequate safeguards to protect precious Fifth Amendment rights" and the "potentiality for compulsion" in Ernesto Miranda's interrogation). In subsequent cases, the
seeds have sprouted and borne fruit: The Court has squarely concluded that it is possible--indeed not uncommon--for the police to violate Miranda without also violating the Constitution.
Michigan v. Tucker, 417 U. S. 433 (1974), an opinion for the Court written by
then-Justice Rehnquist, rejected the true-to-Marbury, failure-to-warn-asconstitutional-violation interpretation of Miranda. It held that exclusion of the
"fruits" of a Miranda violation--the statement of a witness whose identity the defendant had revealed while in custody--was not required. The opinion explained that
the question whether the "police conduct complained of directly infringed upon respondent's right against compulsory self-incrimination" was a "separate question"
from "whether it instead violated only the prophylactic rules developed to protect
that right."
Nearly a decade later, in New York v. Quarles, 467 U. S. 649 (1984), the Court
relied upon the fact that "[t]he prophylactic Miranda warnings ... are `not themselves
rights protected by the Constitution,' " id., at 654 (quoting Tucker, supra, at 444), to
create a "public safety" exception. In that case, police apprehended, after a chase in a
grocery store, a rape suspect known to be carrying a gun. After handcuffing and
searching him (and finding no gun)--but before reading him his Miranda warnings-the police demanded to know where the gun was. The defendant nodded in the direction of some empty cartons and responded that "the gun is over there." The Court
held that both the unwarned statement--"the gun is over there"--and the recovered
weapon were admissible in the prosecution's case in chief under a "public safety exception" to the "prophylactic rules enunciated in Miranda." 467 U. S., at 653. It explicitly acknowledged that if the Miranda warnings were an imperative of the Fifth
Amendment itself, such an exigency exception would be impossible, since the Fifth
Amendment's bar on compelled self-incrimination is absolute, and its " `strictures,
unlike the Fourth's are not removed by showing reasonableness,' " 467 U. S., at 653,
n. 3. (For the latter reason, the Court found it necessary to note that respondent did
not "claim that [his] statements were actually compelled by police conduct which
overcame his will to resist," id., at 654.)
The next year, the Court again declined to apply the "fruit of the poisonous tree"
doctrine to a Miranda violation, this time allowing the admission of a suspect's
134
properly warned statement even though it had been preceded (and, arguably, induced) by an earlier inculpatory statement taken in violation of Miranda. Oregon v.
Elstad, 470 U. S. 298 (1985). As in Tucker, the Court distinguished the case from
those holding that a confession obtained as a result of an unconstitutional search is
inadmissible, on the ground that the violation of Miranda does not involve an "actual
infringement of the suspect's constitutional rights," 470 U. S., at 308. Miranda, the
Court explained, "sweeps more broadly than the Fifth Amendment itself," and "Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm." 470 U. S., at 307. "[E]rrors [that] are made
by law enforcement officers in administering the prophylactic Miranda procedures ...
should not breed the same irremediable consequences as police infringement of the
Fifth Amendment itself." Id., at 308-309. ***
Scalia concludes:
Today's judgment converts Miranda from a milestone of judicial overreaching
into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of
judicial arrogance. In imposing its Court-made code upon the States, the original
opinion at least asserted that it was demanded by the Constitution. Today's decision
does not pretend that it is--and yet still asserts the right to impose it against the will
of the people's representatives in Congress. Far from believing that stare decisis
compels this result, I believe we cannot allow to remain on the books even a celebrated decision--especially a celebrated decision--that has come to stand for the
proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by
the Framers, or that would be established by any sane supporter of government by
the people.
For those of us that believe the sole right to change our Constitution is given to the people,
Under Article V, and that this should be honored by the courts; the correctness of Scalia's and
Thomas' conclusion in the Dickerson case is inescapable.
Our Supreme Court has given up truth, justice, and effective law enforcement for its own
invented ideas as to the rights of criminal defendants.
Lawyers and judges have reached far too high a pedestal in our society. They have indeed
earned the disrespect held for them by a large segment of our society. Certainly there are those of
high integrity, but they have not exerted sufficient influence to stem our run-away courts, nor the
precipitous rise in frivolous and unfounded litigation.
There is something seriously wrong with our judicial system when a decision in a particular
case can be better predicted by looking at the philosophical makeup of the Court than by applying the law to the facts of the case according to proper rules of construction based on the intent
and purpose of the relevant statutes and constitutional provisions.
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Chapter VII
The Death Penalty cases
The Eighth Amendment forbids "cruel and unusual punishments." In my view,
these words cannot be read to outlaw capital punishment because that penalty
was in common use and authorized by law here and in the countries from which
our ancestors came at the time the Amendment was adopted. It is inconceivable
to me that the framers intended to end capital punishment by the Amendment.
Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed
that lifetime judges in our system have any such legislative power. (Concurring
opinion of Justice Hugo Black, McGautha v. California, 402 U.S. 183 (1971))
The Constitution of the United States provides for its amendment in Article V, as follows:
The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part
of this Constitution, when ratified by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress ... .
Article I, Section 1, of our Constitution provides:
All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.
Article II provides that the executive power shall be vested in the President of the United
States, and Article III provides that the judicial power of the United States shall be vested in the
Supreme Court.
Our Constitution was a great document, formed by some highly intelligent and thoughtful
men. Had it been properly followed, I believe it would be the greatest document of that kind in
all history. It provided for a tripartite system of checks and balances. But some of the greatest
damage has been done to our country by what is termed as "judicial legislation." Some of our
appointed federal judges, and more importantly, justices of the United States Supreme Court,
have unlawfully taken it on themselves to change the law and even our Constitution to fit their
own particular political views. By doing this they violate not only their oaths of office, they violate the three basic and most important parts of the Constitution they had all sworn to uphold.
These judges and justices were appointed for life, and have no responsibility to the people insofar as being subject to removal by election. They unlawfully usurp both the constitutional powers bestowed on the executive branch and the legislative branches of our government. Most im136
portantly, they violate the right of the people to govern themselves, and the sole right of the people and their representatives to change the Constitution,
A great harm to our country has occurred from this activist onslaught of modern liberalism.
This is one of the greatest dangers of electing a liberal president. He has the authority to appoint
federal judges and justices. And it is liberals who violate our Constitution and engage in judicial
legislation, instead of merely interpreting the provisions of our laws and Constitution, which is
the only power given them. They change our laws, and more importantly, our Constitution, to
provide for things that could not possibly become law in the proper manners provided by our
Constitution. Sometimes this is done by five to four decisions. It is indeed a travesty that five
unelected officials, none of whom have ever been omnipotent or omniscient, violate their oaths
of office and unlawfully change our Constitution to fit their own particular political views. And
this same body, the United States Supreme Court, has declared its decisions to be the supreme
law of the land, overriding all acts of our elected officials, including those of Congress and the
president. Judges who engage in this judicial legislation have a highly exaggerated idea of their
importance, knowledge, and authority.
Some of the most flagrant misbehavior has taken place in the area of capital punishment.
The United States Constitution specifically provides for and recognizes capital punishment
in four different places.
Amendment V, adopted in 1791, provides:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.
[Emphasis added]
Amendment XIV, Section 1, adopted in 1868, provides in part:
...No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws. [Emphasis added]
Some of the most liberal members of the United States Supreme Court, in modern times,
have been Chief Justice Earl Warren, and Justices William O. Douglas, William J. Brennan, Jr.,
and Thurgood Marshall. All of them truly had an obsession for changing the law and the Consti137
tution to fit their own particular political and moral views of what was right and wrong. Fortunately for the country, the attacks on capital punishment by the liberal element came after Earl
Warren had retired, in 1969. Had a case come before the court when all four of these gentlemen
were there (1967-1969), capital punishment would undoubtedly have been declared unconstitutional. This would have been the ultimate of judicial legislation, going directly against the then
existing provisions of the Constitution of the United States. Fortunately, the big case on the subject did not come until 1972, but even so, this totally confused decision remains an example of
liberal and even some moderate judges injecting their own political views as constitutional law,
and thereby changing the Constitution. The death penalty still exists in this country, although the
cases in which it can be applied, and the way in which it can be applied, are restricted by the
1972 decision of the United States Supreme Court, Furman v. Georgia, 408 U.S. 238 (1972).
This decision created such a sense of confusion in our law that it appeared for awhile that the
death penalty was unconstitutional.
In the Furman v. Georgia case, the Supreme Court reviewed decisions of the Supreme Court
of Georgia affirming imposition of the death penalty on two defendants convicted of murder and
rape, and a decision of the Texas Court of Criminal Appeals affirming imposition of the death
penalty on a defendant convicted of rape. In a five to four decision, the United States Supreme
Court reversed the decisions, holding that in these cases the imposition of the death penalty
would constitute cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments to the United States Constitution. This was a most unusual case in several ways;
one of them being that nine separate opinions were written. The justices supporting the decision
were Douglas, Brennan, Stewart, White, and Marshall. Those opposing it were Chief Justice
Burger, and Justices Blackmun, Powell, and Rehnquist.
Justice Douglas went through a long discussion, and at the end stated: "Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach." The only thing
that I could find in his opinion that amounted to any reason for overturning the death penalty in
these cases was his statement:
...we deal with a system of law and of justice that leaves the uncontrolled discretion of judges or juries the determination whether defendants committing these
crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.
***
Thus these discretionary statutes are unconstitutional in their operation. They
are pregnant with discrimination and discrimination is an ingredient not compatible
with the idea of equal protection of the laws that is implicit in the ban on 'cruel and
unusual' punishments. ***
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This reasoning of Douglas is typical of an activist approach – it is illogical and not supported by sound constitutional law. He does not explain how this makes the punishment "cruel and
unusual." He does not explain how it differed from the way such punishment had been meted
out for the past 200 years. He does not explain how the laws in question here in Georgia and
Texas differed from the other 38 states that then had capital punishment. (The opinion shows
that at that time 40 states had capital punishment.) This kind of inapplicable language is the necessary cloak for covering up the unspoken truth – the injection of personal political and moral
views. Five unelected and unaccountable judges, appointed for life, are here overruling the
United States Constitution, the constitutions of all of the states, together with the laws passed by
the legislatures of the states, who represent the people in passing these laws.
Justice Brennan gets even more wordy and obfuscating. He states that all capital punishment is now unconstitutional as "cruel and unusual punishment." He states:
The question under this principle then, is whether there are objective indicators
from which a court can conclude that contemporary society considers a severe punishment unacceptable. ***
...I will analyze the punishment of death in terms of the principles set out above
and the cumulative test to which they lead: It is a denial of human dignity for the
State arbitrarily to subject a person to an unusually severe punishment that society
has indicated it does not regard as acceptable, and that cannot be shown to serve any
penal purpose more effectively than a significantly less drastic punishment. Under
these principles and this test, death is today a 'cruel and unusual' punishment. ***
Justice Brennan sets up his own tests, which are not at all supported by acceptable principles
of constitutional law, and then comes to his own personal conclusion. Not only that, he makes
fallacious factual statements. This is the cancer of judicial legislation at its terminal stage. There
is no better example of a judge ignoring the clear provisions of the Constitution relating to capital punishment, usurping the duties of the legislative bodies, and enacting his own law. The
things he considers are what it is the duty of the legislative representatives of the people to consider, and to enact our laws accordingly.
Justice Thurgood Marshall, as does Justice Brennan, forsakes any semblance of interpreting
the Constitution according to the intent of its framers, or of any kind of logical or judicial construction of the document.
They completely ignore the basic rules of logic and of legal construction, which are that a
document should be construed according to its plain wording, if there is no ambiguity; and according to the intent of its framers, and those who adopted it, if there is an ambiguity. Words
should be construed according to their plain meaning, and all parts of the document should be
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construed together, in such a way that meaning will be given to all parts; and no part should be
construed in such a way that other parts would be rendered superfluous or meaningless. Each
and every one of these principles is clearly violated by both Brennan and Marshall to arrive at
their own personal political views of what they consider to now be right or wrong. There is no
more blatant example of judicial legislation, by which such judges violate their oaths of office
and do irreparable harm to our country. The other three justices who voted with the majority in
this case did little better. This includes even Justice White, from whom many would have expected a much higher level of judicial integrity.
The excuses used for disregarding the Constitution, and the ways of changing and amending
it which are plainly set forth therein, are that the Constitution is a "living document" that should
be interpreted according to our changing times, ideas, and mores. But this, according to our
Constitution, is clearly the prerogative of our elected legislative bodies, and of the states and the
people – not nine (or in many instances five) unelected judges, appointed for life, who are not
accountable to the people. The people and their periodically elected representatives are the ones
who should decide whether or not conditions and mores have changed to the extent that our Constitution and laws should be accordingly changed; and it is unconstitutional and unlawful, and a
violation of their oaths of office, for these appointed judges to usurp that authority. Such flagrant
violations should be impeachable offenses. And I believe that they are impeachable offenses.
Marshall goes into the history of the death penalty, the ideas of those who oppose it, the
changing mores of society, whether or not it has a detrimental effect on crime, and concludes that
"the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment." Not one place in his opinion does he consider the elements of interpretation and construction that he validly could and should consider. The fact that many people consider this man to
have been a great jurist is one more example of modern liberal thought that has forsaken basic
reason.
Justice Stewart concluded that "the constitutionality of capital punishment in the abstract is
not, however, before us in these cases." He simply concluded that the sentences were unconstitutional in these particular cases, because:
These death sentences are cruel and unusual in the same way that being struck
by lightening is cruel and unusual. For, of all the people convicted of rapes and
murders in 1967, and 1968, many just as reprehensible as these, the petitioners are
among a capriciously selected random handful upon whom the sentences of death
has in fact been imposed. ...
Justice White's explanation for his concurrence in overturning these death sentences was:
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In this respect, I add only that past and present legislative judgment with respect
to the death penalty loses much of its force when viewed in light of the recurring
practices of delegating sentencing authority to the jury and the fact that a jury, in its
own discretion and without violating its trust or any statutory policy, may refuse to
impose the death penalty no matter what the circumstances of the crime. Legislative
"policy" is thus necessarily defined not by what is legislatively authorized but by
what juries and judges do in exercising the discretion so regularly conferred upon
them.
Chief Justice Burger clearly recognized both the confusion of the decision, and that it exceeded the powers of the court:
Since there is no majority of the Court on the ultimate issue presented in these
cases, the future of capital punishment in this country has been left in an uncertain
limbo. ***
...If legislatures come to doubt the efficacy of capital punishment, they can abolish it, either completely or on a selective basis. ***
The highest judicial duty is to recognize the limits on judicial power and to permit the democratic processes to deal with matters falling outside of those limits. ***
Justice Blackmun recognizes the overreaching of the majority, stating
Although personally I may rejoice at the Court's result, I find it difficult to accept or justify as a matter of history, of law, or of constitutional pronouncement. I
fear the Court has overstepped. It has sought and has achieved an end.
Justice Powell wrote an excellent dissenting opinion in which he applied the proper and appropriate judicial reasoning to this case. He recognized the several places in the Constitution explicitly recognizing capital punishment as appropriate and consistent with due process of law.
He writes:
Although determining the range of available punishments for a particular crime
is a legislative function, the very presence of the Cruel and Unusual Punishments
Clause within the Bill of Rights requires, in the context of a specific case, that courts
decide whether particular acts of the Congress offend that Amendment. The Due
Process Clause of the Fourteenth Amendment imposes on the judiciary a similar obligation to scrutinize state legislation. But the proper exercise of the constitutional
obligation in the cases before us today must be founded on a full recognition of the
several considerations set forth above – the affirmative references to capital punishment in the Constitution, the prevailing precedents of this Court, the limitations on
the exercise of our power imposed by tested principles of judicial self-restraint, and
the duty to avoid encroachment on the powers conferred upon state and federal legislatures. ***
...In a democracy the first indicator of the public's attitude must always be found
in the legislative judgments of the people's chosen representatives. ***
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...This Court is not empowered to sit as a court of sentencing review, implementing the personal views of its members on the proper role of penology. To do so
is to usurp a function committed to Legislative Branch and beyond the power and
competency of this Court.
Justice Rehnquist's dissent is succinct and clear in spelling out the overreaching of the majority
...Sovereignty resides ultimately in the people as a whole and, by adopting
through their States a written Constitution for the Nation and subsequently adding
amendments to that instrument, they have both granted certain powers to the National Government, and denied other powers to the National and the State Governments.
Courts are exercising no more than the judicial function conferred upon them by Art.
III of the Constitution. ***
Rigorous attention to the limits of this Court's authority is likewise enjoined because of the natural desire that beguiles judges along with other human beings into
imposing their own views of goodness, truth, and justice upon others. ***
...The Framers were well aware of the natural desire of office holders as well as
others to seek to expand the scope and authority of their particular office at the expense of others. They sought to provide against success in such efforts by erecting
adequate checks and balances in the form of grants of authority to each branch of the
government in order to counteract and prevent usurpation on the part of the others.
***
... It is for this reason that judicial self-restraint is surely an implied, if not an
expressed, condition of the grant of authority of judicial review. The Court's holding
in these cases has been reached, I believe, in complete disregard of that implied condition. ***
There was a great outcry throughout the country, and by many legal scholars, about the
usurping of the authority of the legislative branches of the government, and of the people, as a
result of the Furman v. Georgia case. Fortunately, on the matter of capital punishment, a solid
majority of the United States Supreme Court came back to its senses. In addition, Georgia and
many other states amended their laws on capital punishment, and sentencing procedure in an effort to try to comply with what was conceived to be possible tenets of the Furman decision that
might still support capital punishment.
In 1976, the United States Supreme Court again granted certiorari and heard three capital
cases, Gregg v. Georgia, 428 U.S. 153 (1976), Jurek v. Texas, 428 U.S. 262 (1976), and Proffitt
v. Florida, 428 U.S. 242 (1976). These cases were all decided together by the Supreme Court on
July 2, 1976. In the Georgia case the defendant was convicted of armed robbery and murder, and
in the Texas and Florida cases the defendants were convicted of murder; and all were sentenced
to death. The convictions and sentences were affirmed by a seven to two decision by the United
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States Supreme Court. Brennan and Marshall dissented, holding to their same view that capital
punishment should be declared unconstitutional, and adhering to their own personal irrelevant
views. There were concurring opinions by several justices, and concurring statements by Chief
Justice Burger and Justice Blackmun, but the death penalty was solidly affirmed, and we were
now, as to capital punishment, substantially back to the law as set forth in the Constitution, and
as intended by its framers and the states that had adopted it. In the Georgia case, the state procedure had been amended and was separated into two stages – first the determination of guilt –
secondly the determination of the sentence, by the jury; with the jury being instructed on statutory factors of aggravation and mitigation. Under the Texas procedure, the jury first determined
the guilt, and then, in the sentencing phase, relevant evidence was presented and the jury determined certain factors bearing on aggravation and mitigation, and on a continuing threat to society. On a finding against the defendant on these factors, the judge then sentenced the defendant to
death in accordance with the statute. In the Florida case, the guilt was determined by the jury,
and the judge had the sentencing authority, which required him to take into consideration a number of aggravating and mitigating circumstances that might exist, and to consider the character of
the defendant. When the cases are looked at together, there is really not that much difference in
the facts in them and the prior Furman group of cases. The important thing was that a majority
of the Court had decided to bend to the will of the people, and to uphold the Constitution. However, a close examination of the two groups of cases show that the Furman group has not been
overruled, and the Court has attempted to retain for itself some authority over the law on sentencing. Some of the statements by the justices are below.
In Gregg v. Georgia, the majority opinion of Justices Stewart, Powell, and Stevens states in
part:
... Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se; two Justices would have reached the opposite conclusion; and
three Justices, while agreeing that the statutes then before the Court were invalid as
applied, left open the question whether such punishment may ever be imposed. We
now hold that the punishment of death does not invariably violate the Constitution.
***
In the earliest cases raising Eighth Amendment claims, the Court focused on
particular methods of execution to determine whether they were too cruel to pass
constitutional muster. The constitutionality of the sentence of death itself was not at
issue, and the criterion used to evaluate the mode of execution was its similarity to
"torture" and other "barbarous" methods. See Wilkerson v. Utah, 99 U.S. 130, 136
(1879) ***
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But the Court has not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The
Court early recognized that "a principle to be vital must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U.S. 349,
373 (1910). ***
But, while we have an obligation to insure that constitutional bounds are not
overreached, we may not act as judges as we might as legislators.
"Courts are not representative bodies. They are not designed to be a good
reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence
of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between
competing political, economic and social pressures." Dennis v. United
States, 341 U.S. 494, 525 (1951). (Frankfurter, J., concurring in affirmance
of judgment). ***
... . "[I]n a democratic society legislatures, not courts, are constituted to
respond to the will and consequently the moral values of the people." Furman v. Georgia, supra, at 383 (BURGER, C. J., dissenting). The deference
we owe to the decisions of the state legislatures under our federal system,
408 U.S., at 465 -470 (REHNQUIST, J., dissenting), is enhanced where the
specification of punishments is concerned, for "these are peculiarly questions of legislative policy." ... A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference
through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience.
See Furman v. Georgia, supra, at 461-462 (POWELL, J., dissenting). ***
The imposition of the death penalty for the crime of murder has a long
history of acceptance both in the United States and in England. The common-law rule imposed a mandatory death sentence on all convicted murderers. ***
For the reasons expressed in this opinion, we hold that the statutory
system under which Gregg was sentenced to death does not violate the Constitution. Accordingly, the judgment of the Georgia Supreme Court is affirmed.
The majority opinions in the Jurek and Proffitt cases add little to what has already been said.
These cases are odd in that for the three cases they are set out as four cases with four case
numbers. The dissents of Brennan and Marshall are set up as a separate set of three cases, Gregg
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v. Georgia, 428 U.S, 227 (1976). I do not ever remember seeing this done before, but I guess that
the reason is that each of their dissents applied to all three cases.
Justice Brennan states:
The Cruel and Unusual Punishments Clause "must draw its meaning from the
evolving standards of decency that mark the progress of a maturing society." ***
[Repeating what he said in Furman v, Georgia] "In the United States, as in other
nations of the western world, `the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance on
the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century, as
well as beliefs in the scientific approach to an understanding of the motive forces of
human conduct, which are the result of the growth of the sciences of behavior during
the nineteenth and twentieth centuries.' It is this essentially moral conflict that forms
the backdrop for the past changes in and the present operation of our system of imposing death as a punishment for crime." ***
... I would set aside the death sentences imposed in those cases as violative of
the Eighth and Fourteenth Amendments.
Marshall says:
... I would be less than candid if I did not acknowledge that these developments
have a significant bearing on a realistic assessment of the moral acceptability of the
death penalty to the American people. But if the constitutionality of the death penalty
turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed
that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that if they were better informed they would consider it shocking, unjust, and unacceptable. A recent study,
conducted after the enactment of the post-Furman statutes, has confirmed that the
American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty. ***
The death penalty, unnecessary to promote the goal of deterrence or to further
any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth
and Fourteenth Amendments. I respectfully dissent from the Court's judgment upholding the sentences of death imposed upon the petitioners in these cases.
Brennan's statements are in utter disregard of the constitutional right of the people to govern
themselves, and their sole right to change the Constitution. It is the people who have the right to
consider changing conditions and ideas in deciding whether or not they wish to change the Constitution – not these appointed judges. But I have never seen such pure disdain for the judgment
145
of the people as that shown by Marshall in the above quote. To him only these elitist justices can
have the wisdom "critical to a judgment on the morality of the death penalty."
The Eighth Amendment has wording peculiar to the rest of our Constitution, which will be
considered below, and because of this I would like to consider some of the earlier cases on that
Amendment.
In Wilkerson v. Utah, 99 U.S. 130 (1878), the defendant was convicted of murder under the
laws of the Territory of Utah, and sentenced to be publicly shot to death. The Supreme Court of
the Territory affirmed, and the Supreme Court of the United States affirmed, saying:
Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a
mode of executing the death penalty for the crime of murder in the first degree is not
included in that category, within the meaning of the eighth amendment. Soldiers
convicted of desertion or other capital military offences are in the great majority of
cases sentenced to be shot, and the ceremony for such occasions is given in great
fullness by the writers upon the subject of courts-martial. Simmons, sects.759, 760;
DeHart, pp. 247. 248.
Where the conviction is in the civil tribunals, the rule of the common law was
that the sentence or judgment must be pronounced or rendered by the court in which
the prisoner was tried or finally condemned, and the rule was universal that it must
be such as is annexed to the crime by law. Of these, says Blackstone, some are capital, which extend to the life of the offender, and consist generally in being hanged by
the neck till dead. 4 Bl. Com. 377.
Such is the general statement of that commentator, but he admits that in very
atrocious crimes other circumstances of terror, pain, or disgrace were sometimes superadded. Cases mentioned by the author are, where the prisoner was drawn or
dragged to the place of execution, in treason; or where he was emboweled alive, beheaded, and quartered, in high treason. Mention is also made of public dissection in
murder, and burning alive in treason committed by a female. History confirms the
truth of these atrocities, but the commentator states that the humanity of the nation
by tacit consent allowed the mitigation of such parts of those judgments as savored
of torture or cruelty, and he states that they were seldom strictly carried into effect.
Examples of such legislation in the early history of the parent country are given by
the annotator of the last edition of Archbold's Treatise. Arch. Crim. Pr. and Pl. (8th
ed.) 584.
Many instances, says Chitty, have arisen in which the ignominious or more
painful parts of the punishment of high treason have been remitted, until the result
appears to be that the king, though he cannot vary the sentence so as to aggravate the
punishment, may mitigate or remit a part of its severity. 1 Chitt. Cr. L. 787; 1 Hale,
P. C. 370.
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Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be
inflicted; but it is safe to affirm that punishments of torture, such as those mentioned
by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution. Cooley, Const. Lim. (4th
ed.) 408; Wharton, Cr. L. (7th ed.), sect. 3405
The defendant in the case, In Re Kemmler, 136 U.S. 436 (1890), the Supreme Court upheld
a New York case in which the defendant was convicted of murder and sentenced to die in the
electric chair. The Court said:
... The eighth amendment to the federal constitution reads thus: 'Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' ... The provision in reference to cruel and unusual punishments was
taken from the well-known act of parliament of 1688, entitled 'An act for declaring
the rights and liberties of the subject, and settling the succession of the crown, 'in
which, after rehearsing various grounds of grievance, and among others that 'excessive bail hath been required of persons committed in criminal cases, to elude the
benefit of the laws made for the liberty of the subjects, and excessive fines have been
imposed, and illegal and cruel punishments inflicted,' it is declared that 'excessive
bail ought not to be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.' 1 St. Wm. & Mary, c. 2. This declaration of rights had reference to the acts of the executive and judicial departments of the government of England; but the language in question, as used in the constitution of the state of New
York, was intended particularly to operate upon the legislature of the state, to whose
control the punishment of crime was almost wholly confided. So that, if the punishment prescribed for an offense against the laws of the state were manifestly cruel and
unusual as burning at the stake, crucifixion. breaking on the wheel, or the like, it
would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition. ... The courts of New York held that the mode adopted in this instance might be said to be unusual because it was new, but that it could not be assumed to be cruel in the light of that common knowledge which has stamped certain
punishments as such; that it was for the legislature to say in what manner sentence of
death should be executed; that this act was passed in the effort to devise a more humane method of reaching the result; that the courts were bound to presume that the
legislature was possessed of the facts upon which it took action; and that by evidence
taken aliunde the statute that presumption could not be overthrown. ***
,,, The enactment of this statute was, in itself, within the legitimate sphere of the
legislative power of the state, and in the observance of those general rules prescribed
by our systems of jurisprudence; and the legislature of the state of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We cannot perceive that the state has thereby abridged the
privileges or immunities of the petitioner, or deprived him of due process of law. ***
We see in these early cases that the Court did not even consider whether the death penalty
itself was unconstitutional – only the method of imposing it was considered. The death penalty
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was considered proper throughout our history, and, as explained before, clearly recognized and
provided for by the very wording of our Constitution.
Although it did not involve the death sentence, Weems v. U.S., 217 U.S. 349 (1910), is a
case where the Court did consider the excessiveness of the sentence and the law imposing it. The
conviction of the defendant in this case was in the Philippine Islands. After Spain was defeated
in the Spanish-American War, Spain ceded and sold the Philippines to America, pursuant to the
Treaty of Paris on December 10, 1898. In 1899, the people of the Philippines engaged in a war
for their independence with the United States, which ended in final defeat by the United States
under President Theodore Roosevelt in 1892. The Philippines were allowed a degree of self
Government similar in some respects to a state. Also it appears in this case that the offense and
punishment were a carry over of the Spanish law that was still in effect. The Jurisdiction of the
United States Supreme Court resulted from America's ownership of the Philippines.
The defendant was convicted "for the falsification of a public and official document, by entering therein, as paid out, the sums of 208 and 408 pesos, respectively, as wages to certain employees of the lighthouse service." The sentence imposed was: "To the penalty of fifteen years of
cadena, together with the accessories of 56 of the Penal Code, and to pay a fine of 4,000 pesetas,
but not to serve imprisonment as a subsidiary punishment in case of his insolvency, on account
of the nature of the main penalty, and to pay the costs of this cause." "The punishment of cadena
temporal is from twelve years and one day to twenty years (arts. 28 and 96), which 'shall be
served' in certain 'penal institutions.' And it is provided that 'those sentenced to cadena temporal
and cadena perpetua shall labor for the benefit of the state. They shall always carry a chain at the
ankle, hanging from the wrists; they shall be employed at hard and painful labor, and shall receive no assistance whatsoever from without the institution.'"
We get the following from the majority opinion of the Court delivered by Justice McKenna:
Is this also a precept of the fundamental law? We say fundamental law, for the
provision of the Philippine Bill of Rights, prohibiting the infliction of cruel and unusual punishment, was taken from the Constitution of the United States, and must
have the same meaning. ***
What constitutes a cruel and unusual punishment has not been exactly decided.
It has been said that ordinarily the terms imply something inhuman and barbarous,torture and the like. McDonald v. Com. 173 Mass. 322, 73 Am. St. Rep. 293, 53 N.
E. 874. The court, however, in that case, conceded the possibility 'that punishment in
the state prison for a long term of years might be so disproportionate to the offense
as to constitute a cruel and unusual punishment.' Other cases have selected certain tyrannical acts of the English monarchs as illustrating the meaning of the clause and
the extent of its prohibition.
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The provision received very little debate in Congress. We find from the Congressional Register, p. 225, that Mr. Smith, of South Carolina, 'objected to the words 'nor
cruel and unusual punishment,' the import of them being too indefinite.' Mr. Livermore opposed the adoption of the clause saying:
'The clause seems to express a great deal of humanity, on which account I
have no objection to it; but, as it seems to have no meaning in it, I do not
think it necessary. What is meant by the terms 'excessive bail?' Who are to
be the judges? What is understood by 'excessive fines?' It lays with the
court to determine. No cruel and unusual punishment is to be inflicted; it is
sometimes necessary to hang a man, villains often deserve whipping, and
perhaps having their ears cut off; but are we, in future, to be prevented from
inflicting these punishments because they are cruel? If a more lenient mode
of correcting vice and deterring others from the commission of it could be
invented, it would be very prudent in the legislature to adopt it; but until we
have some security that this will be done, we ought not to be restrained
from making necessary laws by any declaration of this kind.'
The question was put on the clause, and it was agreed to by a considerable majority.
***
... The court quoted Blackstone as saying that the sentence of death was generally executed by hanging, but also that circumstances of terror, pain, or disgrace were
sometimes superadded. 'Cases mentioned by the author,' the court said, 'are where
the person was drawn or dragged to the place of execution, in treason; or where he
was disemboweled alive, beheaded, and quartered, in high treason. Mention is also
made of public dissection in murder and burning alive in treason committed by a female.' And it was further said: 'Examples of such legislation in the early history of
the parent country are given by the annotator of the last edition of Archbold's treatise. Archbold, Crim. Pr. & Pl. 8th ed. 584.' ***
In O'Neil v. Vermont, 144 U.S. 323, 36 L. ed. 450, 12 Sup. Ct. Rep. 693, the
question was raised, but not decided. The reasons given for this were that because it
was not as a Federal question assigned as error, and, so far as it arose under the Constitution of Vermont, it was not within the province of the court to decide. Moreover,
it was said, as a Federal question, it had always been ruled that the 8th Amendment
of the Constitution of the United States did not apply to the states. Mr. Justice Field,
Mr. Justice Harlan, and Mr. Justice Brewer were of opinion that the question was
presented, and Mr. Justice Field, construing the clause of the Constitution prohibiting
the infliction of cruel and unusual punishment, said, the other two justices concurring, that the inhibition was directed not only against punishments which inflict torture, 'but against all punishments which, by their excessive length or severity, are
greatly disproportioned to the offenses charged.' He said further: 'The whole inhibition is against that which is excessive in the bail required or fine imposed or punishment inflicted.'
The law writers are indefinite. Story, in his work on the Constitution, vol. 2, 5th
ed. 1903, says that the provision 'is an exact transcript of a clause in the Bill of
Rights framed at the revolution of 1688.' He expressed the view that the provision
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'would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct.' He, however, observed that it was 'adopted as an admonition to all
departments of the national department, to warn them against such violent proceedings as had taken place in England in the arbitrary reigns of some of the Stuarts.' For
this he cites 2 Elliott's Debates, 345, and refers to 2 Lloyd's [217 U.S. 349,
372] Debates, 225, 226; 3 Elliott's debates, 345. If the learned author meant by this
to confine the prohibition of the provision to such penalties and punishment as were
inflicted by the Stuarts, his citations do not sustain him. Indeed, the provision is not
mentioned except in 2 Elliott's Debates, from which we have already quoted. The
other citations are of the remarks of Patrick Henry in the Virginia convention, and of
Mr. Wilson in the Pennsylvania convention. Patrick Henry said that there was danger
in the adoption of the Constitution without a Bill of Rights. Mr. Wilson considered
that it was unnecessary, and had been purposely omitted from the Constitution. Both,
indeed, referred to the tyranny of the Stuarts. Henry said that the people of England,
in the Bill of Rights, prescribed to William, Prince of Orange, upon what terms he
should reign. Wilson said that 'the doctrine and practice of a declaration of rights
have been borrowed from the conduct of the people of England on some remarkable
occasions; but the principles and maxims on which their government is constituted
are widely different from those of ours.' It appears, therefore, that Wilson, and those
who thought like Wilson, felt sure that the spirit of liberty could be trusted, and that
its ideals would be represented, not debased, by legislation. Henry and those who believed as he did would take no chances. Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse. But
surely they intended more than to register a fear of the forms of abuse that went out
of practice with the Stuarts. Surely, their jealousy of power had a saner justification
than that. They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by
laws other than those which inflicted bodily pain or mutilation. With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with
power unlimited to fix terms of imprisonment with what accompaniments they
might, what more potent instrument of cruelty could be put into the hands of power?
And it was believed that power might be tempted to cruelty. This was the motive of
the clause, and if we are to attribute an intelligent providence to its advocates we
cannot think that it was intended to prohibit only practices like the Stuarts', or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked.
We say 'coercive cruelty,' because there was more to be considered than the ordinary
criminal laws. Cruelty might become an instrument of tyranny; of zeal for a purpose,
either honest or sinister. ***
But general discussion we need not farther pursue. We may rely on the conditions which existed when the Constitution was adopted. As we have seen, it was the
thought of Story, indeed, it must come to a less trained reflection than his, that government by the people, instituted by the Constitution, would not imitate the conduct
of arbitrary monarchs. The abuse of power might, indeed, be apprehended, but not
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that it would be manifested in provisions or practices which would shock the sensibilities of men. ***
In Hobbs v. State, 133 Ind. 404, 18 L.R.A. 774, 32 N. E. 1019, the supreme
court of Indiana expressed the opinion that the provision did not apply to punishment
by 'fine or imprisonment or both, but such as that inflicted at the whipping post, in
the pillory, burning at the stake, breaking on the wheel.' etc. ***
In Hobbs v. State, supra, and in other cases, prominence is given to the power of
the legislature to define crimes and their punishment. We concede the power in most
of its exercises. We disclaim the right to assert a judgment against that of the legislature, of the expediency of the laws, or the right to oppose the judicial power to the
legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case, not our discretion,
but our legal duty, strictly defined and imperative in its direction, is invoked. Then
the legislative power is brought to the judgment of a power superior to it for the instant. And for the proper exercise of such power there must be a comprehension of
all that the legislature did or could take into account,- that is, a consideration of the
mischief and the remedy. However, there is a certain subordination of the judiciary
to the legislature. The function of the legislature is primary, its exercise fortified by
presumptions of right and legality, and is not to be interfered with lightly, nor by any
judicial conception of its wisdom or propriety. They have no limitation, we repeat,
but constitutional ones, and what those are the judiciary must judge. We have expressed these elementary truths to avoid the misapprehension that we do not recognize to the fullest the wide range of power that the legislature possesses to adapt its
penal laws to conditions as they may exist, and punish the crimes of men according
to their forms and frequency. We do not intend in this opinion to express anything
that contravenes those propositions. ***
From this comment we turn back to the law in controversy. Its character and the
contence in this case may be illustrated by examples even better than it can be represented by words. There are degrees of homicide that are not punished so severely,
nor are the following crimes: misprision of treason, inciting rebellion, conspiracy to
destroy the government by force, recruiting soldiers in the United States to fight
against the United States, forgery of letters patent, forgery of bonds and other instruments for the purpose of defrauding the United States, robbery, larceny, and other crimes. Section 86 of the Penal Laws of the United States, as revised and amended
by the act of Congress of March 4, 1909 (35 Stat. at L. 1088, chap. 321, U. S. Comp.
Stat. Supp. 1909, p. 1391), provides that any person charged with the payment of any
appropriation made by Congress, who shall pay to any clerk or other employee of the
United States a sum less than that provided by law, and require a receipt for a sum
greater than that paid to and received by him, shall be guilty of embezzlement, and
shall be fined in double the amount so withheld, and imprisoned not more than two
years. The offense described has similarity to the offense for which Weems was convicted, but the punishment provided for it is in great contrast to the penalties of cadena temporal and its 'accessories.' If we turn to the legislation of the Philippine
Commission we find that instead of the penalties of cadena temporal, medium degree
( fourteen years, eight months, and one day, to seventeen years and four months,
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with fine and 'accessories'), to cadena perpetua, fixed by the Spanish Penal Code for
the falsification of bank notes and other instruments authorized by the law of the
kingdom, it is provided that the forgery of or counterfeiting the obligations or securities of the United States or of the Philippine Islands shall be punished by a fine of not
more than 10,000 pesos and by imprisonment of not more than fifteen years. In other
words, the highest punishment possible for a crime which may cause the loss of
many thousand of dollars, and to prevent which the duty of the state should be as eager as to prevent the perversion of truth in a public document, is not greater than that
which may be imposed for falsifying a single item of a public account. And this contrast shows more than different exercises of legislative judgment. It is greater than
that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice. The state thereby suffers nothing
and loses no power. The purpose of punishment is fulfilled, crime is repressed by
penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal. ***
It follows from these views that, even if the minimum penalty of cadena temporal had been imposed, it would have been repugnant to the Bill of Rights. In other
words, the fault is in the law; and, as we are pointed to no other under which a sentence can be imposed, the judgment must be reversed, with directions to dismiss the
proceedings.
From a humane standpoint, this decision of the Court must be applauded. But was it correct,
and does it damage our Constitution? Justice Holmes joined in a dissent of Justice White, which
said:
I shall consider the Amendment (a) as to its origin in the mother country, and
the meaning there given to it prior to the American Revolution; (b) its migration and
existence in the states after the Revolution, and prior to the adoption of the Constitution; (c) its incorporation into the Constitution, and the construction given to it in
practice from the beginning to this time; and (d) the judicial interpretation which it
has received, associated with the construction affixed, both in practice and judicially,
to the same provision found in various state constitutions or Bills of Rights.
Without going into unnecessary historical detail, it is sufficient to point out, as
did the court in Re Kemmler, 136 U.S. 436, 446 ... that 'the provision in reference to
cruel and unusual punishments was taken from the well-known act of Parliament of
1688 [1689?], entitled 'An Act Declaring the Rights and Liberties of the Subject, and
Settling the Succession of the Crown." And this act, it is to be observed, was but in
regular form a crystallization of the Declaration of Rights of the same year. 3
Hallam, Const. Hist. p. 106. It is also certain, as declared in the Kemmler Case, that
'this Declaration of Rights had reference to the acts of the executive and judicial departments of the government of England,' since it but embodied the grievances which
it was deemed had been suffered by the usurpations of the Crown and transgressions
of authority by the courts. In the recitals both of the Declaration of Rights and the
Bill of Rights, the grievances complained of were that illegal and cruel punishments
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had been inflicted, 'which are utterly and directly contrary to the known laws and
statutes and freedom of this realm;' while in both the Declaration and the Bill of
Rights the remedy formulated was a declaration against the infliction of cruel and
unusual punishments.
Whatever may be the difficulty, if any, in fixing the meaning of the prohibition
at its origin, it may not be doubted, and indeed is not questioned by anyone, that the
cruel punishments against which the Bill of Rights provided were the atrocious, sanguinary, and inhuman punishments which had been inflicted in the past upon the persons of criminals. ***
The dissent also was on a further ground that the statute should not be declared unconstitutional, assuming that the punishment was so severe as to be unconstitutional, but only the excessive punishment should be struck down.
Let us consider further some constitutional philosophy.
Amendment VIII provides:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
If there is any wording in our Constitution that might require the Court to consider current
ideas and changes in circumstances, it is this provision – and it is the only provision in our Constitution that might require an interpretation in light of current conditions. But once you accept
that current conditions should be considered by courts, you run the danger of giving them the
excuse to use their own ideas. To prevent this we should still hold to the ideas of Justice Black,
quoted at the beginning of this chapter.
We should still look to the intent and purpose of those who framed and adopted the provision, at the time it was adopted. As to bail and fines, we need only look at the comparable
amount of bail and fines considered not excessive at that time, and bring it to the comparable
value of money at the time in question. As to what is cruel and unusual punishment, we look at
what was so considered at that time, and what was allowed at that time. Whether or not the death
penalty should be allowed is within the sole prerogative of the people.
We see that today this works well. Some states have the death penalty and some do not.
Useful comparisons as to their effect can be made.
As was said above, the discretion is with those who make the law, and every reasonable presumption should be made that a law is constitutional. As the public becomes "enlightened," it
may change punishments set up in the law, if they should be changed. But our Constitution cannot afford the wisdom of the judges being substituted for the wisdom and rights of the people, as
is happening continually today. We must always look at the intent and purpose behind the
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Amendment at the time it was enacted. The majority decision in the Weems case could still be
correct on that basis. But the only way the death penalty could be properly eliminated is by the
people – it is their judgment.
The statements by activist writers and judges that our Constitution is a "living document"
and should be construed to keep up with changing conditions, is absurd in every respect. Our
Constitution is words written in ink on paper and has no aspects of life, whatsoever. The words
set forth the intent and purpose at that time of those who framed it and ratified it; and those who
amended it; for our Republican form of government by the people.
When judges say a provision means something that is not within its plain wording, or within
that intent and purpose, they decimate our Constitution and usurp the clear rights of the people
set forth therein.
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Chapter VIII
Other Civil Rights Cases
[The Fourteenth Amendment] ordains that no State shall make or enforce any
laws which shall abridge the privileges or immunities of citizens of the United
States (evidently referring to the newly made citizens, who, being citizens of the
United States, are declared to be also citizens of the State in which they reside).
It ordains that no State shall deprive any person of life, liberty, or property,
without due process of law, or deny to any person within its jurisdiction the
equal protection of the laws. What is this but declaring that the law in the States
shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to
the colored race, for whose protection the amendment was primarily designed,
that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a
necessary implication of a positive immunity, or right, most valuable to the colored race, – the right to exemption from unfriendly legislation against them distinctively as colored, – exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which
others enjoy, and discriminations which are steps towards reducing them to the
condition of a subject race.
... Nor would it be if the persons excluded by it were white men. If in those
States where the colored people constitute a majority of the entire population a
law should be enacted excluding all white men from jury service, thus denying
to them the privilege of participating equally with the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not
be a denial to white men of the equal protection of the laws. Nor if a law should
be passed excluding all naturalized Celtic Irishmen, would there by any doubt
of its inconsistency with the spirit of the amendment. The very fact that colored
people are singled out and expressly denied by a statute all right to participate
in the administration of the law, as jurors, because of their color, though they
are citizens, and may be in other respects fully qualified, is practically a brand
upon them, affixed by the law, an assertion of their inferiority, and a stimulant
to that race prejudice which is an impediment to securing to individuals of the
race that equal justice which the law aims to secure to all others. [Justice Strong,
Strauder v. West Virginia, 100 U.S. 303 (1879)]
We first must understand that there are no absolute constitutional rights. Even the express
fundamental rights such as freedom of religion and freedom of speech are not without conditions. People do not have the right to make human and animal sacrifices in exercising their religion, and such things may be prohibited by law. As has often been said, one does not have the
right to falsely cry fire in a crowded theatre, and such actions can be made a crime.
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The people, acting through their federal and state representatives, have always had the right
to pass laws to ensure the peace, public safety, public welfare, and to uphold the morals of the
community. We have seen these principles stated many times in the cases and material already
covered.
Throughout our history, for example, common sense and the law have recognized the differences between men and women. It was clear that the equal protection clause of the Fourteenth
Amendment was not intended to give women equal rights. Our prior history had recognized the
man as the head of the family, and the breadwinner; and the woman as the homemaker. In many
states, a married woman did not even have the right to contract. Women did not have the same
rights as men in making wills and disposing of property at their death. Our Constitution did not
even give women the right to vote until the Nineteenth Amendment, adopted in 1920. As times
have changed, the people have changed their laws in recognition of the changing circumstances.
That is as it should be. But we have always had the problem of activist courts wanting to impose
their ideas as law.
We will cover cases in this chapter that recognize that "diversity" may be something that officials may consider in allowing certain racial discrimination, but I know of no historical constitutional precedent that supports these ideas that have cropped up in recent civil rights cases. They
are simply ideas imposed by the courts, even after the Fourteenth Amendment, and civil rights
legislation, all of which expressly prohibited racial discrimination. A lot of the reverse discrimination has come about by government and school officials wanting to engage in what they called
"affirmative action" to bring certain minorities into schools and into the workforce. In such cases
the preferred races were given preference over better qualified persons of the non-preferred race
(usually whites). Some of this type of activity has also gone on in regard to giving preferences to
women.
Basis of Civil Rights Cases
The more basic foundations for civil rights cases were explained in the Equal Protection of
the Laws section at the end of Chapter V, on the Fourteenth Amendment. They are the Fourteenth Amendment, particularly the equal protections clause, and the various civil rights laws
and amendments. Activists have tried to increase the purported rights beyond the provisions of
legislation, and those who opposed have fought back – both sides using the courts.
Since many of these rights and limitations on them are within the legislative powers of Congress and the States, they are not as important to the purposes of this book. I am striving to mainly deal with purely constitutional matters beyond the legislative power of Congress. Some of
these cases and relevant materials will be covered.
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Women's rights
Although it smacks somewhat of "Women's Lib," an article, Women's History in America,
Women's International Center, www.wic.org, 2003, contains interesting information of the legal
status of women in America. The following is an excerpt:
The Legal Status of Women
The myth of the natural inferiority of women greatly influenced the status of women in law.
Under the common law of England, an unmarried woman could own property, make a contract,
or sue and be sued. But a married woman, defined as being one with her husband, gave up her
name, and virtually all her property came under her husband's control.
During the early history of the United States, a man virtually owned his wife and children as
he did his material possessions. If a poor man chose to send his children to the poorhouse, the
mother was legally defenseless to object. Some communities, however, modified the common
law to allow women to act as lawyers in the courts, to sue for property, and to own property in
their own names if their husbands agreed.
Equity law, which developed in England, emphasized the principle of equal rights rather
than tradition. Equity law had a liberalizing effect upon the legal rights of women in the United
States. For instance, a woman could sue her husband. Mississippi in 1839, followed by New
York in 1848 and Massachusetts in 1854, passed laws allowing married women to own property
separate from their husbands. In divorce law, however, generally the divorced husband kept legal
control of both children and property.
In the 19th century, women began working outside their homes in large numbers, notably in
textile mills and garment shops. In poorly ventilated, crowded rooms women (and children)
worked for as long as 12 hours a day. Great Britain passed a ten-hour-day law for women and
children in 1847, but in the United States it was not until the 1910s that the states began to pass
legislation limiting working hours and improving working conditions of women and children.
Eventually, however, some of these labor laws were seen as restricting the rights of working
women. For instance, laws prohibiting women from working more than an eight-hour day or
from working at night effectively prevented women from holding many jobs, particularly supervisory positions, that might require overtime work. Laws in some states prohibited women from
lifting weights above a certain amount varying from as little as 15 pounds (7 kilograms) again
barring women from many jobs.
During the 1960s several federal laws improving the economic status of women were
passed. The Equal Pay Act of 1963 required equal wages for men and women doing equal work.
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The Civil Rights Act of 1964 prohibited discrimination against women by any company with 25
or more employees. A Presidential Executive Order in 1967 prohibited bias against women in
hiring by federal government contractors.
But discrimination in other fields persisted. Many retail stores would not issue independent
credit cards to married women. Divorced or single women often found it difficult to obtain credit
to purchase a house or a car. Laws concerned with welfare, crime, prostitution, and abortion also
displayed a bias against women. In possible violation of a woman's right to privacy, for example,
a mother receiving government welfare payments was subject to frequent investigations in order
to verify her welfare claim. Sex discrimination in the definition of crimes existed in some areas
of the United States. A woman who shot and killed her husband would be accused of homicide,
but the shooting of a wife by her husband could be termed a "passion shooting." Only in 1968,
for another example, did the Pennsylvania courts void a state law which required that any woman
convicted of a felony be sentenced to the maximum punishment prescribed by law. Often women
prostitutes were prosecuted although their male customers were allowed to go free. In most states
abortion was legal only if the mother's life was judged to be physically endangered. In 1973,
however, the United States Supreme Court ruled that states could not restrict a woman's right to
an abortion in her first three months of pregnancy.
Until well into the 20th century, women in Western European countries lived under many of
the same legal disabilities as women in the United States. For example, until 1935, married
women in England did not have the full right to own property and to enter into contracts on a par
with unmarried women. Only after 1920 was legislation passed to provide working women with
employment opportunities and pay equal to men. Not until the early 1960s was a law passed that
equalized pay scales for men and women in the British civil service.
------------------------------------------------------There are basic physical differences between men and women, and basic traditional differences in their roles in society, that have been recognized throughout our history, and, also, the
history of Western nations. As conditions and roles in society change, the changing of both the
federal and state constitutions is clearly only in the prerogative of the people  not the courts.
And the judgment of the people has consistently proved better than that of the courts in all constitutional issues.
The Constitutions of the United States and the states have historically treated women differently than men under the law. In the Fourteenth Amendment itself, which has been the primary
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basis used by the courts for extending women's rights, only men were given the right to vote and
protected from discrimination in that regard. (Amendment XIV, Section 2)
In light of our history and the Constitution itself, it is patently wrong for a court to hold that
the Fourteenth amendment requires Virginia to admit women on the same basis as men to the
Virginia Military Institute under the circumstances of the history, purpose, and curriculum of that
school.
Recognizing changing times and the increased role of women outside the home, the people
and their representatives gave women the equal right to vote with the proposal and ratification, in
1920, of the Nineteenth Amendment to the United States Constitution.
There is no basis for the idea that the Fourteenth Amendment was intended by those who
framed and ratified it to make men and women equal under the law – and most certainly it was
not intended to prevent the people and the states from making common sense classifications recognizing the differences between men and women.
There are activists today who think men and women should be treated the same with no
recognition of their differences. The radical elements want such things as men and women being
treated the same in the armed forces. They would like women in combat, in the trenches with the
men. They would like them in the same tents and in the same barracks, and using the same
showers and toilets. This not only shows a lack of common sense, but a complete lack of conventional morality. The courts have gone in this direction to an extent the amounts to the unlawful
changing of our Constitution.
I consider the case of United States v. Virginia, et al, 518 U.S, 515 (1996), an example of
overreaching by the united States Supreme Court. Ginsburg, J., delivered the opinion of the
Court, in which Stevens, O'Connor, Kennedy, Souter, and Breyer, joined. Rehnquist, C. J., filed
an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion. Thomas, J., took no
part in the consideration or decision of the case.
In 1839, long prior to the Fourteenth Amendment, Virginia Military Institute was founded
and ever since, prior to this case, served as an institution to educate young men, with an aim toward military service. Although I have studied the background and reasons for the Fourteenth
Amendment, and read many case on it, I know of no historical precedent that supports this decision. Justice Ginsburg wrote the majority opinion striking down Virginia's right to conduct this
institution for men only. She concludes "that Virginia has shown no 'exceedingly persuasive justification' for excluding all women from the citizen-soldier training afforded by VMI." This
standard imposed for determining whether or not a State's justification for its laws recognizing
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the obvious differences between men and women, and the benefits of a school like this for young
men, is not something that comes from the wording of the Fourteenth Amendment, nor from any
historical precedent. Just the opposite. Justice Ginsburg herself recognizes this in her opinion.
She said:
... the Nation's first universities and colleges – for example, Harvard in Massachusetts, William and Mary in Virginia – admitted only men. ... VMI was not at all novel in this respect: In admitting no women, VMI followed the lead of the State's flagship school, the University of Virginia.
Justice Ginsburg failed to point out that in most of our universities and colleges, recognizing
changing times, and not having the reason for men only, as contended by Virginia for VMI¸ began allowing women without the aid of the court. It came about in the right way – by the people
when they decided it should be done. But this is not enough for our activist courts bent on remaking our Constitution to fit their own ideas.
Chief Justice Rehnquist, concurring in judgment, said
The Court holds first that Virginia violates the Equal Protection Clause by maintaining the Virginia Military Institute's (VMI's) all-male admissions policy, and second that establishing the Virginia Women's Institute for Leadership (VWIL) program
does not remedy that violation. While I agree with these conclusions, I disagree with
the Court's analysis and so I write separately.
Two decades ago in Craig v. Boren, 429 U.S. 190, 197 (1976), we announced
that "[t]o withstand constitutional challenge, classifications by gender must serve
important governmental objectives and must be substantially related to achievement
of those objectives." We have adhered to that standard of scrutiny ever since. [Citing
cases] While the majority adheres to this test today, ante, at 6, 15, it also says that the
State must demonstrate an "`exceedingly persuasive justification'" to support a gender-based classification. See ante, at 6, 11, 12, 13, 15, 16, 28, 29, 39. It is unfortunate
that the Court thereby introduces an element of uncertainty respecting the appropriate test. ***
In his dissent, Justice Scalia sates:
Today the Court shuts down an institution that has served the people of the
Commonwealth of Virginia with pride and distinction for over a century and a half.
To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people. As to facts: it explicitly rejects the finding that there
exist "gender-based developmental differences" supporting Virginia's restriction of
the "adversative" method to only a men's institution, and the finding that the all-male
composition of the Virginia Military Institute (VMI) is essential to that institution's
character. As to precedent: it drastically revises our established standards for reviewing sex-based classifications. And as to history: it counts for nothing the long tradi160
tion, enduring down to the present, of men's military colleges supported by both
States and the Federal Government.
Much of the Court's opinion is devoted to deprecating the closed-mindedness of
our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they
were – as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system
with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the
democratic process and written into the Constitution. So to counterbalance the
Court's criticism of our ancestors, let me say a word in their praise: they left us free
to change. The same cannot be said of this most illiberal Court, which has embarked
on a course of inscribing one after another of the current preferences of the society
(and in some cases only the counter-majoritarian preferences of the society's lawtrained elite) into our Basic Law. Today it enshrines the notion that no substantial
educational value is to be served by an all-men's military academy-so that the decision by the people of Virginia to maintain such an institution denies equal protection
to women who cannot attend that institution but can attend others. Since it is entirely
clear that the Constitution of the United States-the old one-takes no sides in this educational debate, I dissent.
I shall devote most of my analysis to evaluating the Court's opinion on the basis
of our current equal-protection jurisprudence, which regards this Court as free to
evaluate everything under the sun by applying one of three tests: "rational basis"
scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific
than their names suggest, and a further element of randomness is added by the fact
that it is largely up to us which test will be applied in each case. Strict scrutiny, we
have said, is reserved for state "classifications based on race or national origin and
classifications affecting fundamental rights," Clark v. Jeter, 486 U.S. 456, 461
(1988) (citation omitted). It is my position that the term "fundamental rights" should
be limited to "interest[s] traditionally protected by our society," Michael H. v. Gerald
D., 491 U.S. 110, 122 (1989) (plurality opinion of Scalia, J.); but the Court has not
accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider "fundamental." We have no established criterion for
"intermediate scrutiny" either, but essentially apply it when it seems like a good idea
to load the dice. So far it has been applied to content-neutral restrictions that place an
incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512
U. S. ___, ___ (1994) (slip op., at 38); Mills v. Habluetzel, 456 U.S. 91, 98 -99
(1982); Craig v. Boren, 429 U.S. 190, 197 (1976).
I have no problem with a system of abstract tests such as rational-basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential
to evaluating whether the new restrictions that a changing society constantly imposes
upon private conduct comport with that "equal protection" our society has always ac161
corded in the past. But in my view the function of this Court is to preserve our society's values regarding (among other things) equal protection, not to revise them; to
prevent backsliding from the degree of restriction the Constitution imposed upon
democratic government, not to prescribe, on our own authority, progressively higher
degrees. For that reason it is my view that, whatever abstract tests we may choose to
devise, they cannot supersede-and indeed ought to be crafted so as to reflect-those
constant and unbroken national traditions that embody the people's understanding of
ambiguous constitutional texts. More specifically, it is my view that "when a practice
not expressly prohibited by the text of the Bill of Rights bears the endorsement of a
long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down." Rutan v. Republican Party of Ill., 497 U.S. 62, 95 (1990) (Scalia, J., dissenting). The same applies, mutatis mutandis, to a practice asserted to be in violation of the post-Civil War
Fourteenth Amendment. See, e.g., Burnham v. Superior Court of Cal., County of
Marin, 495 U.S. 604 (1990) (plurality opinion of Scalia, J.) (Due Process Clause); J.
E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 156 -163 (Scalia, J., dissenting) (Equal
Protection Clause); Planned Parenthood of S. E. Pa. v. Casey, 505 U.S. 833, 979 984, 1000-1001 (1992) (Scalia, J., dissenting) (various alleged "penumbras").
The all-male constitution of VMI comes squarely within such a governing tradition. Founded by the Commonwealth of Virginia in 1839 and continuously maintained by it since, VMI has always admitted only men. And in that regard it has not
been unusual. For almost all of VMI's more than a century and a half of existence, its
single-sex status reflected the uniform practice for government-supported military
colleges. Another famous Southern institution, The Citadel, has existed as a statefunded school of South Carolina since 1842. And all the federal military collegesWest Point, the Naval Academy at Annapolis, and even the Air Force Academy,
which was not established until 1954-admitted only males for most of their history.
Their admission of women in 1976 (upon which the Court today relies, see ante, at
27-28, nn. 13, 15), came not by court decree, but because the people, through their
elected representatives, decreed a change. See, e.g., Pub. L. 94-106, Section(s)
803(a), 89 Stat. 537-538 (1975). In other words, the tradition of having governmentfunded military schools for men is as well rooted in the traditions of this country as
the tradition of sending only men into military combat. The people may decide to
change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law,
but politics-smuggled-into-law. ***
I agree entirely with Justice Scalia. Our states are a great laboratory for the testing of different social ideas. Such decisions as in this VMI case, not only destroy the right of the people to
govern themselves, but wrongfully limit the testing of different social ideas.
It is interesting that today the people and educators are again recognizing the benefits that
same-sex schools can afford, but now, according to our Supreme Court the right to even try such
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things is very limited. This is wrong, and it was not intended by those who formed and ratified
our Fourteenth Amendment. This is but another of the poisonous progeny of judicial activism.
School desegregation and Busing
The Fourteenth Amendment does not prohibit segregation and it does not require integration. It only prohibits state laws and state action that are racially discriminatory.
Schools in predominantly white neighborhoods are prohibited from barring negroes. But
they are not required to go out and bus in negroes from other neighborhoods just to mix blacks
with whites. All such ideas are the personal ideas of judges, and they are contrary to the Constitution. This was judicial activism gone completely wild. It was gross judicial misbehavior.
Lincoln and the abolitionists who had sufficient influence to begin freeing the slaves, and ultimately resulting in the Fourteenth Amendment, did not believe in racial integration. As we have
already seen, one of Lincoln's arguments against extending slavery into new territories, was that
there would be less mixing of blacks and whites.
Many people who believed in freeing the slaves, but also believed that there was no real
hope of integrating them into American society, formed the American Colonization Society.
They thought the best thing for the freed slaves was to return them to Africa, and worked toward
that end. The society's first president was Bushrod Washington, and other prominent officers and
members were Henry Clay, Francis Scott Key, James Monroe and Daniel Webster. The society
raised money from members and contributors, and gained backing of Congress. They began
shipping slaves to a colony in Liberia, operated by the Society, in 1816.
"During these formative years, white administrators from the American Colonization Society ran the Liberian colony. But as the colony expanded and became more self-sufficient, colonists were given more and more control in running the colony. In 1841, Joseph Jenkins Roberts
became the first black governor of the colony. Under Roberts, the colony drafted a constitution
based on the US Constitution and achieved the status of an independent republic in 1847. The
new Liberian flag adopted Old Glory's red and white stripes with one white star over a blue rectangle in the upper left corner. Britain was the first to recognize the new country in 1848. The
United States delayed its recognition of Liberia until 1862 over concerns by southern states of a
black ambassador from Liberia residing in Washington." (See the "History and Government" of
Liberia, Friends of Yekepa (a Christian organization in Liberia) network.
http://www.friendsofyekepa.org/LibHistory.htm)
There is no question that the primary purpose of the Fourteenth Amendment (along with the
13th and 15th Amendments) was to end slavery, make blacks citizens, and end laws that were ra163
cially discriminatory. But the intention definitely was not to integrate blacks and whites, by any
of these amendments. Any argument to the contrary simply is not founded in fact.
Although Plessy v. Ferguson, 163 U.S. 537 (1896), was not a school case it became precedent for the "separate but equal doctrine" used both in schools and in other forms of segregated
facilities. In this case, Plessey's petition stated that he was a resident of the state of Louisiana, of
mixed descent, in the proportion of seven-eighths Caucasian and one-eighth African blood; that
the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white
race by its constitution and laws; that on June 7, 1892, he engaged and paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and
thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by
the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race, but, notwithstanding this, petitioner was required by the conductor,
under penalty of ejection from the train and imprisonment, to vacate said coach, and occupy another seat, in a coach assigned by the railroad for persons not of the white race, and for no other
reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with
such order, he was, with the aid of a police officer, forcibly ejected from the coach, and hurried
off to, and imprisoned in the parish jail of New Orleans, and there held to answer a charge made
by such officer to the effect that he was guilty of having criminally violated an act of the general
assembly of the state, approved July 10, 1890, in such case made and provided. The Supreme
Court held against the petitioner. The majority opinion by Justice Brown stated:
... The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been
intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places
where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police
power. The most common instance of this is connected with the establishment of
separate schools for white and colored children, which have been held to be a valid
exercise of the legislative power even by courts of states where the political rights of
the colored race have been longest and most earnestly enforced. ***
Justice Harlan dissented, stating:
In respect of civil rights, common to all citizens, the constitution of the United
States does not, I think, permit any public authority to know the race of those entitled
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to be protected in the enjoyment of such rights. Every true man has pride of race, and
under appropriate circumstances, when the rights of others, his equals before the law,
are not to be affected, it is his privilege to express such pride and to take such action
based upon it as to him seems proper. But I deny that any legislative body or judicial
tribunal may have regard to the race of citizens when the civil rights of those citizens
are involved. Indeed, such legislation as that here in question is inconsistent not only
with that equality of rights which pertains to citizenship, national and state, but with
the personal liberty enjoyed by every one within the United States.
The thirteenth amendment does not permit the withholding or the deprivation of
any right necessarily inhering in freedom. It not only struck down the institution of
slavery as previously existing in the United States, but it prevents the imposition of
any burdens or disabilities that constitute badges of slavery or servitude. It decreed
universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had
been in slavery, it was followed by the fourteenth amendment, which added greatly
to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside,' and that 'no state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty or property without due process of law, nor
deny to any person within its jurisdiction the equal protection of the laws.' These two
amendments, if enforced according to their true intent and meaning, will protect all
the civil rights that pertain to freedom and citizenship. Finally, and to the end that no
citizen should be denied, on account of his race, the privilege of participating in the
political control of his country, it was declared by the fifteenth amendment that 'the
right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any state on account of race, color or previous condition of servitude.' ***
The white race deems itself to be the dominant race in this country. And so it is,
in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it
will continue to be for all time, if it remains true to its great heritage, and holds fast
to the principles of constitutional liberty. But in view of the constitution, in the eye
of the law, there is in this country no superior, dominant, ruling class of citizens.
There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the
law. The humblest is the peer of the most powerful. The law regards man as man,
and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that
this high tribunal, the final expositor of the fundamental law of the land, has reached
the conclusion that it is competent for a state to regulate the enjoyment by citizens of
their civil rights solely upon the basis of race. ***
I believe that the majority opinion, although finding support in the debates on the amendments, and in the attitude in the country at the time, was contrary to the plain wording of the
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Fourteenth Amendment. I think that Justice Harlan's opinion correctly stated the law. But this
was not the general feeling in the country at the time, and particularly in the Southern states, and
the majority view remained the law until 1954.
In 1927, the cases of Gong Lum v. Rice, 275 U.S. 78 (1927) was decided. The petition was
for a child of Chinese descent who was a citizen and a native born resident of Mississippi. She
was not allowed to attend the Rosedale High School in her locality because she was of Chinese
descent. The Mississippi Supreme Court upheld the denial on the basis of a state law providing
for separate schools for "white and colored races." In a unanimous decision, the Supreme Court
affirmed, citing Plessey v Ferguson, supra, and many state cases. This was a practice prevalent in
the country, both in the North and the South.
But insofar as the Supreme Court cases are concerned, here we see erroneous precedent
based on erroneous precedent. But when the pendulum swung the other way, even more erroneous overreaching took place in the other direction. Had long recognized rules of construction
been followed by the courts, as was done by Justice Harlan in the Plessy dissent, the Court would
have held from the outset that the Fourteenth Amendment barred laws discriminating on the basis of race, and we also would never have had the judicial intermeddling trying to integrate the
races.
The landmark case, Brown v. Board of Education. 347 U.S, 483 (1954), was decided by a
unanimous decision, in 1954. Following are excerpts from the opinion, written by Chief Justice
Earl Warren:
In the first cases in this Court construing the Fourteenth Amendment, decided
shortly after its adoption, the Court interpreted it as proscribing all state-imposed
discriminations against the Negro race. The doctrine of "separate but equal" did not
make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra,
involving not education but transportation. American courts have since labored with
the doctrine for over half a century. In this Court, there have been six cases involving
the "separate but equal" doctrine in the field of public education. In Cumming v.
County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the
validity of the doctrine itself was not challenged. In more recent cases, all on the
graduate school level, inequality was found in that specific benefits enjoyed by white
students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631;
Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S.
637. In none of these cases was it necessary to re-examine the doctrine to grant relief
to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved
decision on the question whether Plessy v. Ferguson should be held inapplicable to
public education.
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In approaching this problem, we cannot turn the clock back to 1868 when the
Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We
must consider public education in the light of its full development and its present
place in American life throughout the Nation. Only in this way can it be determined
if segregation in public schools deprives these plaintiffs of the equal protection of the
laws. ***
We come then to the question presented: Does segregation of children in public
schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes
could not provide them equal educational opportunities, this Court relied in large part
on "those qualities which are incapable of objective measurement but which make
for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the
Court, in requiring that a Negro admitted to a white graduate school be treated like
all other students, again resorted to intangible considerations: ". . . his ability to
study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children
in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in
the community that may affect their hearts and minds in a way unlikely ever to be
undone. The effect of this separation on their educational opportunities was well
stated by a finding in the Kansas case by a court which nevertheless felt compelled to
rule against the Negro plaintiffs:
"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has
the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of
law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they
would receive in a racial[ly] integrated school system."
Whatever may have been the extent of psychological knowledge at the time of
Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that in the field of public education the doctrine of "separate but
equal" has no place. Separate educational facilities are inherently unequal. Therefore,
we hold that the plaintiffs and others similarly situated for whom the actions have
been brought are, by reason of the segregation complained of, deprived of the equal
protection of the laws guaranteed by the Fourteenth Amendment. ***
There is little doubt that the legal conclusion of this case is constitutionally valid. It is some
of the wording that will come back to haunt this country. The statement: "we cannot turn the
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clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson
was written," is correct if the Court simply means that we must look at the present situation to
see if it now violates the Constitution. But always we must look back to the time a provision was
enacted to determine the purpose and intent of the provision. This language has been used by activist courts and legal writers to argue that no longer must we look at the intent and purpose of
those groups of "dead white men" that formed and adopted our Constitution, and that we should
not now be "ruled from the grave."
These latter ideas are merely a means of saying that the Court is not now bound by Article V
(on amending the Constitution), and may use its own ideas to change the Constitution. In later
cases, in this section we will see that not only does the Court disregard the intent and purpose of
the Fourteenth Amendment, and inject their own ideas and biases into the Constitution, but by
the use of its newly invented "equitable power," it took over state governmental functions – even
taxation.
Also, the Court's relying on psychological data instead of the common sense of the people,
can often be a grave mistake. In my opinion, the judgment of the people as a whole usually is
better than either the "wisdom" of the Court or these experts in psychology or psychiatry. For
example there are some of these experts in those fields today that not only see nothing wrong
with sodomy, but also take the same view of pedophilia, and even incest.
The Court could easily have made the sound analysis that Justice Harlan made in the Plessy
case, and the same decision would have resulted.
In Green v. County School Board, 391 U.S. 430 (1968), we see the impetus shift from the
constitutional duty to eliminate racially discriminatory laws to the unconstitutional idea of integration. The school board of new Kent County, Virginia, submitted a freedom of choice plan for
desegregating the schools. The District Court approved the plan, and the Court of Appeals approved the freedom of choice plan. During the plan's first three years of operation, 115 negroes
(apparently 15%) were admitted to the previously all white school, and no whites had applied for
the all negro school. Eighty-five percent of the negroes, by choice, still attended the all all-Negro
school. Justice Brennan wrote the unanimous opinion reversing and remanding. He states:
We do not hold that "freedom of choice" can have no place in such a plan. We
do not hold that a "freedom-of-choice" plan might of itself be unconstitutional, although that argument has been urged upon us. Rather, ... all we decide today is that in
desegregating a dual system a plan utilizing "freedom of choice" is not an end in itself. ***
... The Board must be required to formulate a new plan and, in light of other
courses which appear open to the Board, such as zoning, fashion steps which prom168
ise realistically to convert promptly to a system without a "white" school and a "Negro" school, but just schools. ***
Brennan made no attempt whatsoever to support the decision by any historical precedent.
The racially discriminatory laws no longer were in effect. What the Court is clearly stating is that
there must be a plan to integrate the students. There is no constitutional basis for this decision.
The Court now leaves its true authority – to determine whether or not the State law is valid under
the Constitution. It is now ordering the mixing of Whites and Blacks – apparently because of its
"psychological" ideas – certainly not on the basis of the Constitution. That is of course why busing children around to mix them up was relied on. There is no way that these things can be supported as being within the intent and purpose of the Civil War Amendments (13th, 14th, and 15th).
This is the epitome of autocratic judicial tyranny. The primary reason for our Constitution,
the right of the people to govern themselves, as provided by our Constitution is disregarded. We
have case after case that then follow only case precedent, with no regard to the constitutionality
of that precedent. We have to wait for a more conservative Court before any of this great constitutional harm can be undone. Only some of the many examples will be covered. The ones that
are covered cite many similar cases, as precedent for the decisions.
Chief Justice Burger gave the unanimous opinion of the Court in Swann v. Board of Education, 402 U.S. 1 (1971). The Charlotte-Mecklenburg school system, which includes the city of
Charlotte, North Carolina, had more than 84,000 students in 107 schools in the 1968-1969 school
year. Approximately 29% (24,000) of the pupils were Negro, about 14,000 of whom attended 21
schools that were at least 99% Negro. This resulted from a desegregation plan approved by the
District Court in 1965, at the commencement of this litigation. In 1968 petitioner Swann moved
for further relief based on Green v. County School Board, 391 U.S. 430, which required school
boards to "come forward with a plan that promises realistically to work . . . now . . . until it is
clear that state-imposed segregation has been completely removed." The District Court ordered
the school board in April 1969 to provide a plan for faculty and student desegregation. Finding
the board's submission unsatisfactory, the District Court appointed an expert (Dr. John Finger) to
submit a desegregation plan. In February 1970, the expert and the board presented plans, and the
court adopted the board's plan, as modified, for the junior and senior high schools, and the expert's proposed plan for the elementary schools. The Court of Appeals affirmed the District
Court's order as to faculty desegregation and the secondary school plans, but vacated the order
respecting elementary schools, fearing that the provisions for pairing and grouping of elementary
schools would unreasonably burden the pupils and the board.
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Like the board plan, the Finger plan does as much by rezoning school attendance lines as
can reasonably be accomplished. However, unlike the board plan, it does not stop there. It goes
further and desegregates all the rest of the elementary schools by the technique of grouping two
or three outlying schools with one black inner city school; by transporting black students from
grades one through four to the outlying white schools; and by transporting white students from
the fifth and sixth grades from the outlying white schools to the inner city black school. The
Court of Appeals affirmed the District Court's order as to faculty desegregation and the secondary school plans, but vacated the order respecting elementary schools, fearing that the provisions
for pairing and grouping of elementary schools would unreasonably burden the pupils and the
board.
The Supreme Court reversed the Court of Appeals to the extent that it did not approve all of
the District Court order, thereby approving all of the District Court order.
In 1964, Congress had passed a Civil Rights Act, which was discussed. The opinion stated:
The school authorities argue that the equity powers of federal district courts
have been limited by Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c. The
language and the history of Title IV show that it was enacted not to limit but to define the role of the Federal Government in the implementation of the Brown I decision. It authorizes the Commissioner of Education to provide technical assistance to
local boards in the preparation of desegregation plans, to arrange "training institutes"
for school personnel involved in desegregation efforts, and to make grants directly to
schools to ease the transition to unitary systems. It also authorizes the Attorney General, in specified circumstances, to initiate federal desegregation suits. Section 2000c
(b) defines "desegregation" as it is used in Title IV:
"`Desegregation' means the assignment of students to public schools and
within such schools without regard to their race, color, religion, or national
origin, but `desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance."
Section 2000c-6, authorizing the Attorney General to institute federal suits, contains the following proviso:
"nothing herein shall empower any official or court of the United States to
issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or
one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with
constitutional standards."
On their face, the sections quoted purport only to insure that the provisions of
Title IV of the Civil Rights Act of 1964 will not be read as granting new powers. The
proviso in 2000c-6 is in terms designed to foreclose any interpretation of the Act as
expanding the existing powers of federal courts to enforce the Equal Protection
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Clause. There is no suggestion of an intention to restrict those powers or withdraw
from courts their historic equitable remedial powers. The legislative history of Title
IV indicates that Congress was concerned that the Act might be read as creating a
right of action under the Fourteenth Amendment in the situation of so-called "de facto segregation," where racial imbalance exists in the schools but with no showing
that this was brought about by discriminatory action of state authorities. In short,
there is nothing in the Act that provides us material assistance in answering the question of remedy for state-imposed segregation in violation of Brown I. The basis of
our decision must be the prohibition of the Fourteenth Amendment that no State shall
"deny to any person within its jurisdiction the equal protection of the laws."
I cannot disagree with the Court on the effect of the Civil Rights Act. Nevertheless it does
indicate the view of our elected representatives that the power of the courts should not be used
for transporting students around for the purpose of acquiring "racial balance." The whites who
were having their children bussed around to acquire racial balance were against it as wasted time,
inconvenience, and expense. A great many of the blacks were against it for the same reason.
These actions of the courts naturally caused "white flight" – people moving away from the urban
areas where most of this forced racial mixing was taking place. The inner cities of places like
Detroit became predominantly, and in some places almost entirely, black. The courts then began
trying to chase the people around, bussing the whites back into the black areas, some of which
became unreasonable for even this 1970's Supreme Court following the already outrageous precedent. In my opinion, this period of tyranny by the courts did much more harm than good. I believe that people became much more segregated than they would had they been left alone. There
is no question that it increased the dissension between the races. Neither side really liked what
was going on in this chasing of a liberal dream world. It was a windfall for those who made
money from and promoted this dissension and court activity, like the National Association for
Advancement of Colored People (NAACP) and American Civil Liberties Union (ACLU). These
two organizations were behind many of the actions, and often filed Amicus Curiae briefs in the
appellate cases.
The Supreme Court took a small step back toward reason and the Constitution in Milliken v.
Bradley, 418 U.S. 717 (1974). In this case Respondents (one of whom was the NAACP) brought
this class action, alleging that the Detroit public school system is racially segregated as a result
of the official policies and actions of petitioner state and city officials, and seeking implementation of a plan to eliminate the segregation and establish a unitary nonracial school system. The
District Court, after concluding that various acts by the petitioner Detroit Board of Education had
created and perpetuated school segregation in Detroit, and that the acts of the Board, as a subordinate entity of the State, were attributable to the State, ordered the Board to submit Detroit-only
desegregation plans. The court also ordered the state officials to submit desegregation plans en171
compassing the three-county metropolitan area, despite the fact that the 85 outlying school districts in these three counties were not parties to the action and there was no claim that they had
committed constitutional violations. Subsequently, outlying school districts were allowed to intervene, but were not permitted to assert any claim or defense on issues previously adjudicated or
to reopen any issue previously decided, but were allowed merely to advise the court as to the
propriety of a metropolitan plan and to submit any objections, modifications, or alternatives to
any such plan. Thereafter, the District Court ruled that it was proper to consider metropolitan
plans, that Detroit-only plans submitted by the Board and respondents were inadequate to accomplish desegregation, and that therefore it would seek a solution beyond the limits of the Detroit School District, and concluded that "[s]chool district lines are simply matters of political
convenience and may not be used to deny constitutional rights." Without having evidence that
the suburban school districts had committed acts of de jure (of law) segregation, the court appointed a panel to submit a plan for the Detroit schools that would encompass an entire designated desegregation area consisting of 53 of the 85 suburban school districts plus Detroit, and ordered the Detroit Board to acquire at least 295 school buses to provide transportation under an
interim plan to be developed for the 1972-1973 school year. The Court of Appeals, affirming in
part, held that the record supported the District Court's finding as to the constitutional violations
committed by the Detroit Board and the state officials; that therefore the District Court was authorized and required to take effective measures to desegregate the Detroit school system; and
that a metropolitan area plan embracing the 53 outlying districts was the only feasible solution
and was within the District Court's equity powers. But the court remanded so that all suburban
school districts that might be affected by a metropolitan remedy could be made parties and have
an opportunity to be heard as to the scope and implementation of such a remedy, and vacated the
order as to the bus acquisitions, subject to its reimposition at an appropriate time.
The Supreme Court reversed in a 5 to 4 decision delivered by Chief Justice Burger. The
opinion states:
The target of the Brown holding was clear and forthright: the elimination of
state-mandated or deliberately maintained dual school systems with certain schools
for Negro pupils and others for white pupils. ***
Viewing the record as a whole, it seems clear that the District Court and the
Court of Appeals shifted the primary focus from a Detroit remedy to the metropolitan area only because of their conclusion that total desegregation of Detroit would
not produce the racial balance which they perceived as desirable. Both courts proceeded on an assumption that the Detroit schools could not be truly desegregated - in
their view of what constituted desegregation - unless the racial composition of the
student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. ***
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In Swann, which arose in the context of a single independent school district, the
Court held:
"If we were to read the holding of the District Court to require, as a matter
of substantive constitutional right, any particular degree of racial balance or
mixing, that approach would be disapproved and we would be obliged to
reverse." ***
Here the District Court's approach to what constituted "actual desegregation"
raises the fundamental question, not presented in Swann, as to the circumstances in
which a federal court may order desegregation relief that embraces more than a single school district. The court's analytical starting point was its conclusion that school
district lines are no more than arbitrary lines on a map drawn "for political convenience." Boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief, but the notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more
deeply rooted than local control over the operation of schools; local autonomy has
long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process. See Wright v.
Council of the City of Emporia, 407 U.S., at 469. Thus, in San Antonio School District v. Rodriguez, 411 U.S. 1, 50 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decision making,
permits the structuring of school programs to fit local needs, and encourages "experimentation, innovation, and a healthy competition for educational excellence." ***
The controlling principle consistently expounded in our holdings is that the
scope of the remedy is determined by the nature and extent of the constitutional violation. Swann, 402 U.S., at 16. Before the boundaries of separate and autonomous
school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has
been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been
a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be
in order where the racially discriminatory acts of one or more school districts caused
racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be
appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect,
there is no constitutional wrong calling for an interdistrict remedy. ***
The following paragraph in Justice White's dissent, joined in by Douglas, Brennan, and
Marshall, shows the real purpose of the dissenters:
This Court now reverses the Court of Appeals. It does not question the District
Court's findings that any feasible Detroit-only plan would leave many schools 75 to
90 percent black and that the district would become progressively more black as
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whites left the city. Neither does the Court suggest that including the suburbs in a desegregation plan would be impractical or infeasible because of educational considerations, because of the number of children requiring transportation, or because of the
length of their rides. Indeed, the Court leaves unchallenged the District Court's conclusion that a plan including the suburbs would be physically easier and more practical and feasible than a Detroit-only plan. Whereas the most promising Detroit-only
plan, for example, would have entailed the purchase of 900 buses, the metropolitan
plan would involve the acquisition of no more than 350 new vehicles.
It is clear that the object of the dissenters is, as they plainly state, desegregation. They have
not yet been bold enough to try to stop the "white flight," but they are determined to bring the
white children in from the suburbs to which they fled, and intermingle them with the black children. Integration is not within the lawful poser of the courts. It is not their prerogative to control
the lives of the people. The only duty and power of the court is to eliminate discriminatory laws.
If a school, as was done, bars Negroes or any other race by law, and, after the court strikes
down the law, the school still does not comply; then the court has the equitable power to enforce
its orders and see that Negroes wishing to be admitted will be. This has also been done. But integration of the races, or of schools, is not the job of our courts, and actually violates our Constitution by violating the rights of the people to govern their own lives.
In Freeman v. Pitts, 503 U.S. 467 (1992), a class action had been filed in 1969 to dismantle
the de jure segregation in DeKalb County, Georgia. In 1986, the school officials filed a motion to
dismiss the litigation on the basis that unitary status had been accomplished. The District Court
found that with respect to student assignments that DCSS had briefly achieved unitary status under the court-ordered plan, that subsequent and continuing racial imbalance in this category was
a product of independent demographic changes that were unrelated to petitioners' actions and
were not a vestige of the prior de jure system, and that actions taken by DCSS had achieved
maximum practical desegregation from 1969 to 1986. Although ruling that it would order no further relief in the foregoing areas, the court refused to dismiss the case because it found that
DCSS was not unitary with respect to the remaining Green factors: faculty assignments and resource allocation, the latter of which the court considered in connection with a non-Green factor,
the quality of education being offered to the white and black student populations. The court ordered DCSS to take measures to address the remaining problems. The Court of Appeals reversed,
holding that a district court should retain full remedial authority over a school system until it
achieves unitary status in all Green (Green v. County School Board, supra) categories at the same
time for several years; that, because, under this test, DCSS had never achieved unitary status, it
could not shirk its constitutional duties by pointing to demographic shifts occurring prior to unitary status; and that DCSS would have to take further actions to correct the racial imbalance,
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even though such actions might be "administratively awkward, inconvenient, and even bizarre in
some situations." The Supreme Court reversed the Court of Appeals. There were concurring
opinions, but no dissent. The opinion of the Court by Justice Kennedy states:
Our application of these guiding principles in Pasadena Bd. of Education v.
Spangler, 427 U.S. 424 (1976), is instructive. There we held that a District Court exceeded its remedial authority in requiring annual readjustment of school attendance
zones in the Pasadena school district when changes in the racial makeup of the
schools were caused by demographic shifts "not attributed to any segregative acts on
the part of the [school district]." ***
Today, we make explicit the rationale that was central in Spangler. A federal
court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control. This discretion derives both from the
constitutional authority which justified its intervention in the first instance and its ultimate objectives in formulating the decree. The authority of the court is invoked at
the outset to remedy particular constitutional violations. In construing the remedial
authority of the district courts, we have been guided by the principles that "judicial
powers may be exercised only on the basis of a constitutional violation," and that
"the nature of the violation determines the scope of the remedy." Swann, supra, at 16.
A remedy is justifiable only insofar as it advances the ultimate objective of alleviating the initial constitutional violation.
We have said that the court's end purpose must be to remedy the violation and,
in addition, to restore state and local authorities to the control of a school system that
is operating in compliance with the Constitution. Milliken v. Bradley, 433 U.S. 267,
280-281 (1977) ("[T]he federal courts, in devising a remedy, must take into account
the interests of state and local authorities in managing their own affairs, consistent
with the Constitution"). Partial relinquishment of judicial control, where justified by
the facts of the case, can be an important and significant step in fulfilling the district
court's duty to return the operations and control of schools to local authorities. In
Dowell, we emphasized that federal judicial supervision of local school systems was
intended as a "temporary measure." 498 U.S., at 247. Although this temporary measure has lasted decades, the ultimate objective has not changed - to return school districts to the control of local authorities. Just as a court has the obligation at the outset
of a desegregation decree to structure a plan so that all available resources of the
court are directed to comprehensive supervision of its decree, so too must a court
provide an orderly means for withdrawing from control when it is shown that the
school district has attained the requisite degree of compliance. A transition phase in
which control is relinquished in a gradual way is an appropriate means to this end.
***
In Missouri v. Jenkins, 515 U.S. 70 (1995), The Supreme Court reigned in a District Judge
that in the 18 years of litigation had become a real tyrant, and the Court of Appeals that affirmed
his action. The judge had personally usurped major legislative powers of the State, besides the
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governing power of the school district. Some of the drastic and ridiculous measures are shown by
the following excerpts from the majority opinion by Chief Justice Rehnquist:
In November 1986, the District Court approved a comprehensive magnet school
and capital improvements plan and held the State and the KCMSD jointly and severally liable for its funding. Under the District Court's plan, every senior high school,
every middle school, and one-half of the elementary schools were converted into
magnet schools. ...The District Court adopted the magnet-school program to "provide
a greater educational opportunity to all KCMSD students," ... and because it believed
"that the proposed magnet plan [was] so ...that it would draw non-minority students
from the private schools who have abandoned or avoided the KCMSD, and draw in
additional non-minority students from the suburbs." ... The District Court felt that
"[t]he long-term benefit of all KCMSD students of a greater educational opportunity
in an integrated environment is worthy of such an investment." .... Since its inception, the magnet school program has operated at a cost, including magnet transportation, in excess of $448 million. See Desegregation Expenditures. In April 1993, the
District Court considered, but ultimately rejected, the plaintiffs' and the KCMSD's
proposal seeking approval of a long-range magnet renewal program that included a
10-year budget of well over $500 million, funded by the State and the KCMSD on a
joint-and-several basis. ...
In June 1985, the District Court ordered substantial capital improvements to
combat the deterioration of the KCMSD's facilities. In formulating its capitalimprovements plan, the District Court dismissed as "irrelevant" the "State's argument
that the present condition of the facilities [was] not traceable to unlawful segregation." ... Instead, the District Court focused on its responsibility to "remed[y] the vestiges of segregation" and to "implemen[t] a desegregation plan which w[ould] maintain and attract non-minority members... The initial phase of the capital improvements plan cost $37 million. Ibid. The District Court also required the KCMSD to
present further capital improvements proposals "in order to bring its facilities to a
point comparable with the facilities in neighboring suburban school districts." ... In
November 1986, the District Court approved further capital improvements in order
to remove the vestiges of racial segregation and "to . . . attract non-minority students
back to the KCMSD." ...
In September 1987, the District Court adopted, for the most part, KCMSD's
long-range capital improvements plan at a cost in excess of $187 million. ... . The
plan called for the renovation of approximately 55 schools, the closure of 18 facilities, and the construction of 17 new schools. ...The District Court rejected what it referred to as the "`patch and repair' approach proposed by the State" because it "would
not achieve suburban comparability or the visual attractiveness sought by the Court
as it would result in floor coverings with unsightly sections of mismatched carpeting
and tile, and individual walls possessing different shades of paint." ... The District
Court reasoned that "if the KCMSD schools underwent the limited renovation proposed by the State, the schools would continue to be unattractive and substandard,
and would certainly serve as a deterrent to parents considering enrolling their children in KCMSD schools." ... As of 1990, the District Court had ordered $260 million
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in capital investments. ...Since then, the total cost of capital improvements ordered
has soared to over $540 million.
As part of its desegregation plan, the District Court has ordered salary assistance
to the KCMSD. In 1987, the District Court initially ordered salary assistance only for
teachers within the KCMSD. Since that time, however, the District Court has ordered
salary assistance to all but three of the approximately 5,000 KCMSD employees. The
total cost of this component of the desegregation remedy since 1987 is over $200
million. ...
The District Court's desegregation plan has been described as the most ambitious and expensive remedial program in the history of school desegregation. ... The
annual cost per pupil at the KCMSD far exceeds that of the neighboring SSD's or of
any school district in Missouri. Nevertheless, the KCMSD, which has pursued a
"friendly adversary" relationship with the plaintiffs, has continued to propose ever
more expensive programs. As a result, the desegregation costs have escalated and
now are approaching an annual cost of $200 million. These massive expenditures
have financed
"high schools in which every classroom will have air conditioning, an alarm
system, and 15 microcomputers; a 2,000-square-foot planetarium; green
houses and vivariums; a 25-acre farm with an air-conditioned meeting room
for 104 people; a Model United Nations wired for language translation;
broadcast capable radio and television studios with an editing and animation
lab; a temperature controlled art gallery; movie editing and screening
rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-squarefoot elementary school animal rooms for use in a zoo project; swimming
pools; and numerous other facilities." ...
Not surprisingly, the cost of this remedial plan has "far exceeded KCMSD's
budget, or for that matter, its authority to tax... The State, through the ... operation
of joint-and-several liability, has borne the brunt of these costs. The District Court
candidly has acknowledged that it has "allowed the District planners to dream" and
"provided the mechanism for th[ose] dreams to be realized." ... In short, the District
Court "has gone to great lengths to provide KCMSD with facilities and opportunities
not available anywhere else in the country." ...
With this background, we turn to the present controversy. First, the State has
challenged the District Court's requirement that it fund salary increases for KCMSD
instructional and noninstructional staff. ...The State claimed that funding for salaries
was beyond the scope of the District Court's remedial authority. ...Second, the State
has challenged the District Court's order requiring it to continue to fund the remedial
quality education programs for the 1992-1993 school year. ... The State contended
that ... it had achieved partial unitary status with respect to the quality education programs already in place. As a result, the State argued that the District Court should
have relieved it of responsibility for funding those programs.
The District Court rejected the State's arguments. It first determined that the salary increases were warranted because "[h]igh quality personnel are necessary not on177
ly to implement specialized desegregation programs intended to `improve educational opportunities and reduce racial isolation' . . . but also to `ensure that there is no
diminution in the quality of its regular ... academic program.'" ...
The Court of Appeals for the Eighth Circuit affirmed. ... It rejected the State's argument that the salary increases did not directly address and relate to the State's constitutional violation and that "low teachers salaries d[id] not flow from any earlier constitutional violations by the State." ... In doing so, it observed that "[i]n addition to
compensating the victims, the remedy in this case was also designed to reverse white
flight by offering superior educational opportunities." ***
In overruling the District Court and Appellate Court, the Court reasoned:
In Freeman, we stated that "[t]he vestiges of segregation that are the concern of
the law in a school case may be subtle and intangible but nonetheless they must be so
real that they have a causal link to the de jure violation being remedied." 503 U.S., at
496. The record here does not support the District Court's reliance on "white flight"
as a justification for a permissible expansion of its intradistrict remedial authority
through its pursuit of desegregative attractiveness. ***
The District Court's pursuit of "desegregative attractiveness" cannot be reconciled with our cases placing limitations on a district court's remedial authority. ***
Justice Thomas, in his concurring opinion, had some particularly cogent and important
things to say. I consider them important because his is a black man who has personally experienced discriminatory attitudes, and I also consider him one of our great conservative justices. He
said:
Two threads in our jurisprudence have produced this unfortunate situation, in
which a District Court has taken it upon itself to experiment with the education of the
KCMSD's black youth. First, the court has read our cases to support the theory that
black students suffer an unspecified psychological harm from segregation that retards their mental and educational development. This approach not only relies upon
questionable social science research rather than constitutional principle, but it also
rests on an assumption of black inferiority. Second, we have permitted the federal
courts to exercise virtually unlimited equitable powers to remedy this alleged constitutional violation. The exercise of this authority has trampled upon principles of federalism and the separation of powers and has freed courts to pursue other agendas
unrelated to the narrow purpose of precisely remedying a constitutional harm.
The mere fact that a school is black does not mean that it is the product of a constitutional violation. A "racial imbalance does not itself establish a violation of the
Constitution." ***
... The continuing "racial isolation" of schools after de jure segregation has ended may well reflect voluntary housing choices or other private decisions. ***
This misconception has drawn the courts away from the important goal in desegregation. The point of the Equal Protection Clause is not to enforce strict race178
mixing, but to ensure that blacks and whites are treated equally by the State without
regard to their skin color. The lower courts should not be swayed by the easy answers of social science, nor should they accept the findings, and the assumptions, of
sociology and psychology at the price of constitutional principle. ***
Such extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers' design. The available historical records
suggest that the Framers did not intend federal equitable remedies to reach as broadly
as we have permitted. Anticipating the growth of our modern doctrine, the AntiFederalists criticized the Constitution because it might be read to grant broad equitable powers to the federal courts. In response, the defenders of the Constitution "sold"
the new framework of government to the public by espousing a narrower interpretation of the equity power. When an attack on the Constitution is followed by an open
Federalist effort to narrow the provision, the appropriate conclusion is that the drafters and ratifiers of the Constitution approved the more limited construction offered in
response. ***
It is indeed refreshing to see a current Supreme Court Justice getting back to the intent and
purpose of those who formed and ratified our Constitution,
Justice Souter, joined by Stevens, Ginsburg, and Breyer, filed a long dissent. It was completely devoid of any constitutional reasoning, other than blind stare decisis, and contained constitutionally irrelevant statements such as: "As a final element of its remedy, in 1987 the District
Court ordered funding for increases in teachers' salaries as a step towards raising the level of student achievement."
Justice Ginsburg, one of the most liberal judges that has ever been on the Court, adds: "Today, the Court declares illegitimate the goal of attracting nonminority students to the Kansas
City, Missouri, School District, ante, at 23, and thus stops the District Court's efforts to integrate
a school district that was, in the 1984/1985 school year, sorely in need and 68.3% black."
My reply to the dissenters is that it is long past time that the courts got back to their jobs of
deciding the law according to the intent and purpose of those who properly enacted it; and leave
social experiments to those who have the right to engage in them and who have substantially
more judgment about them – the people.
Examples of courts running wild in exceeding their authority and taking over legislative and
executive governmental functions are far too many to cover in this book. The most I can hope to
do is relate enough examples that I hope will give a picture of those destructive usurpations. For
example, there are situations where federal courts have taken over the running of some of our
prison systems to an extent that was almost as unlawful as the school cases. As in the school cases, you will usually see the ACLU involved, as in most of the other cases where the Court is imposing the personal views of judges on our Constitution, and thereby destructively changing it.
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Affirmative Action
Actually, many of the school desegregation cases referred to above were in the nature of affirmative action to obtain a goal, which was the mixing of the races. I consider it clear that this is
an unconstitutional goal.
Nevertheless, affirmative action programs became prevalent in schools, and in businesses
and various organizations. The Civil Rights Laws prohibited racial discrimination in private
businesses as well as by the state, and much of this was precipitated by those laws. The federal
Equal Employment Opportunities Commission (EEOC) itself tried to get private employers and
organizations to adopt affirmative action programs, many of them working toward quotas. The
Court finally struck down the idea of forced quotas, for obvious legal reasons already explained.
Not only were they against the Civil Rights laws, but they were unconstitutional.
However, vestiges of affirmative action still remain, even in state operated schools. We have
activist judges on our Supreme Court that still support this unlawful reverse discrimination – although it is now to a more limited degree. My purpose is to cover just a few of the recent and
more important cases, just to give the reader a sense of where we stand today. I do not consider
the Court's overreaching in these cases to be as damaging in these cases as in some of the others,
because much of the problem could be cured by congressional action.
There is no question that the clear wording of the Fourteenth Amendment prohibits discrimination because of race – any race – white, black, or other. The Civil Rights Acts were for the
same purpose, but extended the nondiscrimination to substantial portions of the private sector as
well.
It is interesting to see how the affirmative action, or reverse discrimination, mentality gradually took hold of the Supreme Court. At first the Courts were struggling with the problem of racial discrimination against blacks being eliminated to the degree that the law prohibited. But
when the courts began to feel their great power, and then to usurp powers that they did not lawfully have, this mentality took hold. And again, unlawful precedent begot unlawful precedent.
In McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), Petitioners, both white
employees of respondent transportation company, were discharged for misappropriating cargo
from one of the company's shipments, but a Negro employee, who was also charged with the
same offense, was not discharged. After subsequent grievance proceedings pursuant to a collective-bargaining agreement between the company and respondent union and complaints filed with
the Equal Employment Opportunity Commission (EEOC) secured no relief, petitioners brought
an action against respondents, alleging that in discharging petitioners, while retaining the Negro
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employee, respondent company had discriminated against petitioners on the basis of race, and
that respondent union had acquiesced in this discrimination by failing properly to represent one
of the petitioners in the grievance proceeding, all in violation of Title VII of the Civil Rights Act
of 1964, which prohibits the discharge of "any individual" because of "such individual's race,"
and of 42 U.S.C. 1981, which provides that "[a]ll persons . . . shall have the same right . . . to
make and enforce contracts . . . as is enjoyed by white citizens . . . ." The District Court dismissed the complaint on the pleadings, holding that 1981 is inapplicable to racial discrimination
against whites, and that the facts alleged by petitioners failed to state a claim under Title VII.
The Court of Appeals affirmed. The Supreme Court reversed in a majority decision written by
the very liberal Justice Marshall, stating in part:
Title VII of the Civil Rights Act of 1964 prohibits the discharge of "any individual" because of "such individual's race," 703 (a) (1), 42 U.S.C. 2000e-2 (a) (1). Its
terms are not limited to discrimination against members of any particular race. Thus,
although we were not there confronted with racial discrimination against whites, we
described the Act in Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971), as prohibiting "[d]iscriminatory preference for any [racial] group, minority or majority."
This conclusion is in accord with uncontradicted legislative history to the effect that
Title VII was intended to "cover white men and white women and all Americans,"
110 Cong. Rec. 2578 (1964) (remarks of Rep. Celler), and create an "obligation not
to discriminate against whites," id., at 7218 (memorandum of Sen. Clark). See also
id., at 7213 (memorandum of Sens. Clark and Case); id., at 8912 (remarks of Sen.
Williams). We therefore hold today that Title VII prohibits racial discrimination
against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.
... [O]ur examination of the language and history of 1981 [42 U>S>C< 1981]
convinces us that 1981 is applicable to racial discrimination in private employment
against white persons. ***
The bill ultimately enacted as the Civil Rights Act of 1866 was introduced by
Senator Trumbull of Illinois as a "bill . . . to protect all persons in the United States
in their civil rights . . ." (emphasis added), and was initially described by him as applying to "every race and color." Cong. Globe, 39th Cong., 1st Sess., 211 (1866)
(hereinafter Cong. Globe). Consistent with the views of its draftsman, and the prevailing view in the Congress as to the reach of its powers under the enforcement section ... of the Thirteenth Amendment, the terms of the bill prohibited any racial discrimination in the making and enforcement of contracts against whites as well as
nonwhites. Its first section provided:
"[T]here shall be no discrimination in civil rights or immunities among the
inhabitants of any State or Territory of the United States on account of race,
color, or previous condition of slavery; but the inhabitants of every race and
color, without regard to any previous condition of slavery or involuntary
servitude, . . . shall have the same right to make and enforce contracts, to
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sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and
convey real and personal property, and to full and equal benefit of all laws
and proceedings for the security of person and property, and shall be subject
to like punishment, pains, and penalties, and to none other, any law, statute,
ordinance, regulation, or custom, to the contrary notwithstanding." Id., at
211. ***
I think that this majority opinion, written by Thurgood Marshall is an interesting opinion
from two standpoints. First, although the action by the defendant employer was a form of affirmative action, the Court held that the white employees stated a good action for discrimination under both statutes. Secondly, and more importantly, it shows that even Marshall knew how to
properly support an opinion. The opinion does the two most important things in determining the
meaning of statutes. The clear wording of the statutes were used in determining their meanings.
Then the legislative history is looked at to determine the intent and meaning of the legislators in
passing the statues.
Justices White and Rehnquist dissented from so much of the majority decision that allowed
an action under Section 1981, and concurred in the rest of the decisions. They referred to their
dissent in Runyon v. McCrary, 427 U.S. 160 (1976). The following is an excerpt of their dissent
in that case:
We are urged here to extend the meaning and reach of 42 U.S.C. 1981 so as to
establish a general prohibition against a private individual's or institution's refusing
to enter into a contract with another person because of that person's race. Section
1981 has been on the books since 1870 and to so hold for the first time would be
contrary to the language of the section, to its legislative history, and to the clear dictum of this Court in the Civil Rights Cases, 109 U.S.3, 16 -17 (1883), almost contemporaneously with the passage of the statute, that the section reaches only discriminations imposed by state law. The majority's belated discovery of a congressional
purpose which escaped this Court only a decade after the statute was passed and
which escaped all other federal courts for almost 100 years is singularly unpersuasive. I therefore respectfully dissent.
University of California Regents v. Bakke, 438 U.S. 265 (1978), is one of our most important cases relating to affirmative action in schools. But it is a long and convoluted decision.
The decision of the Court was given by Justice Powell, which made it the decision of the Court
because Chief Justice Burger, and Justices Stewart, Rehnquist, and Stevens concurred in the
judgment (the ultimate result). However, they dissented to parts of Powell's opinion. The following from Justice Powell's opinion summarizes the case and the judgment of the Court:
This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to
assure the admission of a specified number of students from certain minority groups.
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The Superior Court of California sustained respondent's challenge, holding that petitioner's program violated the California Constitution, Title VI of the Civil Rights Act
of 1964, 42 U.S.C. 2000d et seq., and the Equal Protection Clause of the Fourteenth
Amendment. The court enjoined petitioner from considering respondent's race or the
race of any other applicant in making admissions decisions. It refused, however, to
order respondent's admission to the Medical School, holding that he had not carried
his burden of proving that he would have been admitted but for the constitutional and
statutory violations. The Supreme Court of California affirmed those portions of the
trial court's judgment declaring the special admissions program unlawful and enjoining petitioner from considering the race of any applicant. It modified that portion of
the judgment denying respondent's requested injunction and directed the trial court to
order his admission.
Justice Powell reasoned:
... The question of respondent's right to bring an action under Title VI was neither argued nor decided in either of the courts below, and this Court has been hesitant to review questions not addressed below. ... We therefore do not address this difficult issue. Similarly, we need not pass upon petitioner's claim that private plaintiffs
under Title VI must exhaust administrative remedies. We assume, only for the purposes of this case, that respondent has a right of action under Title VI. ***
The language of 601, 78 Stat. 252, [Title VI] like that of the Equal Protection
Clause, is majestic in its sweep:
"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal financial assistance."
We have held that in "order to justify the use of a suspect classification, a State
must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is `necessary . . . to the accomplishment'
of its purpose or the safeguarding of its interest." In re Griffiths, 413 U.S. 717, 721 722 (1973) (footnotes omitted); Loving v. Virginia, 388 U.S., at 11 ; McLaughlin v.
Florida, 379 U.S. 184, 196 (1964). ...
Hence, the purpose of helping certain groups whom the faculty of the Davis
Medical School perceived as victims of "societal discrimination" does not justify a
classification that imposes disadvantages upon persons like respondent, who bear no
responsibility for whatever harm the beneficiaries of the special admissions program
are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions
throughout the Nation could grant at their pleasure to whatever groups are perceived
as victims of societal discrimination. That is a step we have never approved. ***
The fourth goal asserted by petitioner is the attainment of a diverse student
body. This clearly is a constitutionally permissible goal for an institution of higher
education. Academic freedom, though not a specifically enumerated constitutional
right, long has been viewed as a special concern of the First Amendment. The free183
dom of a university to make its own judgments as to education includes the selection
of its student body. ***
The fatal flaw in petitioner's preferential program is its disregard of individual
rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S., at
22. Such rights are not absolute. But when a State's distribution of benefits or imposition of burdens hinges on ancestry or the color of a person's skin, that individual is
entitled to a demonstration that the challenged classification is necessary to promote
a substantial state interest. Petitioner has failed to carry this burden. ***
We see that what has happened in this case, due to Powell's position, affirmative action is
not barred, but in this case the substantial burden to show its necessity "to promote a substantial
state interest" was not met by the school. But as we shall see, this window allowing reverse discrimination will be seized upon by the more liberal justices whenever they can get the swing vote
justices, such as Byron White – and later Sandra Day O'Connor and Anthony Kennedy, to go
along with them.
Even in this case, the opinion of Brennan, joined in by White, Marshall, and Blackmun,
would have allowed the reverse discrimination against Bakke. They concluded:
Properly construed, therefore, our prior cases unequivocally show that a state
government may adopt race-conscious programs if the purpose of such programs is
to remove the disparate racial impact its actions might otherwise have and if there is
reason to believe that the disparate impact is itself the product of past discrimination,
whether its own or that of society at large. There is no question that Davis' program
is valid under this test.
The more conservative position is taken by the opinion of Justice Stevens, joined in By
Chief Justice Burger, and Justices Stewart and Rehnquist. The opinion states:
Both petitioner and respondent have asked us to determine the legality of the
University's special admissions program by reference to the Constitution. Our settled
practice, however, is to avoid the decision of a constitutional issue if a case can be
fairly decided on a statutory ground. "If there is one doctrine more deeply rooted
than any other in the process of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such adjudication is unavoidable."
Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105. The more important the issue,
the more force there is to this doctrine. In this case, we are presented with a constitutional question of undoubted and unusual importance. Since, however, a dispositive
statutory claim was raised at the very inception of this case, and squarely decided in
the portion of the trial court judgment affirmed by the California Supreme Court, it is
our plain duty to confront it. Only if petitioner should prevail on the statutory issue
would it be necessary to decide whether the University's admissions program violated the Equal Protection Clause of the Fourteenth Amendment.
Title VI is an integral part of the far-reaching Civil Rights Act of 1964. No
doubt, when this legislation was being debated, Congress was not directly concerned
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with the legality of "reverse discrimination" or "affirmative action" programs. Its attention was focused on the problem at hand, the "glaring . . . discrimination against
Negroes which exists throughout our Nation," and, with respect to Title VI, the federal funding of segregated facilities. The genesis of the legislation, however, did not
limit the breadth of the solution adopted. Just as Congress responded to the problem
of employment discrimination by enacting a provision that protects all races, see
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279, 12 so, too, its answer to
the problem of federally funding of segregated facilities stands as a broad prohibition
against the exclusion of any individual from a federally funded program "on the
ground of race." In the words of the House Report, Title VI stands for "the general
principle that no person . . . be excluded from participation . . . on the ground of race,
color, or national origin under any program or activity receiving Federal financial assistance." H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 25 (1963) (emphasis
added). This same broad view of Title VI and 601 was echoed throughout the congressional debate and was stressed by every one of the major spokesmen for the Act
***
The University's special admissions program violated Title VI of the Civil
Rights Act of 1964 by excluding Bakke from the Medical School because of his race.
It is therefore our duty to affirm the judgment ordering Bakke admitted to the University.
Accordingly, I concur in the Court's judgment insofar as it affirms the judgment of
the Supreme Court of California. To the extent that it purports to do anything else, I
respectfully dissent.
We now move forward to consider the latest cases on affirmative action in colleges and universities, and see the difference that a change in members of the Supreme Court makes. These
two cases were both decided By the United States Supreme Court on June 23, 2003, and are so
recent that I do not yet have the official (U.S.) reporter numbers.
In one of the cases, Grutter v. Bollinger, et al, No. 02-241 (2003), Justice O'Connor wrote
the majority opinion allowing an affirmative action program used by the University of Michigan
Law School. The positions of the justices were: O'Connor, J., delivered the opinion of the Court,
in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in which Scalia and Thomas,
JJ., joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of
Thomas, J. Ginsburg, J., filed a concurring opinion, in which Breyer, J., joined. Scalia, J., filed
an opinion concurring in part and dissenting in part, in which Thomas, J., joined. Thomas, J.,
filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined as to Parts IVII. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ,
joined. Kennedy, J., filed a dissenting opinion. Justice O'Connor states:
The Law School's claim of a compelling interest is further bolstered by its amici,
who point to the educational benefits that flow from student body diversity. In addi185
tion to the expert studies and reports entered into evidence at trial, numerous studies
show that student body diversity promotes learning outcomes, and "better prepares
students for an increasingly diverse workforce and society, and better prepares them
as professionals." ***
The Law School's goal of attaining a critical mass of underrepresented minority
students does not transform its program into a quota. ***
That a race-conscious admissions program does not operate as a quota does not,
by itself, satisfy the requirement of individualized consideration. When using race as
a "plus" factor in university admissions, a university's admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and
not in a way that makes an applicant's race or ethnicity the defining feature of his or
her application. The importance of this individualized consideration in the context of
a race-conscious admissions program is paramount. ***
We acknowledge that "there are serious problems of justice connected with the
idea of preference itself." Bakke, 438 U. S., at 298 (opinion of Powell, J.). Narrow
tailoring, therefore, requires that a race-conscious admissions program not unduly
harm members of any racial group. Even remedial race-based governmental action
generally "remains subject to continuing oversight to assure that it will work the least
harm possible to other innocent persons competing for the benefit." ... To be narrowly tailored, a race-conscious admissions program must not "unduly burden individuals who are not members of the favored racial and ethnic groups." Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 630 (1990) (O'Connor, J., dissenting).
We are satisfied that the Law School's admissions program does not. Because the
Law School considers "all pertinent elements of diversity," it can (and does) select
nonminority applicants who have greater potential to enhance student body diversity
over underrepresented minority applicants. See Bakke, supra, at 317 (opinion of
Powell, J.). As Justice Powell recognized in Bakke, so long as a race-conscious admissions program uses race as a "plus" factor in the context of individualized consideration, a rejected applicant
The dissenting opinion of Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and
Thomas, states:
... I agree with the Court that, "in the limited circumstance when drawing racial
distinctions is permissible," the government must ensure that its means are narrowly
tailored to achieve a compelling state interest. Ante, at 21; see also Fullilove v.
Klutznick, 448 U. S. 448, 498 (1980) (Powell, J., concurring) ("[E]ven if the government proffers a compelling interest to support reliance upon a suspect classification, the means selected must be narrowly drawn to fulfill the governmental purpose"). I do not believe, however, that the University of Michigan Law School's
(Law School) means are narrowly tailored to the interest it asserts. The Law School
claims it must take the steps it does to achieve a " 'critical mass' " of underrepresented minority students. Brief for Respondents Bollinger et al. 13. But its actual program bears no relation to this asserted goal. Stripped of its "critical mass" veil, the
Law School's program is revealed as a naked effort to achieve racial balancing.
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As we have explained many times, " ' "[a]ny preference based on racial or ethnic
criteria must necessarily receive a most searching examination." ' " Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 223 (1995) (quoting Wygant v. Jackson Bd. of
Ed., 476 U. S. 267, 273 (1986) (plurality opinion of Powell, J.)). Our cases establish
that, in order to withstand this demanding inquiry, respondents must demonstrate that
their methods of using race " 'fit' " a compelling state interest "with greater precision
than any alternative means." Id., at 280, n. 6; Regents of Univ. of Cal. v. Bakke, 438
U. S. 265, 299 (1978) (opinion of Powell, J.) ("When [political judgments] touch upon an individual's race or ethnic background, he is entitled to a judicial determination
that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest").
I do not believe that the Constitution gives the Law School such free rein in the
use of race. The Law School has offered no explanation for its actual admissions
practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a "critical mass," but to extend offers of
admission to members of selected minority groups in proportion to their statistical
representation in the applicant pool. But this is precisely the type of racial balancing
that the Court itself calls "patently unconstitutional." ***
The Court, in an unprecedented display of deference under our strict scrutiny
analysis, upholds the Law School's program despite its obvious flaws. We have said
that when it comes to the use of race, the connection between the ends and the means
used to attain them must be precise. But here the flaw is deeper than that; it is not
merely a question of "fit" between ends and means. Here the means actually used are
forbidden by the Equal Protection Clause of the Constitution.
In the other case, Gratz, et al. v. Bollinger, et al., No. 02-516 (2003), Petitioners Gratz and
Hamacher, both of whom are Michigan residents and Caucasian, applied for admission to the
University of Michigan's (University) College of Literature, Science, and the Arts (LSA) in 1995
and 1997, respectively. Although the LSA considered Gratz to be well qualified and Hamacher
to be within the qualified range, both were denied early admission and were ultimately denied
admission. In order to promote consistency in the review of the many applications received, the
University's Office of Undergraduate Admissions (OUA) uses written guidelines for each academic year. The guidelines have changed a number of times during the period relevant to this
litigation. The OUA considers a number of factors in making admissions decisions, including
high school grades, standardized test scores, high school quality, curriculum strength, geography,
alumni relationships, leadership, and race. During all relevant periods, the University has considered African-Americans, Hispanics, and Native Americans to be "underrepresented minorities,"
and it is undisputed that the University admits virtually every qualified applicant from these
groups. The current guidelines use a selection method under which every applicant from an underrepresented racial or ethnic minority group is automatically awarded 20 points of the 100
needed to guarantee admission. Petitioners filed this class action alleging that the University's
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use of racial preferences in undergraduate admissions violated the Equal Protection Clause of the
Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U. S. C. §1981. They
sought compensatory and punitive damages for past violations, declaratory relief finding that respondents violated their rights to nondiscriminatory treatment, an injunction prohibiting respondents from continuing to discriminate on the basis of race, and an order requiring the LSA to
offer Hamacher admission as a transfer student.
On cross-motions for summary judgment, respondents relied on Justice Powell's principal
opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 317, which expressed the view that
the consideration of race as a factor in admissions might in some cases serve a compelling government interest. Respondents contended that the LSA has just such an interest in the educational
benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. The District Court agreed with respondents as to
the LSA's current admissions guidelines and granted them summary judgment in that respect.
However, the court also found that the LSA's admissions guidelines for 1995 through 1998 operated as the functional equivalent of a quota running afoul of Justice Powell's Bakke opinion, and
thus granted petitioners summary judgment with respect to respondents' admissions programs for
those years. While interlocutory appeals were pending in the Sixth Circuit, that court issued an
opinion in Grutter v. Bollinger upholding the admissions program used by the University's Law
School. This Court granted certiorari in both cases, even though the Sixth Circuit had not yet
rendered judgment in this one.
The Supreme Court reversed the parts of the District Court's decision that were against the
action of the Petitioners.
The opinion of the Court was written by Chief Justice Rehnquist. The line-up of the Justices
was: Rehnquist, C. J. delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy,
and Thomas, JJ., joined. O'Connor, J., filed a concurring opinion, in which Breyer, J., joined in
part. Thomas, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, J., joined. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined as to Part II. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined, and in which Breyer, J., joined as to Part I.
Chief Justice Rehnquist's opinion states in part:
It is by now well established that "all racial classifications reviewable under the
Equal Protection Clause must be strictly scrutinized." Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 224 (1995). This " 'standard of review ... is not dependent on
the race of those burdened or benefited by a particular classification.' " Ibid. (quoting
Richmond v. J. A. Croson Co., 488 U. S. 469, 494 (1989) (plurality opinion)). Thus,
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"any person, of whatever race, has the right to demand that any governmental actor
subject to the Constitution justify any racial classification subjecting that person to
unequal treatment under the strictest of judicial scrutiny." Adarand, 515 U. S., at
224. ***
We conclude, therefore, that because the University's use of race in its current
freshman admissions policy is not narrowly tailored to achieve respondents' asserted
compelling interest in diversity, the admissions policy violates the Equal Protection
Clause of the Fourteenth Amendment. We further find that the admissions policy also violates Title VI and 42 U. S. C. § 1981. Accordingly, we reverse that portion of
the District Court's decision granting respondents summary judgment with respect to
liability and remand the case for proceedings consistent with this opinion.
The ideas of the dissenting justices in this case is just a rehash of ideas previously covered.
They argue that the system of the University does not amount to "quotas" and that the interest in
"diversity" was sufficient to all the discriminatory policy.
-------------------------------------------When we look at all of these civil rights cases, together, with all of the Court invented terms
such as "strict scrutiny" and "ordinary scrutiny," and their ideas as to when the State should have
to show a compelling interest for using racial discrimination to obtain "diversity" or a "critical
mass," it becomes clear how the liberal judges consistently choose one side, and the conservatives the other; and the moderate or swing vote judges like O'Connor and Kennedy may go either
way according how they feel about a particular case. My view is that the conservatives are usually right, because they tend to generally use the long accepted methods of judicial interpretation.
The one thing that should be clear is that this conglomeration of contradictory ideas and decisions, remaking our Constitution according to the makeup of the justices, is not a situation that
should continue in our country. The glaring error of having no binding guidelines for interpreting
our Constitution, and laws passed by Congress and the States, is dramatically shown by these
cases.
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Chapter IX
Abortion Cases
The fact that a majority of the States reflecting, after all, the majority sentiment
in those States, have had restrictions on abortions for at least a century is a
strong indication, it seems to me, that the asserted right to an abortion is not "so
rooted in the traditions and conscience of our people as to be ranked as fundamental," ... Even today, when society's views on abortion are changing, the very
existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of the
Fourteenth Amendment a right that was apparently completely unknown to the
drafters of the Amendment. As early as 1821, the first state law dealing directly
with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22,
14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there
were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on
the books in 1868 remain in effect today. Indeed, the Texas statute struck down
today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time." ...
There apparently was no question concerning the validity of this provision or of
any of the other state statutes when the Fourteenth Amendment was adopted.
The only conclusion possible from this history is that the drafters did not intend
to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. (Justice Rehnquist, dissent, Roe v. Wade, 410
U.S. 113 (1973))
What we should keep foremost in our minds is that although abortion is an explosive issue,
and all people, including judges, have very strong opinions about it, it is not the function of the
courts, with their misguided ideas of their own superior wisdom, to decide this issue. It is the
function of the people, acting through their representatives in each state to make these decisions.
That way we would have different laws and approaches from which we could all learn. This
great laboratory for the weighing and melding of ideas and approaches to a very complicated
subject has been destroyed by a tyrannical court.
If a fundamental right is protected by any provision of the Constitution, those who framed
and adopted the Constitution would necessarily know about it. How could something be within
the intent and purpose of a constitutional provision if those responsible for the provision did not
know of its existence?
If it was a fundamental right it would have to be expressly stated in the wording of the Constitution, or there would be history and precedent to support it. It cannot be something just
190
dreamed up by some judge – this is an unlawful usurpation of power. Neither "right of privacy"
nor abortion are found in the Constitution. Neither are they found in our historical precedent as
any right at all – certainly not a fundamental right.
What is conclusive is that history shows that laws against abortion were in effect in our early history, and no one questioned the right of the states to pass such laws; and they were not only
common, but prevalent in the country when the Fourteenth Amendment was adopted. There is no
historical precedent, or anything in the debates and discussions, or in the wording, to indicate
that those who adopted the Fourteenth Amendment intended it to strike down their own prevalent
abortion laws. This is absurd.
This right to abortion is purely a fiction forced on the country by activist judges who do not
consider the people really capable of governing themselves, as provided by our Constitution.
We saw under the part, "Right of Privacy", Chapter III, some of the mischief that this court
invented constitutional right has done. We saw how unlawful precedent is built on unlawful
precedent. In these abortion cases, we will see an extreme court invented branch of constitutional
law, where the justices have become ideologues and legislators – enacting their own little laws –
cases by case. This "Imperial Judiciary," as Justice Scalia aptly describes them, no longer make
any attempt to conceal the fact that they act in complete disregard of the intent and purpose of
our Constitution. They consider their own ideas superior to that intent and purpose, and unlawfully change the Constitution accordingly. They sneer at our Constitutional right of self government.
I will cover only a few of the very long cumbersomely written abortion cases. They are easy
for anyone to find on the internet, if one wants to go into them more comprehensively. Also, the
ones I have chosen have considerable information on other cases. Having no valid historical basis, all the Court can do is cite other cases for precedent in which they themselves have invented
their own court imposed "constitutional rights."
Brief summaries and a few parts of the opinions in these several cases should be sufficient
to show the damage done to our Constitution and the rights of the people.
I have recently seen several items produced by the liberal media praising Justice Harry
Blackmun and his famous (or more appropriately infamous) opinion in Roe v. Wade. The interview used was after he had retired in 1994. He died in 1999. My assessment is that the opinion
shows Blackmun's callous disregard of our Constitution. More interesting is what was shown by
his papers which were released in 2004, five years after his death. They show how political
Blackmun was. I think that there is no doubt that this man's legal decisions were not only strong191
ly influenced by his own personal biases, but by political factors. And that the same applies to
Justice Anthony Kennedy, who it appears, at the last minute, switched his vote in Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) to go with Blackmun and three
other justices in not overturning Roe v. Wade.
That such things take place in the United States Supreme Court is a tragedy. It shows how
important it is for the people of this country to set up some binding rules to be used by the federal courts in interpreting our Constitution and laws passed by Congress. It is the only way to effectively put a stop to a tyrannical judiciary.
The following information is from an article, "Blackmun Papers Reveal Roe v. Wade Nearly
Overturned by Court in 1992," by Jimmy Moore, Talon News, March 2, 2004.
http://www.gopusa.com/news/2004/march/0308_blackmun_papers_abortion.shtml
Planned Parenthood v. Casey was under consideration and Blackmun had determined that
he was outnumbered 5 to 4 on the overturning of Roe v. Wade. Chief Justice Rehnquist and Justices White, Scalia, Thomas, and Kennedy were in favor of overruling that case. Rehnquist was
already working on the majority opinion, when Kennedy decided he wanted further deliberation.
Why?
Kennedy was worried about the case and contacted Blackmun about a possible "compromise." (How do you compromise what is constitutional and what is unconstitutional? Kennedy
was surely worried about the political ramifications in the upcoming presidential election, as was
Blackmun.) This should stand as one of the great disgraces in American Jurisprudence. Kennedy
then joined Blackmun, and Roe was not overturned. The following are excerpts from the article
showing additional information:
Ironically, Kennedy would later join Rehnquist, Thomas, and Scalia in their dissent of the Carhart v. Stenburg ruling in 2000 which overturned a Nebraska law
against partial-birth abortions.
This leads some pro-life advocates to believe that Kennedy would now vote to
overturn Roe v. Wade if the opportunity were before him again.
Interestingly, many of the justices in 1992 were apparently oblivious to the effect their ruling would have on the presidential election that year.
In a note from Stephanie Dangel, one of Blackmun's law clerks, she wrote that
there could be fallout for moderate Justices David Souter, Sandra Day O'Connor, and
Kennedy if then-President George H. W. Bush were to be reelected.
"Once this opinion comes out, there will be no more speculation about a Vice
President O'Connor or a Chief Justice Kennedy," Dangel wrote in a note to
Blackmun at the time.
192
In fact, she went on to write that Souter would no longer be invited to White
House dinners by then-First Lady Barbara Bush, who affectionately called him her
favorite "most-eligible bachelor."
But Blackmun tried to use the election in January 1992 as a way to make his
case for upholding abortion rights when he said "the political repercussions of a decision by this court in an election year" would be felt if Roe v. Wade were to be
overturned.
Dangel said the political timing of the Planned Parenthood v. Casey decision
was unique and likely led to the eventual ruling.
"It was an unusual case and an unusual issue, because in the vast majority of
cases politics doesn't come into play," she told the AP. "But with an issue that confirmation hearings had focused on, and which could be affected by the next election,
it would be disingenuous of us not to think about politics."
We are very fortunate that his information came to light, because Blackmun's papers and
these admissions merely show to the public what true legal scholars have known was going on in
our Supreme Court for a long time – and particularly since the Warren Court got its foothold on
our law. Our forefathers decided that these justices should be appointed for life so that they
would be independent, and that their decisions would not so likely to be influenced by politics.
But as long as these judges are free to make their own rules of interpretation of constitutional and
legal issues, not only will we continue to have these issues influenced by political bias, but quite
obviously by their own personal biases and ideas as well. For the Constitutional rights of the
people to be restored, we must change this corrupt legal system.
Roe v. Wade, 410 U.S. 113 (1973), was the basic case that declared a constitutional right to
an abortion. It struck down a Texas law which was a typical law in the country prohibiting abortions, except when necessary to protect the life of the mother. The alignment of the judges:
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS,
BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C. J.,
DOUGLAS, J., and STEWART, J., filed concurring opinions. WHITE, J., filed a dissenting
opinion, in which REHNQUIST, J., joined, REHNQUIST, J., filed a dissenting opinion. In the
Court's opinion, written by Blackmun, he does relate some English, common law, and early
American legal history on abortion. The following are some excerpts:
Whether abortion of a quick fetus was a felony at common law, or even a lesser
crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide. 23 But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited passage, Coke
took the position that abortion of a woman "quick with childe" is "a great misprision,
and no murder." 24 Blackstone followed, saying that while abortion after quickening
had once been considered manslaughter (though not murder), "modern law" took a
193
less severe view. 25 A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was
never established as a common-law crime. 26 This is of some importance because
while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law, 27 others followed
Coke in stating that abortion of a quick fetus was a "misprision," a term they translated to mean "misdemeanor." 28 That their reliance on Coke on this aspect of the
law was uncritical and, apparently in all the reported cases, dictum (due probably to
the paucity of common-law prosecutions for post-quickening abortion), makes it now
appear doubtful that abortion was ever firmly established as a common-law crime
even with respect to the destruction of a quick fetus.[My statement: In this paragraph, Blackmun's first and last sentences are not supported by his citations. The citations show that at all times, certain abortions were serious crimes.]
The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, 1, a
capital crime, but in 2 it provided lesser penalties for the felony of abortion before
quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, 13. It disappeared, however,
together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59,
that formed the core of English anti-abortion law until the liberalizing reforms of
1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into
being. Its emphasis was upon the destruction of "the life of a child capable of being
born alive." It made a willful act performed with the necessary intent a felony. It
contained a proviso that one was not to be found guilty of the offense "unless it is
proved that the act which caused the death of the child was not done in good faith for
the purpose only of preserving the life of the mother." ***
The American law. In this country, the law in effect in all but a few States until
mid-19th century was the pre-existing English common law. Connecticut, the first
State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's
Act that related to a woman "quick with child." 29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. 30
In 1828, New York enacted legislation 31 that, in two respects, was to serve as a
model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the
latter second-degree manslaughter. Second, it incorporated a concept of therapeutic
abortion by providing that an abortion was excused if it "shall have been necessary to
preserve the life of such mother, or shall have been advised by two physicians to be
necessary for such purpose." By 1840, when Texas had received the common law, 32
only eight American States had statutes dealing with abortion. 33 It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening
but were lenient with it before quickening. Most punished attempts equally with
completed abortions. While many statutes included the exception for an abortion
thought by one or more physicians to be necessary to save the mother's life, that pro194
vision soon disappeared and the typical law required that the procedure actually be
necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the
penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother. 34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health. 35 Three States permitted
abortions that were not "unlawfully" performed or that were not "without lawful justification," leaving interpretation of those standards to the courts. 36 In the past several years, however, a trend toward liberalization of abortion statutes has resulted in
adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, 230.3, 37 set forth as Appendix B to the
opinion in Doe v. Bolton, post, p. 205.
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed
with less disfavor than under most American statutes currently in effect. Phrasing it
another way, a woman enjoyed a substantially broader right to terminate a pregnancy
than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this
choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
Knowing the importance of the legal historical precedent, Blackmun at least had the integrity to list some of it. And that listed shows without doubt two things. First, laws against abortion
have long been in existence in this country. Secondly, that it would be up to the legislatures of
the various states to change or eliminate laws prohibiting abortions – it was not intended that it
be done by the Fourteenth Amendment. It is certainly not within the prerogative of the Supreme
Court.
The opinion then goes into a long and completely irrelevant history about the attitudes and
ideas of the American Medical Association on abortions over the years. That association's ideas
are irrelevant, because the sole question is whether or not the states have a right to design and
pass their own abortion laws, which they without question do.
Further irrelevant ideas of the American Public Health Association are presented. These are
all things that the people and their representatives might want to consider when forming their
laws, but they are not the business of this court.
The opinion then cites the cases it considers as supporting a constitutional "right of privacy."
Not one of them has ever shown any historical precedent or other valid basis for this being a fun-
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damental constitutional right, as was already shown in Chapter III. Also, not one of them was an
abortion case.
The opinion then goes on to the unsupported substance of the holding:
This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel it is, or, as
the District Court determined, in the Ninth Amendment's reservation of rights to the
people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant
woman by denying this choice altogether is apparent. ...
On the basis of elements such as these, appellant and some amici argue that the
woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we
do not agree. Appellant's arguments that Texas either has no valid interest at all in
regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions
recognizing a right of privacy also acknowledge that some state regulation in areas
protected by that right is appropriate. As noted above, a State may properly assert
important interests in safeguarding health, in maintaining medical standards, and in
protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the
abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an
unlimited right to do with one's body as one pleases bears a close relationship to the
right of privacy previously articulated in the Court's decisions.
Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," ***
Now the Court engages in a clear legislative function, taking it on itself to decide the facts
of when in a pregnancy an abortion should be allowed:
In view of all this, we do not agree that, by adopting one theory of life, Texas
may override the rights of the pregnant woman that are at stake. We repeat, however,
that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a
nonresident who seeks medical consultation and treatment there, and that it has still
another important and legitimate interest in protecting the potentiality of human life.
These interests are separate and distinct. Each grows in substantiality as the woman
term and, at a point during pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in the health of the
mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established
medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from
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and after this point, a State may regulate the abortion procedure to the extent that the
regulation reasonably relates to the preservation and protection of maternal health.
***
With respect to the State's important and legitimate interest in potential life, the
"compelling" point is at viability. This is so because the fetus then presumably has
the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If
the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or
health of the mother. ***
From Justice Rehnquist's dissent:
The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those
parts of it that invalidate the Texas statute in question, and therefore dissent. ***
Other important parts of Rehnquist's dissent are shown in bold at the beginning of this chapter. This dissent cannot be reasonably refuted under long accepted rules of interpreting our Constitution.
After Roe v. Wade, the states began trying to frame abortion laws that might be acceptable
to the Supreme Court. It would not be feasible or even helpful to cover all of them, and I will review only two more abortion cases.
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), refers back to a
number of other abortion cases. This is a very long cumbersome case. At issue are five provisions of the Pennsylvania Abortion Control Act of 1982, which requires that a woman seeking an
abortion give her informed consent prior to the procedure, and specifies that she be provided
with certain information at least 24 hours before the abortion is performed; which mandates the
informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass
procedure; which commands that, unless certain exceptions apply, a married woman seeking an
abortion must sign a statement indicating that she has notified her husband; which defines a
"medical emergency" that will excuse compliance with the foregoing requirements; and which
impose certain reporting requirements on facilities providing abortion services. Before any of the
provisions took effect, the petitioners, five abortion clinics and a physician representing himself
and a class of doctors who provide abortion services, brought this suit seeking a declaratory
judgment that each of the provisions was unconstitutional on its face, as well as injunctive relief.
The District Court held all the provisions unconstitutional, and permanently enjoined their en-
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forcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the others.
The Supreme Court held that the husband notification provision constitutes an undue burden, and is therefore invalid, because a significant number of women will likely be prevented
from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely.
And that the father's interest in the fetus' welfare is not equal to the mother's protected liberty,
since it is an inescapable biological fact that state regulation with respect to the fetus will have a
far greater impact on the pregnant woman's bodily integrity than it will on the husband. It essentially held that the other provisions of the Statute were constitutional.
The Supreme Court backed off to some extent from Roe v. Wade, refuting some of that decision's statements about the trimesters, and recognizing some rights of the State to regulate some
things relating to abortions, but upholding the prior holding of a woman's fundamental constitutional right to an abortion. It also limited or overturned some of the cases following Roe v. Wade.
The Court's opinion goes through various explanations on its reexamining Roe v. Wade, and
why it shouldn't be overruled, not one of which even purports to touch on the intent and purpose
of any supposed constitutional provision claimed to support that case. All of them had to do with
stare decisis and the effects on society of Roe v. Wade and the effects on society that overruling
it would have. None of this has any thing to do with its constitutional basis, which is the only
thing the court should consider when deciding whether it should be retained.
The heart of this case, and these lines of cases, including all the "right of privacy cases," is
the legal argument of "substantive due process." This Court argues that "liberty" is protected
against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment, and that neither the Bill of Rights nor the specific practices of States at the
time of the Fourteenth Amendment's adoption marks the outer limits of the substantive sphere of
such "liberty." Rather, the adjudication of substantive due process claims may require this Court
to exercise its reasoned judgment in determining the boundaries between the individual's liberty
and the demands of organized society. What the court is really saying is that the Court can invent
rights, never before heard of, and call them fundamental Constitutional rights. If this is what is
meant by "substantive due process of law," then that term itself is clearly Contrary to the Article
V of our Constitution, because it gives the Court the right to change the Constitution. This
Court's idea of "substantive due process" must be eliminated if our Constitution is to be saved
from these Imperial Judges. This subject will be dealt with in more detail in Chapter XII, Liberty, Due Process, and Fundamental Rights.
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The majority opinion by Justices O'Connor, Kennedy, and Souter is the ultimate in obfuscations and misleading statements. Its gyrations are something to read, particularly as to the substantive due process theory. It picks out dissenting opinions of justices in prior cases that it argues supports its conclusions, without overruling the cases that were decided to the contrary.
This in itself shows that those cases do not support the present decision. It cites older cases from
a more reputable time in our court history, implying that they support this majority opinion,
when actually they do not. Some are directly contrary to the opinion. Consider the following paragraph from the majority opinion:
Constitutional protection of the woman's decision to terminate her pregnancy
derives from the Due Process Clause of the Fourteenth Amendment. It declares that
no State shall "deprive any person of life, liberty, or property, without due process of
law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State
may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123
U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive
component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, . As Justice
Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary
which had seemed to me persuasive, it is settled that the due process clause of the
Fourteenth Amendment applies to matters of substantive law as well as to matters of
procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California,
274 U.S. 357, 373 (1927) (concurring opinion). [T]he guaranties of due process,
though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country
"become bulwarks also against arbitrary legislation." Poe v. Ullman, 367 U.S. 497,
541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting
Hurtado v. California, 110 U.S. 516, 532 (1884)).
Just to see the lack of integrity in this opinion, we will look at each of the cases in the above
paragraph. (Some of these cases were covered in more detail in Chapter V.)
Both the holding and the language in the Muggler case, cited in the paragraph, are contrary
to the holding in this Casey case. All this Court did was to lift some language out of context.
The case upheld a Kansas Statute prohibiting the manufacture and sale of intoxicating liquor,
even though it damaged the property of the petitioner who had been lawfully engaged in that
business. The test set forth in the case on whether a right is a fundamental right protected against
state action by the Fourteenth Amendment, would of course show that abortion could not possibly have been included. The Court's opinion by Justice Harlan stated:
This interpretation of the fourteenth amendment is inadmissible. It cannot be
supposed that the states intended, by adopting that amendment, to impose restraints
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upon the exercise of their powers for the protection of the safety, health, or morals of
the community. ...
The principal that no person shall be deprived of life, liberty, or property without due process of law, was embodied, in substance, in the constitutions of nearly all,
if not all, of the states at the time of the adoption of the fourteenth amendment ... .
Daniels v. Williams was a simple decision of the Court against a jail inmate who claimed
that negligence of a jail guard, causing the inmate injury, violated the Fourteenth Amendment.
The language lifted out of the case by the Court is less than obiter dictum. The case in no way
supports the idea that abortion is some fundamental right under our Constitution.
The language lifted from Whitney v. California shows on its face that it was inapplicable to
this Casey case – it recognizes that the right protected must be a fundamental right. Historical
precedent certainly does not support abortion as such a fundamental right. Historical precedent
show the opposite. As the concurring opinion of Justice Brandeis, joined in by Justice Holmes,
shows, this case did involve fundamental rights expressed in the Constitution. Appeal was made
from a conviction under a statute that prohibited advocating, teaching or aiding and abetting the
commission of crime, sabotage terrorism, etc. Upholding the statute they said:
... it is settled that the due process clause of the Fourteenth Amendment applies
to matters of substantive law as well as to matters of procedure. Thus all fundamental
rights comprised within the term liberty are protected by the federal Constitution
from invasion by the states. The right of free speech, the right to teach and the right
of assembly are, of course, fundamental rights. ... But, although the rights of free
speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or
moral. ***
This Whitney case, and all of the opinions in it, are contrary to any idea that abortion is a fundamental constitutional right.
The case, Poe v. Ulman, was directly against this case. It upheld a statute that prohibited the
use of contraceptive devices, and the giving of medical advice on their use. Justice Harlan dissented, considering the statute the invasion of the privacy of a marital relationship, and that this
violated a fundamental right which belongs to the citizens of all free governments. However, he
cites no historical precedent to support his idea. But accepting it as true, it still would not support
this Casey case, which does not involve the marital relationship. Not only that, but as previously
shown, the first contraceptive case, claiming a right of privacy, was based on a marital relationship. Then after they thought they had invented this new right of privacy, they quickly abandoned the marital relationship on which it was originally based. Such is the operating procedure
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of activist courts. Also this Casey case goes against the sanctity of the marriage relationship, as
well as the right of the husband regarding his unborn child, by striking down his statutory right to
even be informed of a contemplated abortion.
For the Court's own deceptive purposes, the quote from Hurtado v.California, is taken completely out of context. In that case the Court upheld the right of California to charge and prosecute a murder case on an information instead of an indictment by a grand jury as required by the
Fifth Amendment. The Court held that California had a right to determine its own Court procedures and that the rights of the defendant were sufficiently protected to amount to due process of
law. The Court opinion states also:
... In the fourteenth amendment, by parity of reason, it refers to that law of the
land in each state which derives its authority from the inherent and reserved powers
of the state, exerted within the limits of those fundamental principles of liberty and
justice which lie at the base of all our civil and political institutions, and the greatest
security for which resides in the right of the people to make their own laws, and
alter them at their pleasure. 'The fourteenth amendment,' as was said by Mr. Justice BRADLEY in Missouri v. Lewis, 101 U.S. 22 -31, 'does not profess to secure to
all persons in the United States the benefit of the same laws and the same remedies.
Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the
other side no such right. Each state prescribes its own modes of judicial proceeding.'
In the fourteenth amendment, by parity of reason, it refers to that law of the. (Emphasis added.)
This Casey opinion is full of such misleading presentations. Their purpose is plainly to make
it appear that the decision is supported by proper precedent, which of course it is not. The only
real support is in prior cases, in which similar court invented "constitutional rights" sprang up
from court activism. To show the fallacy of all of the opinion would be a redundant waste of
time. Time honored historical precedent shows that there was never a right to abortion intended
by any Constitutional provision. Quite the opposite, historical precedent shows that the states
long had abortion laws, and it could not have been the intent of the framers and the states in
adopting the Fourteenth Amendment to strike down their existing laws against abortion. That
idea is preposterous.
One further remark I would like to make about the majority opinion is that it is full of what
the court considers medical and scientific knowledge that it considers as supporting its views as
to why the court invented right to abortion should be continued. These are things that might be
proper for the people and their representatives to consider in making their laws, but they definitely are no business of the courts.
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Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas strongly dissented in
several dissenting opinions. The following are some statements from Scalia's dissent, joined in
by the other dissenters:
... A State's choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a "liberty" in
the absolute sense. Laws against bigamy, for example – with which entire societies
of reasonable people disagree – intrude upon men and women's liberty to marry and
live with one another. But bigamy happens not to be a liberty specially "protected"
by the Constitution.
That is, quite simply, the issue in this case: not whether the power of a woman
to abort her unborn child is a "liberty" in the absolute sense; or even whether it is a
liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not.
I reach that conclusion not because of anything so exalted as my views concerning
the "concept of existence, of meaning, of the universe, and of the mystery of human
life." Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is
not constitutionally protected – because of two simple facts: (1) the Constitution says
absolutely nothing about it, and (2) the longstanding traditions of American society
have permitted it to be legally proscribed. ***
The Imperial Judiciary lives. (Emphasis added.) ***
Now we get to the ultimate in wrongful misbehavior of this activist court, striking down a
Nebraska statute banning the gruesome "partial birth abortions," in Steinberg v. Nebraska, 530
U.S. 914 (2000). The alignment of the judges was: Breyer, J., delivered the opinion of the Court,
in which Stevens, O'Connor, Souter, and Ginsburg, JJ. joined. Stevens, J., filed a concurring
opinion, in which Ginsburg, J., joined. O'Connor, J., filed a concurring opinion. Ginsburg, J.,
filed a concurring opinion, in which Stevens, J., joined. Rehnquist, C. J., and Scalia, J., filed dissenting opinions. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined.
Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined.
The majority opinion seems to have been based on the woman's right to an abortion, generally, and to the "act that Nebraska's law applies to both pre- and post viability." In addition the
law provided no provision allowing the abortion "if necessary, in appropriate medical judgment,
if necessary for the preservation of the life or the health of the mother." "Nebraska responds that
the law does not require a health exception unless there is a need for such an exception. And here
there is no such need, it says. It argues that "safe alternatives remain available" and "a ban on
partial-birth abortion/D&X would create no risk to the health of women."
The majority opinion goes at great length into the various views on this type of abortion, and
when or when it may not be appropriate or necessary. The opinion itself shows that there are
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varying views. These are not things a court should be deciding The Court is greatly exceeding its
authority deciding these factual issues. The opinion is based on the personal ideas and biases of
this Court. There is no historical precedent, relating to the Fourteenth Amendment, nor any other
provision of the Constitution that supports it.
The Dissenting opinion of Justice Kennedy, joined in by Chief Justice Rehnquist, states:
Instructive is Jacobson v. Massachusetts, 197 U. S. 11 (1905), where the defendant was convicted because he refused to undergo a smallpox vaccination. The
defendant claimed the mandatory vaccination violated his liberty to "care for his own
body and health in such way as to him seems best." Id., at 26. He offered to prove
that members of the medical profession took the position that the vaccination was of
no value and, in fact, was harmful. Id., at 30. The Court rejected the claim, establishing beyond doubt the right of the legislature to resolve matters upon which physicians disagreed ... . ***
The Jacobson Court quoted with approval a recent state-court decision which
observed, in words having full application today:
"The fact that the belief is not universal [in the medical community] is not
controlling, for there is scarcely any belief that is accepted by everyone. The
possibility that the belief may be wrong, and that science may yet show it to
be wrong, is not conclusive; for the legislature has the right to pass laws
which, according to common belief of the people, are adapted to [address
medical matters]. In a free country, where government is by the people,
through their chosen representatives, practical legislation admits of no other
standard of action.'"
Even though I do not think much of Kennedy as a Justice, I think that the above entirely fits
this Steinberg case. I consider it a complete answer to this abortion question, even without the
strong historical precedent showing that there has never been any constitutional right to abortion.
The dissenting opinion of Justice Thomas, joined in by Chief Justice Rehnquist and Justice
Scalia, states:
Nothing in our Federal Constitution deprives the people of this country of the
right to determine whether the consequences of abortion to the fetus and to society
outweigh the burden of an unwanted pregnancy on the mother. Although a State may
permit abortion, nothing in the Constitution dictates that a State must do so. ***
Although the description of this procedure set forth above should be sufficient to demonstrate the resemblance between the partial birth abortion procedure
and infanticide, the testimony of one nurse who observed a
partial birth abortion procedure makes the point even more vividly:
"The baby's little fingers were clasping and unclasping, and his little feet
were kicking. Then the doctor stuck the scissors in the back of his head, and
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the baby's arms jerked out, like a startle reaction, like a flinch, like a baby
does when he thinks he is going to fall.
"The doctor opened up the scissors, stuck a high-powered suction tube
into the opening, and sucked the baby's brains out. Now the baby went
completely limp." H. R. 1833 Hearing 18 (statement of Brenda Pratt Shafer).
The question whether States have a legitimate interest in banning the procedure
does not require additional authority. ***
The idea that there is some constitutional provision, unheard of to those who framed and
adopted it, that prevents the people from prohibiting such gruesome procedures to an unborn baby illustrates an activist Court that no longer has any regard for our Constitution. The majority
are activist judges changing our Constitution to fit their own far left biases and politics.
In this year, 2004, Congress has now passed and President Bush has signed a bill against
partial birth abortions. It is already being contested in the courts and will undoubtedly reach the
Supreme Court. As has been previously stated, with the sad situation we have in that Court, the
outcome can best be predicted by researching the biases and ideologies of the members of the
Court, instead of researching the statutory and constitutional law as should be done in a case.
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Chapter X
Religion cases
The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause.
But even more disturbing than its holding is the tone of the Court's opinion; it
bristles with hostility to all things religious in public life. Neither the holding
nor the tone of the opinion is faithful to the meaning of the Establishment
Clause, when it is recalled that George Washington himself, at the request of the
very Congress which passed the Bill of Rights, proclaimed a day of "public
thanksgiving and prayer, to be observed by acknowledging with grateful hearts
the many and signal favors of Almighty God." Presidential Proclamation, 1
Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed.
1897). (Chief Justice Rehnquist, Dissent, Santa Fe Independent School District v.
Doe, 530 U.S. 290 (2000))
The first two clauses of the First Amendment are called the Establishment Clause and the
statement on Freedom of Religion, respectively. They read:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ***
To understand the meaning of this provision, we need to determine the understanding, intention
and purpose of those who framed and ratified it.
In 1789, as he had promised to get the Constitution through Congress and ratified by the
states, James Madison proposed a Bill of Rights, which resulted in the first ten amendments to
our Constitution which constitute our Bill of Rights. The following is from an article on that proposal.
A Bill of Rights Proposed
On June 8, 1789, the order of business before the House of Representatives was to
consider the proposed amendments to the Constitution that would define individual
liberties. Ironically, James Madison, who had previously given vigorous expression
of his opposition to these amendments, was the representative who presented them to
the House. "Without promise of a limiting Bill of Rights," Justice Robert H. Jackson
observed in 1943, "it is doubtful if our Constitution would have mustered enough
strength to enable its ratification." Partly to fulfill this promise, partly to enhance his
own political position, and partly because he was convinced by Thomas Jefferson's
arguments for a written declaration of rights, Madison had decided to sponsor the
constitutional amendments. The following selection contains Madison's comments as
well as the actual proposals that he made on this occasion.
The following was Madison's proposal at that session on freedom of religion, which was
shortened and reworded, to become the religion clauses in the First Amendment:
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The civil rights of none shall be abridged on account of religious belief or worship,
nor shall any national religion be established, nor shall the full and equal rights of
conscience be in any manner, or on any pretext, infringed. (The Annals of America,
supra, Vol. 3, p, 354)
The final version of the religion clause of the First Amendment, ratified in 1791 was, as noted above:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
What did the Framers, and those who ratified the amendment understand to be the meaning
of these words. There is no real question about any of the wording except "an establishment of
religion," and volumes have been written on this. But when an unbiased investigation is made
into the understanding of these Founders, we find that in substance the final wording was only a
shortened version of what Madison proposed, and that the true meaning remained the same, except for the elimination of the "rights of conscience" part.
A great problem has been that there are and have been various meanings of the word, establishment. But as the Founders used it in connection with religion, relevant history shows that it
could have had but one meaning, and that is that it meant one or more official federal or state religions, giving them governmental preference over other religions. And this is a broad inclusive
interpretation.
The entire religious part of the First Amendment had one purpose and that was freedom of
religion. And the colonists wanted freedom from the persecution they and their ancestors endured from the established church of England, the Anglican Church. Such an established religion
is directly contrary to freedom of religion, although many states undertook this practice to some
extent, even after the United States was formed.
Freedom from religion, which is the emphasis of the ACLU types today, definitely had no
part in the matter.
I have chosen four writings to illustrate how the Founders, and influential people of that
time, used the word, establishment, in connection with religion, and what they understood it to
mean. Two are modern writings using historical research, and two are writings of concerned and
influential people made at the time our country was taking shape and when the ideas on the Bill
of Rights were relevant.
------------------------------------------------
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Noah Feldman, a well qualified legal and historical writer, and Assistant Professor of Law at
New York University, wrote a very comprehensive article, 83 pages, entitled "The Intellectual
Origins of the Establishment Clause," 77 N.Y.U. L. Rev. 2 (2002), pp.346-428.
I consider this a great article because of the voluminous factual information it contains about
what the Founders understood "establishment" to mean when used in connection with religion, as
it was in the Constitution. I do not agree that the author was successful in his purpose of proving
that the "freedom of conscience" as espoused by John Locke was a driving force behind those
who framed the establishment clause. Locke lived in England from 1632 to 1704, and the treatises relied on were published in 1690, about one hundred years before our Bill of Rights.
Certainly our more informed Founders would have been familiar with his writings, but the
evidence is that they placed much more emphasis on the tenets of the Christian religion. And that
is something with which all of them were familiar. Feldman does not sufficiently cover early
American history which shows that the primary reason the colonists were coming to this country
was to escape the tyrannical impositions and restrictions on freedom of worship imposed on
them by the established Church of England.
Those who framed and ratified our Bill of Rights well understood what "an establishment of
religion" was, and although Madison's original proposal also contained "rights of conscience," it
was omitted from the final version of the First Amendment. It should therefore not be read into
it. This idea is in the same vein as the mischievous and court invented "right of privacy."
Also, as Feldman admits, other constitutional historians believe that there was concern about
whether or not such extensive wording might interfere with existing state establishments of religion. (And I would say for good reason.) (See pp. 406, 409, 410, 411) (Also, it is my opinion that
an unbiased assessment of the factual material in Feldman's article, from these references, shows
that this concern about interfering with state establishments was a plausible reason the broad
wording concerning conscience was dropped. And that this is much more plausible than Feldman's giving no reason for the dropping of it, and still trying to read it into the amendment. It
attributes an inability of those Founders to say what they wanted to say that is not only unwarranted, but denigrates the true abilities of these talented men.) For these reasons I agree with the
following view, of some of these historians, of the establishment clause as finally enacted:
This language, they [some constitutional historians] argue, does not simply bar Congress
from making a law that establishes religion. It also may be read to bar Congress from
making a law respecting an establishment of religion in any of the states. (p. 406)
This view fits the plain meaning, as understood by the Framers, of the final wording without
reading words into the amendment that were intentionally dropped.
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Later in the article, Feldman clearly admits that in the House discussion on the amendment,
Benjamin Huntington of Connecticut sought "clarification from Madison that the proposed constitutional language would not encroach on New England practices." (p 409) Huntington voiced
his concern "that the Constitution not be read to prohibit state establishments." (p. 410)
Also, I submit that freedom or liberty of conscience did not originate with John Locke, but
was a fundamental principle in the Bible long before Locke was born. Certainly he espoused that
principle, as he did many other Christian principles.
Feldman sets forth in his introduction a very important principle:
Perhaps most importantly, even the least originalist of the justices has approached
Establishment Clause cases by saying that "the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." (p. 347-348)
He was quoting from a 1963 concurring opinion of Justice Brennan. (Unfortunately, such
statements from Brennan were a subterfuge. He failed to follow this important principle of constitutional construction in that case and was one of our worst offenders in changing the Constitution to fit his own personal ideas.)
Throughout this article, Feldman uses the words "established church," established, establishment, and disestablished. These words used in the article referred to conditions brought about
by governmental action or, in the case of disestablished, the governmental action in removing the
existing official recognition of a State sanctioned church. For example "established church" did
not at all refer to any existing church that had no governmental connections or sanctions. This is
of course critically important in recognizing how our Founders understood those words used in
the First Amendment.
Also some of the statements of the author about Locke's beliefs appear to be contrary to the
statements about the purview of Locke's ideas of freedom of conscience. The following is an example: "Locke himself never advanced the argument that paying taxes to an established church
violated a dissenter's liberty of conscience." (p.351) (And Locke of course lived under a government that had an established church.)
The article is interesting in showing examples that illustrate that many of our forefathers
professed to believe in liberty of conscience, but there was considerable disagreement on what
that really meant. For example, John Cotton "explained that he condemned persecution because
of conscience. He believed, rather, that the government could, and indeed must, require a person
suffering from mistaken conscience to reexamine his beliefs and reach the correct result with respect to things necessary to his salvation." (pp. 365-366)
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The following is interesting and relevant history:
Differences of ideology and policy among colonial regions also contributed to
very different institutional church-state arrangements. The Congregationalist New
England Way, which provided for compelled taxation to support local ministers
(subject to certain exceptions, about which more will be said later), differed markedly from the nonestablishment policies of Rhode Island and Quaker Pennsylvania.
Both differed from the Anglican establishments of the southern colonies, and these
differed in certain aspects from the spottier Anglican establishments in New York
and New Jersey. (P. 374)
Feldman admits that some practices could not be reconciled with his Lockean ideas of liberty of conscience. An example: "Nonetheless, some actions could not be reconciled with any possible view of conscience, and these were therefore not within the logical scope of the liberty of
conscience. Thus, '[t]o live without any Worship of God, or to Blaspheme and Revile his Blessed
Name, is to be chastised, as abominably Criminal; for there can be no pretence of Conscience
thereunto.'" (p. 376)
On the meaning of the word, he says: "'Establishment' was archetypally thought to denote
preferential support for one religious denomination, like the Church of England, but it was also
used by some to include nonpreferential support for various denominations." (381) (I don't agree
that any of these would be "nonpreferential.")
On changes in religious establishments:
In postrevolutionary Virginia, with the support of dissenting Baptists, Jefferson
initiated, and Madison eventually took up, efforts to oppose assessments for religious
purposes in Virginia. By the time of Madison's Memorial and Remonstrance of
1784, the proposed Assessment Bill to support religious education in Virginia had
been modified so that the taxpayer could specify the church that would receive his
taxes or could allow the tax to be used for the encouragement of local "seminaries of
learning." (p. 383)
***
... In the minds of most New England Congregationalists, the New England Way
as it existed in the late eighteenth century simply required everyone to support his
own religious group. Dissenters, or at least those who counted, received exemptions
from taxation to support the majority religion, and their taxes went to support ministers of their own denomination.
... John Adams described their system as "the most mild and equitable Establishment of religion that was known in the World, if indeed . . . [it] could be called
an Establishment." ... (pp. 383-384) (Emphasis supplied)
Relevant history:
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The Massachusetts Constitution of 1780 declared that "the happiness of a people
and the good order and preservation of civil government essentially depend on piety,
religion, and morality" ... (p. 395)
[George Mason, from Virginia, was a well known figure in American history, and a member
of the Constitutional Convention (1787). He is considered one of those responsible for getting
the Bill of Rights added to our Constitution. (See American Heritage Dictionary, 1999)] In this
regard, Feldman states: "... the Virginia convention ultimately proposed just that – and amendment to bar an establishment. A slight variant on George Mason's proposal for the Virginia declaration of rights, expressly connecting the Lockean liberty of conscience with nonestablishment,
was adopted by the ratifying convention as a whole:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and
therefore all men have an equal, natural, and unalienable right to the free exercise of
religion, according to the dictates of conscience, and that no particular religious sect
or society ought to be favored or established, by law, in preference to others." (pp.
400-401)
The last part of the article deals with what the author argues are the consequences and influence of the Lockean ideas of liberty of conscience on our more modern history and cases, and
has little to do with the understanding and purpose of our Founders in framing and ratifying the
establishment clause.
----------------------------------------------------------I do not think that Professor Feldman's article gives proper credence to the religious influence in early America and on our Founders. I believe that history shows that freedom of religions
was considered the most important of our fundamental rights, and received much more time and
attention than any other right.
Let us consider Thomas Paine – he did much for the revolution, and was honored for it. And
certainly he believed in "liberty of conscience." One small example was his statement in Rights
of Man (1792):
Toleration is not the opposite of Intolerance, but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding Liberty of Conscience,
and the other of granting it.
But after Paine wrote Age of Reason most people in America perceived him to have become
an atheist or an agnostic, and he died in disgrace and disrepute, as is explained later in this chapter. Consider the following:
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Paine later published his Age of Reason, which infuriated many of the Founding Fathers. John Adams wrote, "The Christian religion is, above all the religions that ever
prevailed or existed in ancient or modern times, the religion of wisdom, virtue, equity and humanity, let the Blackguard [scoundrel, rogue] Paine say what he will." 2
Samuel Adams wrote Paine a stiff rebuke, telling him, "[W]hen I heard you had
turned your mind to a defence of infidelity, I felt myself much astonished and more
grieved that you had attempted a measure so injurious to the feelings and so repugnant to the true interest of so great a part of the citizens of the United States." 3
Benjamin Rush, signer of the Declaration, wrote to his friend and signer of the Constitution John Dickinson that Paine's Age of Reason was "absurd and impious"; 4
Charles Carroll, a signer of the Declaration, described Paine's work as "blasphemous
writings against the Christian religion"; 5 John Witherspoon said that Paine was "ignorant of human nature as well as an enemy to the Christian faith"; 6 John Quincy
Adams declared that "Mr. Paine has departed altogether from the principles of the
Revolution""; 7 and Elias Boudinot, President of Congress, even published the Age of
Revelation—a full-length rebuttal to Paine's work. 8 Patrick Henry, too, wrote a refutation of Paine's work which he described as "the puny efforts of Paine." 9
(Wallbuilders website – Resources.
http://www.wallbuilders.com/resources/search/detail.php?ResourceID=93)
Clearly, liberty of conscience could be carried too far for many of our Founders.
----------------------------------The next writing is from the website of the U.S. Department of State's Bureau of Information. The following are excerpts from "Rights of the People – Individual Freedom and The
Bill of Rights, Chapter 1, The Roots of Individual Liberty." The article shows how the words,
establishment, establish, and disestablish are used in connection with religion, which is the same
as our Founders understood it. Emphasis is supplied.
From the settlement of Jamestown in 1607 until the American Revolution in
1776, the British colonies in North America, with few exceptions, had established
churches. In New York and the southern colonies, the Church of England enjoyed
the same status as it had in the mother country, while in New England various forms
of Congregationalism dominated. These colonies consistently discriminated against
Catholics, Jews, and even dissenting Protestants. ***
Yet from the very beginning of settlement in America, pressures grew, especially in the northern colonies, against establishment and conformity. ... ***
Although formal establishments lasted until 1776, in effect the colonies had to
allow some degree of religious toleration. At first the settlers came from a relatively
homogeneous background, but within a short time the lure of the New World
brought immigrants from all over the British Isles as well as from northern and western Europe. Many came not because America offered any greater religious freedom
than they enjoyed at home, but because of economic opportunity. Not all of them
shared the Congregational faith of the Puritans or the Anglican views of the middle
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and southern colonies. Baptists, Jews, Catholics, Lutherans and others arrived and
once here began protesting that they should not be subject to taxation for a church
they did not attend or be forced to conform to a faith they did not share. ***
At the beginning of the Revolution, Virginia, like many other states, disestablished the Church of England, which many colonists identified with the hated royal
government. The Virginia constitution of 1776 guaranteed to every person equality
in the free exercise of religion but it stopped short of declaring a full separation of
church and state, much to the disappointment of the largest dissenting group in the
state, the Baptists. Other groups that still adhered to the Anglican faith (soon to be
denominated as Episcopalians) believed that tax monies should support religion.
Taxes, they thought, ought not go to just one sect, but should be used to support all
(Protestant Christian) churches. ***
By the Civil War, then, the idea of religious freedom had expanded significantly
from the early issue of disestablishment. Nearly all states had adopted and implemented bills of rights to provide individual liberty of conscience, and despite a pervasive sense that America was primarily a Protestant Christian nation, had removed
civil and political disabilities from Catholics and Jews. The federal government,
bound by the First Amendment, had never attempted to intrude into religious matters, and in religious matters as in political affairs, the United States appeared to
those suffering from oppression in the Old World to be, as Abraham Lincoln put it,
"the last best hope of freedom."
----------------------------------The next article is from The Annals of America, Encyclopedia Britannica, 1968, Vol. 2, p.
453. The following are excerpts:
Declaration on the Free Exercise of Religion
Introduction
The Church of England was the American religious establishment in the colonies for whose support all were taxed regardless of individual affiliation. It was not
surprising that the demand for religious liberty paralleled, and sometimes preceded
the acquisition of political independence. When the General Assembly of Virginia
met for the first time under its new constitution on October 7, 1776, it was besieged
by petitions protesting religious discrimination. On October 24, the Presbytery of
Hanover presented a memorial arguing for religious freedom in the familiar language of natural rights. On this occasion, the impetus for the memorial came from
the frontier areas of the states where the establishment was very weak.
***
In this enlightened age and in a land where all of every denomination are united
in the most strenuous efforts to be free, we hope and expect that our representatives
will cheerfully concur in removing every species of religious, as well as civil, bondage. Certain it is that every argument for civil liberty gains additional strength when
applied to liberty in the concerns of religion; and there is no argument in favor of establishing the Christian religion but what may be pleaded, with equal propriety, for
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establishing the tenets of Mohammed by those who believe the Alcoran; or if this be
not true, it is at least impossible for the magistrate to adjudge the right of preference
among the various sects that profess the Christian faith, without erecting a chair of
infallibility, which would lead us back to the Church of Rome.
We beg leave farther to represent that religious establishments are highly injurious to the temporal interests of any community. Without insisting upon the ambition
and the arbitrary practices of those who are favored by government, or the intriguing
seditious spirit which is commonly excited by this as well as every other kind of oppression, such establishments greatly retard population, and consequently the progress of arts, sciences, and manufactories. Witness the rapid growth and improvements of the northern provinces compared with this. No one can deny that the more
early settlement and the many superior advantages of our country would have invited
multitudes of artificers, mechanics, and other useful members of society to fix their
habitation among us, who have either remained in their place of nativity, or preferred
worse civil governments and a more barren soil where they might enjoy the rights of
conscience more fully than they had a prospect of doing it in this. From which we infer that Virginia might have now been the capital of America and a match for the
British arms without depending on others for the necessaries of war, had it not been
prevented by her religious establishment. ***
Therefore, we ask no ecclesiastical establishments for ourselves; neither can we
approve of them when granted to others. This indeed would be giving exclusive or
separate emoluments or privileges to one set (or sect) of men, without any special
public services to the common reproach and injury of every other denomination. And
for the reasons recited, we are induced earnestly to entreat that all laws now in force
in this commonwealth which countenance religious domination may be speedily repealed, that all of every religious sect may be protected in the full exercise of their
several modes of worship and exempted from all taxes for the support of any church
whatsoever further than what may be agreeable to their own private choice or voluntary obligation. This being done, all partial and invidious distinctions will be abolished, to the great honor and interest of the state; and everyone be left to stand or fall
according to merit, which can never be the case so long as any one denomination is
established in preference to others. ***
-------------------The following are excerpts from an article in The Annals of America, Vol. 3, p. 445:
John Leland: The Rights of Conscience
Introduction
John Leland, a Baptist clergyman, was a strong spokesman for religious liberty
and had been influential in the passage of the Virginia Statute of Religious Freedom
of 1786. He advocated the separation of church and state and in 1788 would not
support the Constitution until convinced by James Madison that it was not a threat to
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religious freedom. In 1791, Leland moved to Massachusetts and in the same year
published a pamphlet, part of which appears below, which expressed his sympathies
with the liberal thought of the Enlightenment.
***
The question is, "Are the rights of conscience alienable, or inalienable?"
The word conscience signifies common science, a court of judicature which the
Almighty has erected in every human breast: a censor morum over all his conduct.
Conscience will ever judge right, when it is rightly informed, and speak the truth
when it understands it. But to advert to the question, "Does a man upon entering into
social compact surrender his conscience to that society to be controlled by the laws
thereof, or can he in justice assist in making laws to bind his children's consciences
before they are born?" I judge not, for the following reasons:
1. Every man must give an account of himself to God, and therefore every
man ought to be at liberty to serve God in that way that he can best reconcile it to his conscience. If government can answer for individuals at the day
of judgment, let men be controlled by it in religious matters; otherwise let
men be free. ***
It has often been observed by the friends of religious establishment by human
laws that no state can long continue without it; that religion will perish, and nothing
but infidelity and atheism prevail. ***
The state of Rhode Island has stood above 160 years without any religious establishment. The state of New York never had any. New Jersey claims the same.
Pennsylvania has also stood from its first settlement until now upon a liberal foundation; and if agriculture, the mechanical arts, and commerce have not flourished in
these states equal to any of the states I judge wrong.
It may further be observed that all the states now in union, saving two or three in
New England, have no legal force used about religion, in directing its course or supporting its preachers. And moreover the federal government is forbidden by the Constitution to make any laws establishing any kind of religion. If religion cannot stand,
therefore, without the aid of law, it is likely to fall soon in our nation, except in Connecticut and Massachusetts.
To say that "religion cannot stand without a state establishment" is not only contrary to fact … but is a contradiction in phrase. Religion must have stood a time before any law could have been made about it; and if it did stand almost 300 years
without law it can still stand without it.
The evils of such an establishment are many. ***
In this article we again see the words "rights of conscience" used, but this whole article is
concerned with religious liberty and is in opposition to governmental establishment of religion.
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What then was understood by our Founders to be the meaning of "establishment of religion"
as used in the First Amendment? The broadest valid view would require application to both federal and state establishment. And "establishment" in its broadest sense would require official
recognition, acceptance, and preferential support for one or more particular religious sects. There
was no state situation considered an establishment that did not go at least to that extent. And as
John Adams' statement, noted above, illustrates, even some that went that far were hardly considered establishments. They would not have considered Christianity, generally, a sect.
Most of us today believe in a separation of church and state. The question is the degree. That
is a question for the people – not the courts.
It takes some mental gymnastics to say that under the Fourteenth Amendment the First
Amendment establishment clause is now applied to the states, when it was clearly designed to
expressly prohibit interference with state practices, which then included various forms of establishments. Assuming however that it is so applied, then at most it could only prohibit states from
establishing particular forms of religion. The idea that God, Christianity, or religion cannot be
recognized by our governments, or religion and its morality generally encouraged by them, is
constitutionally insupportable.
There has never been a time in our history when it was not recognized that a fundamental
purpose of government was to pass laws upholding morals of the community, and those laws
continually encompassed Christian moral tenets. However, in recent years, activist courts have
been eliminating, piece by piece, this fundamental right of the people. They usurp for themselves
the right to determine moral principles. This should be stopped.
The courts continually use the "establishment clause" to strike down anything they consider
an acknowledgment of our religious heritage in both government and in our government run
schools. I should say they strike them down to the extent that they think the people will comply
and put up with their misbehavior in that regard at the particular time in question. The ALCU
does a lot to select the time and place for attack. This organization has become adept at judging
what they and the courts can get by with at the moment.
Since the establishment clause is the main clause used by the courts, the Fourteenth
Amendment and "substantive due process" is not as important. However, historical precedent
should also be considered up to the date of the Fourteenth Amendment, to the extent that it will
show that those who framed and adopted the Fourteenth Amendment did not intend to make any
changes in the rights of the states in regard to religion, or their religious practices.
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The only meaningful way to determine the intent and purpose of those who framed and
adopted our original Constitution, the Bill of Rights, and the Fourteenth Amendment, is to study
the relevant history and historical writings of this Country. It may be long and tedious, but it is
necessary; and we are fortunate in having it well documented. Also, besides being critically educational, it is most interesting. I will try to cover a very few of the important elements.
Our Library of Congress has compiled a large number of historical documents on our country in the form of exhibits. Many of them are original documents or photographs of them, and the
LOC website has copies and summaries that are exceptionally informative. One such group of
exhibits is RELIGION AND THE FOUNDING OF THE AMERICAN REPUBLIC. The
following are the Introduction and summaries on three of the groups:
Introduction
This exhibition demonstrates that many of the colonies that in 1776 became the
United States of America were settled by men and women of deep religious convictions who in the seventeenth century crossed the Atlantic Ocean to practice their
faith freely. That the religious intensity of the original settlers would diminish to
some extent over time was perhaps to be expected, but new waves of eighteenth century immigrants brought their own religious fervor across the Atlantic and the nation's first major religious revival in the middle of the eighteenth century injected
new vigor into American religion. The result was that a religious people rose in rebellion against Great Britain in 1776, and that most American statesmen, when they
began to form new governments at the state and national levels, shared the convictions of most of their constituents that religion was, to quote Alexis de Tocqueville's
observation, indispensable to the maintenance of republican institutions. The efforts
of the Founders of the American nation to define the role of religious faith in public
life and the degree to which it could be supported by public officials that was not inconsistent with the revolutionary imperatives of the equality and freedom of all citizens is the central question which this exhibition explores.
Religion and the American Revolution
Religion played a major role in the American Revolution by offering a moral sanction for opposition to the British--an assurance to the average American that revolution was justified in the sight of God. As a recent scholar has observed, "by turning
colonial resistance into a righteous cause, and by crying the message to all ranks in
all parts of the colonies, ministers did the work of secular radicalism and did it better."
Ministers served the American cause in many capacities during the Revolution: as
military chaplains, as penmen for committees of correspondence, and as members of
state legislatures, constitutional conventions and the national Congress. Some even
took up arms, leading Continental troops in battle.
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The Revolution split some denominations, notably the Church of England, whose
ministers were bound by oath to support the King, and the Quakers, who were traditionally pacifists. Religious practice suffered in certain places because of the absence
of ministers and the destruction of churches, but in other areas, religion flourished.
The Revolution strengthened millennialist strains in American theology. At the beginning of the war some ministers were persuaded that, with God's help, America
might become "the principal Seat of the glorious Kingdom which Christ shall erect
upon Earth in the latter Days." Victory over the British was taken as a sign of God's
partiality for America and stimulated an outpouring of millennialist expectations--the
conviction that Christ would rule on earth for 1,000 years. This attitude combined
with a groundswell of secular optimism about the future of America to create the
buoyant mood of the new nation that became so evident after Jefferson assumed the
presidency in 1801.
Religion and the Congress of the Confederation, 1774-89
The Continental-Confederation Congress, a legislative body that governed the United States from 1774 to 1789, contained an extraordinary number of deeply religious
men. The amount of energy that Congress invested in encouraging the practice of religion in the new nation exceeded that expended by any subsequent American national government. Although the Articles of Confederation did not officially authorize Congress to concern itself with religion, the citizenry did not object to such activities. This lack of objection suggests that both the legislators and the public considered it appropriate for the national government to promote a nondenominational,
nonpolemical Christianity.
Congress appointed chaplains for itself and the armed forces, sponsored the publication of a Bible, imposed Christian morality on the armed forces, and granted public
lands to promote Christianity among the Indians. National days of thanksgiving and
of "humiliation, fasting, and prayer" were proclaimed by Congress at least twice a
year throughout the war. Congress was guided by "covenant theology," a Reformation doctrine especially dear to New England Puritans, which held that God bound
himself in an agreement with a nation and its people. This agreement stipulated that
they "should be prosperous or afflicted, according as their general Obedience or Disobedience thereto appears." Wars and revolutions were, accordingly, considered afflictions, as divine punishments for sin, from which a nation could rescue itself by
repentance and reformation.
The first national government of the United States, was convinced that the "public
prosperity" of a society depended on the vitality of its religion. Nothing less than a
"spirit of universal reformation among all ranks and degrees of our citizens," Congress declared to the American people, would "make us a holy, that so we may be a
happy people."
Religion in Eighteenth-Century America
Against a prevailing view that eighteenth-century Americans had not perpetuated the
first settlers' passionate commitment to their faith, scholars now identify a high level
of religious energy in colonies after 1700. According to one expert, religion was in
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the "ascension rather than the declension"; another sees a "rising vitality in religious
life" from 1700 onward; a third finds religion in many parts of the colonies in a state
of "feverish growth." Figures on church attendance and church formation support
these opinions. Between 1700 and 1740, an estimated 75 to 80 percent of the population attended churches, which were being built at a headlong pace.
Toward mid-century the country experienced its first major religious revival. The
Great Awakening swept the English-speaking world, as religious energy vibrated between England, Wales, Scotland and the American colonies in the 1730s and 1740s.
In America, the Awakening signaled the advent of an encompassing evangelicalism-the belief that the essence of religious experience was the "new birth," inspired by
the preaching of the Word. It invigorated even as it divided churches. The supporters
of the Awakening and its evangelical thrust--Presbyterians, Baptists and Methodists-became the largest American Protestant denominations by the first decades of the
nineteenth century. Opponents of the Awakening or those split by it--Anglicans,
Quakers, and Congregationalists--were left behind.
Another religious movement that was the antithesis of evangelicalism made its appearance in the eighteenth century. Deism, which emphasized morality and rejected
the orthodox Christian view of the divinity of Christ, found advocates among upperclass Americans. Conspicuous among them were Thomas Jefferson and John Adams.
Deists, never more than "a minority within a minority," were submerged by evangelicalism in the nineteenth century.
The following is information excerpted from a University of Massachusetts website:
Religion's Role in the formation of the United States from 1607-1850
Religion has played a large role throughout History. Entire nations have been
founded on the ideals of one religion or another, and many wars have been fought
purely for religious reasons. In fact there are wars still going on that are almost
completely religiously motivated. New Religions may form, old religions may die or
change, but they will always be a part of our culture and society. Religion always
seems to play a large role in the formation of societies and cultures, and the history
of the United States is no different from that of the rest of the world. Religion
played a major role in the formation of the United States of America. More specifically between 1607 when American was first settled as British Colonies and the
1850's. In the United States religion has indirectly caused two wars and been the
reason for many reforms. Additionally, the Massachusetts Bay Colony, which was
one of the earliest colonies created, was started as a religious haven for the Puritans. This in turn led to other colonies in the north being formed for religious reasons as well.
The Early Northern Colonies were founded exclusively for religious reasons. The
Massachusetts Bay Colony, which was the first Northern Colony created, was created so that the Puritans could escape the religious turmoil in Britain at the time. As
James A. Henretta, David Brody, and Lynn Dumenil point out in America a Concise
History, the Puritans believed that religion should have more power over the government. In other words the laws of the bible were more important then the laws of
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the state. In John Winthrop's famous speech, "The Modell of Christian Charity," he
speaks of a few ideals, which shape the way the colony will be run. One of those
ideals was the contract with god. Each Puritan had a contract with god that he or she
must fulfill. The idea of the contract is that you must follow god's word as it is
printed in the bible. Another ideal was that Winthrop proclaimed that the Puritans
must like, "A city upon a hill." By this Winthrop meant that the Puritans and their
colony should be a model of what Christian society should be like. The whole world
would look up to their settlement and aspire to be like them. ***
Another Religious movement that came to British Colonies around the same
time as the enlightenment was the great awakening. Also, just like the enlightenment
the great awakening was a long-term cause of the revolutionary war. However, the
great awakening was the exact opposite of the enlightenment; it was a movement to
increase the role of religion in the lives of the colonists. The movement encouraged
ordinary people to learn the bible and the teachings of the bible. This in turn destroyed the power of the ministers because people no longer needed them to learn the
lessons the bible has to offer. The ministers could no longer mix their political messages in with their sermons because people could read and understand the bible
themselves. Because of this loss off power the colonists started thinking for themselves which eventually led to the revolution.
Not only was the great awakening a cause of the Revolutionary War, but it also
helped start the abolition movement. In 1743, a man by the name of Samuel Morris
broke off from the Church of England, which was the dominant religion of the south,
after reading George Whitefield's (a famous pietist whose name is synonymous with
great awakening) sermons. Morris helped to start the Baptist movement, which
among other things, allowed blacks to become Christian ... . This conflicted greatly
with the interests of the slave owners because they were not allowed to enslave other
Christians. Not only that, but to allow these people to become Christians was admitting that they were equal to the white people which, in the minds of the wealthy slave
owners, they were not. So, one can see how this could lead to a movement to abolish
slavery. The Baptists wanted to accept the African Americans into Christianity, and
to do that they would need to be freed. However, this was not the end of religion's
attempts to abolish slavery.
In the 1790's the United States went through another religious reform much like
the great awakening of mid 1700's. This second movement became known as the
second great awakening. This second great awakening came during what was known
as the age of reform, which was caused by the industrialization of America. The
second great awakening was just like the great awakening in most respects. However underneath all the religious reforming was really a movement to reform America
and its inhabitants. For instance there was an attempt to limit the consumption of alcohol among Americans; there was also an attempt to try to reform prisoners instead
of just throwing them in jail. However, the biggest movement that came from the
second great awakening was the abolition movement. This was when the abolition
movement started becoming really big in the United States. Before, during the first
great awakening the movement to free slaves was not really big at all, or if it was
people didn't speak out about it too much. However around the time of the second
219
great awakening you have people who start speaking up against slavery, wanting to
free the slaves.
So as you can see religion has played a very large role in the formation of the
United States. Religion was the whole reason this country was started. If it were not
for the Puritans sailing over to Massachusetts in 1630 we might not have as great a
country as we do now. In fact, we might not have any country at all. If it were not
for the large role religion played in the Colonist's lives then we wouldn't have had a
revolutionary war. People would still be thinking today that the King and Queen of
England are direct descendants from god, and we would be paying their taxes without having any representation. And some people say that religion's role in American's lives today has diminished, but I disagree. Religion still does play a large role
in our lives, but it has gone through many reforms as it has many times in the
past. People need something to believe in, whether it is Christianity, Judaism, Muslim or Science, and those beliefs have and always will influence the path that our society takes.
(http://www.people.umass.edu/mray/essays/religion.html)
It should also be kept in mind that long prior to the Fourteenth Amendment, Congress was
governing and making laws in the District of Columbia and in the vast territories of the United
States, all of which would have been subject to the First Amendment. Its meaning and application was not new.
The Christian Religion and freedom were the two most important elements of American culture, from the beginning of the colonies to the time of the attacks of liberalism through activist
courts during the last half of the twentieth century. Christian people who yearned for freedom
and particularly freedom to practice their religion according to their beliefs were the backbone of
Colonial America.
America as a Religious Refuge:
Many of the British North American colonies that eventually formed the United
States of America were settled in the 17th century by those who, in the face of home
persecution, fled Europe. Many left their native land feeling, in the words of Tom
Wolfe, that they could never go home again.
The Great Migration - Puritan Exodus: Increasing numbers of immigrants established Plymouth (1620), Massachusetts (1628), New Hampshire (1629), Connecticut
(1633), Maine (1635), Rhode Island (1636) and New Haven (1638). As they formed
these colonies, their numbers rose from 20,800 in 1640 to 106,000 in 1700, reaching
over one million by 1800, six million by 1900 - all descended from the English emigrants who came to Massachusetts from 1629-1640 (according to David Hackett
Fischer in 'Albion's Seed' ). In 1630 over 1000 Puritans came to the Massachusetts
Bay area and built homes in and around Boston.. With harsh laws continuing to be
passed in England against those criticising the Anglican Church, a further 20,000 Puritans arrived over the next ten years alone.
220
The New England colonies, New Jersey, Pennsylvania and Maryland were conceived
and established as 'plantations of religion'. Some settlers arriving in the New World
had a more secular agenda, but even colonies like Virginia, planned as a commercial
venture from the outset, were led by entrepreneurs who worked diligently to promote
the faith.
Not all the colonists were Puritans or Quakers, of course. They included Presbyterians, Anabaptists, Congregationalists and the more exotically named Muggletonians
and Millenarians. ***
The north side of Long Island had a considerable settlement of Quakers/Friends from
the beginning, in fact the first Quaker Meeting was held on Long Island as early as
1657. However it was the purchase of land in New Jersey that created the main refuge for Quakers of 1675-81, immediately before the founding of Pennsylvania.
In March 1681, King Charles II of England signed a charter giving the region to William Penn in payment of a debt of £16,000 owed by him to Penn's father, Admiral
Sir William Penn. The charter, officially proclaimed on 2 April 1681, named the territory for Admiral Penn and included also the term sylvania ('woodlands') at the
younger Penn's request. William Penn intended that the colony should provide a haven of religious tolerance for his fellow Quakers. He arrived in America in 1682 to
plan its future government.
"Under Penn's influence, fair treatment was accorded to Native Americans, who responded with friendship in return, so enabling an easier settlement by immigrants.
By the time Penn returned to England in 1684, the new Quaker province had a firmly
established government based on religious tolerance and government by popular
will." (from section on Pennsylvania in Encyclopaedia Britannica)
(Puritans and Quakers of the 17th Century, Farnsworth website,
http://www.farnsworth.org.uk/quakers.htm)
Further information about these early religious settlers:
Pilgrims and Puritans in 17th Century New England
by Robert Jennings Heinsohn, PhD
***
The Church of England was authoritarian and royalist, and referred to as an Episcopacy. It was a "top-down" organization in which the monarch as head chose the
Archbishop who in turn chose lower-order bishops, who in turn selected the ministers for individual parishes. Church governance was subject to the authority of bishops, deans, etc. of the region in which the parishes were located. ***
Puritans were determined Calvinist reformers who insisted the Church of England
should be organized along lines consistent with scripture, without regard to custom,
tradition or practices considered to be heretical to scripture. ***
... Separatists quoting Corinthians II, challenged the authority of the bishops of the
Church of England and began conducting religious services secretly. [King] James
221
claimed these actions defied his authority and subjected Separatists to fines, confiscation of property, imprisonment and in some cases execution. Separatists were prohibited from leaving England without the king's permission. From Lincolnshire
(Northeast England), Separatist congregations of Richard Clyfton in Babsworth,
John Smyth in Gainsborough, and John Robinson in Scrooby were imprisoned in
1607 when they attempted to travel to Holland without permission. By surreptitious
means these congregations fled to Amsterdam in 1608. After several aborted attempts, the Scrooby congregation of Separatists fled to Holland to join the Clyfton
congregation of Separatists. Because of arcane internal squabbles among the Amsterdam Separatists, John Robinson and a portion of Clyfton's congregation broke
away and were allowed by the Dutch authorities to move to Leiden. ***
Separatists who fled to Holland and later traveled to North America are now called
"Pilgrims". Aside from its literal meaning, the phrase "Pilgrims" was not used by the
Separatists! William Bradford, quoting Hebrews, xi:13,...that they were strangers
and pilgrims on the earth...used the phrase to characterize their departure from Leiden in 1620. Even then, the phrase had no currency until 1669 when writers began
calling the Mayflower company, the "Pilgrim Fathers". ([In this essay, the phrase
Separatist and Pilgrim will be used interchangeably.) ***
James I eventually granted them permission to establish a colony in North America
and to practice their religion as they pleased provided they did not antagonize the
Church of England. Needing additional colonists, the Leiden Pilgrims ("Saints") accepted Separatist families from England ("Strangers") to sail with them to North
America. These later individuals had not shared the years of communal experience
living in Leiden and in time, several "Strangers" proved to be sources of dissention
after landing in North America.
Pilgrims aboard the Mayflower and Speedwell sailed from Southampton on August
23, 1620. Twice the ships returned to port because the Speedwell was unseaworthy
owing to being overloaded. A portion of the Pilgrim company remained in England,
planning to sail to North America the next year and the remaining 102 passengers
and crew finally sailed from Plymouth, England aboard the Mayflower on September
6, 1620.
Their original destination was Manhattan Island (northern Virginia territory) but navigational difficulties and their late arrival in Cape Cod Harbor on November 11,
1620 resulted in them selecting a site in a former Indian village, Patuxet, Captain
John Smith had mapped in a 1616 expedition to North America. On December 11,
1620 the Pilgrims landed and began building dwellings for a permanent settlement
they
called
New
Plymouth.
***
http://www.sail1620.org/discover_feature_pilgrims_and_puritans_in_17th_century_
new_england.shtml
Even the charters of our early American colonies had strong religious connotations.
The first Charter of Virginia was issued jointly to the two companies, the London and the
Plymouth, on April 10, 1606. It contained the words:
222
James, by the Grace of God, King of England, Scotland, France, and Ireland, Defender of the Faith, etc.: Whereas Our loving and well-disposed subjects, Sir Thomas
Gates, and Sir George Somers, Knights, ... and diverse others of Our loving subjects,
have been humble suitors unto Us, that We would vouchsafe unto them Our license,
to make habitation, plantation, and to deduce a colony of sundry of Our people into
that part of America commonly called Virginia, and other parts and territories in
America, either appertaining unto Us, or which are not now actually possessed by
any Christian prince or people, situate, lying, and being all along the seacoasts ... .
We, greatly commending, and graciously accepting of, their desires for the furtherance of so noble a work, which may, by the providence of Almighty God, hereafter
tend to the glory of His Divine Majesty, in propagating of Christian religion to such
people as yet live in darkness and miserable ignorance of the true knowledge and
worship of God, and may in time bring the infidels and savages living in those parts
to human civility and to a settled and quiet government, do, by these Our letters patent, graciously accept of, and agree to, their humble and well-intended desires. ***
(The Annals of America, Encyclopaedia Britannica, Inc., 1968; Vol. 1, pp. 15-16)
From the First Charter of Massachusetts:
Charles, by the grace of God, King of England … to all to whom this presence shall
come, Greetings.
Whereas our most dear and royal father, King James, of blessed memory, by His
Highness' letters patent, bearing date at Westminster the 3rd day of November, in the
eighteenth year of his reign, has given and granted unto the Council established at
Plymouth, in the County of Devon, for the planting, ruling, ordering, and governing
of New England in America, and to their successors and assigns forever, all that part
of America lying and being in breadth from 40° north latitude … to 48° of the said
north latitude inclusive and in length of and within all the breadth aforesaid throughout the mainlands from sea to sea ***
And We do … grant … that it shall and may be lawful to and for the governor or
deputy governor, [etc.,] to make, ordain, and establish all manner of wholesome and
reasonable orders, laws, statutes, and ordinances, directions, and instructions not
contrary to the laws of this Our Realm of England … whereby Our said people, inhabitants there, may be so religiously, peaceably, and civilly governed, as their good
life and orderly conversation may win and incite the natives of country to the
knowledge and obedience of the only true God and Savior of mankind, and the
Christian faith, which in Our royal intention and the adventurers' free profession, is
the principal end of this plantation. *** (The Annals of America, Encyclopaedia Britannica, Inc., 1968; Vol. 1, pp. 100-103)
The Charter of West New Jersey:
(West New Jersey came under the proprietorship of the Quakers by an indirect route.
King Charles II granted the territory that later became New York and New Jersey to
his brother James (later King James II), who conveyed New Jersey to Lord John
Berkeley and Sir George Carteret. In 1674, Berkeley sold western New Jersey to the
223
Quakers John Fenwicke and Edward Byllynge. The Concessions and Agreements of
March 13, 1677, probably drafted by William Penn, guaranteed many of the Quaker
principles of civil government, including freedom of religion and trial by jury. The
chapters printed below comprise the entire charter of the colony.)
***
That these concessions, law, or great charter of fundamentals be recorded in a fair
table, in the Assembly House, and that they be read at the beginning and dissolving
of every general free Assembly ...
That no men nor number of men upon earth have power or authority to rule over
men's consciences in religious matters, therefore, it is consented, agreed, and ordained that no person or persons whatsoever within the said Province, at any time or
times hereafter, shall be any ways upon any pretense whatsoever called in question,
or in the least punished or hurt, either in person, estate, or privilege, for the sake of
his opinion, judgment, faith, or worship toward God in matters of religion. But that
all and every such person and persons may, from time to time, and at all times, freely
and fully have and enjoy his and their judgments, and the exercises of their consciences in matters of religious worship throughout all the said Province. *** (The
Annals of America, supra, Vol. 1, pp. 262-264)
The following is the Mayflower Compact of 1620:
This day, before we came to harbor, observing some not well affected to unity and
concord, but gave some appearance of faction, it was thought good there should be
an association and agreement that we should combine together in one body, and to
submit to such government and governors as we should by common consent agree to
make and choose, and set our hands to this that follows word for word:
In the name of God, Amen. We whose names are underwritten, the loyal subjects of
our dread sovereign lord, King James, by the grace of God, of Great Britain, France,
and Ireland, King, Defender of the Faith, etc.
Having undertaken for the glory of God, and advancement of the Christian faith and
honor of our king and country, a voyage to plant the first colony in the northern parts
of Virginia, do by these present, solemnly and mutually, in the presence of God and
one of another, covenant and combine ourselves together into a civil body politic, for
our better ordering and preservation and furtherance of the ends aforesaid; and by
virtue hereof to enact, constitute, and frame such just and equal laws, ordinances,
acts, constitutions, offices from time to time as shall be thought most meet and convenient for the general good of the colony; unto which we promise all due submission and obedience. In witness whereof we have hereunder subscribed our names,
Cape Cod, 11th of November, in the year of the reign of our sovereign lord, King
James, of England, France, and Ireland 18, and of Scotland 54. Anno Domini 1620.
(The Annals of America, supra, Vol. 1, p. 64)
The following is from Chapter 22 – RELIGION AND RELIGIOUS GROUPS IN
AMERICA, Great Issues in American Life, Conspectus, Vol. II, The Annals of America, supra;
pp. 418–419:
224
Religion has pervaded all aspects of American culture and largely determined its
basic political, moral, and social views. It fostered and established the educational
institutions out of which the later secular culture evolved. Its book – the Bible, especially the King James Version – has had an enduring effect on the American mind,
culture, and literature ... .
The central and pervasive role of religion in the three centuries of American history is not seriously disputed. Most observers have remarked on the strikingly greater religiousness exhibited by Americans in comparison with their European contemporaries in various eras. "There is no country in the world," Alexis de Tocqueville
asserted in the 1830s, "where the Christian religion retains a greater influence over
the souls of men than in America." Similarly, in 1855, the German–Swiss theologian
Philip Schaff estimated that there were in America "more awakened souls, and more
individual effort and self-sacrifice for religious purposes, proportionally, than in any
other country in the world, Scotland alone perhaps excepted."
Alexis de Tocqueville, the famous 19th century French statesman, historian and social philosopher, also said:
Religion in America ... must be regarded as the foremost of the political institutions of that country; for if it does not impart a taste for freedom it facilitates the use of it. Indeed, it is this same point of view that the inhabitants
of the United States themselves look upon religious belief. (One Nation
Under God, Christian Defense Fund, U.S. 1997)
Noah Webster lived from 1758 to 1853, and was highly respected as both a statesman and
an educator. His name also became synonymous with "dictionary." Along with all of this, he
also became an attorney. (Encyclopedia Britannica, 1973, Vol. 23, pp. 360-361) He was one of
the great thinkers among the forefathers of this country. The following is a passage from Value
of the Bible and Excellence of the Christian Religion, by Noah Webster, 1834. The subtitle is
my own:
The Necessity of Morality in Government
When you become entitled to exercise the right of voting for public officers, let it be
impressed on your mind that God commands you to choose for rulers just men who
will rule in the fear of God. The preservation of a republican government depends
on the faithful discharge of this duty; if the citizens neglect their duty, and place unprincipled men in office, the government will soon be corrupted; laws will be made,
not for the public good, so much as for selfish or local purposes; corrupt or incompetent men will be appointed to execute the laws; the public revenues will be squandered on unworthy men; and the rights of the citizens will be violated or disregarded.
If a republican government fails to secure public prosperity and happiness, it must be
because the citizens neglect the divine commands, and elect bad men to make and
administer the laws. Intriguing men can never be safely trusted. (Bennett, William
J., Our Sacred Honor, Nashville, Tenn.: Broadman and Holman, 1997, pp. 396-397)
225
Noah Webster also stated:
The moral principles and precepts contained in the Scriptures ought to form the basis
of all our civil constitutions and laws. All the miseries and evils which men suffer
from vice, crime, ambition, injustice, oppression, slavery, and war, proceed from
their despising or neglecting the precepts contained in the Bible. (The Rebirth of
America, Nancy Leigh DeMoss, Editor, Arthur DeMoss Foundation, 1966, p. 33)
The following is from a subtitle, "Moral Education: Religion in the Public Schools", Chapter 21 – RELIGION AND RELIGIOUS GROUPS IN AMERICA, Great Issues in American
Life, Conspectus, Vol. II, The Annals of America, supra; pp. 376-379:
... Moral education, or the formation of character, or the instilling of good habits, has often been said to be a proper function and responsibility of American
schools.
In the beginning it was taken for granted that making graduates virtuous as well
as learned was the office of religion, and specifically of the Christian religion. In the
seventeenth century, almost all teachers – at least in the better schools – were clergymen who conceived their main task to be the making of more clergymen, and even
as late as 1850 the great majority of college presidents were men of the cloth. It is
important to remember, and a little hard to do so in our secular times, how closely religion and education were related in early America.
The eighteenth century, the Age of Enlightenment, shook the schools loose, as it
were, from the domination of the strict Calvinist divines who had controlled them
during the previous century. But as late as 1800 no one really doubted the important
scholastic role of religion. "Such is my veneration for every religion that reveals that
attributes of the Deity, or a future state of reward and punishment," Benjamin Rush
wrote in 1798, "that I had rather see the opinions of Confucius or Mohammed inculcated upon our youth than see them grow up wholly devoid of a system of religious
principles. But the religion I mean to recommend in its place," he was quick to say,
"is that of the New Testament." And he went on to declare that "a Christian ... cannot
fail of being a republican, for every precept of the Gospel inculcates those degrees of
humility, self-denial, and brotherly kindness which are directly opposed to the pride
of monarchy and the pageantry of a court. A Christian cannot fail of being useful to
the republic, for his religion teaches him that no man 'liveth to himself.'"
Rufus Choate put the case colorfully in 1844. "I would not take the Bible from
the schools," he wrote, "so long as a particle of Plymouth Rock was left, large
enough to make a gun-flint of, or as long as its dust floated in the air." And John H.
Vincent, defining the Chautauqua goal of education in 1886, let it be known that "the
theory of Chautauqua is that life is one and that religion belongs everywhere. Our
people, young and old, should consider educational advantages as so many religious
opportunities. Every day should be sacred. The schoolhouse should be God's house."
This view, once almost a monopoly of Protestant divines, came in time to be the
characteristic position of the Roman Catholics in America. As Bishop John Lancas226
ter put it in 1895, "... If education is a training for the competence of life, its primary
element is the religious, for complete life is life in God." ***
The opposition to including religious teaching in the public schools also goes far
back in our history, finding its basis in documents such as the Virginia Statute of Religious Freedom (of which Jefferson was the author) and in the First Amendment to
the Constitution, which declared that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The report of the
Rockfish Gap Commission on the Proposed University of Virginia of 1818 (Jefferson was once more involved) drew strength from this constitutional prohibition. "In
conformity with the principles of our Constitution," the Report declared, "which
places all sects of religion on an equal footing, with the jealousies of the different
sects in guarding that equality from encroachment and surprise, and the sentiments of
the legislature in favor of freedom of religion manifested on former occasions, we
have proposed no professor of divinity"; instead the Report proposed that the "professor of ethics" take all religious matters in his purview.
[The article then goes on to bring opposition to religion in public schools up to
modern times.]
In 1785, James Madison wrote a remonstrance "Against Proposed Religious Assessments."
A bill had been introduced in the Virginia General Assembly to provide legal and monetary support for teachers of the Christian religion. Madison's article was considered a driving force in
defeating the Bill. His basis was the interference with true religious freedom. Examples of his
argument were: "Who does not see that the same authority which can establish Christianity, in
exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?" "While we assert for ourselves a freedom to embrace, to
profess, and to observe the religion which we believe to be of divine origin, we cannot deny an
equal freedom to those whose minds have not yet yielded to the evidence which has convinced
us. If this freedom be abused, it is an offense against God, not against man: To God, therefore,
not to man must an account of it be rendered. As the bill violates equality by subjecting some to
peculiar burdens, so it violates the same principle by granting to others peculiar exemptions."
(The Annals of America, supra, Vol. 3, p. 16)
Madison was not advocating here that religion should not be taught in schools as was common in the country, and was for a long period of time. But he definitely believed in freedom of
religion, and I am sure he would be against the advocating and promoting of a particular religion
in school, particularly to smaller children, in exclusion of other religions.
One of our great early founders was Benjamin Rush (1745-1813). He was a prominent physician, known as the father of American psychiatry, served as Surgeon General in the Continental
Army in the American Revolution, signed the Declaration of Independence, was a member of the
227
Continental Congress, and served as Treasurer of the United States Mint. (Encarta Desk Encyclopedia, Microsoft Corp., 1998) He was also well known for his interest in and promotion of
education in early America. The following is from his A Plan for the Establishment of
Public Schools (1786):
(Benjamin Rush, like Thomas Jefferson, felt that education in a republic was intended to produce well-informed, useful citizens. The educational program Rush presented in 1786 called for a uniform, comprehensive system of schools for the state of
Pennsylvania. His plan favored instruction for all members of society and improved
education for girls.)
Before I proceed to the subject of this essay, I shall point out, in a few words, the influence and advantages of learning upon mankind.
1. It is friendly to religion inasmuch as it assists in removing prejudice,
superstition, and enthusiasm; in promoting just notions of the Deity; in enlarging our knowledge of His works. ***
For the purpose of diffusing knowledge through every part of the state, I beg leave to
propose the following simple plan:
1. Let there be one university in the state, and let this be established in
the capital. Let law, physic, divinity, the law of nature and nations, economy, etc., be taught in it by public lectures in the winter season, after the
manner of the European universities. And let the professors receive such
salaries from the state as will enable them to deliver their lectures at a moderate price. *** (The Annals of America, supra, Vol. 3, P. 57)
In 1790, Noah Webster wrote a long article, "The Education of Youth in America," found
in The Annals of America, supra, Vol. 3, p. 424. He objected to the common practice of using the
Bible as a textbook in school. He argued that it denigrated the Bible to use it in such a common
way, and that it was so disrespectful as to "weaken the influence on the heart." As to how it
should be used he said:
Objects that affect the mind strongly, whether the sensations they excite are painful
or pleasurable, always lose their effect by a frequent repetition of their impressions.
Those parts of the Scripture, therefore, which are calculated to strike terror to the
mind lose their influence by being too frequently brought into view. The same objection will not apply to the history and morality of the Bible, select passages of which
may be read in schools to great advantage. In some countries the common people are
not permitted to read the Bible at all. In ours, it is as common as a newspaper and in
schools is read with nearly the same degree of respect. Both these practices appear to
be extremes. My wish is not to see the Bible excluded from schools but to see it is
used as a system of religion and morality.
All of our Ivy League schools, Harvard, Yale, Princeton, and Dartmouth, owe their origins
to the Christian Gospel. Harvard was formed by the Puritans in 1638, Yale was formed in 1701,
228
Princeton in 1746, and Dartmouth in 1754. Evangelical religion was the common base of all of
them. Columbia, William and Mary, and a number of other Christian colleges and universities
were later formed. The Ivy League schools later became secular. (The Rebirth of America, supra, pp. 41-42) These were our first schools of higher learning in America, and their primary
purpose was for the training of Ministers of the Gospel.
The following is from the Statutes of the College of William and Mary, 1727:
There are three things which the founders of this college proposed to themselves, to which all its statutes should be directed.
The first is that the youth of Virginia should be well educated to learning and
good morals.
The second is that the churches of America, especially Virginia, should be supplied with good ministers after the doctrine and government of the Church of England, and that the college should be a constant seminary for this purpose.
The third is that the Indians of America should be instructed in the Christian religion, and that some of the Indian youth that are well behaved and well inclined, being first well prepared in the Divinity School, may be sent out to preach the gospel to
their countrymen in their own tongue, after they have duly been put in orders of deacons and priests.
For carrying on these noble designs, let there be four schools assigned within the
college precincts, of which, together with the masters or professors belonging to
them, some directions must be given. (The Annals of America, supra, Vol. 1, p. 371)
The following are from Regulations at Yale College, 1745:
1. All scholars shall live religious, godly, and blameless lives according to the rules
of God's Word, diligently reading the Holy Scriptures, the fountain of light and truth;
and constantly attend upon all the duties of religion, both in public and secret.
2. That the president, or in his absence one of the tutors, shall constantly pray in the
college hall every morning and evening; and shall read a chapter or suitable portion
of the Holy Scriptures, unless there be some other theological discourse or religious
exercise; and every member of the college, whether graduates or undergraduates,
whether residing in the college or in the town of New Haven, shall seasonably attend
upon penalty that every undergraduate who shall be absent (without sufficient excuse) shall be fined 1d.; for coming tardy after the introductory collect is made shall
be fined 1/2d.
3. The president is hereby desired as he has time and opportunity to make and exhibit
in the hall such a public exposition, sermon, or discourse as he shall think proper for
the instruction of the scholars, and when he shall see cause so to do and give public
notice thereof, every undergraduate shall be obliged to attend upon the same penalty
as aforesaid. … (The Annals of America, supra, Vol. 1, pp, 464-465)
229
The first compulsory school law in the country was passed in Massachusetts in 1642, and
amended in 1647. It provided:
It being one chief project of that old deluder Satan to keep men from the knowledge
of the Scriptures, as in former times by keeping them in an unknown tongue, so in
these latter times by persuading from the use of tongues, that so at least the true
sense and meaning of the original might be clouded by false glosses of saint-seeming
deceivers, that learning may not be buried in the grave of our fathers in the church
and commonwealth, the Lord assisting our endeavors:
It is therefore ordered that every township in this jurisdiction, after the Lord has increased them to the number of 50 house-holders, shall then forthwith appoint one
within their town to teach all such children as shall resort to him to write and read,
whose wages shall be paid either by the parents or masters of such children, or by the
inhabitants in general, by way of supply, as the major part of those that order the
prudentials of the town shall appoint; provided those that send their children be not
oppressed by paying much more than they can have them taught for in other towns.
And it is further ordered that where any town shall increase to the number of 100
families or householders, they shall set up a grammar school, the master thereof being able to instruct youth so far as they may be fitted for the university, provided that
if any town neglect the performance hereof above one year that every such town
shall pay £ 5 to the next school till they shall perform this order. (The Annals of
America, supra, Vol. 1, p 184.)
The following probably reflects the general view on good education in the schools in America up to around the time of the report and for a long time afterward. It is from the information
about Horace Mann, and his Twelfth Annual Report, in 1848, on education in Massachusetts. It
states in part:
The selection below comprises a part of the twelfth and last of the famous annual reports
that Horace Mann, as secretary of the Massachusetts Board of Education, submitted to the state
legislature. In 1848, the year it was submitted, Mann resigned his post to take the late John
Quincy Adams' seat in Congress. During the twelve years he served as secretary, Mann increased the length of the school year, established fifty new common schools, and founded three
normal (teacher-training) schools (the first in America). He also founded the Common School
Journal, a biweekly publication dealing with school administration, and in general set the standards for educational reform everywhere in America.
***
RELIGIOUS EDUCATION
But it will be said that this grand result in practical morals is a consummation of
blessedness that can never be attained without religion, and that no community will
ever be religious without a religious education. Both these propositions I regard as
230
eternal and immutable truths. Devoid of religious principles and religious affections,
the race can never fall so low but that it may sink still lower; animated and sanctified
by them, it can never rise so high but that it may ascend still higher. …
I here place the argument in favor of a religious education for the young upon the
most broad and general grounds, purposely leaving it to every individual to add for
himself those auxiliary arguments which may result from his own peculiar views of
religious truth. But such is the force of the conviction to which my own mind is
brought by these general considerations, that I could not avoid regarding the man
who should oppose the religious education of the young as an insane man; and, were
it proposed to debate the question between us, I should desire to restore him to his
reason before entering upon the discussion. If, suddenly summoned to eternity, I
were able to give but one parting word of advice to my own children, or to the children of others; if I were sinking beneath the wave, and had time to utter but one articulate breath; or were wasting away upon the deathbed, and had strength to make
but one exhortation more, — that dying legacy should be, "Remember thy Creator in
the days of thy youth." ***
The very terms "public school" and "common school" bear upon their face that
they are schools which the children of the entire community may attend. Every
man not on the pauper list is taxed for their support; but he is not taxed to support them as special religious institutions: if he were, it would satisfy at once the
largest definition of a religious establishment. But he is taxed to support them as
a preventive means against dishonesty, against fraud, and against violence, on
the same principle that he is taxed to support criminal courts as a punitive
means against the same offenses. [Emphasis added) ***
It is still easier to prove that the Massachusetts school system is not antichristian nor
unchristian. The Bible is the acknowledged expositor of Christianity. In strictness,
Christianity has no other authoritative expounder. This Bible is in our common
schools by common consent. Twelve years ago, it was not in all the schools. Contrary to the genius of our government, if not contrary to the express letter of the law, it
had been used for sectarian purposes, — to prove one sect to be right, and others to
be wrong. Hence it had been excluded from the schools of some towns by an express
vote. But since the law, and the reasons on which it is founded, have been more fully
explained and better understood, and since sectarian instruction has, to a great extent,
ceased to be given, the Bible has been restored.
I am not aware of the existence of a single town in the state in whose schools it is not
now introduced, either by a direct vote of the school committee, or by such general
desire and acquiescence as supersede the necessity of a vote. In all my intercourse
for twelve years, whether personal or by letter, with all the school officers in the
state, and with tens of thousands of individuals in it, I have never heard an objection
made to the use of the Bible in school, except in one or two instances; and, in those
cases, the objection was put upon the ground that daily familiarity with the book in
school would tend to impair a reverence for it. …
And further: our law explicitly and solemnly enjoins it upon all teachers, without any
exception, "to exert their best endeavors to impress on the minds of children and
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youth committed to their care and instruction the principles of piety, justice, and a
sacred regard to truth, love to their country, humanity, and universal benevolence,
sobriety, industry, and frugality, chastity, moderation, and temperance, and those
other virtues which are the ornament of human society, and the basis upon which a
republican constitution is founded." Are not these virtues and graces part and parcel
of Christianity? In other words, can there be Christianity without them? While these
virtues and these duties towards God and man are inculcated in our schools, anyone
who says that the schools are antichristian or unchristian expressly affirms that his
own system of Christianity does not embrace any one of this radiant catalog; that it
rejects them all; that it embraces their opposites. *** (The Annals of America, supra,
Vol. 7, p. 460)
Horace Mann's stated view of the "Establishment Clause" and taxation for public schools
must have been the prevalent view of the country at the time, because the prevalence of religion
in the schools.
Massachusetts was of course one of the "Northern" states which were the most influential in
bringing about the Fourteenth Amendment.
Had the “high and impregnable wall of separation between church and state”, been used,
and the meaning been given as our activist judges of today define it, the First Amendment would
not have made it through either house of Congress, and certainly not ratified by the states. This
was a highly religious Christian country at that time. We should keep in mind that although the
First Amendment only applied to the federal government at that time, the federal government
was continually involved in passing laws and conducting governmental policies that were directly contrary to this modern interpretation. The federal Congress governed the District of Columbia and vast territories in which religion was being taught in schools. Both Congress and the Supreme Court have been involved in religious exercises ever since they existed. Our history shows
how maliciously wrong these activist court decisions on religion today are.
Consider the Northwest Ordinance, enacted by Congress in 1787, which was the basis of
government for the large territory from which a large number of our states were later admitted.
The following are a couple of excerpts from it relating to religion:
Section 13. And for extending the fundamental principles of civil and religious liberty which form the basis whereon these republics, their laws, and constitutions are
erected; to fix and establish those principles as the basis of all laws, constitutions,
and governments, which forever hereafter shall be formed in the said territory; to
provide, also, for the establishment of states, and permanent government therein, and
for their admission to a share in the federal councils on an equal footing with the
original states, at as early periods as may be consistent with the general interest. ***
Art. 3. Religion, morality, and knowledge, being necessary to good government and
the happiness of mankind, schools and the means of education shall forever be en232
couraged. The utmost good faith shall always be observed towards the Indians; their
lands and property shall never be taken from them without their consent; and, in their
property, rights, and liberty, they shall never be invaded or disturbed, unless in just
and lawful wars authorized by Congress; but laws founded in justice and humanity,
shall from time to time be made for preventing wrongs being done to them, and for
preserving peace and friendship with them. ***
During the time of the revolution and the formation of our new government, history clearly
shows that religion, particularly the Christian religion, and morality, were considered the two
most important things in a child's education. It was also considered vital to the whole community.
The founders of our freedom, our American government, and our Constitution were always
clear and emphatic about the importance of religion to this country.
After George Washington decided not to run for a third term as president, he wrote a long
farewell address, containing some important things that he wanted to say to the people of the
country. This was so important to him that he sent a draft to Alexander Hamilton, asking him to
rework it, which Hamilton did. Washington then reworked it again, and it was published as his
farewell address in the American Daily Advertiser, Philadelphia, September 19, 1796. The following are some of the thoughts contained in it:
Of all the dispositions and habits which lead to political prosperity, religion and
morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these
firmest props of the duties of men and citizens. The mere politician, equally with the
pious man, ought to respect and cherish them. A volume could not trace all their
connections with private and public felicity.
Let it be simply stated – Where is the security for property, for reputation, for
life, if the sense of religious obligation desert the oaths, which are the instruments of
investigation in courts of justice? And let us with caution indulge the supposition
that morality can be maintained without religion. Whatever may be conceded to the
influence of refined education on minds of peculiar structure, reason and experience
both forbid us to expect that national morality can prevail in exclusion of religious
principle.
It is substantially true that virtue or morality is a necessary spring of popular
government. The rule indeed extends with more or less force to every species of free
government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric? (The Annals of America, supra, Vol. 3,
p. 612.)
From my reading and research, of the men that I consider among our Forefathers, the two
that were the least religious were Thomas Paine and Thomas Jefferson, in that order.
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Paine's Age of Reason, published in 1794 and 1796, gave him a reputation as an atheist, although "he made it clear that he believed in a Supreme Being and as a Deist opposed only organized religion." He returned to America from France at the invitation of Thomas Jefferson, but
found that he was now held in disregard because of his anti-religious views, although he had
made great contributions to the American Revolution. He had requested a burial in a Quaker
cemetery, but this was refused because of his views on religion. He was buried on a farm in New
York that was given to him by the state as a reward for his Revolutionary writings. "Derided by
the public and abandoned by his friends, he died in 1809 in New York City, a drunk and a pauper." "Ten years later, William Cobbett, the political journalist, exhumed the bones and took
them to England, where he hoped to give Paine a funeral worthy of his great contributions to
humanity. But the plan misfired, and the bones were lost, never to be recovered." At Paine's
death most U.S. newspapers reprinted the obituary notice from the New York Citizen, which read
in part: "He had lived long, did some good and much harm."
(brittanica.com website;
http://www.ushistory.org/paine/index.htm;
http://www.falmouth.packet.archives.dial.pipex.com/id147.htm)
Considering Thomas Paine's great contributions to the American Revolution, It is indeed a
shame the way he died without the recognition and respect he deserved. But it shows the deep
regard the people of America had for religion, and particularly the Christian Religion.
Although Thomas Jefferson's religious views were in the minority, he never lost the respect
of his country. There were things about the Christian religion which he did not believe, for example the "miracles", but he did have great respect for the principles of Christianity. (Democracy, by Thomas Jefferson, edited by Saul K Padover, Ph.D., D. Appleton-Century Co., New York,
1939; republished Palladium Press, 2002, Chapter VI) In his first Inaugural Address, 1801, He
disclosed his view of a life hereafter, which is a Christian view, stating, "Let us ... enlightened by
a benign religion, professed, indeed, and practised in various forms, yet all of them inculcating
honesty, truth, temperance, gratitude, and the love of man; acknowledging an adoring an overruling Providence which by all its dispensations proves that it delights in the happiness of man here
and his greater happiness hereafter ... ." (The Annals of America, supra, Vol.4, p. 143)
Jefferson served in Europe as a United States diplomat to France from 1784 to 1789, and
took no part in either the framing of the Constitution or Bill of Rights. However, in his letters to
and from James Madison, he kept up with what was going on, and made some of his views
known. He was an anti-federalist and was very much against a constitution without a bill of
rights.
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There is no question that Jefferson believed strongly in freedom of religion, and in the separation between Church and State, to the extent that he wanted no national religion, and no control
over religion by the government, and no control over government by any religious sect. He was
the only president who did not make regular religious proclamations for days of prayer and fasting, for Thanksgiving, and other such things. However, while he was president, Congress and the
Supreme Court continued their religious observances, as they always have since they were in existence. And all presidents before and most after Jefferson, including Madison, made religious
proclamations.
Our modern activist courts show a complete lack of integrity in taking a metaphor about
"separation of church and state" out of context, from a letter of January 1, 1802, by Jefferson to
the Danbury Baptist association. They have built it into something that could not possibly have
been intended by those who framed and ratified our Constitution. I am sure that even Jefferson
would be amazed at how this phrase has been interpreted by our modern activist courts. Those
decisions, as we shall see when reviewing them, have no valid historical precedent whatsoever.
The Court grievously failed in its duty to determine the intent and purpose of the "establishment
clause" at the time it was framed and adopted.
A full transcript of the Danbury Baptist letter to Jefferson, and his reply to them, may be
found at
http://famguardian.org/Subjects/LawAndGovt/ChurchVState/JeffDanburyBaptistLtr.htm
One of the best explanations of these letters that I have found, also incorporating other material and letters, is Original Intent, by David Barton, WallBuilder Press, 1999; Chapter 3, pp. 3742. This is a well written and well documented book on religion and our Constitution, which
shows the misbehavior of our courts in these matters. The contents of Barton's Chapter 3, may
also be found, with a slightly different ending, in his article, "The Separation of Church and
State"
(http://www.wallbuilders.com/resources/search/detail.php?ResourceID=9)
Barton then goes on to explain that Jefferson's views on the intent and purpose of the religion clauses in the First Amendment being to establish freedom of religion, and prevent government interference with the free exercise of religion; and to prevent the establishing by the government of a national religion of some particular sect. He supports this by references and quotations from various writings of Jefferson. Then as to the Danbury Baptist letters he states:
Since this was Jefferson's view concerning religious expression, in his short and polite reply to the Danbury Baptists on January 1, 1802, he assured them that they need
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not fear; that the free exercise of religion would never be interfered with by the federal government. As he explained:
Gentlemen,-The affectionate sentiments of esteem and approbation which
you are so good as to express towards me on behalf of the Danbury Baptist
Association give me the highest satisfaction. . . . Believing with you that religion is a matter which lies solely between man and his God; that he owes
account to none other for his faith or his worship; that the legislative powers
of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that
their legislature should "make no law respecting an establishment of religion or prohibiting the free exercise thereof," thus building a wall of separation between Church and State. Adhering to this expression of the supreme
will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to
man all his natural rights, convinced he has no natural right in opposition to
his social duties. I reciprocate your kind prayers for the protection and
blessing of the common Father and Creator of man, and tender you for
yourselves and your religious association assurances of my high respect and
esteem.
Jefferson's reference to "natural rights" invoked an important legal phrase which
was part of the rhetoric of that day and which reaffirmed his belief that religious liberties were inalienable rights. While the phrase "natural rights" communicated much
to people then, to most citizens today those words mean little.
By definition, "natural rights" included "that which the Books of the Law and
the Gospel do contain." ... That is, "natural rights" incorporated what God Himself
had guaranteed to man in the Scriptures. Thus, when Jefferson assured the Baptists
that by following their "natural rights" they would violate no social duty, he was affirming to them that the free exercise of religion was their inalienable God-given
right and therefore was protected from federal regulation or interference.
So clearly did Jefferson understand the Source of America's inalienable rights
that he even doubted whether America could survive if we ever lost that knowledge.
He queried:
And can the liberties of a nation be thought secure if we have lost the only
firm basis, a conviction in the minds of the people that these liberties are the
gift of God? That they are not to be violated but with His wrath? (Thomas
Jefferson, Notes on the State of Virginia (Philadelphia: Matthew Carey,
1794), Query XVIII, p. 237)
I am sure that the idea that saying a prayer, reading the Bible, or having a Christmas celebration or pageant in school, was unconstitutional would have been quite shocking to Thomas Jefferson. And it is certain that it would have been even more shocking to those who framed and
adopted our Constitution, Bill of Rights, and the Fourteenth Amendment. These ideas are merely
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the inventions of activist courts. Back in those days, to most of the people, religion was an important thing in the life of the community.
This country began on a religious base, and continued on one far past the time of the Fourteenth Amendment.
Consider the first proclamation of our first president
Thanksgiving Proclamation of George Washington
City of New York, October 3, 1789
Whereas it is the duty of all Nations to acknowledge the providence of Almighty
God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor, and Whereas both Houses of Congress have by their joint Committee requested me "to recommend to the People of the United States a day of public
thanks-giving and prayer to be observed by acknowledging with grateful hearts the
many signal favors of Almighty God, especially by affording them an opportunity
peaceably to establish a form of government for their safety and happiness."
Now therefore I do recommend and assign Thursday the 26th. day of November next
to be devoted by the People of these States to the service of that great and glorious
Being, who is the beneficent Author of all the good that was, that is, or that will be.
That we may then all unite in rendering unto him our sincere and humble thanks, for
his kind care and protection of the People of this country previous to their becoming
a Nation, for the signal and manifold mercies, and the favorable interpositions of his
providence, which we experienced in the course and conclusion of the late war, for
the great degree of tranquility, union, and plenty, which we have since enjoyed, for
the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One
now lately instituted, for the civil and religious liberty with which we are blessed,
and the means we have of acquiring and diffusing useful knowledge and in general
for all the great and various favors which he hath been pleased to confer upon us.
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national
and other transgressions, to enable us all, whether in public or private stations, to
perform our several and relative duties properly and punctually, to render our national government a blessing to all the People, by constantly being a government of wise,
just and constitutional laws, discreetly and faithfully executed and obeyed, to protect
and guide all Sovereigns and Nations (especially such as have shown kindness unto
us) and to bless them with good government, peace, and concord. To promote the
knowledge and practice of true religion and virtue, and the encrease of science
among them and Us, and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.
(http://www.townhall.com/documents/thanks.html#)
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A website of Religious Tolerence.org. has a chronology entitled The National Day of
Prayer in the U.S.A. which lists many of the times that Congress and our presidents have declared national days of prayer, beginning with the Continental Congress in 1775 which "designated a time for prayer in forming a new nation." It has been continued by various congresses
and presidents many times throughout our entire history.
http://www.religioustolerance.org/day_pray2.htm
In March 30, 1863, Abraham Lincoln issued his Proclamation Appointing a National Fast
Day:
Whereas, the Senate of the United States, devoutly recognizing the Supreme Authority and just Government of Almighty God, in all the affairs of men and of nations, has, by a resolution, requested the President to designate and set apart a day for
National prayer and humiliation.
And whereas it is the duty of nations as well as of men, to own their dependence upon the overruling power of God, to confess their sins and transgressions, in humble
sorrow, yet with assured hope that genuine repentance will lead to mercy and pardon; and to recognize the sublime truth, announced in the Holy Scriptures and proven by all history, that those nations only are blessed whose God is the Lord.
And, insomuch as we know that, by His divine law, nations like individuals are subjected to punishments and chastisements in this world, may we not justly fear that the
awful calamity of civil war, which now desolates the land, may be but a punishment,
inflicted upon us, for our presumptuous sins, to the needful end of our national
reformation as a whole People? We have been the recipients of the choicest bounties
of Heaven. We have been preserved, these many years, in peace and prosperity. We
have grown in numbers, wealth and power, as no other nation has ever grown. But
we have forgotten God. We have forgotten the gracious hand which preserved us in
peace, and multiplied and enriched and strengthened us; and we have vainly imagined, in the deceitfulness of our hearts, that all these blessings were produced by
some superior wisdom and virtue of our own. Intoxicated with unbroken success, we
have become too self-sufficient to feel the necessity of redeeming and preserving
grace, too proud to pray to the God that made us!
It behooves us then, to humble ourselves before the offended Power, to confess our
national sins, and to pray for clemency and forgiveness.
Now, therefore, in compliance with the request, and fully concurring in the views of
the Senate, I do, by this my proclamation, designate and set apart Thursday, the 30th.
day of April, 1863, as a day of national humiliation, fasting and prayer. And I do
hereby request all the People to abstain, on that day, from their ordinary secular pursuits, and to unite, at their several places of public worship and their respective
homes, in keeping the day holy to the Lord, and devoted to the humble discharge of
the religious duties proper to that solemn occasion.
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All this being done, in sincerity and truth, let us then rest humbly in the hope authorized by the Divine teachings, that the united cry of the Nation will be heard on high,
and answered with blessings, no less than the pardon of our national sins, and the
restoration of our now divided and suffering Country, to its former happy condition
of unity and peace.
In witness whereof, I have hereunto set my hand and caused the seal of the United
States to be affixed.
Done at the City of Washington, this thirtieth day of March, in the year of our Lord
one thousand eight hundred and sixty-three, and of the Independence of the United
States the eighty seventh.
By the President: Abraham Lincoln
William H. Seward, Secretary of State.
http://showcase.netins.net/web/creative/lincoln/speeches/fast.htm
Not only has religion been continually recognized and participated in by Congress, the presidents, and the Supreme Court, throughout our history, but it has been incorporated in our governmental activities in other ways. Our national motto, In God We Trust, was authorized by
Congress to be used on our coins April 11, 1864.
(http://www.religioustolerance.org/day_pray2.htm
"It is perhaps worth mentioning that nearly all our historic patriotic songs and anthems have
a spiritual note and refer to the Deity. I have in mind the "Star-Spangled Banner," inspired by the
American flag in the War of 1812 and adopted as the national anthem in 1931; "Once to every
man and nation," "O God, beneath Thy guiding hand," "God bless our native Land," "God of our
fathers, Whose almighty hand," the "Battle Hymn of the Republic," "America the Beautiful," and
"America," "My country, 'tis of thee." The last named, which is still by far the most popular, was
written in 1832 by Samuel F. Smith (1808-1895), then a young theological student."
(http://members.tripod.com/~candst/studygd5.htm)
The following are excerpts from a report of the Congressional Research Service, from the U.
S. Senate website, 2003:
House and Senate Chaplains
The custom of opening legislative sessions with a prayer began in the Continental Congress, which elected Jacob Duche, Rector of Christ Episcopal Church in Philadelphia, to serve as its chaplain from 1774-1776. Except for a brief period (described below), both chambers have elected a chaplain since the First Congress in
1789. The House chose William Lynn, a Presbyterian minister from Philadelphia, as
its first chaplain, and the Senate picked Samuel Provoost, Episcopal bishop from
New York. Each received a salary of $500. Until the mid-nineteenth century, the
chaplains were not considered officers of Congress. They were elected for a single
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session instead of an entire Congress and worked alternately in each house, changing
weekly.
When Congress moved to Washington in 1800, churches were so few that the
chaplains even took turns conducting Sunday services in the House chamber — now
part of Statuary Hall. Visiting clergy also participated in these services, which were
open to the public. During the early years of Congress, the chaplains' duties centered
primarily on the preparation and delivery of convening prayers, and they served as
pastors of churches in the Washington area in addition to their congressional duties.
As their duties to Congress increased, the chaplains resigned their pastorates after
their election to devote more time to the position of chaplain; an office and staff were
also provided.
The period without chaplains lasted from 1857-1859, when questions were
raised by citizens who objected to the employment of chaplains in Congress and the
military as a breach of the separation of church and state. Some critics also alleged
that the appointments of chaplains had become too politicized. Accordingly, local
clergy voluntarily served as chaplains. However, the difficulty in obtaining volunteer
chaplains resulted in the return to the practice of selecting official House and Senate
chaplains
-----------------------------------------Justice Joseph Story on the Establishment Clause, Amendment I
Joseph Story served as a Justice of the United States Supreme Court from 1812 until his
death in 1845. He lived and served during a time when he would have had intimate first hand
knowledge on the intentions and purposes of those who proposed and ratified our Constitution.
He was a highly respected Supreme Court Justice, and a noted authority and author of volumes
on constitutional law, and a Harvard law professor. The following are excerpts from the part of
his book, A Familiar Exposition Of The Constitution Of The United States, American Book
Company, 1840, republished by Palladium Press, 2001, pp. 259-261, on the part of the First
Amendment relating to religion:
§ 440. The first amendment is, "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 peaceably to assemble, and
to petition the government for a redress of grievances."
§ 441. The same policy, which introduced into the Constitution the prohibition of
any religious test, led to this more extended prohibition of the interference of Congress in religious concerns. We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity, (which none could hold in more reverence, than the framers of the Constitution,) but to a dread by the people of the influence of ecclesiastical power in matters
of government; a dread, which their ancestors brought with them from the parent
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country, and which, unhappily for human infirmity, their own conduct, after their
emigration, had not, in any just degree, tended to diminish. ...
§ 442. ... The promulgation of the great doctrines of religion, the being, and attributes, and the providence of one Almighty God; the responsibility to Him for all our
actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues;these never can be a matter of indifference in any well-ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And, at all
events, it is impossible for those, who believe in the truth of Christianity, as a Divine
revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of
the right of private judgment in matters of religion, and of the freedom of public
worship, according to the dictates of one's conscience.
§ 443. The real difficulty lies in ascertaining the limits, to which government may
rightfully go, in fostering and encouraging religion. Three cases may easily be supposed. One, where a government affords aid to a particular religion, leaving all persons free to adopt any other; another, where it creates an ecclesiastical establishment
for the propagation of the doctrines of a particular sect of that religion, leaving a like
freedom to all others; and a third, where it creates such an establishment, and excludes all persons, not belonging to it, either wholly or in part, from any participation
in the public honors, trusts, or emoluments, privileges, and immunities of the state.
For instance, a government may simply declare, that the Christian religion shall be
the religion of the state, and shall be aided, encouraged in all the varieties of sects
belonging to it; or it may declare, that the Roman Catholic, or Protestant religion
shall be the religion of the state, leaving every man to the free enjoyment of his own
religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to
a limited extent, or excluding all, not belonging to it, from all public honors, trusts,
emoluments, privileges, and immunities.
§ 444. Probably at the time of the adoption of the Constitution and the amendment to
it, now under consideration, the general, if not the universal, sentiment in America
was, that Christianity ought to receive encouragement from the State, so far as such
encouragement was not incompatible with the private rights of conscience and the
freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
----------------------------------------------------------I consider Joseph Story the most dependable authority on our Constitution we have had. He
lived at a time when he personally knew many of our founders, and knew what their ideas were.
He served for many years on the Supreme Court with Chief Justice John Marshall, who also
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knew many of the founders and was active in working for the ratification of our Constitution and
Bill of Rights. Story was also a renowned legal writer.
Justice Story's treatise is also entirely consistent with James Madison's statement on the religious amendment of our Bill of rights.
In addition, history shows that those who adopted the Fourteenth Amendment had no intention of doing away with any rights of the people in connection with religion, or prohibiting any
of their practices, inconsistent with the long established rights under the First Amendment.
For over two hundred years this country was a bastion of freedom and religion. It was reflected in our Constitution and in our laws.
The major blot on our history was slavery, and its end came as a result of Christian influences in this country. "Abolitionism as an organized force began in England in the 1780s, when
William Wilberforce and a group of wealthy evangelical Anglicans began agitating against the
African slave traffic. Their success stimulated further political assaults on slavery itself. Parliament abolished West Indian slavery in 1833." (Encarta 98 Desk Encyclopedia) "In the United
States, antislavery activity began in colonial days. During the 1680s, Quakers in Pennsylvania
condemned slavery on moral grounds. In the late 1700s, several leaders of the American revolutionary movement, including Thomas Jefferson and Patrick Henry, spoke out against slavery."
(World Book Encyclopedia, 1997) President Abraham Lincoln, who ushered in the end of slavery, often professed his belief in God and the Holy Scripture.
The United States Supreme Court cases on religion are many, long, and varied. I will undertake the review of some of the more important ones, which should be sufficient to show the serious damage that court, in modern times, has done to the religious clauses of the First Amendment. They will also show how the older Courts had much more integrity in using rules of construction that would give the meaning to a constitutional provision intended by those who framed
and ratified it.
In Vidal v. Girard's Executors, 43 U.S. 127 (1844), Stephen Girard made a will in 1830
leaving very substantial property for charitable purposes. It included setting up a trust for the
plan and structure of a college, with rules and regulations for the management of it. As to part of
the curriculum to be taught he said: "I would have them taught facts and things rather than words
or signs; and especially I desire that by every proper means a pure attachment to our republican
institutions, and to the sacred rights of conscience as guarantied by our happy constitutions shall
be formed and fostered in the minds of the scholars. The will also included a provision that no
ecclesiastic of any sect shall hold or exercise any station or duty in the college." It also said, "I do
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not mean to cast any reflection upon any sect or person whatsoever. But as there is such a multitude of sects and such a diversity of opinion amongst them, I desire to keep the tender minds of
the orphans, who are to derive advantage from this bequest, free from the excitement which
clashing doctrines and sectarian controversy are so apt to produce." This portion of the trust was
to be administered by the mayor, aldermen, and citizens of Philadelphia, and their successors. It
was contended that this portion of the trust should be held invalid, as against the public policy of
Pennsylvania. This will contest was apparently filed in the federal court on the basis of diversity
of citizenship of some of the parties. Pennsylvania's state law was involved and decided. Justice
Story delivered the unanimous opinion of the Supreme Court. The following are excerpts.
This objection is that the foundation of the college upon the principles and exclusions prescribed by the testator, is derogatory and hostile to the Christian religion,
and so is void, as being against the common law and public policy of Pennsylvania;
and this for two reasons: First, because of the exclusion of all ecclesiastics, missionaries, and ministers of any sect from holding or exercising any station or duty in the
college, or even visiting the same: and Secondly, because it limits the instruction to
be given to the scholars to pure morality, and general benevolence, and a love of
truth, sobriety, and industry, thereby excluding, by implication, all instruction in the
Christian religion. ***
It is also said, and truly, that the Christian religion is a part of the common law
of Pennsylvania. But this proposition is to be received with its appropriate qualifications, and in connection with the bill of rights of that state, as found in its constitution of government. The constitution of 1790, (and the like provision will, in substance, be found in the constitution of 1776, and in the existing constitution of 1838,)
expressly declares, "That all men have a natural and indefeasible right to worship
Almighty God according to the dictates of their own consciences; no man can of
right be compelled to attend, erect, or support any place of worship, or to maintain
any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be given
by law to any religious establishments or modes of worship." Language more comprehensive for the complete protection of every variety of religious opinion could
scarcely be used; and it must have been intended to extend equally to all sects,
whether they believed in Christianity or not, and whether they were Jews or infidels.
So that we are compelled to admit that although Christianity be a part of the common
law of the state, yet it is so in this qualified sense, that its divine origin and truth are
admitted, and therefore it is not to be maliciously and openly reviled and blasphemed
against, to the annoyance of believers or the injury of the public. Such was the doctrine of the Supreme Court of Pennsylvania in Updegraff v. The Commonwealth, 11
Serg. and Rawle, 394. ***
But the objection itself assumes the proposition that Christianity is not to be
taught, because ecclesiastics are not to be instructors or officers. But this is by no
means a necessary or legitimate inference from the premises. Why may not laymen
instruct in the general principles of Christianity as well as ecclesiastics. There is no
243
restriction as to the religious opinions of the instructors and officers. They may be,
and doubtless, under the auspices of the city government, they will always be, men,
not only distinguished for learning and talent, but for piety and elevated virtue, and
holy lives and characters. And we cannot overlook the blessings, which such men by
their conduct, as well as their instructions, may, nay must impart to their youthful
pupils. Why may not the Bible, and especially the New Testament, without note or
comment, be read and taught as a divine revelation in the college -- its general precepts expounded, its evidences explained, and its glorious principles of morality inculcated? What is there to prevent a work, not sectarian, upon the general evidences
of Christianity, from being read and taught in the college by lay-teachers? Certainly
there is nothing in the will that proscribes such studies. ***
Looking to the objection therefore in a mere juridical view, which is the only
one in which we are at liberty to consider it, we are satisfied that there is nothing in
the devise establishing the college, or in the regulations and restrictions contained
therein, which are inconsistent with the Christian religion, or are opposed to any
known policy of the state of Pennsylvania.
The will was upheld, but it is equally clear that a direct provision against teaching the Christian religion in the school would have resulted in striking down the provision as against the public policy of Pennsylvania. How strikingly different this is from this Court's decisions on religion
today.
It is not reasonable to believe that when Pennsylvania ratified the First Amendment it was
intended that its meaning would be directly contrary to its own practices and public policy. The
same could be said for the other states. This is fully supported by the fact that the United States
itself continued with its policy of recognizing and encouraging religion in the country.
Reynolds v. U.S., 98 U.S. 145 (1878), to my knowledge, is the first case that referred to Jefferson's "wall of separation between church and state" phrase, and the Court's statement in that
regard was mere dictum. In addition, the holding in the case was contrary to both the views of
our activist courts of today on the establishment clause, and their view on the right of privacy. It
is even contrary to their view on the basis of the privacy cases, the right to marital privacy.
Reynolds was convicted in the Territory of Utah under a United States statute prohibiting bigamy
or polygamy. The conviction was upheld by the Supreme Court. The prohibition was based on a
religious and moral precept just the same as prohibitions against sodomy, adultery, and many
other things considered morally wrong in this country have been prohibited ever since we had a
country. This case has no anti-religious connotations whatsoever – just the opposite. Excerpts
from the opinion:
[Reynolds was] a member of the Church of Jesus Christ of Latter-Day Saints,
commonly called the Mormon Church, and a believer in its doctrines; that it was an
accepted doctrine of that church 'that it was the duty of male members of said
244
church, circumstances permitting, to practise polygamy ; ... that this duty was enjoined by different books which the members of said church believed to be of divine
origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members
thereof by the Almighty God, in a revelation to Joseph Smith, the founder and
prophet of said church; that the failing or refusing to practise polygamy by such male
members of said church, when circumstances would admit, would be punished, and
that the penalty for such failure and refusal would be damnation in the life to come.'
***
Congress cannot pass a law for the government of the Territories which shall
prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere
throughout the United States, so far as congressional interference is concerned. The
question to be determined is, whether the law now under consideration comes within
this prohibition.
The word 'religion' is not defined in the Constitution. We must go elsewhere,
therefore, to ascertain its meaning, and nowhere more appropriately, we think, than
to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.
Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but
in respect to its doctrines and precepts as well. The people were taxed, against their
will, for the support of religion, and sometimes for the support of particular sects to
whose tenets they could not and did not subscribe. Punishments were prescribed for
a failure to attend upon public worship, and sometimes for entertaining heretical
opinions. The controversy upon this general subject was animated in many of the
States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates
of that State having under consideration 'a bill establishing provision for teachers of
the Christian religion,' postponed it until the next session, and directed that the bill
should be published and distributed, and that the people be requested 'to signify their
opinion respecting the adoption of such a bill at the next session of assembly.'
This brought out a determined opposition. Amongst others, Mr. Madison prepared a 'Memorial and Remonstrance,' which was widely circulated and signed, and
in which he demonstrated 'that religion, or the duty we owe the Creator,' was not
within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At
the next session the proposed bill was not only defeated, but another, 'for establishing religious freedom,' drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2
Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at
once destroys all religious liberty,' it is declared 'that it is time enough for the rightful
purposes of civil government for its officers to interfere when principles break out
245
into overt acts against peace and good order.' In these two sentences is found the true
distinction between what properly belongs to the church and what to the State.
In a little more than a year after the passage of this statute the convention met
which prepared the Constitution of the United States.' Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw
the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the
freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the
necessary alterations. 1 Jeff. Works, 79. Five of the States, while adopting the Constitution, proposed amendments. Three-New Hampshire, New York, and Virginiaincluded in one form or another a declaration of religious freedom in the changes
they desired to have made, as did also North Carolina, where the convention at first
declined to ratify the Constitution until the proposed amendments were acted upon.
Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an
address to him by a committee of the Danbury Baptist Association (8 id. 113), took
occasion to say: 'Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,-I contemplate with sovereign reverence that act of the whole American people
which declared that their legislature should 'make no law respecting an establishment
of religion or prohibiting the free exercise thereof,' thus building a wall of separation
between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.' Coming as this does
from an acknowledged leader of the advocates of the measure, it may be accepted
almost as an authoritative declaration of the scope and effect of the amendment thus
secured. Congress was deprived of all legislative power over mere opinion, but
was left free to reach actions which were in violation of social duties or subversive of good order. [Emphasis added.]
Polygamy has always been odious among the northern and western nations of
Europe, and, until the establishment of the Mormon Church, was almost exclusively
a feature of the life of Asiatic and of African people. At common law, the second
marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an offence against society. ***
[The Court then goes into a long history of laws against bigamy and polygamy
in Britain and the early laws in this country.]
So here, as a law of the organization of society under the exclusive dominion of
the United States, it is provided that plural marriages shall not be allowed. Can a man
excuse his practices to the contrary because of his religious belief? To permit this
would be to make the professed doctrines of religious belief superior to the law of
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the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
In Davis v. Beason, 133 U.S. 333 (1890), the Court upheld a conviction for having more
than one wife in the Territory of Idaho, explicitly following Reynolds v. U.S., supra. The Court's
opinion by Justice Field added this classic statement of the meaning of the religion clause of the
First Amendment, and other observations:
... The first amendment to the constitution, in declaring that congress shall make
no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose
as may be approved by his judgment and conscience, and to exhibit his sentiments in
such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of
worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to
conform, in their religious beliefs and modes of worship, to the views of the most
numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to
the adoption of the amendment in question. It was never intended or supposed that
the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society. With man's relations to his Maker and the obligations he may think they impose, and the manner in
which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its
peace and prosperity, and the morals of its people, are not interfered with. However
free the exercise of religion may be, it must be subordinate to the criminal laws of
the country, passed with reference to actions regarded by general consent as properly
the subjects of punitive legislation. There have been sects which denied as a part of
their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes, as prompted by the passions of its members. And history discloses the fact that the necessity of human sacrifices, on special occasions, has
been a tenet of many sects. Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretense that, as religious beliefs, their
supporters could be protected in their exercise by the constitution of the United
States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the
general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance. ***
... And in Murphy v. Ramsey, 114 U.S. 15, 45 , 5 S. Sup. Ct. Rep. 747, referring
to the act of congress excluding polygamists and bigamists from voting or holding
office, the court, speaking by Mr. Justice MATTHEWS, said: 'Certainly no legisla247
tion can be supposed more wholesome and necessary in the founding of a free, selfgoverning commonwealth, fit to take rank as one of the co- ordinate states of the Union, than that which sects to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more
directly and immediately suitable than those provided by this act, which endeavors to
withdraw all political influence from those who are practically hostile to its attainment.' It is assumed by counsel of the petitioner that, because no mode of worship
can be established, or religious tenets enforced, in this country, therefore any form of
worship may be followed, and any tenets, however destructive of society, may be
held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further from the truth. While legislation
for the establishment of a religion is forbidden, and its free exercise permitted, it
does not follow that everything which may be so called can be tolerated. Crime is not
the less odious because sanctioned by what any particular sect may designate as 'religion.' ***
In the case of Holy Trinity Church v. U.S., 143 U.S. 457 (1892), Congress had passed a law
making it unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration,
of any alien or aliens, any foreigner or foreigners, into the United States under contract or
agreement, to perform labor or service of any kind in the United States. The church organization
made a contract with an alien in England to come to New York and serve as rector and pastor,
and to pay his expenses of coming over. Action was taken by the United States to recover the
prescribed penalty for violation of the law, resulting in a conviction, which was upheld by the
Circuit Court. The Supreme Court unanimously reversed. The reasoning set forth in the Court's
opinion written by Justice Brewer has been favorably cited many times since. Excerpts from the
opinion are quoted at length, because of the recognition of historical precedent vital to the understanding of the place religion held in this country from its inception through the time of this case,
which was well past the time of the Fourteenth Amendment. Parts of the opinion are:
[The opinion first refers to Senate and House committee reports indicating that the
law was to prevent the bringing of cheap migrant labor to the country, and not to services of the nature of a Pastor's services.]
But, beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is
historically true. From the discovery of this continent to the present hour, there is a
single voice making this affirmation. The commission to Christopher Columbus, prior to his sail westward, is from "Ferdinand and Isabella, by the grace of God, king
and queen of Castile," etc., and recites that "it is hoped that by God's assistance some
of the continents and islands in the ocean will be discovered," etc.
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[The opinion then goes at length into the Christian purposes behind the charters,
grants, and fundamental orders from which the colonies were established. It is an
opinion rich in history.]
Coming nearer to the present time, the declaration of independence recognizes
the presence of the Divine in human affairs in these words: "We hold these truths to
be self-evident, that all men are created equal, that they are endowed by their Creator
with certain unalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness." "We, therefore, the Representatives of the united States of America, in
General Congress, Assembled, appealing to the Supreme Judge of the world for the
rectitude of our intentions, do, in the Name and by Authority of the good People of
these Colonies, solemnly publish and declare," etc.; "And for support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge
to each other our Lives, our Fortunes, and our sacred Honor."
If we examine the constitutions of the various states, we find in them a constant
recognition of religious obligations. Every constitution of every one of the 44 states
contains language which, either directly or by clear implication, recognizes a profound reverence for religion, and an assumption that its influence in all human affairs
is essential to the well-being of the community. This recognition may be in the preamble, such as is found in the constitution of Illinois, 1870: "We, the people of the
state of Illinois, grateful to Almighty God for the civil, political, and religious liberty
which He hath so long permitted us to enjoy, and looking to Him for a blessing upon
our endeavors to secure and transmit the same unimpaired to succeeding generations," etc.
It may be only in the familiar requisition that all officers shall take an oath closing with the declaration, "so help me God." It may be in clauses like that of the constitution of Indiana, 1816, art. 11, §4: "The manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and
shall be esteemed the most solemn appeal to God." Or in provisions such as are
found in articles 36 and 37 of the declaration of the rights of the constitution of Maryland, (1867): "That, as it is the duty of every man to worship God in such manner as
he thinks most acceptable to Him, all persons are equally entitled to protection in
their religious liberty: wherefore, no person ought, by any law, to be molested in his
person or estate on account of his religious persuasion or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order,
peace, or safety of the state, or shall infringe the laws of morality, or injure others in
their natural, civil, or religious rights; nor ought any person to be compelled to frequent or maintain or contribute, unless on contract, to maintain any place of worship
or any ministry; nor shall any person, otherwise competent, be deemed incompetent
as a witness or juror on account of his religious belief: provided, he believes in the
existence of God, and that, under his dispensation, such person will be held morally
accountable for his acts, and be rewarded or punished therefor, either in this world or
the world to come. That no religious test ought ever to be required as a qualification
for any office or profit or trust in this state, other than a declaration of belief in the
existence of God; nor shall the legislature prescribe any other oath of office than the
oath prescribed by this constitution." Or like that in articles 2 and 3 of part 1 of the
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constitution of Massachusetts, (1780:) "It is the right as well as the duty of all men in
society publicly, and at stated seasons, to worship the Supreme Being, the Great Creator and Preserver of the universe. * * * As the happiness of a people and the good
order and preservation of civil government essentially depend upon piety, religion,
and morality, and as these cannot be generally diffused through a community but by
the institution of the public worship of God and of public instructions in piety, religion, and morality: Therefore, to promote their happiness, and to secure the good order and preservation of their government, the people of this commonwealth have a
right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic or religious societies to make suitable provision, at
their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion and morality, in
all cases where such provisions shall not be made voluntarily." Or, as in sections 5
and 14 of article 7 of the constitution of Mississippi, (1832:) "No person who denies
the being of a God, or a future state of rewards and punishments, shall hold any office in the civil department of this state. * * * Religion {516} morality, and
knowledge being necessary to good government, the preservation of liberty, and the
happiness of mankind, schools, and the means of education, shall forever be encouraged in this state." Or by article 22 of the constitution of Delaware, (1776,) which
required all officers, besides an oath of allegiance, to make and subscribe the following declaration: "I, A.B., do profess faith in God the Father, and in Jesus Christ His
only Son, and in the Holy Ghost, one God, blessed for evermore; and I do
acknowledge the Holy Scriptures of the Old and New Testament to be given by divine inspiration."
Even the constitution of the United States, which is supposed to have little touch
upon the private life of the individual, contains in the first amendment a declaration
common to the constitutions of all the states, as follows: "Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof,"
etc., - and also provides in article 1, § 7, (a provision common to many constitutions,) that the executive shall have 10 days (Sundays excepted) within which to determine whether he will approve or veto a bill.
There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious
nation. These are not individual sayings, declarations of private persons. They are
organic utterances. They speak the voice of the entire people. While because of a
general recognition of this truth the question has seldom been presented to the courts,
yet we find that in Updegraph v. Comm., 11 Serg. & R. 394, 400, it was decided that,
"Christianity, general Christianity, is, and always has been, a part of the common law
of Pennsylvania; * * * not Christianity with an established church and tithes and
spiritual courts, but Christianity with liberty of conscience to all men." And in People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor KENT, the great commentator on
American law, speaking as chief justice of the supreme court of New York, said:
"The people of this state, in common with the people of this country, profess the
general doctrines of Christianity as the rule of their faith and practice; and to scan250
dalize the author of those doctrines in not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation
of decency and good order. * * * The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious
subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that
right. Nor are we bound by any expressions in the constitution, as some have
strangely supposed, either not to punish at all, or to punish indiscriminately the like
attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason
that the case assumes that we are a Christian people, and the morality of the country
is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those
impostors." And in the famous case of Vidal v. Girard's Ex'rs, 2 How. 127, 198, this
court, while sustaining the will of Mr. Girard, with its provisions for the creation of a
college into which no minister should be permitted to enter, observed: "it is also said,
and truly, that the Christian religion is a part of the common law of Pennsylvania."
If we pass beyond these matters to a view of American life, as expressed by its
laws, its business, its customs, and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: The form of oath
universally prevailing, concluding with an appeal to the Almighty; the custom of
opening sessions of all deliberative bodies and most conventions with prayer; the
prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the
closing of courts, legislatures, and other similar public assemblies on that day; the
churches and church organizations which abound in every city, town, and hamlet; the
multitude of charitable organizations existing everywhere under Christian auspices;
the gigantic missionary associations, with general support, and aiming to establish
Christian missions in every quarter of the globe. These and many other matters
which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be
believed that a congress of the United States intended to make it a misdemeanor for a
church of this country to contract for the services of a Christian minister residing in
another nation? ***
The judgment will be reversed, and the case remanded for further proceedings in
accordance with the opinion.
If the opinions of the activist members of our Supreme Court in the last half century were
indeed true, then the states in enacting our constitutional provisions would have eliminated many
of their own constitutional provisions and laws. This is contrary to common sense and insupportable. They are merely personal opinions of activist judges engrafted into our Bill of Rights. They
are wrongful and indefensible.
In Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1930), the appellants, as
citizens and taxpayers of the state of Louisiana, brought this suit to restrain the State Board of
Education and other state officials from expending any part of the severance tax fund in purchas251
ing school books and in supplying them free of cost to the school children of the state, under
Acts No. 100 and No. 143 of 1928, upon the ground that the legislation violated specified provisions of the Constitution of the state and also section 4 of article 4 and the Fourteenth Amendment of the Federal Constitution. The Supreme Court of the state affirmed the judgment of the
trial court which refused to issue an injunction. The Supreme Court affirmed, holding that the
Fourteenth Amendment was not violated. The unanimous opinion of the Court by Chief Justice
Hughes states:
... The operation and effect of the legislation in question were described by the
Supreme Court of the state as follows ... : 'One may scan the acts in vain to ascertain
where any money is appropriated for the purchase of school books for the use of any
church, private, sectarian, or even public school. The appropriations were made for
the specific purpose of purchasing school books for the use of the school children of
the state, free of cost to them. It was for their benefit and the resulting benefit to the
state that the appropriations were made. True, these children attend some school,
public or private, the latter, sectarian or nonsectarian, and that the books are to be
furnished them for their use, free of cost, whichever they attend. The schools, however, are not the beneficiaries of these appropriations. They obtain nothing from
them, nor are they relieved of a single obligation, because of them. The school children and the state alone are the beneficiaries. It is also true that the sectarian schools,
which some of the children attend, instruct their pupils in religion, and books are
used for that purpose, but one may search diligently the acts, though without result,
in an effort to find anything to the effect that it is the purpose of the state to furnish
religious books for the use of such children. ... What the statutes contemplate is that
the same books that are furnished children attending public schools shall be furnished children attending private schools. This is the only practical way of interpreting and executing the statutes, and this is what the state board of education is doing.
Among these books, naturally, none is to be expected, adapted to religious instruction.' The court also stated, although the point is not of importance in relation to the
Federal question, that it was 'only the use of the books that is granted to the children
or, in other words, the books are lent to them.'
Viewing the statute as having the effect thus attributed to it, we cannot doubt
that the taxing power of the state is exerted for a public purpose. The legislation does
not segregate private schools, or their pupils, as its beneficiaries or attempt to interfere with any matters of exclusively private concern. Its interest is education, broadly; its method, comprehensive. Individual interests are aided only as the common interest is safeguarded.
The case of Everson v. Board of Education of Ewing TP., 330 U.S. 1 (1947), upheld a New
Jersey statute under which transportation was furnished to school children of nonprofit schools,
including church conducted schools. It was a five to four decision with Justice Black delivering
the Courts opinion. It states in part:
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... The First Amendment, as made applicable to the states by the Fourteenth,
Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 ... .
[The opinion then reviews at length use of money for public purposes and the
history behind the First Amendment.]
The 'establishment of religion' clause of the First Amendment means at least
this: Neither a state nor the Federal Government can set up a church. Neither can
pass laws which aid one religion, aid all religions, or prefer one religion over another. ... In the words of Jefferson, the clause against establishment of religion by law
was intended to erect 'a wall of separation between Church and State.' Reynolds v.
United States, supra, 98 U.S. at page 164. ***
The First Amendment has erected a wall between church and state. That wall
must be kept high and impregnable. We could not approve the slightest breach. New
Jersey has not breached it here.
Although I agree with the decision of the Court in this Everson case, I consider the opinion a
poor one and not typical of Justice Black, although there are a number of his other decisions with
which I do not agree. First, his statement about the "wall of separation" was pure dictum and not
necessary. It was the First Amendment that was in issue, which was enacted by the people
through their representatives. This "wall" was Jefferson's statement in a letter some ten years after the First Amendment was adopted. The opinion also erroneously states, "that the provisions
of the First Amendment, in the drafting and adoption of which Madison and Jefferson played
such leading roles ... ." Jefferson did not play a leading role in either the drafting or the adoption
of the amendment. Also, if a Court is going to refer to Madison's part in the matter, they should
refer to his statement of the amendment when he presented it to Congress. That statement is
quoted above in this chapter. Now the wall has been invented by the Court, and Black now
makes it "a wall that must be kept high and impregnable." This is one more example of Courts
injecting their own ideas into the Constitution by building unsupported precedent on unsupported
precedent.
Also, the statement that no law can be passed to aid all religions is contrary to established
law. There have always been both state and federal tax exemptions for churches. Churches are
built and services conducted on military establishments at government expense. We have always
had chaplains for the House and Senate. Churches, church schools, and church services have always been allowed and encouraged on Indian reservations. And Christian morals were taught in
Indian schools. In addition, Black's statements in this regard were unnecessary dicta.
My own opinion on the issues of the Everson case, which I believe to be consistent with history, historical precedent, Madison's statement, Justice Story's treatises, and prior cases of the
Supreme Court, is the following.
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The purposes of the religious clauses of the First Amendment are to prevent a
national religion or laws directly supporting or interfering with any particular religion; and to insure the right of the people to freely exercise their chosen religions.
If the State is going to furnish transportation to school children, it can, but is not
required to discriminate against children going to church schools.
People sending their children to church schools pay taxes, too. In fact, a part of
their taxes goes to support public schools, from which they are getting no benefit.
The purpose of this law was to help all school children. It does not involve the
State in any establishment of religion, it does not favor any religion, and it does not,
above all, prevent anyone from freely exercising a chosen religion.
The First Amendment does not prevent the encouraging of accepted religions,
generally.
With McCollum n. Board of Education, 333 U.S. 203 (1948), we get into what I consider
unacceptable court activism regarding religion. The stage was set by Justice Black's improper
statement about the "wall of separation" and other dicta in Everson, which he now cites as precedent in this case. No historical precedent is cited and no other cases are cited in the majority
opinion by Black for striking down a procedure by the school board by which "religious teachers, employed by private religious groups, were permitted to come weekly into the school buildings during the regular hours set apart for secular teaching, and then and there for a period of
thirty minutes substitute their religious teaching for the secular education provided under the
compulsory education law." Children were not required to attend these religious sessions. Black's
sole reasoning was his dicta in the Everson case, and he repeats, "the First Amendment had
erected a wall between Church and State which must be kept high and impregnable."
Justice Frankfurter wrote a concurring opinion, joined in by Justices Jackson Rutledge and
Burton. The noted that they had dissented in the Everson case. The opinion goes through considerable history, but they erroneously give the impression that because of the influence of Jefferson
and Madison, the influence of religion in church schools declined. However, this had little to do
with the intent and purpose of the First Amendment when it was enacted. Not only was the implication given contrary to history, but a serious error was made, and we have no way of knowing if this also influenced Black's opinion. The opinion makes this erroneous statement: "In Massachusetts, largely through the efforts of Horace Mann, all sectarian teachings were barred from
the common school to save it from being rent by denominational conflict." A book or article was
cited by S. M. Smith, The Relation of the State to Religious Education in Massachusetts (1926).
Another statement was made about the action being taken even though Mr. Mann was a devout
Christian.
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I don't know whether the error was in the citation, one of the lawyer's briefs, or in the court
research, or whether someone is trying to mislead us by a play on the word "sectarian." But it is
directly contrary to Horace Mann's own statements in his Twelfth Annual Report, which, as
shown above was his last. I will repeat a quote from it:
It is still easier to prove that the Massachusetts school system is not antichristian nor unchristian. The Bible is the acknowledged expositor of Christianity. In
strictness, Christianity has no other authoritative expounder. This Bible is in
our common schools by common consent. Twelve years ago, it was not in all the
schools. Contrary to the genius of our government, if not contrary to the express
letter of the law, it had been used for sectarian purposes, — to prove one sect to
be right, and others to be wrong. Hence it had been excluded from the schools of
some towns by an express vote. But since the law, and the reasons on which it is
founded, have been more fully explained and better understood, and since sectarian instruction has, to a great extent, ceased to be given, the Bible has been
restored. [Emphasis added]
In connection with the statement about Massachusetts schools, in the next sentence was:
"The upshot of these controversies, often long and fierce, is fairly summarized by saying that
long before the Fourteenth Amendment subjected the States to new limitations, the prohibition of
furtherance by the State of religious instruction became the guiding principle, in law and feeling,
of the American people." The history referred to in this chapter shows that this statement is false.
Also, compare this statement to that from The Annals of America, quoted above, on religion in
American Schools. Compare them also to the statements of Benjamin Rush and Noah Webster.
Another completely misleading thing about the whole argument by the Court is that the First
Amendment acquired its meaning when it was enacted in 1791, not when the Fourteenth
Amendment was ratified in 1868.
Justice Reed, the sole dissenter, wrote a courageous and enlightening opinion that appears to
square with the relevant history stated, parts of which I will quote at length :
... By directing attention to the many instances of close association of church
and state in American society and by recalling that many of these relations are so
much a part of our tradition and culture that they are accepted without more, this dissent may help in an appraisal of the meaning of the clause of the First Amendment
concerning the establishment of religion and of the reasons which lead to the approval or disapproval of the judgment below. ***
... As no issue of prohibition upon the free exercise of religion is before us, we
need only examine the School Board's action to see if it constitutes an establishment
of religion. ***
The phrase 'an establishment of religion' may have been intended by Congress
to be aimed only at a state church. When the First Amendment was pending in Con255
gress in substantially its present form, 'Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the
legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.'7 Passing years, however, have brought about acceptance of
a broader meaning, although never until today, I believe, has this Court widened its
interpretation to any such degree as holding that recognition of the interest of our nation in religion, through the granting, to qualified representatives of the principal
faiths, of opportunity to present religion as an optional, extracurricular subject during
released school time in public school buildings, was equivalent to an establishment
of religion. A reading of the general statements of eminent statesmen of former days,
referred to in the opinions in this and Everson v. Board of Education, supra, will
show that circumstances such as those in this case were far from the minds of the authors. The words and spirit of those statements may be wholeheartedly accepted
without in the least impugning the judgment of the State of Illinois. 8 Mr. Jefferson,
as one of the founders of the University of Virginia, a school which from its establishment in 1819 has been wholly governed, managed and controlled by the State of
Virginia,9 was faced with the same problem that is before this Court today: The
question of the constitutional limitation upon religious education in public schools.
In his annual report as Rector, to the President and Directors of the Literary Fund,
dated October 7, 1822, approved by the Visitors of the University of whom Mr.
Madison was one,10 Mr. Jefferson set forth his views at some length. 11 These suggestions of Mr. Jefferson were adopted 12 and ch. II, 1, of the Regulations of the
University of October 4, 1824, provided that:
'Should the religious sects of this State, or any of them, according to the invitation held out to them, establish within, or adjacent to, the precincts of
the University, schools for instruction in the religion of their sect, the students of the University will be free, and expected to attend religious worship at the establishment of their respective sects, in the morning, and in
time to meet their school in the University at its stated hour.'13 Thus, the
'wall of separation between church and State' that Mr. Jefferson built at the
University which he founded did not exclude religious education from that
school. The difference between the generality of his statements on the separation of church and state and the specificity of his conclusions on education are considerable. A rule of law should not be drawn from a figure of
speech.
Mr. Madison's Memorial and Remonstrance against Religious Assessments 14
relied upon by the dissenting Justices in Everson is not applicable here. 15 Mr. Madison was one of the principal opponents in the Virginia General Assembly of A Bill
Establishing a Provision for Teachers of the Christian Religion. The monies raised
by the taxing section16 of that bill were to be appropriated 'by the Vestries, Elders,
or Directors of each religious society, * * * to a provision for a Minister or Teacher
of the Gospel of their denomination, or the providing places of divine worship, and
to none other use whatsoever * * *.' The conclusive legislative struggle over this act
took place in the fall of 1785 before the adoption of the Bill of Rights. The Remonstrance had been issued before the General Assembly convened and was instrumental
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in the final defeat of the act which died in committee. Throughout the Remonstrance,
Mr. Madison speaks of the 'establishment' sought to be effected by the act. It is clear
from its historical setting and its language that the Remonstrance was a protest
against an effort by Virginia to support Christian sects by taxation. Issues similar to
those raised by the instant case were not discussed. Thus, Mr. Madison's approval of
Mr. Jefferson's report as Rector gives, in my opinion, a clearer indication of his
views on the constitutionality of religious education in public schools than his general statements on a different subject. ***
It seems clear to me that the 'aid' referred to by the Court in the Everson case
could not have been those incidental advantages that religious bodies, with other
groups similarly situated, obtain as a by- product of organized society. This explains
the well-known fact that all churches receive 'aid' from government in the form of
freedom from taxation. The Everson decision itself justified the transportation of
children to church schools by New Jersey for safety reasons. It accords with Cochran
v. Louisiana State Board of Education, 281 U.S. 370 , where this Court upheld a free
textbook statute of Louisiana against a charge that it aided private schools on the
ground that the books were for the education of the children, not to aid religious
schools. Likewise the National School Lunch Act aids all school children attending
tax exempt schools. 17 In Bradfield v. Roberts, 175 U.S. 291 , this Court held proper
the payment of money by the Federal Government to build an addition to a hospital,
chartered by individuals who were members of a Roman Catholic sisterhood, and
operated under the auspices of the Roman Catholic Church. This was done over the
objection that it aided the establishment of religion. 18 While obviously in these instances the respective churches, in a certain sense, were aided, this Court his never
held that such 'aid' was in violation of the First or Fourteenth Amendments.
Well-recognized and long-established practice support the validity of the Illinois
statute here in question. That statute, as construed in this case, is comparable to those
in many states. 19 All differ to some extent. New York may be taken as a fair example. 20 In many states the program is under the supervision of a religious council
composed of delegates who are themselves communicants of various faiths. 21 As is
shown by Bradfield v. Roberts, supra, the fact that the members of the council have
religious affiliations is not significant. In some, instruction is given outside of the
school buildings; in others, within these buildings. Metropolitan centers like New
York usually would have available quarters convenient to schools. Unless smaller
cities and rural communities use the school building at times that do not interfere
with recitations, they may be compelled to give up religious education. I understand
that pupils not taking religious education usually are given other work of a secular
nature within the schools. 22 Since all these states use the facilities of the schools to
aid the religious education to some extent, their desire to permit religious education
to school children is thwarted by this Court's judgment. 23 Under it, as I understand
its language, children cannot be released or dismissed from school to attend classes
in religion while other children must remain to pursue secular education. Teachers
cannot keep the records as to which pupils are to be dismissed and which retained.
To do so is said to be an 'aid' in establishing religion; the use of public money for religion.
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Cases running into the scores have been in the state courts of last resort that involved religion and the schools. Except where the exercises with religious significance partook of the ceremonial practice of sects or groups, their constitutionality
has been generally upheld. 24 Illinois itself promptly struck down as violative of its
own constitution required exercises partaking of a religious ceremony. People ex rel.
Ring v. Board of Education, 245 Ill. 334, 92 N.E. 251, 29 L.R.A., N.S., 442, 19
Ann.Cas. 220. In that case compulsory religious exercises-a reading from the King
James Bible, the Lord's Prayer and the singing of hymns-were forbidden as 'worship
services.' In this case, the Supreme Court of Illinois pointed out that in the Ring case,
the activities in the school were ceremonial and compulsory; in this, voluntary and
educational. 396 Ill. 14, 20, 21, 71 N.E.2d 161.
The practices of the federal government offer many examples of this kind of
'aid' by the state to religion. The Congress of the United States has a chaplain for
each House who daily invokes divine blessings and guidance for the proceedings. 25
The armed forces have commissioned chaplains from early days. 26 They conduct
the public services in accordance with the liturgical requirements of their respective
faiths, ashore and afloat, employing for the purpose property belonging to the United
States and dedicated to the services of religion. 27 Under the Servicemen's Readjustment Act of 1944, eligible veterans may receive training at government expense
for the ministry in denominational schools. 28 The schools of the District of Columbia have opening exercises which 'include a reading from the Bible without note or
comment, and the Lord's prayer.'29
In the United States Naval Academy and the United States Military Academy,
schools wholly supported and completely controlled by the federal government, there
are a number of religious activities. Chaplains are attached to both schools. Attendance at church services on Sunday is compulsory at both Military and Naval Academies. 30 At West Point the Protestant services are held in the Cadet Chapel, the
Catholic in the Catholic Chapel, and the Jewish in the Old Cadet Chapel; at Annapolis only Protestant services are held on the reservation, midshipmen of other religious
persuasions attend the churches of the city of Annapolis. These facts indicate that
both schools since their earliest beginnings have maintained and enforced a pattern
of participation in formal worship.
With the general statements in the opinions concerning the constitutional requirement that the nation and the states, by virtue of the First and Fourteenth
Amendments,31 may 'make no law respecting an establishment of religion,' I am in
agreement. But, in the light of the meaning given to those words by the precedents,
customs, and practices which I have detailed above, I cannot agree with the Court's
conclusion that when pupils compelled by law to go to school for secular education
are released from school so as to attend the religious classes, churches are unconstitutionally aided. Whatever may be the wisdom of the arrangement as to the use of
the school buildings made with The Champaign Council of Religious Education, it is
clear to me that past practice shows such cooperation between the schools and a nonecclesiastical body is not forbidden by the First Amendment. When actual church
services have always been permitted on government property, the mere use of the
school buildings by a non-sectarian group for religious education ought not to be
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condemned as an establishment of religion. For a non-sectarian organization to give
the type of instruction here offered cannot be said to violate our rule as to the establishment of religion by the state. The prohibition of enactments respecting the establishment of religion do not bar every friendly gesture between church and state. It is
not an absolute prohibition against every conceivable situation where the two may
work together any more than the other provisions of the First Amendment- free
speech, free press-are absolutes. 32 If abuses occur such as the use of the instruction
hour for sectarian purposes, I have no doubt, in view of the Ring case, that Illinois
will promptly correct them. If they are of a kind that tend to the establishment of a
church or interfere with the free exercise of religion, this Court is open for a review
of any erroneous decision. This Court cannot be too cautious in upsetting practices
embedded in our society by many years of experience. A state is entitled to have
great leeway in its legislation when dealing with the important social problems of its
population. 33 A definite violation of legislative limits must be established. The
Constitution should not be stretched to forbid national customs in the way courts act
to reach arrangements to avoid federal taxation. 34 Devotion to the great principle of
religious liberty should not lead us into a rigid interpretation of the constitutional
guarantee that conflicts with accepted habits of our people. This is an instance where,
for me, the history of past practices is determinative of the meaning of a constitutional clause not a decorous introduction to the study of its text. The judgment should
be affirmed.
The footnotes in Reed's well documented opinion are informative, and may be found by the
FindLaw website,
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=333&page=23
In Zorach v. Clausen, 343 U.S. 306 (1952), The Court reached a more reasonable decision,
with Black, Frankfurter, and Jackson dissenting in separate dissents. The Court's decision, written by Justice Douglas (surprisingly), upheld a section of the New York Education Law and the
regulations thereunder, under which New York City permits its public schools to release students
during school hours, on written requests of their parents, so that they may leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises. The
same section makes school attendance compulsory; students not released stay in the classrooms;
and the churches report to the schools the names of children released from public schools who
fail to report for religious instruction. Excerpts from the opinion
... There is much talk of the separation of Church and State in the history of the
Bill of Rights and in the decisions clustering around the First Amendment. See Everson v. Board of Education, 330 U.S. 1; McCollum v. Board of Education, supra.
There cannot be the slightest doubt that the First Amendment reflects the philosophy
that Church and State should be separated. And so far as interference with the "free
exercise" of religion and an "establishment" of religion are concerned, the separation
must be complete and unequivocal. The First Amendment within the scope of its
coverage permits no exception; the prohibition is absolute. The First Amendment,
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however, does not say that in every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the manner, the specific ways, in
which there shall be no concert or union or dependency one on the other. That is the
common sense of the matter. Otherwise the state and religion would be aliens to each
other - hostile, suspicious, and even unfriendly. Churches could not be required to
pay even property taxes. Municipalities would not be permitted to render police or
fire protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths these and all other references to the Almighty that run through our laws, our public
rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist
or agnostic could even object to the supplication with which the Court opens each
session: "God save the United States and this Honorable Court."
We would have to press the concept of separation of Church and State to these
extremes to condemn the present law on constitutional grounds. The nullification of
this law would have wide and profound effects. A Catholic student applies to his
teacher for permission to leave the school during hours on a Holy Day of Obligation
to attend a mass. A Jewish student asks his teacher for permission to be excused for
Yom Kippur. A Protestant wants the afternoon off for a family baptismal ceremony.
In each case the teacher requires parental consent in writing. In each case the teacher,
in order to make sure the student is not a truant, goes further and requires a report
from the priest, the rabbi, or the minister. The teacher in other words cooperates in a
religious program to the extent of making it possible for her students to participate in
it. Whether she does it occasionally for a few students, regularly for one, or pursuant
to a systematized program designed to further the religious needs of all the students
does not alter the character of the act.
We are a religious people whose institutions presuppose a Supreme Being. We
guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor
an attitude on the part of government that shows no partiality to any one group and
that lets each flourish according to the zeal of its adherents and the appeal of its
dogma. When the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events to sectarian needs, it follows
the best of our traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To hold that it may not
would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in
no religion over those who do believe. Government may not finance religious groups
nor undertake religious instruction nor blend secular and sectarian education nor use
secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious
influence. The government must be neutral when it comes to competition between
sects. It may not thrust any sect on any person. It may not make a religious ob260
servance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its
operations as to those who want to repair to their religious sanctuary for worship or
instruction. No more than that is undertaken here. ***
Now we get into the era of Chief Justice Earl Warren, and, constitutionally, things begin to
"go to hell in a hand basket."
In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court struck down a law of New York
under which a School Board devised a nondenominational prayer and required that it be said
aloud by each class in the presence of a teacher at the beginning of each school day. Pupils who
wished to do so could remain silent or be excused from the room while the prayer was recited.
Justices White and Frankfurter took no part in the decision. Justice Black gave the majority opinion from which parts are quoted:
[The prayer was]:
"Almighty God, we acknowledge our dependence upon Thee, and we
beg Thy blessings upon us, our parents, our teachers and our Country." ***
... The nature of such a prayer has always been religious, none of the respondents has denied this and the trial court expressly so found. ***
... It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official
prayers and leave that purely religious function to the people themselves and to those
the people choose to look to for religious guidance. ...
It is true that New York's establishment of its Regents' prayer as an officially
approved religious doctrine of that State does not amount to a total establishment of
one particular religious sect to the exclusion of all others - that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to
the governmental encroachments upon religion which were commonplace 200 years
ago. To those who may subscribe to the view that because the Regents' official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James
Madison, the author of the First Amendment:
"[I]t is proper to take alarm at the first experiment on our liberties. . . . Who
does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property
for the support of any one establishment, may force him to conform to any
other establishment in all cases whatsoever?" [Memorial and Remonstrance
against Religious Assessments, II Writings of Madison 183, at 185-186]
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Black goes into great detail in the opinion of the history of England and its religious oppression, part of which was composing detailed prayers in a book of prayers, and forcing them on the
religious people. The oppression in England which prevented freedom of worship had no similarity at all to the issue in question which concerns only a simple nondenominational prayer that
was not forced on anyone. As always, the opinion omits the history and religious precedent
showing what was going on in our schools when the First Amendment was framed and ratified.
And as usual, while quoting some of Madison's ideas, the really relevant ones are omitted – particularly his wording for the First Amendment when he presented his ideas for a Bill of Rights to
Congress.
Is this really an honest presentation of the intent and purpose of that amendment? I think
not! These are things that should be left to the people in each community. This straightjacket
placed on us by the Court is unacceptable, besides being contrary to our Constitution. This religious matter is so important that I will quote a considerable part of the dissent of Justice Potter
Stewart:
... But the Court says that in permitting school children to say this simple prayer,
the New York authorities have established "an official religion."
With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an "official religion" is established by letting those who want to
say a prayer say it. On the contrary, I think that to deny the wish of these school
children to join in reciting this prayer is to deny them the opportunity of sharing in
the spiritual heritage of our Nation.
The Court's historical review of the quarrels over the Book of Common Prayer
in England throws no light for me on the issue before us in this case. England had
then and has now an established church. Equally unenlightening, I think, is the history of the early establishment and later rejection of an official church in our own
States. For we deal here not with the establishment of a state church, which would,
of course, be constitutionally impermissible, but with whether school children who
want to begin their day by joining in prayer must be prohibited from doing so. Moreover, I think that the Court's task, in this as in all areas of constitutional adjudication,
is not responsibly aided by the uncritical invocation of metaphors like the "wall of
separation," a phrase nowhere to be found in the Constitution. What is relevant to the
issue here is not the history of an established church in sixteenth century England or
in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government.
At the opening of each day's Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall our Crier has
said, "God save the United States and this Honorable Court." 1 Both the Senate and
the House of Representatives open their daily Sessions with prayer. 2 Each of our
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Presidents, from George Washington to John F. Kennedy, has upon assuming his Office asked the protection and help of God. 3
The Court today says that the state and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group
of the American people on any subject touching religion. 4 One of the stanzas of
"The Star-Spangled Banner," made our National Anthem by Act of Congress in
1931, 5 contains these verses:
"Blest with victory and peace, may the heav'n rescued land
Praise the Pow'r that hath made and preserved us a nation!
Then conquer we must, when our cause it is just, And this be our motto `In
God is our Trust.'"
In 1954 Congress added a phrase to the Pledge of Allegiance to the Flag so that
it now contains the words "one Nation under God, indivisible, with liberty and justice for all." 6 In 1952 Congress enacted legislation calling upon the President each
year to proclaim a National Day of Prayer. 7 Since 1865 the words "IN GOD WE
TRUST" have been impressed on our coins. 8
Countless similar examples could be listed, but there is no need to belabor the
obvious. 9 It was all summed up by this Court just ten years ago in a single sentence:
"We are a religious people whose institutions presuppose a Supreme Being." Zorach
v. Clauson, 343 U.S. 306, 313.
I do not believe that this Court, or the Congress, or the President has by the actions and practices I have mentioned established an "official religion" in violation of
the Constitution. And I do not believe the State of New York has done so in this
case. What each has done has been to recognize and to follow the deeply entrenched
and highly cherished spiritual traditions of our Nation - traditions which come down
to us from those who almost two hundred years ago avowed their "firm Reliance on
the Protection of divine Providence" when they proclaimed the freedom and independence of this brave new world. 10
I also consider it worthwhile to quote the following from footnotes 3 and 4 of the dissent:
[ Footnote 3 ] For example:
On April 30, 1789, President George Washington said:
". . . it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who
presides in the councils of nations, and whose providential aids can supply
every human defect, that His benediction may consecrate to the liberties and
happiness of the people of the United States a Government instituted by
themselves for these essential purposes, and may enable every instrument
employed in its administration to execute with success the functions allotted
to his charge. In tendering this homage to the Great Author of every public
and private good, I assure myself that it expresses your sentiments not less
than my own, nor those of my fellow-citizens at large less than either. No
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people can be bound to acknowledge and adore the Invisible Hand which
conducts the affairs of men more than those of the United States. . . .
.....
"Having thus imparted to you my sentiments as they have been awakened
by the occasion which brings us together, I shall take my present leave; but
not without resorting once more to the benign Parent of the Human Race in
humble supplication that, since He has been pleased to favor the American
people with opportunities for deliberating in perfect tranquillity, and dispositions for deciding with unparalleled unanimity on a form of government
for the security of their union and the advancement of their happiness, so
His divine blessing may be equally conspicuous in the enlarged views, the
temperate consultations, and the wise measures on which the success of this
Government must depend."
On March 4, 1797, President John Adams said:
"And may that Being who is supreme over all, the Patron of Order, the
Fountain of Justice, and the Protector in all ages of the world of virtuous
liberty, continue His blessing upon this nation and its Government and give
it all possible success and duration consistent with the ends of His providence."
On March 4, 1805, President Thomas Jefferson said:
". . . I shall need, too, the favor of that Being in whose hands we are, who
led our fathers, as Israel of old, from their native land and planted them in a
country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom
and power, and to whose goodness I ask you to join in supplications with
me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your
good, and shall secure to you the peace, friendship, and approbation of all
nations."
On March 4, 1809, President James Madison said:
"But the source to which I look . . . is in . . . my fellow-citizens, and in the
counsels of those representing them in the other departments associated in
the care of the national interests. In these my confidence will under every
difficulty be best placed, next to that which we have all been encouraged to
feel in the guardianship and guidance of that Almighty Being whose power
regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address
our devout gratitude for the past, as well as our fervent supplications and
best hopes for the future."
On March 4, 1865, President Abraham Lincoln said:
". . . Fondly do we hope, fervently do we pray, that this mighty scourge of
war may speedily pass away. Yet, if God wills that it continue until all the
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wealth piled by the bondsman's two hundred and fifty years of unrequited
toil shall be sunk, and until every drop of blood drawn with the lash shall be
paid by another drawn with the sword, as was said three thousand years ago,
so still it must be said `the judgments of the Lord are true and righteous altogether.'
"With malice toward none, with charity for all, with firmness in the right as
God gives us to see the right, let us strive on to finish the work we are in, to
bind up the nation's wounds, to care for him who shall have borne the battle
and for his widow and his orphan, to do all which may achieve and cherish
a just and lasting peace among ourselves and with all nations."
On March 4, 1885, President Grover Cleveland said:
". . . And let us not trust to human effort alone, but humbly acknowledging
the power and goodness of Almighty God, who presides over the destiny of
nations, and who has at all times been revealed in our country's history, let
us invoke His aid and His blessing upon our labors."
On March 5, 1917, President Woodrow Wilson said:
". . . I pray God I may be given the wisdom and the prudence to do my duty in the
true spirit of this great people."
On March 4, 1933, President Franklin D. Roosevelt said:
"In this dedication of a Nation we humbly ask the blessing of God. May He
protect each and every one of us. May He guide me in the days to come."
On January 21, 1957, President Dwight D. Eisenhower said:
"Before all else, we seek, upon our common labor as a nation, the blessings
of Almighty God. And the hopes in our hearts fashion the deepest prayers
of our whole people."
On January 20, 1961, President John F. Kennedy said:
"The world is very different now. . . . And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe - the
belief that the rights of man come not from the generosity of the state but
from the hand of God.
....
"With a good conscience our only sure reward, with history the final judge
of our deeds, let us go forth to lead the land we love, asking His blessing
and His help, but knowing that here on earth God's work must truly be our
own."
[ Footnote 4 ] My brother DOUGLAS says that the only question before us is whether government "can constitutionally finance a religious exercise." The official chaplains of Congress are paid with public money. So are military chaplains. So are state
and federal prison chaplains.
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In these religious decisions the activist members of the Court, which are in the majority, are
making their own personal views as to what they consider the best policy for the country a part
of our First Amendment. The most important part of our Constitution, its very basis, which is the
right of the people to govern themselves, is completely forgotten. We no longer hear the time
honored rule of construction, "that an act passed by Congress or by a State will be presumed to
be constitutional, until clearly shown to the contrary."
The ACLU was now on a roll with the anti-religious attitude of the courts.
The now renowned atheist, Madelyn Murray O'Hair, was one of the instigators of Arlington
School Dist. v. Schempp, 374 U.S. 203 (1963). This decision was on a combination of two cases,
one a Pennsylvania case and one a Maryland case, and Mrs. Murray and her son were parties to
the Maryland case. However, in this particular case, I do think that from what is stated the question is a close one, and I again agree with Justice Stewart, the sole dissenter. In the Pennsylvania
case, verses were read from the Bible, and the session ended with the Lord's Prayer each morning. In the Maryland case, a chapter was read from the Bible each morning. Objecting children
could be excused in both cases. I am personally first struck by the use of the Lord's prayer, as it
is well known that it was authored by Jesus. Does this not favor Christianity? However, an examination of the wording shows nothing inconsistent with Judaism. I think that such things should
be left to the States and local communities who better understand the makeup of their schools.
Justice Clark gave the Court's opinion, and it was based entirely on case precedent. No effort
was made to support the decision by historical precedent, or show the intent and purpose of the
Establishment Clause on which the decision was based. Justices Douglas and Brennan wrote
concurring opinions.
Justice Douglas' basic reason is simple. He says that any religious exercise violates the "neutrality" required by the establishment clause; as does the fact that "public funds, though small in
amount, are being used to promote a religious exercise." It appears that Justice Douglas has now
drifted further to the left into activism.
Justice Brennan wrote a long convoluted opinion that takes up most of the pages in this long
case. He makes the erroneous statement that Thomas Jefferson was one of the Architects of the
First Amendment. He expresses his doubts that their views however would be dispositive of this
issue. He states:
But an awareness of history and an appreciation of the aims of the Founding Fathers
do not always resolve concrete problems. ...
... [Our Founding Fathers] were concerned with far more flagrant intrusions of government into the realm of religion than any that our century has witnessed. ...
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... the structure of American education has greatly changed since the First Amendment was adopted. ...
... our religious composition makes us a vastly more diverse people than were our
forefathers. ... In the face of such profound changes, practices which may have been
objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike.
To Brennan, only the Court has the wisdom to resolve these "concrete problems." He merely
demonstrates that the wisdom of the people is superior. These statements unequivocally show
that Brennan has no regard for the intent and purpose of the First Amendment when it was
framed and ratified. He believes that the Constitution should be interpreted to accommodate
changed conditions in the country. Its original meaning must be changed. This is the mark of the
activist Court. Only the people have the right to change our Constitution to cover changed conditions. And it is their sole prerogative to determine the nature and wisdom of those changes. This
is a clear usurpation of that sole right of the people and their representatives.
Brennan goes at great length into the proper policies to be used in today's education. School
policy is not his or any other judge's business.
Justice Stewart's dissent in the Engle case would also be applicable to this case. However, I
think some additional things in his dissent in this cases are informative in that they give some
insight into some cases I have not reviewed, because reviewing all of the religious cases could
make a very long book on the one subject. Justice Stewart states in part:
I think the records in the two cases before us are so fundamentally deficient as
to make impossible an informed or responsible determination of the constitutional issues presented. Specifically, I cannot agree that on these records we can say that the
Establishment Clause has necessarily been violated. But I think there exist serious
questions under both that provision and the Free Exercise Clause - insofar as each is
imbedded in the Fourteenth Amendment - which require the remand of these cases
for the taking of additional evidence. ***
As a matter of history, the First Amendment was adopted solely as a limitation
upon the newly created National Government. The events leading to its adoption
strongly suggest that the Establishment Clause was primarily an attempt to insure
that Congress not only would be powerless to establish a national church, but would
also be unable to interfere with existing state establishments. See McGowan v.
Maryland, 366 U.S. 420, 440 -441. Each State was left free to go its own way and
pursue its own policy with respect to religion. Thus Virginia from the beginning pursued a policy of disestablishmentarianism. Massachusetts, by contrast, had an established church until well into the nineteenth century.
So matters stood until the adoption of the Fourteenth Amendment, or more accurately, until this Court's decision in Cantwell v. Connecticut, in 1940. 310 U.S.
296. In that case the Court said: "The First Amendment declares that Congress shall
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make no law respecting an establishment of religion or prohibiting the free exercise
thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws." 2 [Stewart's footnote says that statement was dictum.]
I accept without question that the liberty guaranteed by the Fourteenth Amendment against impairment by the States embraces in full the right of free exercise of
religion protected by the First Amendment, and I yield to no one in my conception of
the breadth of that freedom. ... I accept too the proposition that the Fourteenth
Amendment has somehow absorbed the Establishment Clause, although it is not
without irony that a constitutional provision evidently designed to leave the States
free to go their own way should now have become a restriction upon their autonomy.
But I cannot agree with what seems to me the insensitive definition of the Establishment Clause contained in the Court's opinion, nor with the different but, I think,
equally mechanistic definitions contained in the separate opinions which have been
filed. ***
It is this concept of constitutional protection embodied in our decisions which
makes the cases before us such difficult ones for me. For there is involved in these
cases a substantial free exercise claim on the part of those who affirmatively desire
to have their children's school day open with the reading of passages from the Bible.
It has become accepted that the decision in Pierce v. Society of Sisters, 268 U.S.
510, upholding the right of parents to send their children to nonpublic schools, was
ultimately based upon the recognition of the validity of the free exercise claim involved in that situation. It might be argued here that parents who wanted their children to be exposed to religious influences in school could, under Pierce, send their
children to private or parochial schools. But the consideration which renders this
contention too facile to be determinative has already been recognized by the Court:
"Freedom of speech, freedom of the press, freedom of religion are available to all,
not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U.S.
105, 111.
It might also be argued that parents who want their children exposed to religious
influences can adequately fulfill that wish off school property and outside school
time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in
these cases. For a compulsory state educational system so structures a child's life that
if religious exercises are held to be an impermissible activity in schools, religion is
placed at an artificial and state-created disadvantage. Viewed in this light, permission
of such exercises for those who want them is necessary if the schools are truly to be
neutral in the matter of religion. And a refusal to permit religious exercises thus is
seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at the least, as government support of the beliefs of those
who think that religious exercises should be conducted only in private.
What seems to me to be of paramount importance, then, is recognition of the
fact that the claim advanced here in favor of Bible reading is sufficiently substantial
to make simple reference to the constitutional phrase "establishment of religion" as
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inadequate an analysis of the cases before us as the ritualistic invocation of the nonconstitutional phrase "separation of church and state." What these cases compel, rather, is an analysis of just what the "neutrality" is which is required by the interplay
of the Establishment and Free Exercise Clauses of the First Amendment, as imbedded in the Fourteenth.
Our decisions make clear that there is no constitutional bar to the use of government property for religious purposes. On the contrary, this Court has consistently
held that the discriminatory barring of religious groups from public property is itself
a violation of First and Fourteenth Amendment guarantees. Fowler v. Rhode Island,
345 U.S. 67; Niemotko v. Maryland, 340 U.S. 268. A different standard has been applied to public school property, because of the coercive effect which the use by religious sects of a compulsory school system would necessarily have upon the children
involved. McCollum v. Board of Education, 333 U.S. 203. But insofar as the
McCollum decision rests on the Establishment rather than the Free Exercise Clause,
it is clear that its effect is limited to religious instruction - to government support of
proselytizing activities of religious sects by throwing the weight of secular authority
behind the dissemination of religious tenets. 4
The dangers both to government and to religion inherent in official support of
instruction in the tenets of various religious sects are absent in the present cases,
which involve only a reading from the Bible unaccompanied by comments which
might otherwise constitute instruction. ***
In Walz v. Tax Commission of City of New York, 397 U.S. 664 (1970), property tax exemptions to religious organizations were upheld. The Court's opinion by Chief Justice Burger states:
All of the 50 States provide for tax exemption of places of worship, most of
them doing so by constitutional guarantees. For so long as federal income taxes have
had any potential impact on churches-over 75 years- religious organizations have
been expressly exempt from the tax. 4 Such treatment is an 'aid' to churches no more
and no less in principle than the real estate tax exemption granted by States. Few
concepts are more deeply embedded in the fabric of our national life, beginning with
pre- Revolutionary colonial times, than for the government to exercise at the very
least this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.
It is significant that Congress, from its earliest days, has viewed the Religion
Clauses of the Constitution as authorizing statutory real estate tax exemption to religious bodies. In 1802 the 7th Congress enacted a taxing statute for the County of Alexandria, adopting the 1800 Virginia statutory pattern which provided tax exemptions for churches. 2 Stat. 194. 5 As early as 1813 the 12th Congress refunded import
duties paid by religious societies on the importation of religious articles. 6 During
this period the City Council of Washington, D.C., acting under congressional authority, Act of Incorporation, 7, 2 Stat. 197 (May 3, 1802), enacted a series of real and
personal property assessments that uniformly exempted church property. 7 In 1870
the Congress specifically exempted all churches in the District of Columbia and ap269
purtenant grounds and property 'from any and all taxes or assessments, national, municipal, or county.' Act of June 17, 1870, 16 Stat. 153.8
It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire
national existence and indeed predates it. Yet an unbroken practice of according the
exemption to churches, openly and by affirmative state action, not covertly or by
state inaction, is not something to be lightly cast aside. Nearly 50 years ago Mr. Justice Holmes stated:
'If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it ....'
Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 10 (1922).
It is noteworthy that the Chief Justice in this period is now Warren Burger (1969-1986),
who I consider a conservative judge, and for now, things have taken a turn for the better. However, it seems that even with judges as conservative as Burger, there is always a temptation for a
judge to inject his own ideas into decisions. This weakness in our court system is the primary
reason that binding guidelines need to be set up for the interpretation of statutory law and constitutional provisions. It was never intended, as our older cases show, that this judicial legislation
should happen in such cases. I guess the fact that common law was judge made law, which could
be changed by judges when the need arose, has encouraged judges to encroach on the rights of
the people in constitutional and statutory law.
Lemon v. Kurtzman, 403 U.S. 602 (1971), and Tilton v. Richardson, 403 U.S. 672 (1971),
are two very important cases on religion decided by the Supreme Court on June 28, 1971. They
refer to one another without official references for that reason. The intermingling of the cases is
somewhat confusing in that White wrote one opinion, concurring in the Tilton case and dissenting in the Lemmon case. His opinion is published only in the Lemon case.
In the Lemmon case, two cases were combined involving statutes of two states, both of
which the Supreme Court held to be unconstitutional. Rhode Island's 1969 Salary Supplement
Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which
the average per-pupil expenditure on secular education is below the average in public schools.
Eligible teachers must teach only courses offered in the public schools, using only materials used
in the public schools, and must agree not to teach courses in religion. A three-judge court found
that about 25% of the State's elementary students attended nonpublic schools, about 95% of
whom attended Roman Catholic affiliated schools, and that to date about 250 teachers at Roman
Catholic schools are the sole beneficiaries under the Act. The court found that the parochial
school system was "an integral part of the religious mission of the Catholic Church," and held
that the Act fostered "excessive entanglement" between government and religion, thus violating
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the Establishment Clause. Pennsylvania's Nonpublic Elementary and Secondary Education Act,
passed in 1968, authorizes the state Superintendent of Public Instruction to "purchase" certain
"secular educational services" from nonpublic schools, directly reimbursing those schools solely
for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to
courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." Contracts were made with
schools that have more than 20% of all the students in the State, most of which were affiliated
with the Roman Catholic Church. The complaint challenging the constitutionality of the Act alleged that the church-affiliated schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to
fulfill that purpose. A three-judge court granted the State's motion to dismiss the complaint for
failure to state a claim for relief, finding no violation of the Establishment or Free Exercise
Clause.
The alignment of judges: BURGER, C. J., delivered the opinion of the Court, in which
BLACK, DOUGLAS, HARLAN, STEWART, MARSHALL (as to Nos. 569 and 570), and
BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 625, in which
BLACK, J., joined, and in which MARSHALL, J. (as to Nos. 569 and 570), joined, filing a separate statement, post, p. 642. BRENNAN, J., filed a concurring opinion, post, p. 642. WHITE, J.,
filed an opinion concurring in the judgment in No. 89 and dissenting in Nos. 569 and 570, post,
p. 661. MARSHALL, J., took no part in the consideration or decision of No. 89. (569 and 570
are the Lemmon case and 89 is the Tilton case.)
The primary basis of the Burger opinion for the majority is shown by the following excerpts:
In Everson v. Board of Education, 330 U.S. 1 (1947), this Court upheld a state
statute that reimbursed the parents of parochial school children for bus transportation
expenses. There MR. JUSTICE BLACK, writing for the majority, suggested that the
decision carried to "the verge" of forbidden territory under the Religion Clauses. Id.,
at 16. Candor compels acknowledgment, moreover, that we can only dimly perceive
the lines of demarcation in this extraordinarily sensitive area of constitutional law.
The language of the Religion Clauses of the First Amendment is at best opaque,
particularly when compared with other portions of the Amendment. Its authors did
not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead
they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of
its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A
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given law might not establish a state religion but nevertheless be one "respecting"
that end in the sense of being a step that could lead to such establishment and hence
offend the First Amendment.
In the absence of precisely stated constitutional prohibitions, we must draw lines
with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement
of the sovereign in religious activity." Walz v. Tax Commission, 397 U.S. 664, 668
(1970).
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from
our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board
of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the statute must not foster
"an excessive government entanglement with religion." Walz, supra, at 674. ***
In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. MR. JUSTICE HARLAN, in a
separate opinion in Walz, supra, echoed the classic warning as to "programs, whose
very nature is apt to entangle the state in details of administration . . . ." Id., at 695.
Here we find that both statutes foster an impermissible degree of entanglement. ***
The merit and benefits of these schools, however, are not the issue before us in
these cases. The sole question is whether state aid to these schools can be squared
with the dictates of the Religion Clauses. Under our system the choice has been
made that government is to be entirely excluded from the area of religious instruction
and churches excluded from the affairs of government. The Constitution decrees that
religion must be a private matter for the individual, the family, and the institutions of
private choice, and that while some involvement and entanglement are inevitable,
lines must be drawn. ***
Following are excerpts from Justice White's opinion, dissenting in this Lemmon case and
concurring in the Tilton case:
... That religion may indirectly benefit from governmental aid to the secular activities of churches does not convert that aid into an impermissible establishment of
religion.
This much the Court squarely holds in the Tilton case, where it also expressly
rejects the notion that payments made directly to a religious institution are, without
more, forbidden by the First Amendment. In Tilton, the Court decides that the Federal Government may finance the separate function of secular education carried on in a
parochial setting. It reaches this result although sectarian institutions undeniably will
obtain substantial benefit from federal aid; without federal funding to provide adequate facilities for secular education, the student bodies of those institutions might
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remain stationary or even decrease in size and the institutions might ultimately have
to close their doors.
It is enough for me that the States and the Federal Government are financing a
separable secular function of overriding importance in order to sustain the legislation
here challenged. That religion and private interests other than education may substantially benefit does not convert these laws into impermissible establishments of
religion.
It is unnecessary, therefore, to urge that the Free Exercise Clause of the First
Amendment at least permits government in some respects to modify and mold its
secular programs out of express concern for free-exercise values. See Walz v. Tax
Commission, supra, at 673 (tax exemption for religious properties; "[t]he limits of
permissible state accommodation to religion are by no means coextensive with the
noninterference mandated by the Free Exercise Clause. To equate the two would be
to deny a national heritage with roots in the Revolution itself"); Sherbert v. Verner,
374 U.S. 398 (1963) (exemption of Seventh Day Adventist from eligibility requirements for unemployment insurance not only permitted but required by the Free Exercise Clause); [Citing and commenting on other cases, most of which are covered in
this chapter.] ***
I find it very difficult to follow the distinction between the federal and state programs in terms of their First Amendment acceptability. My difficulty is not surprising, since there is frank acknowledgment that "we can only dimly perceive the
boundaries of permissible government activity in this sensitive area of constitutional
adjudication," Tilton v. Richardson, post, at 678, and that "[j]udicial caveats against
entanglement" are a "blurred, indistinct and variable barrier." Ante, at 614. I find it
even more difficult, with these acknowledgments in mind, to understand how the
Court can accept the considered judgment of Congress that its program is constitutional and yet reject the equally considered decisions of the Rhode Island and Pennsylvania legislatures that their programs represent a constitutionally acceptable accommodation between church and state.
In the Tilton case, The Court upheld the Higher Education Facilities Act of 1963 which provides federal construction grants for college and university facilities, excluding "any facility used
or to be used for sectarian instruction or as a place for religious worship, or ... primarily in connection with any part of the program of a school or department of divinity." The United States
retains a 20-year interest in any facility constructed with funds under the Act, and if, during this
period, the recipient violates the statutory conditions, the Government is entitled to recovery of
funds. Four church-related colleges and universities in Connecticut received federal construction
grants for five facilities. Appellants attempted to show, in a three-judge court, that the recipient
institutions were "sectarian" by introducing evidence of their relations with religious authorities,
the curricula content, and other indicia of religious character. Appellee colleges introduced testimony that they had fully complied with the statutory conditions and that their religious affilia273
tions did not interfere with their secular educational functions. The court held that the Act authorized grants to church-related schools, and sustained its constitutionality, finding that the Act
had neither the purpose nor the effect of promoting religion.
The alignment of the judges: BURGER, C. J., announced the Court's judgment and delivered an opinion in which HARLAN, STEWART, and BLACKMUN, JJ., joined. WHITE, J.,
filed an opinion concurring in the judgment, DOUGLAS, J., filed an opinion dissenting in part,
in which BLACK and MARSHALL, JJ., joined,
Excerpts from the Court's opinion by Chief Justice Burger:
We are satisfied that Congress intended the Act to include all colleges and universities regardless of any affiliation with or sponsorship by a religious body. ***
Against this background we consider four questions: First, does the Act reflect a
secular legislative purpose? Second, is the primary effect of the Act to advance or
inhibit religion? Third, does the administration of the Act foster an excessive government entanglement with religion? Fourth, does the implementation of the Act inhibit the free exercise of religion? ***
Limiting the prohibition for religious use of the structure to 20 years obviously
opens the facility to use for any purpose at the end of that period. It cannot be assumed that a substantial structure has no value after that period and hence the unrestricted use of a valuable property is in effect a contribution of some value to a religious body. ***
We conclude that the Act does not violate the Religion Clauses of the First
Amendment except that part of 754 (b) (2) providing a 20-year limitation on the religious use restrictions contained in 751 (a) (2). We remand to the District Court with
directions to enter a judgment consistent with this opinion.
As previously explained, Justice White's opinion, in which he concurs in this case, was reviewed, above.
These are close issues in these two cases, but I tend to agree with Justice White. Also, the
"tests" that were set forth in the cases – three in the Lemon case and four in the Tilton case will
come back to haunt the Court, and lead to incorrect opinions. That is always the problem when
courts merely follow stare decisis (precedent of prior cases), without examining the historical
precedent in constitutional law issues.
Hunt v. McNair, 413 U.S. 734 (1973), was an action for injunctive and declaratory relief in
which appellant challenges the South Carolina Educational Facilities Authority Act as violative
of the Establishment Clause of the First Amendment insofar as it authorizes a proposed financing
transaction involving the issuance of revenue bonds benefiting a Baptist-controlled college. The
Act establishes an Educational Facilities Authority to assist (through the issuance of revenue
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bonds) higher educational institutions in constructing and financing projects, such as buildings,
facilities, and site preparation, but not including any facility for sectarian instruction or religious
worship. Neither the State nor the Authority is obligated, directly or indirectly, to pay the principal of or interest on the bonds; nor is the State's taxing power pledged or implicated. The statute
and action of the State were upheld. The alignment of Judges:
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART,
WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined. Parts of the Court's opinion:
As we reaffirm today in Committee for Public Education & Religious Liberty v.
Nyquist, post, p. 756, the principles which govern our consideration of challenges to
statutes as violative of the Establishment Clause are three:
"First, the statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster `an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S., at 612 -613.
With full recognition that these are no more than helpful signposts, we consider
the present statute and the proposed transaction in terms of the three "tests": purpose,
effect, and entanglement.
The purpose of the statute is manifestly a secular one. The benefits of the Act
are available to all institutions of higher education in South Carolina, whether or not
having a religious affiliation. While a legislature's declaration of purpose may not
always be a fair guide to its true intent, appellant makes no suggestion that the introductory paragraph of the Act represents anything other than a good-faith statement of
purpose:
"It is hereby declared that [the purpose is] to enable institutions for
higher education in the State to provide the facilities and structures which
are sorely needed to accomplish the purposes of this chapter, all to the public benefit and good, to the extent and manner provided herein." S. C. Code
Ann. 22.41 (Supp. 1971).
The dissent is based on excessive "entanglement" with religion. It reeks of the anti-religious
attitude of those members of the Court. I believe that a holding to the contrary would have been a
wrongful discrimination against religious educational establishments. Those who framed and ratified the First Amendment established their intent and purpose by their many actions of directly
assisting and promoting religion in education.
While this book is being written in 2004, we currently have many attacks on the exhibiting
of the Ten Commandments in public places, prayer in schools, and the Pledge of Allegiance in
public schools, most of which are instigated by the anti-religious ACLU.
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An earlier case on the Ten Commandments was Stone V. Graham, 449 U.S. 39 (1980), in
which a Kentucky statute required the posting of them on the walls of each public school classroom in the state. The Court Struck down the statute in a Per Curiam decision – without giving
the case a regular full consideration. Chief Justice Rehnquist and Justices Blackmun and Stewart
dissented. The complete invalidity of the "Lemon Test" is shown by the following from the
Court's decision:
This Court has announced a three-part test for determining whether a challenged
state statute is permissible under the Establishment Clause of the United States Constitution:
"First, the statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor inhibits religion . . .; finally the statute must not foster `an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. 602, 612 -613
(1971) (citations omitted).
If a statute violates any of these three principles, it must be struck down under
the Establishment Clause. We conclude that Kentucky's statute requiring the posting
of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional.
From Chief Justice Rehnquist's dissenting opinion:
The Court rejects the secular purpose articulated by the State because the Decalogue is "undeniably a sacred text," ante, at 41. It is equally undeniable, however, as
the elected representatives of Kentucky determined, that the Ten Commandments
have had a significant impact on the development of secular legal codes of the Western World. The trial court concluded that evidence submitted substantiated this determination. ...
The Establishment Clause does not require that the public sector be insulated
from all things which may have a religious significance or origin. This Court has
recognized that "religion has been closely identified with our history and government," Abington School District, supra, at 212, and that "[t]he history of man is inseparable from the history of religion," Engel v. Vitale, 370 U.S. 421, 434 (1962).
Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. The words of Justice Jackson, concurring in
McCollum v. Board of Education, 333 U.S. 203, 235 -236 (1948), merit quotation at
length:
"I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plaintiff's completely to isolate and
cast out of secular education all that some people may reasonably regard as
religious instruction. Perhaps subjects such as mathematics, physics or
chemistry are, or can be, completely secularized. But it would not seem
practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred
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music, architecture minus the cathedral, or painting without the scriptural
themes would be eccentric and incomplete, even from a secular point of
view. . . . I should suppose it is a proper, if not an indispensable, part of
preparation for a worldly life to know the roles that religion and religions
have played in the tragic story of mankind. The fact is that, for good or for
ill, nearly everything in our culture worth transmitting, everything which
gives meaning to life, is saturated with religious influences, derived from
paganism, Judaism, Christianity - both Catholic and Protestant - and other
faiths accepted by a large part of the world's peoples. One can hardly respect the system of education that would leave the student wholly ignorant
of the currents of religious thought that move the world society for a part in
which he is being prepared." ***
David Barton, referred to previously in this chapter, filed an affidavit supporting the public
display of the Ten Commandments in the Federal District Court in another Kentucky case in
2001. It is a very comprehensive affidavit on the effect of the Ten Commandments on our American history. His excellent qualifications as a historian are shown in the affidavit. This affidavit,
citing extensive documentary support, can be found on the on the Internet – some of the versions
with footnotes. The following are examples of history related in the affidavit.
12. The Ten Commandments are a smaller part of the larger body of divine law recognized and early incorporated into America's civil documents. For example, the
Fundamental Orders of Connecticut-established in 1638-39 as the first written constitution in America and considered as the direct predecessor of the U. S. Constitution - declared that the Governor and his council of six elected officials would "have
power to administer justice according to the laws here established; and for want
thereof according to the rule of the word of God." ***
14. The following year, 1639, the New Haven Colony adopted its "Fundamental Articles" for the governance of that Colony, and when the question was placed before
the colonists:
Whether the Scriptures do hold forth a perfect rule for the direction and government
of all men in all dut[ies] which they are to perform to God and men as well in the
government of families and commonwealths as in matters of the church, this was assented unto by all, no man dissenting as was expressed by holding up of hands. ***
Honor God's name.
26. Civil laws enacted to observe this commandment were divided into two categories: laws prohibiting blasphemy and laws prohibiting swearing and profanity. Noah
Webster, an American legislator and judge, affirms that both of these categories of
laws were derived from the third commandment of the Decalogue [Ten Commandments]:
When in obedience to the third commandment of the Decalogue you would avoid
profane swearing, you are to remember that this alone is not a full compliance with
the prohibition which [also] comprehends all irreverent words or actions and what277
ever tends to cast contempt on the Supreme Being or on His word and ordinances
[i.e., blasphemy].***
30. For example, Commander-in-Chief George Washington issued numerous military orders during the American Revolution that first prohibited swearing and then
ordered an attendance on Divine worship, thus relating the prohibition against profanity to a religious duty. Typical of these orders, on July 4, 1775, Washington declared:
The General most earnestly requires and expects a due observance of those articles
of war established for the government of the army which forbid profane cursing,
swearing, and drunkenness; and in like manner requires and expects of all officers
and soldiers not engaged on actual duty, a punctual attendance on Divine Service to
implore the blessings of Heaven upon the means used for our safety and defense.
31. Washington began issuing such orders to his troops as early as 1756 during the
French and Indian War, and continued the practice throughout the American Revolution, issuing similar orders in 1776, 1777, 1778, etc. ***
34. In 1824, the Supreme Court of Pennsylvania (in a decision subsequently invoked
authoritatively and endorsed by the U. S. Supreme Court) reaffirmed that the civil
laws against blasphemy were derived from divine law:
The true principles of natural religion are part of the common law; the essential principles of revealed religion are part of the common law; so that a person vilifying,
subverting or ridiculing them may be prosecuted at common law.
The court then noted that its State's laws against blasphemy had been drawn up by
James Wilson, a signer of the Constitution and original Justice on the U. S. Supreme
Court:
Honor the Sabbath day.
37. The civil laws enacted to uphold this injunction are legion and are far too numerous for any exhaustive listing to be included in this brief affidavit. While a representative sampling will be presented below, there are three points that clearly establish the effect of the fourth commandment of the Decalogue on American law.
38. First is the inclusion in the U. S. Constitution of the recognition of the Sabbath in
Art. I, Sec. 7, ¶ 2, stipulating that the President has 10 days to sign a law, "Sundays
excepted." ***
43. In 1775, and throughout the American Revolution, Commander-in-Chief George
Washington issued military orders directing that the Sabbath be observed. His order
of May 2, 1778, at Valley Forge was typical:
The Commander in Chief directs that divine service be performed every Sunday at
11 o'clock in those brigades to which there are chaplains; those which have none to
attend the places of worship nearest to them. It is expected that officers of all ranks
will by their attendance set an example to their men. ***
46. In 1950, the Supreme Court of Mississippi had similarly declared:
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The Sunday laws have a divine origin. Blackstone (Cooley's) Par. 42, page 36. After
the six days of creation, the Creator Himself rested on the Seventh. Genesis, Chapter
2, verses 2 and 3. Thus, the Sabbath was instituted, as a day of rest. The original example was later confirmed as a commandment when the law was handed down from
Mt. Sinai: "Remember the Sabbath day, to keep it holy." ***
Honor your parents.
52. This fifth command begins the so-called second "tablet" of the Decalogue-the
section addressing "civil" behavior that even critics acknowledge to be appropriate
for public display. This portion of the Decalogue formed the basis of many of our
current criminal laws and modern courts are not reticent to acknowledge and enforce
these commandments. As the Supreme Court of Indiana declared in 1974:
Virtually all criminal laws are in one way or another the progeny of Judeo-Christian
ethics. We have no intention to overrule the Ten Commandments.
53. Yet the mandates of the Decalogue currently embodied in our criminal laws are
no less religiously-based than were the first four commandments. For example, a
1642 Connecticut law addressing the fifth commandment specifically cited both the
Decalogue and additional Bible verses as the basis for its civil laws related to honoring parents:
If any child or children above sixteen years old, and of sufficient understanding shall
curse or smite their normal father or mother, he or they shall be put to death; unless it
can be sufficiently testified that the parents have been very unchristianly negligent in
the education of such children, or so provoke them by extreme and cruel correction
that they have been forced thereunto to preserve themselves from death [or] maiming. Ex. 21:17, Lev. 20, Ex. 20:15
This law also appears in other State codes as well.
54. Even three centuries after these early legal codes, this commandment was still influencing civil laws-as confirmed in 1934 by a Louisiana appeals court that cited the
fifth commandment of the Decalogue as the basis of civil policy between parents and
children:
" 'Honor thy father and thy mother,' is as much a command of the municipal law as it
is a part of the Decalogue, regarded as holy by every Christian people. 'A child,' says
the code, 'whatever be his age, owes honor and respect to his father and mother.' "
55. Other courts have made similar declarations, all confirming that the fifth commandment of the Decalogue was an historical part of American civil law and jurisprudence.
Do not murder.
56. The next several commands form much of the heart of our criminal laws, and, as
noted by Noah Webster, one of the first founders to call for the Constitutional Convention, the divine law is the original source of several of those criminal laws: ***
59. Courts, too, have been very candid in tracing civil murder laws back to the Decalogue. For example, a 1932 Kentucky appeals court declared:
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The rights of society as well as those of appellant are involved and are also to be protected, and to that end all forms of governments following the promulgation of Moses at Mt. Sinai has required of each and every one of its citizens that "Thou shalt not
murder." ...
60. Even the "severest punishment for the crime" is traced back to divine laws. As
first Chief Justice John Jay explained:
There were several divine, positive ordinances . . . of universal obligation, as . . . the
particular punishment for murder. ***
Do not commit adultery.
62. Directly citing the Decalogue, a 1641 Massachusetts law declared:
If any person committeth adultery with a married or espoused wife, the adulterer and
adulteresses shall surely be put to death. Ex. 20.14.
63. Other States had similar laws, such as Connecticut in 1642, Rhode Island in
1647, New Hampshire in 1680, Pennsylvania in 1705, etc. In fact, in 1787, nearly a
century-and-a-half after the earliest colonial laws, Vermont enacted an adultery law,
declaring that it was based on divine law: ***
Do not steal.
68. The laws regarding theft that indicate their reliance on divine law and the Decalogue are far too numerous even to begin listing. Perhaps the simplest summation is
given by Chancellor James Kent, who is considered, along with Justice Joseph Story,
as one of the two "Fathers of American Jurisprudence." In his classic 1826 Commentaries on American Law, Kent confirmed that the prohibitions against theft were
found in divine law:
To overturn justice by plundering others tended to destroy civil society, to violate the
law of nature, and the institutions of Heaven.
69. Subsequent to James Kent, numerous other legal sources have reaffirmed the divine origin of the prohibition against theft. For example, in 1951, the Louisiana Supreme Court acknowledged the Decalogue as the basis for the unchanging civil laws
against theft:
In the Ten Commandments, the basic law of all Christian countries, is found the admonition "Thou shalt not steal."
70. In 1940, the Supreme Court of California had made a similar acknowledgment:
Defendant did not acknowledge the dominance of a fundamental precept of honesty
and fair dealing enjoined by the Decalogue and supported by prevailing moral concepts. "Thou shalt not steal" applies with equal force and propriety to the industrialist
of a complex civilization as to the simple herdsman of ancient Israel.
71. Significantly, other courts acknowledged the same, including the Utah Supreme
Court, the Colorado Supreme Court, the Florida Supreme Court, the Missouri Supreme Court, etc.***
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Do not perjure yourself.
75. A 1642 Connecticut law against perjury acknowledged its basis to be in divine
law, declaring:
If any man rise up by false witness, wittingly and of purpose, to take away any man's
life, he shall be put to death. Deut. 19:16, 18, 19.
76. Similar laws on perjury declaring their basis to be in divine law and the Decalogue may be found in Massachusetts in 1641, Rhode Island in 1647, New Hampshire in 1680, Connecticut in 1808, etc.
77. Courts were also open in acknowledging their indebtedness to the Decalogue for
the civil perjury laws. For example, 1924, the Oregon Supreme Court declared:
No official is above the law. "Thou shalt not bear false witness" is a command of the
Decalogue, and that forbidden act is denounced by statute as a felony. ***
Do not covet. ***
81. John Adams, one of only two individuals who signed the Bill of Rights, also
acknowledged the importance of this commandment, declaring:
The moment the idea is admitted into society that property is not as sacred as the
laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If "Thou shalt not covet" and "Thou shalt not steal"
were not commandments of Heaven, they must be made inviolable precepts in every
society before it can be civilized or made free.
82. Many courts have also acknowledged the importance of this provision of the
Decalogue. For example, in 1895, the California Supreme Court cited this prohibition as the basis of civil laws against defamation. In 1904, the Court of Appeals in
West Virginia cited it as the basis of laws preventing election fraud. In 1958, a Florida appeals court cited it as the basis of laws targeting white-collar crime. And in
1951, the Oregon Supreme Court cited this Decalogue prohibition as the basis of civil laws against modern forms of cattle rustling. There are numerous other examples
that all affirm that the tenth commandment of the Decalogue did indeed form an historical part of American civil law and jurisprudence.
OPINIONS OF THE FRAMERS OF OUR GOVERNMENT
83. The Colonial, Revolutionary, and Federalist Era laws, as well as contemporary
court decisions, provide two authoritative voices establishing that the Decalogue
formed the historical basis for civil laws and jurisprudence in America. As a third authoritative voice, the Framers themselves endorsed those commandments, both specifically and generally.
84. In addition to the approbation already given throughout this affidavit by John
Adams, John Jay, Noah Webster, et. al, there are many other specific declarations,
including that of William Findley, a soldier in the Revolution and a U. S. Congressman, who declared:
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[I]t pleased God to deliver on Mount Sinai a compendium of His holy law and to
write it with His own hand on durable tables of stone. This law, which is commonly
called the Ten Commandments or Decalogue, . . . is immutable and universally obligatory. . . . [and] was incorporated in the judicial law.
85. Additionally, John Quincy Adams, who bore arms during the Revolution, served
under four Presidents and became a President, and who was nominated (but declined) a position on the U. S. Supreme Court under President Madison, similarly
declared:
The law given from Sinai was a civil and municipal as well as a moral and religious
code; it contained many statutes . . . of universal application-laws essential to the existence of men in society, and most of which have been enacted by every nation
which ever professed any code of laws. . . . Vain, indeed, would be the search among
the writings of profane antiquity . . . to find so broad, so complete and so solid a basis for morality as this Decalogue lays down. ***
88. The Framers also used a third descriptive term synonymous with the Decalogue
and the moral law: the natural law. As Chief Justice John Jay, an author of the Federalist Papers, explained:
The moral, or natural law, was given by the sovereign of the universe to all mankind.
***
93. Justice Joseph Story, later appointed to the Supreme Court by President James
Madison, similarly declared:
I verily believe Christianity necessary to the support of civil society. One of the
beautiful boasts of our municipal jurisprudence is that Christianity is a part of the
Common Law. . . . There never has been a period in which the Common Law did not
recognize Christianity as lying its foundations. (emphasis added) ***
99. In 1950, the Florida Supreme Court similarly declared:
A people unschooled about the sovereignty of God, the Ten Commandments, and the
ethics of Jesus, could never have evolved the Bill of Rights, the Declaration of Independence, and the Constitution. There is not one solitary fundamental principle of
our democratic policy that did not stem directly from the basic moral concepts as
embodied in the Decalogue . . .
CIVIL DISPLAYS
100. Significantly, Americans seem to recognize the important contributions made to
our society by the Decalogue. Consequently, there is a centuries old American propensity to honor both the Ten Commandments and Moses, the deliverer of the Decalogue.
101. For example, in 1776 immediately following America's separation from Great
Britain, Thomas Jefferson and Benjamin Franklin were placed on a committee to design a seal for the new United States. Both of them separately proposed featuring
Moses prominently in the symbol of the new nation. Franklin proposed "Moses lift282
ing his wand and dividing the Red Sea" while Jefferson proposed "the children of Israel in the wilderness, led by a cloud by day and a pillar of fire by night."
102. A further indication of this American proclivity to honor Moses, the deliverer of
the Ten Commandments, is seen in the U. S. Capitol. Adorning the top of the walls
around the House Chamber ... symbolically overseeing the proceedings of the lawmakers. That relief is of Moses.
103. Not only Moses but also depictions of the Ten Commandments adorn several of
the more important government buildings in the nation's capitol. For example, every
visitor that enters the National Archives to view the original Constitution and Declaration of Independence (and other official documents of American government) must
first pass by the Ten Commandments embedded in the entryway to the Archives.
Additionally, in the U. S. Supreme Court are displayed two depictions of the Ten
Commandments. One is on the entry into the Chamber, where, engraved on the lower half of the two large oak doors, are the Ten Commandments. The other display of
the commandments is in the Chamber itself on a marble frieze carved above the Justices' heads. As Chief Justice Warren Burger noted in Lynch v. Donnelly:
The very chamber in which oral arguments on this case were heard is decorated with
a notable and permanent-not seasonal-symbol of religion: Moses with the Ten Commandments.
104. Other prominent buildings where large displays of the Ten Commandments
may be viewed include the Texas State Capitol, the chambers of the Pennsylvania
Supreme Court, and scores of other legislatures, courthouses, and public buildings
across America. In fact, the Ten Commandments are more easily found in America's
government buildings than in her religious buildings, thus demonstrating the understanding by generations of Americans from coast to coast that the Ten Commandments formed the basis of America's civil laws.
http://www.lc.org/hotissues/attachments/Affidavit%20%20David%20Barton%20re%20impact%20of%20ten%20commandments%20McCreary.pdf
Barton covered all of the Ten Commandments, showing how each has affected our laws and
how all have been honored in this country. They and all Christian tenets have played a vital part
in the formation of this country and its laws. The information in the affidavit is also relevant to
this whole chapter.
For a Court to hold that the First Amendment prohibits the Ten Commandments being displayed in any school or in any public place in this country is a complete perversion of that
Amendment. It is plainly the substitution of the anti-religious bias of certain judges for the intent
and purpose of the Amendment.
In Marsh v. Chambers, 463 U.S. 783 (1983), with William O. Douglas gone from the Court,
and Sandra Day O'Connor in his place, the Court takes a step back toward the true meaning of
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the First Amendment. It upheld the right of the Nebraska Legislature to begin each of its sessions
with a prayer by a chaplain paid by the State with the legislature's approval. The alignment of
Judges:
BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN,
POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, STEVENS, J., filed a dissenting opinion,
Writing the majority opinion, Chief Justice Burger observed:
The opening of sessions of legislative and other deliberative public bodies with
prayer is deeply embedded in the history and tradition of this country. From colonial
times through the founding of the Republic and ever since, the practice of legislative
prayer has coexisted with the principles of disestablishment and religious freedom.
In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, "God save the United States and this Honorable Court." The
same invocation occurs at all sessions of this Court
The tradition in many of the Colonies was, of course, linked to an established
church, 5 but the Continental Congress, beginning in 1774, adopted the traditional
procedure of opening its sessions with a prayer offered by a paid chaplain. See, e. g.,
1 J. Continental Cong. 26 (1774); 2 id., at 12 (1775); 5 id., at 530 (1776); 6 id., at
887 (1776); 27 id., at 683 (1784). See also 1 A. Stokes, Church and State in the United States 448-450 (1950). Although prayers were not offered during the Constitutional Convention, 6 the First Congress, as one of its early items of business, adopted
the policy of selecting a chaplain to open each session with prayer. Thus, on April 7,
1789, the Senate appointed a committee "to take under consideration the manner of
electing Chaplains." S. Jour., 1st Cong., 1st Sess., 10 (1820 ed.). On April 9, 1789, a
similar committee was appointed by the House of Representatives. On April 25,
1789, the Senate elected its first chaplain, id., at 16; the House followed suit on May
1, 1789, H. R. Jour., 1st Cong., 1st Sess., 26 (1826 ed.). A statute providing for the
payment of these chaplains was enacted into law on September 22, 1789. 7 2 Annals
of Cong. 2180; 4, 1 Stat. 71. 8
On September 25, 1789, three days after Congress authorized the appointment
of paid chaplains, final agreement was reached on the language of the Bill of Rights,
S. Jour., supra, at 88; H. R. Jour., supra, at 121. 9 Clearly the men who wrote the
First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions
with prayer has continued without interruption ever since that early session of Congress. 10 It has also been followed consistently in most of the states, 11 including
Nebraska, where the institution of opening legislative sessions with prayer was
adopted even before the State attained statehood. Neb. [463 U.S. 783, 790] Jour. of
Council, General Assembly, 1st Sess., 16 (Jan. 22, 1855).
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Standing alone, historical patterns cannot justify contemporary violations of
constitutional guarantees, but there is far more here than simply historical patterns.
In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause
applied to the practice authorized by the First Congress - their actions reveal their intent. An Act
"passed by the first Congress assembled under the Constitution, many of
whose members had taken part in framing that instrument, . . . is contemporaneous and weighty evidence of its true meaning." Wisconsin v. Pelican
Ins. Co., 127 U.S. 265, 297 (1888).
... it would be incongruous to interpret that Clause as imposing more stringent
First Amendment limits on the states than the draftsmen imposed on the Federal
Government. ***
The dissenters followed their usual lines, wishing to make the Constitution conform to their
views.
From here on our constitutional law goes downhill, and not in just the religious area, as we
see from other chapters in this book. O'Connor started out as somewhat of a conservative justice,
but from here on she joins the activist ranks – particularly on social issues. White, all in all, has
been a good justice, but even he goes with the liberal group at times. Now even Stevens and
Powell begin to lean toward the activist majority side of the Court. Brennan and Marshall are
probably the two most activist liberals there have ever been, and Blackmun now falls right in
with them. They have no real respect, whatsoever, for our Constitution. It seems to me that the
power currently allowed the Supreme Court justices corrupts many of them into using it to promote their own political and idealistic agendas. It is a serious flaw in our Constitution that not
only allows but encourages this misbehavior.
Today, in 2004, we have only three real conservative judges on the Court – they are Chief
Justice Rehnquist, and Justices Scalia and Thomas. But, at times, even Rehnquist has had a tendency to bow to stare decisis, which, although a very useful and important tool in legal interpretation, often gives strength to erroneous decisions by using them as precedent.
In Wallace v. Jaffree, 472 U.S. 38 (1985), the Court struck down and Alabama Statute authorizing a one-minute period of silence in all public schools "for meditation and voluntary prayer." The alignment of judges:
STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL,
BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, O'CONNOR,
J., filed an opinion concurring in the judgment, BURGER, C. J., WHITE, J., and REHNQUIST,
J., filed dissenting opinions.
285
The majority opinion has no basis in historical precedent relating to the intent and purpose
of those who formed and adopted the First Amendment, which the Court recognizes as being
made applicable to the states by the Fourteenth Amendment. It presents only the ideas of the
court and cites prior cases to try to bolster those ideas. Such judges obviously feel that the intent
and purpose of our founders need to be overruled, and that these activist judges own ideas should
be used to change our Constitution to fit what they consider more proper for current times. The
problem is that not enough of the people are in agreement with them to properly change our
Constitution. In fact, I believe that most of us are quite disturbed by these rulings. What travesties a few little despots can foist on us.
Justice Rehnquist's dissenting opinion is so exemplary of how a justice should interpret the
Constitution that I think a large part of it should be quoted. For attorneys and those that are keenly interested in the Establishment Clause, and in constitutional law in general, I would strongly
recommend the reading of the entire opinion. All of it is important. (As previously stated, most
Supreme Court cases may be found on the FindLaw website, and most all can be found by a
Google search.) Justice Rehnquist's opinion states in part:
Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U.S. 1,
16 (1947), summarized its exegesis of Establishment Clause doctrine thus:
"In the words of Jefferson, the clause against establishment of religion by
law was intended to erect `a wall of separation between church and State.'
Reynolds v. United States, [98 U.S. 145, 164 (1879)]."
This language from Reynolds, a case involving the Free Exercise Clause of the
First Amendment rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the
free exercise thereof,' thus building a wall of separation ed. 1861). 1
It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has
been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.
Thomas Jefferson was of course in France at the time the constitutional Amendments
known as the Bill of Rights were passed by Congress and ratified by the States. His
letter to the Danbury Baptist Association was a short note of courtesy, written 14
years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning
of the Religion Clauses of the First Amendment.
Jefferson's fellow Virginian, James Madison, with whom he was joined in the
battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did play
as large a part as anyone in the drafting of the Bill of Rights. He had two advantages
over Jefferson in this regard: he was present in the United States, and he was a lead286
ing Member of the First Congress. But when we turn to the record of the proceedings
in the First Congress leading up to the adoption of the Establishment Clause of the
Constitution, including Madison's significant contributions thereto, we see a far different picture of its purpose than the highly simplified "wall of separation between
church and State."
During the debates in the Thirteen Colonies over ratification of the Constitution,
one of the arguments frequently used by opponents of ratification was that without a
Bill of Rights guaranteeing individual liberty the new general Government carried
with it a potential for tyranny. The typical response to this argument on the part of
those who favored ratification was that the general Government established by the
Constitution had only delegated powers, and that these delegated powers were so
limited that the Government would have no occasion to violate individual liberties.
This response satisfied some, but not others, and of the 11 Colonies which ratified
the Constitution by early 1789, 5 proposed one or another amendments guaranteeing
individual liberty. Three - New Hampshire, New York, and Virginia - included in
one form or another a declaration of religious freedom. See 3 J. Elliot, Debates on
the Federal Constitution 659 (1891); 1 id., at 328. Rhode Island and North Carolina
flatly refused to ratify the Constitution in the absence of amendments in the nature of
a Bill of Rights. 1 id., at 334; 4 id., at 244. Virginia and North Carolina proposed
identical guarantees of religious freedom:
"[A]ll men have an equal, natural and unalienable right to the free exercise
of religion, according to the dictates of conscience, and . . . no particular religious sect or society ought to be favored or established, by law, in preference to others." 3 id., at 659; 4 id., at 244. 2
On June 8, 1789, James Madison rose in the House of Representatives and "reminded the House that this was the day that he had heretofore named for bringing
forward amendments to the Constitution." 1 Annals of Cong. 424. Madison's subsequent remarks in urging the House to adopt his drafts of the proposed amendments
were less those of a dedicated advocate of the wisdom of such measures than those
of a prudent statesman seeking the enactment of measures sought by a number of his
fellow citizens which could surely do no harm and might do a great deal of good. He
said, inter alia:
"It appears to me that this House is bound by every motive of prudence, not
to let the first session pass over without proposing to the State Legislatures,
some things to be incorporated into the Constitution, that will render it as
acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something
should be done, that those who had been friendly to the adoption of this
Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican
Government, as those who charged them with wishing the adoption of this
Constitution in order to lay the foundation of an aristocracy or despotism. It
will be a desirable thing to extinguish from the bosom of every member of
the community, any apprehensions that there are those among his country287
men who wish to deprive them of the liberty for which they valiantly fought
and honorably bled. And if there are amendments desired of such a nature
as will not injure the Constitution, and they can be ingrafted so as to give
satisfaction to the doubting part of our fellow-citizens, the friends of the
Federal Government will evince that spirit of deference and concession for
which they have hitherto been distinguished." Id., at 431-432.
The language Madison proposed for what ultimately became the Religion
Clauses of the First Amendment was this:
"The civil rights of none shall be abridged on account of religious belief or
worship, nor shall any national religion be established, nor shall the full and
equal rights of conscience be in any manner, or on any pretext, infringed."
Id., at 434.
On the same day that Madison proposed them, the amendments which formed
the basis for the Bill of Rights were referred by the House to a Committee of the
Whole, and after several weeks' delay were then referred to a Select Committee consisting of Madison and 10 others. The Committee revised Madison's proposal regarding the establishment of religion to read:
"[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed." Id., at 729.
The Committee's proposed revisions were debated in the House on August 15,
1789. The entire debate on the Religion Clauses is contained in two full columns of
the "Annals," and does not seem particularly illuminating. See id., at 729-731. Representative Peter Sylvester of New York expressed his dislike for the revised version,
because it might have a tendency "to abolish religion altogether." Representative
John Vining suggested that the two parts of the sentence be transposed; Representative Elbridge Gerry thought the language should be changed to read "that no religious doctrine shall be established by law." Id., at 729. Roger Sherman of Connecticut had the traditional reason for opposing provisions of a Bill of Rights - that Congress had no delegated authority to "make religious establishments" - and therefore
he opposed the adoption of the amendment. Representative Daniel Carroll of Maryland thought it desirable to adopt the words proposed, saying "[h]e would not contend with gentlemen about the phraseology, his object was to secure the substance in
such a manner as to satisfy the wishes of the honest part of the community."
Madison then spoke, and said that "he apprehended the meaning of the words to
be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to
their conscience." Id., at 730. He said that some of the state conventions had thought
that Congress might rely on the Necessary and Proper Clause to infringe the rights of
conscience or to establish a national religion, and "to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit." Ibid. [Emphasis added.]
Representative Benjamin Huntington then expressed the view that the Committee's language might "be taken in such latitude as to be extremely hurtful to the cause
288
of religion. He understood the amendment to mean what had been expressed by the
gentleman from Virginia; but others might find it convenient to put another construction upon it." Huntington, from Connecticut, was concerned that in the New England
States, where state-established religions were the rule rather than the exception, the
federal courts might not be able to entertain claims based upon an obligation under
the bylaws of a religious organization to contribute to the support of a minister or the
building of a place of worship. He hoped that "the amendment would be made in
such a way as to secure the rights of conscience, and a free exercise of the rights of
religion, but not to patronise those who professed no religion at all." Id., at 730-731.
Madison responded that the insertion of the word "national" before the word "religion" in the Committee version should satisfy the minds of those who had criticized
the language. "He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would
compel others to conform. He thought that if the word `national' was introduced, it
would point the amendment directly to the object it was intended to prevent." Id., at
731. Representative Samuel Livermore expressed himself as dissatisfied with Madison's proposed amendment, and thought it would be better if the Committee language were altered to read that "Congress shall make no laws touching religion, or
infringing the rights of conscience." Ibid.
Representative Gerry spoke in opposition to the use of the word "national" because of strong feelings expressed during the ratification debates that a federal government, not a national government, was created by the Constitution. Madison thereby withdrew his proposal but insisted that his reference to a "national religion" only
referred to a national establishment and did not mean that the Government was a national one. The question was taken on Representative Livermore's motion, which
passed by a vote of 31 for and 20 against. Ibid.
The following week, without any apparent debate, the House voted to alter the
language of the Religion Clauses to read "Congress shall make no law establishing
religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." Id., at 766. The floor debates in the Senate were secret, and therefore not
reported in the Annals. The Senate on September 3, 1789, considered several different forms of the Religion Amendment, and reported this language back to the House:
"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." C. Antieau, A. Downey, &
E. Roberts, Freedom From Federal Establishment 130 (1964).
The House refused to accept the Senate's changes in the Bill of Rights and asked
for a conference; the version which emerged from the conference was that which ultimately found its way into the Constitution as a part of the First Amendment.
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof."
The House and the Senate both accepted this language on successive days, and
the Amendment was proposed in this form.
289
On the basis of the record of these proceedings in the House of Representatives,
James Madison was undoubtedly the most important architect among the Members
of the House of the Amendments which became the Bill of Rights, but it was James
Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States
Constitution. During the ratification debate in the Virginia Convention, Madison had
actually opposed the idea of any Bill of Rights. His sponsorship of the Amendments
in the House was obviously not that of a zealous believer in the necessity of the Religion Clauses, but of one who felt it might do some good, could do no harm, and
would satisfy those who had ratified the Constitution on the condition that Congress
propose a Bill of Rights. 3 His original language "nor shall any national religion be
established" obviously does not conform to the "wall of separation" between church
and State idea which latter-day commentators have ascribed to him. His explanation
on the floor of the meaning of his language - "that Congress should not establish a
religion, and enforce the legal observation of it by law" is of the same ilk. When he
replied to Huntington in the debate over the proposal which came from the Select
Committee of the House, he urged that the language "no religion shall be established
by law" should be amended by inserting the word "national" in front of the word "religion."
It seems indisputable from these glimpses of Madison's thinking, as reflected by
actions on the floor of the House in 1789, that he saw the Amendment as designed to
prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government
between religion and irreligion. Thus the Court's opinion in Everson - while correct
in bracketing Madison and Jefferson together in their exertions in their home State
leading to the enactment of the Virginia Statute of Religious Liberty - is totally incorrect in suggesting that Madison carried these views onto the floor of the United
States House of Representatives when he proposed the language which would ultimately become the Bill of Rights.
The repetition of this error in the Court's opinion in Illinois ex rel. McCollum v.
Board of Education, 333 U.S. 203 (1948), and, inter alia, Engel v. Vitale, 370 U.S.
421 (1962), does not make it any sounder historically. Finally, in Abington School
District v. Schempp, 374 U.S. 203, 214 (1963), the Court made the truly remarkable
statement that "the views of Madison and Jefferson, preceded by Roger Williams,
came to be incorporated not only in the Federal Constitution but likewise in those of
most of our States" (footnote omitted). On the basis of what evidence we have, this
statement is demonstrably incorrect as a matter of history. 4 And its repetition in
varying forms in succeeding opinions of the Court can give it no more authority than
it possesses as a matter of fact; stare decisis may bind courts as to matters of law, but
it cannot bind them as to matters of history.
None of the other Members of Congress who spoke during the August 15th debate expressed the slightest indication that they thought the language before them
from the Select Committee, or the evil to be aimed at, would require that the Government be absolutely neutral as between religion and irreligion. The evil to be
aimed at, so far as those who spoke were concerned, appears to have been the estab290
lishment of a national church, and perhaps the preference of one religious sect over
another; but it was definitely not concerned about whether the Government might aid
all religions evenhandedly. If one were to follow the advice of JUSTICE
BRENNAN, concurring in Abington School District v. Schempp, supra, at 236, and
construe the Amendment in the light of what particular "practices . . . challenged
threaten those consequences which the Framers deeply feared; whether, in short, they
tend to promote that type of interdependence between religion and state which the
First Amendment was designed to prevent," one would have to say that the First
Amendment Establishment Clause should be read no more broadly than to prevent
the establishment of a national religion or the governmental preference of one religious sect over another.
The actions of the First Congress, which reenacted the Northwest Ordinance for
the governance of the Northwest Territory in 1789, confirm the view that Congress
did not mean that the Government should be neutral between religion and irreligion.
The House of Representatives took up the Northwest Ordinance on the same day as
Madison introduced his proposed amendments which became the Bill of Rights;
while at that time the Federal Government was of course not bound by draft amendments to the Constitution which had not yet been proposed by Congress, say nothing
of ratified by the States, it seems highly unlikely that the House of Representatives
would simultaneously consider proposed amendments to the Constitution and enact
an important piece of territorial legislation which conflicted with the intent of those
proposals. The Northwest Ordinance, 1 Stat. 50, reenacted the Northwest Ordinance
of 1787 and provided that "[r]eligion, morality, and knowledge, being necessary to
good government and the happiness of mankind, schools and the means of education
shall forever be encouraged." Id., at 52, n. (a). Land grants for schools in the Northwest Territory were not limited to public schools. It was not until 1845 that Congress
limited land grants in the new States and Territories to nonsectarian schools. 5 Stat.
788; C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment
163 (1964).
On the day after the House of Representatives voted to adopt the form of the
First Amendment Religion Clauses which was ultimately proposed and ratified, Representative Elias Boudinot proposed a resolution asking President George Washington to issue a Thanksgiving Day Proclamation. Boudinot said he "could not think of
letting the session pass over without offering an opportunity to all the citizens of the
United States of joining with one voice, in returning to Almighty God their sincere
thanks for the many blessings he had poured down upon them." 1 Annals of Cong.
914 (1789). Representative Aedanas Burke objected to the resolution because he did
not like "this mimicking of European customs"; Representative Thomas Tucker objected that whether or not the people had reason to be satisfied with the Constitution
was something that the States knew better than the Congress, and in any event "it is a
religious matter, and, as such, is proscribed to us." Id., at 915. Representative Sherman supported the resolution "not only as a laudable one in itself, but as warranted
by a number of precedents in Holy Writ: for instance, the solemn thanksgivings and
rejoicings which took place in the time of Solomon, after the building of the temple,
291
was a case in point. This example, he thought, worthy of Christian imitation on the
present occasion . . . ." Ibid.
Boudinot's resolution was carried in the affirmative on September 25, 1789.
Boudinot and Sherman, who favored the Thanksgiving Proclamation, voted in favor
of the adoption of the proposed amendments to the Constitution, including the Religion Clauses; Tucker, who opposed the Thanksgiving Proclamation, voted against
the adoption of the amendments which became the Bill of Rights.
Within two weeks of this action by the House, George Washington responded to
the Joint Resolution which by now had been changed to include the language that the
President "recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and
signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness." 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1897). The Presidential Proclamation was couched in these words:
"Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of
that great and glorious Being who is the beneficent author of all the good
that was, that is, or that will be; that we may then all unite in rendering unto
Him our sincere and humble thanks for His kind care and protection of the
people of this country previous to their becoming a nation; for the signal
and manifold mercies and the favorable interpositions of His providence in
the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and
rational manner in which we have been enabled to establish constitutions of
government for our safety and happiness, and particularly the national one
now lately instituted; for the civil and religious liberty with which we are
blessed, and the means we have of acquiring and diffusing useful
knowledge; and, in general, for all the great and various favors which He
has been pleased to confer upon us.
"And also that we may then unite in most humbly offering our prayers and
supplications to the great Lord and Ruler of Nations, and beseech Him to
pardon our national and other transgressions; to enable us all, whether in
public or private stations, to perform our several and relative duties properly
and punctually; to render our National Government a blessing to all the
people by constantly being a Government of wise, just, and constitutional
laws, discreetly and faithfully executed and obeyed; to protect and guide all
sovereigns and nations (especially such as have shown kindness to us), and
to bless them with good governments, peace, and concord; to promote the
knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a
degree of temporal prosperity as He alone knows to be best." Ibid.
George Washington, John Adams, and James Madison all issued Thanksgiving
Proclamations; Thomas Jefferson did not, saying:
292
"Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times
for these exercises, and the objects proper for them, according to their own
particular tenets; and this right can never be safer than in their own hands,
where the Constitution has deposited it." 11 Writings of Thomas Jefferson
429 (A. Lipscomb ed. 1904).
As the United States moved from the 18th into the 19th century, Congress appropriated time and again public moneys in support of sectarian Indian education
carried on by religious organizations. Typical of these was Jefferson's treaty with the
Kaskaskia Indians, which provided annual cash support for the Tribe's Roman
Catholic priest and church. 5 It was not until 1897, when aid to sectarian education
for Indians had reached $500,000 annually, that Congress decided thereafter to cease
appropriating money for education in sectarian schools. See Act of June 7, 1897, 30
Stat. 62, 79; cf. Quick Bear v. Leupp, 210 U.S. 50, 77 -79 (1908); J. O'Neill, Religion and Education Under the Constitution 118-119 (1949). See generally R. Cord,
Separation of Church and State 61-82 (1982). This history shows the fallacy of the
notion found in Everson that "no tax in any amount" may be levied for religious activities in any form. 330 U.S., at 15 -16.
Joseph Story, a Member of this Court from 1811 to 1845, and during much of
that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared. Volume 2
of Story's Commentaries on the Constitution of the United States 630-632 (5th ed.
1891) discussed the meaning of the Establishment Clause of the First Amendment
this way:
"Probably at the time of the adoption of the Constitution, and of the
amendment to it now under consideration [First Amendment], the general if
not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the
private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all
in utter indifference, would have created universal disapprobation, if not
universal indignation.
.....
"The real object of the [First] [A]mendment was not to countenance, much
less to advance, Mahometanism, or Judaism, or infidelity, by prostrating
Christianity; but to exclude all rivalry among Christian sects, and to prevent
any national ecclesiastical establishment which should give to a hierarchy
the exclusive patronage of the national government. It thus cut off the
means of religious persecution (the vice and pest of former ages), and of the
subversion of the rights of conscience in matters of religion, which had been
trampled upon almost from the days of the Apostles to the present age. . . ."
(Footnotes omitted.)
293
Thomas Cooley's eminence as a legal authority rivaled that of Story. Cooley
stated in his treatise entitled Constitutional Limitations that aid to a particular religious sect was prohibited by the United States Constitution, but he went on to say:
"But while thus careful to establish, protect, and defend religious freedom
and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must
acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of
acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed;
when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the Constitution will require, in all these cases, that care be
taken to avoid discrimination in favor of or against any one religious denomination or sect; but the power to do any of these things does not become
unconstitutional simply because of its susceptibility to abuse. . . ." Id., at
*470-*471.
Cooley added that
"[t]his public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme Being himself as the author of all good and of all law; but the same reasons of
state policy which induce the government to aid institutions of charity and
seminaries of instruction will incline it also to foster religious worship and
religious institutions, as conservators of the public morals and valuable, if
not indispensable, assistants to the preservation of the public order." Id., at
*470.
It would seem from this evidence that the Establishment Clause of the First
Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word "establishment" as "the act of
establishing, founding, ratifying or ordaining," such as in "[t]he episcopal form of religion, so called, in England." 1 N. Webster, American Dictionary of the English
Language (1st ed. 1828). The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government
from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the "wall of separation"
that was constitutionalized in Everson.
294
Notwithstanding the absence of a historical basis for this theory of rigid separation, the wall idea might well have served as a useful albeit misguided analytical
concept, had it led this Court to unified and principled results in Establishment
Clause cases. The opposite, unfortunately, has been true; in the 38 years since Everson our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, 6 have with embarrassing
candor conceded that the "wall of separation" is merely a "blurred, indistinct, and
variable barrier," which "is not wholly accurate" and can only be "dimly perceived."
Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); Tilton v. Richardson, 403 U.S. 672,
677-678, (1971); Wolman v. Walter, 433 U.S. 229, 236 (1977); Lynch v. Donnelly,
465 U.S. 668, 673 (1984).
Whether due to its lack of historical support or its practical unworkability, the
Everson "wall" has proved all but useless as a guide to sound constitutional adjudication. It illustrates only too well the wisdom of Benjamin Cardozo's observation that
"[m]etaphors in law are to be narrowly watched, for starting as devices to liberate
thought, they end often by enslaving it." Berkey v. Third Avenue R. Co., 244 N. Y.
84, 94, 155 N. E. 58, 61 (1926).
But the greatest injury of the "wall" notion is its mischievous diversion of judges
from the actual intentions of the drafters of the Bill of Rights. The "crucible of litigation," ante, at 52, is well adapted to adjudicating factual disputes on the basis of testimony presented in court, but no amount of repetition of historical errors in judicial
opinions can make the errors true. The "wall of separation between church and State"
is a metaphor based on bad history, a metaphor which has proved useless as a guide
to judging. It should be frankly and explicitly abandoned.
The Court has more recently attempted to add some mortar to Everson's wall
through the three-part test of Lemon v. Kurtzman, supra, at 614-615, which served at
first to offer a more useful test for purposes of the Establishment Clause than did the
"wall" metaphor. Generally stated, the Lemon test proscribes state action that has a
sectarian purpose or effect, or causes an impermissible governmental entanglement
with religion.
Lemon cited Board of Education v. Allen, 392 U.S. 236, 243 (1968), as the
source of the "purpose" and "effect" prongs of the three-part test. The Allen opinion
explains, however, how it inherited the purpose and effect elements from Schempp
and Everson, both of which contain the historical errors described above. See Allen,
supra, at 243. Thus the purpose and effect prongs have the same historical deficiencies as the wall concept itself: they are in no way based on either the language or intent of the drafters.
The secular purpose prong has proved mercurial in application because it has
never been fully defined, and we have never fully stated how the test is to operate. If
the purpose prong is intended to void those aids to sectarian institutions accompanied
by a stated legislative purpose to aid religion, the prong will condemn nothing so
long as the legislature utters a secular purpose and says nothing about aiding religion. Thus the constitutionality of a statute may depend upon what the legislators put
into the legislative history and, more importantly, what they leave out. The purpose
295
prong means little if it only requires the legislature to express any secular purpose
and omit all sectarian references, because legislators might do just that. Faced with a
valid legislative secular purpose, we could not properly ignore that purpose without a
factual basis for doing so. Larson v. Valente, 456 U.S. 228, 262-263 (1982)
(WHITE, J., dissenting).
However, if the purpose prong is aimed to void all statutes enacted with the intent to aid sectarian institutions, whether stated or not, then most statutes providing
any aid, such as textbooks or bus rides for sectarian school children, will fail because
one of the purposes behind every statute, whether stated or not, is to aid the target of
its largesse. In other words, if the purpose prong requires an absence of any intent to
aid sectarian institutions, whether or not expressed, few state laws in this area could
pass the test, and we would be required to void some state aids to religion which we
have already upheld. E. g., Allen, supra.
The entanglement prong of the Lemon test came from Walz v. Tax Comm'n,
397 U.S. 664, 674 (1970). Walz involved a constitutional challenge to New York's
time-honored practice of providing state property tax exemptions to church property
used in worship. The Walz opinion refused to "undermine the ultimate constitutional
objective [of the Establishment Clause] as illuminated by history," id., at 671, and
upheld the tax exemption. The Court examined the historical relationship between
the State and church when church property was in issue, and determined that the
challenged tax exemption did not so entangle New York with the church as to cause
an intrusion or interference with religion. Interferences with religion should arguably
be dealt with under the Free Exercise Clause, but the entanglement inquiry in Walz
was consistent with that case's broad survey of the relationship between state taxation and religious property.
We have not always followed Walz' reflective inquiry into entanglement, however. E. g., Wolman, supra, at 254. One of the difficulties with the entanglement
prong is that, when divorced from the logic of Walz, it creates an "insoluable paradox" in school aid cases: we have required aid to parochial schools to be closely
watched lest it be put to sectarian use, yet this close supervision itself will create an
entanglement. Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768-769
(1976) (WHITE, J., concurring in judgment). For example, in Wolman, supra, the
Court in part struck the State's nondiscriminatory provision of buses for parochial
school field trips, because the state supervision of sectarian officials in charge of
field trips would be too onerous. This type of self-defeating result is certainly not required to ensure that States do not establish religions.
The entanglement test as applied in cases like Wolman also ignores the myriad
state administrative regulations properly placed upon sectarian institutions such as
curriculum, attendance, and certification requirements for sectarian schools, or fire
and safety regulations for churches. Avoiding entanglement between church and
State may be an important consideration in a case like Walz, but if the entanglement
prong were applied to all state and church relations in the automatic manner in which
it has been applied to school aid cases, the State could hardly require anything of
church-related institutions as a condition for receipt of financial assistance.
296
These difficulties arise because the Lemon test has no more grounding in the
history of the First Amendment than does the wall theory upon which it rests. The
three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to
service. The three-part test has simply not provided adequate standards for deciding
Establishment Clause cases, as this Court has slowly come to realize. Even worse,
the Lemon test has caused this Court to fracture into unworkable plurality opinions,
see n. 6, supra, depending upon how each of the three factors applies to a certain
state action. The results from our school services cases show the difficulty we have
encountered in making the Lemon test yield principled results.
For example, a State may lend to parochial school children geography textbooks
7 that contain maps of the United States, but the State may not lend maps of the
United States for use in geography class. 8 A State may lend textbooks on American
colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not
lend workbooks in which the parochial school children write, thus rendering them
nonreusable. 9 A State may pay for bus transportation to religious schools 10 but
may not pay for bus transportation from the parochial school to the public zoo or
natural history museum for a field trip. 11 A State may pay for diagnostic services
conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing "services" conducted by the State inside the sectarian school are forbidden, Meek v. Pittenger, 421 U.S. 349, 367, 371 (1975), but the
State may conduct speech and hearing diagnostic testing inside the sectarian school.
Wolman, 433 U.S., at 241. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school, 12 such as in a trailer
parked down the street. Id., at 245. A State may give cash to a parochial school to
pay for the administration of state-written tests and state-ordered reporting services,
13 but it may not provide funds for teacher-prepared tests on secular subjects. 14 Religious instruction may not be given in public school, 15 but the public school may
release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws. 16
These results violate the historically sound principle "that the Establishment
Clause does not forbid governments . . . to [provide] general welfare under which
benefits are distributed to private individuals, even though many of those individuals
may elect to use those benefits in ways that `aid' religious instruction or worship."
Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 799
(1973) (BURGER, C. J., concurring in part and dissenting in part). It is not surprising in the light of this record that our most recent opinions have expressed doubt on
the usefulness of the Lemon test.
Although the test initially provided helpful assistance, e. g., Tilton v. Richardson, 403 U.S. 672 (1971), we soon began describing the test as only a "guideline,"
Committee for Public Education & Religious Liberty v. Nyquist, supra, and lately we
have described it as "no more than [a] useful signpos[t]." Mueller v. Allen, 463 U.S.
388, 394 (1983), citing Hunt v. McNair, 413 U.S. 734, 741 (1973); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). We have noted that the Lemon test is "not easi297
ly applied," Meek, supra, at 358, and as JUSTICE WHITE noted in Committee for
Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980), under the
Lemon test we have "sacrifice[d] clarity and predictability for flexibility." 444 U.S.
at 662. In Lynch we reiterated that the Lemon test has never been binding on the
Court, and we cited two cases where we had declined to apply it. 465 U.S., at 679,
citing Marsh v. Chambers, 463 U.S. 783 (1983); Larson v. Valente, 456 U.S. 228
(1982).
If a constitutional theory has no basis in the history of the amendment it seeks to
interpret, is difficult to apply and yields unprincipled results, I see little use in it. The
"crucible of litigation," ante, at 52, has produced only consistent unpredictability,
and today's effort is just a continuation of "the sisyphean task of trying to patch together the `blurred, indistinct and variable barrier' described in Lemon v. Kurtzman."
Regan, supra, at 671 (STEVENS, J., dissenting). We have done much straining since
1947, but still we admit that we can only "dimly perceive" the Everson wall. Tilton,
supra. Our perception has been clouded not by the Constitution but by the mists of an
unnecessary metaphor.
The true meaning of the Establishment Clause can only be seen in its history. See Walz, 397 U.S., at 671-673; see also Lynch, supra, at 673-678. As drafters of
our Bill of Rights, the Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of that Charter and will only lead
to the type of unprincipled decisionmaking that has plagued our Establishment
Clause cases since Everson. [Emphasis added]
The Framers intended the Establishment Clause to prohibit the designation of
any church as a "national" one. The Clause was also designed to stop the Federal
Government from asserting a preference for one religious denomination or sect over
others. Given the "incorporation" of the Establishment Clause as against the States
via the Fourteenth Amendment in Everson, States are prohibited as well from establishing a religion or discriminating between sects. As its history abundantly shows,
however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the
States from pursuing legitimate secular ends through nondiscriminatory sectarian
means.
The Court strikes down the Alabama statute because the State wished to "characterize prayer as a favored practice." Ante, at 60. It would come as much of a shock
to those who drafted the Bill of Rights as it will to a large number of thoughtful
Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from "endorsing" prayer. George Washington himself, at
the request of the very Congress which passed the Bill of Rights, proclaimed a day of
"public thanksgiving and prayer, to be observed by acknowledging with grateful
hearts the many and signal favors of Almighty God." History must judge whether it
was the Father of his Country in 1789, or a majority of the Court today, which has
strayed from the meaning of the Establishment Clause.
The State surely has a secular interest in regulating the manner in which public
schools are conducted. Nothing in the Establishment Clause of the First Amendment,
298
properly understood, prohibits any such generalized "endorsement" of prayer. I
would therefore reverse the judgment of the Court of Appeals.
In regard to Justice Rehnquist referring to and quoting Thomas M. Cooley, his eminence as
both a jurist and a constitutional authority can be further determined from the website of the
Mackinac Center for Public Policy, where he is described as " perhaps the most eminent jurist
Michigan has ever produced." He was celebrated for his constitutional law treatises. He was born
in 1824. (And lived, served as a jurist, and wrote his treatises at a time before constitutional law
became so political.)
(http://www.mackinac.org/article.asp?ID=4946)
After considering the sound and overwhelming support for Justice Rehnquist's dissent, it is
clear that the majority chose to substitute their own anti-religious ides for those of our Founding
Father who gave us our Constitution. In Justice White's dissent, he made the candid statement:
I appreciate JUSTICE REHNQUIST'S explication of the history of the Religion
Clauses of the First Amendment. Against that history, it would be quite understandable if we undertook to reassess our cases dealing with these Clauses, particularly
those dealing with the Establishment Clause. Of course, I have been out of step with
many of the Court's decisions dealing with this subject matter, and it is thus not surprising that I would support a basic reconsideration of our precedents.
Justice Rehnquist's opinion also shows the tremendous resources available to the Justices
and their clerks. There is no excuse for a Court not determining and using the intent and purposes
of those who formed and ratified our Constitution in arriving at the meaning of a constitutional
provision.
The strongest common factor in all of the colonies, and in our original states, was the Christian religion, and the idea that States may not allow prayers in the schools, and certainly, a moment of silence in which students can pray if they wish, is insupportable.
Edwards v, Aguillard, 482 U.S, 578 (1987), presents a very interesting question that is far
from settled, even under the majority opinion. Louisiana's "Creationism Act" forbids the teaching
of the theory of evolution in public elementary and secondary schools unless accompanied by
instruction in the theory of "creation science." The Act does not require the teaching of either
theory unless the other is taught. It defines the theories as "the scientific evidences for [creation
or evolution] and inferences from those scientific evidences." The Supreme Court held that the
Act violated the Establishment Clause. The alignment of judges:
BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN,
POWELL, and STEVENS, JJ., joined, and in all but Part II of which O'CONNOR, J., joined.
POWELL, J., filed a concurring opinion, in which O'CONNOR, J., joined, WHITE, J., filed an
299
opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which
REHNQUIST, C. J. joined.
No evidence was taken as the case was disposed of by summary judgment in the District
Court. The majority opinion held that the Act, on its face, violated the Establishment clause. After explaining why the Act failed the "three prongs of the Lemon Test", the opinion states in part:
It is clear from the legislative history that the purpose of the legislative sponsor,
Senator Bill Keith, was to narrow the science curriculum. During the legislative
hearings, Senator Keith stated: "My preference would be that neither [creationism
nor evolution] be taught." 2 App. E-621. Such a ban on teaching does not promote indeed, it undermines - the provision of a comprehensive scientific education. ***
In this case, the purpose of the Creationism Act was to restructure the science
curriculum to conform with a particular religious viewpoint. Out of many possible
science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious
sects. ***
We do not imply that a legislature could never require that scientific critiques of
prevailing scientific theories be taught. Indeed, the Court acknowledged in Stone that
its decision forbidding the posting of the Ten Commandments did not mean that no
use could ever be made of the Ten Commandments, or that the Ten Commandments
played an exclusively religious role in the history of Western Civilization. 449 U.S.,
at 42. In a similar way, teaching a variety of scientific theories about the origins of
humankind to schoolchildren might be validly done with the clear secular intent of
enhancing the effectiveness of science instruction. But because the primary purpose
of the Creationism Act is to endorse a particular religious doctrine, the Act furthers
religion in violation of the Establishment Clause. ***
Justice White reasoned in his concurring opinion:
As it comes to us, this is not a difficult case. Based on the historical setting and
plain language of the Act both courts construed the statutory words "creation science" to refer to a religious belief, which the Act required to be taught if evolution
was taught. In other words, the teaching of evolution was conditioned on the teaching of a religious belief. Both courts concluded that the state legislature's primary
purpose was to advance religion and that the statute was therefore unconstitutional
under the Establishment Clause.
I prefer the reasoning in Justice Scalia's dissent, which includes the following:
... Thus, if the Louisiana Legislature sincerely believed that the State's science
teachers were being hostile to religion, our cases indicate that it could act to eliminate that hostility without running afoul of Lemon's purpose test. ***
Most of the testimony in support of Senator Keith's bill came from the Senator
himself and from scientists and educators he presented, many of whom enjoyed academic credentials that may have been regarded as quite impressive by members of
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the Louisiana Legislature. ... The witnesses repeatedly assured committee members
that "hundreds and hundreds" of highly respected, internationally renowned scientists
believed in creation science and would support their testimony. ***
Senator Keith and his witnesses testified essentially as set forth in the following
numbered paragraphs:
(1)... Creation science posits that all life forms now on earth appeared suddenly
and relatively recently and have changed little. Since there are only two possible explanations of the origin of life, any evidence that tends to disprove the theory of evolution necessarily tends to prove the theory of creation science, and vice versa. ***
(5) The censorship of creation science has at least two harmful effects. First, it
deprives students of knowledge of one of the two scientific explanations for the
origin of life and leads them to believe that evolution is proven fact; thus, their education suffers and they are wrongly taught that science has proved their religious beliefs false. Second, it violates the Establishment Clause. ***
The statement above about the sudden appearance of life on earth refers to the "Cambrian
Explosion." Jonathan Wells, a widely published scientist, is a postdoctoral biologist who is a Fellow with the Discovery Institute, and holds Ph.D.s from both Yale University and University of
California at Berkley. He explains in his book, Icons of Evolution – Science or Myth, Regnery
(2000), that during the Cambrian explosion, some 500 to 600 million years ago, according to the
scientists, most of the animal phyla of today existed then; and all appeared rather suddenly,
which gives rise the term, explosion. Actually, according to fossil evidence, there were more
kinds of animals then than now, many having become extinct. Also, there is no fossil evidence
dating prior to the Cambrian explosion, nor during, that lends any explanation as to where all of
these animals came from or what they came from. Many consider this the terminal blow to Darwinian evolution. Wells also shows that there is no evidence that any living species evolved from
any other species, although there is provable evolution within species.
A part of what is considered "Creationism Science" is more properly termed "Intelligent Design Science". This includes the study of determined facts that many scientists agree cannot be
explained by Darwinian theories of evolution. A good book on the subject by three wellqualified scientists, all holding doctorate degrees, is Science and Evidence for Design in the Universe, by Michael J. Behe, William A. Dembski, and Stephen C. Meyer, Ignatius Press (1999).
The basis of Intelligent Design is not a religious concept at all. It is recognition of fundamental facts. Although the evidence points to intentional intelligent design of the universe and
living things, it does not indicate by whom or by what, since there is no evidence of that. One
small example of intelligent design is the human eye. If any knowledgeable person would examine the related parts of a camera, the conclusion would be correctly reached that the camera was
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designed and made by an intelligent being. Yet the eye is far more complicated with more dependent parts than the camera, and Darwinists refuse to admit the obvious intelligent design.
They still strive to come up with some idea that can be traced back to a one cell amoeba, which
had no eye at all, and which somehow occurred by accident – for which there is no evidence of
any element of the theory.
In this Edwards case, even had there been religious impetus for the Act, as was assumed by
the majority, the act did not establish any national religion or any religion at all. Neither did it
place any restriction on anyone's religious establishment. This decision comes from elitist activist judges using what they erroneously think is their superior wisdom to determine disputed facts
that should be left the better judgment of the people and their representatives. The majority decision is also a contradiction in itself, in that it recognizes that critiques of evolutionary theories
should be allowed, but denies that very thing.
The last case that I will comment on for this chapter is Santa Fe Independent School District
v. Doe, 530 U.S. 290 (2000). Prior to 1995, a student elected as Santa Fe High School's student
council chaplain delivered a prayer over the public address system before each home varsity
football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a
suit challenging this practice and others under the Establishment Clause of the First Amendment.
While the suit was pending, petitioner school district (District) adopted a different policy, which
authorizes two student elections, the first to determine whether "invocations" should be delivered
at games, and the second to select the spokesperson to deliver them. After the students held elections authorizing such prayers and selecting a spokesperson, the District Court entered an order
modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Supreme Court
held that allowing the prayer violated the establishment clause. The alignment of judges:
Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia and
Thomas, JJ., joined.
Part of the reasoning of the majority:
... this student election does nothing to protect minority views but rather places
the students who hold such views at the mercy of the majority. Because "fundamental rights may not be submitted to vote; they depend on the outcome of no elections,"
West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943), the District's elections are insufficient safeguards of diverse student speech. ***
In addition to involving the school in the selection of the speaker, the policy, by
its terms, invites and encourages religious messages. The policy itself states that the
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purpose of the message is "to solemnize the event." A religious message is the most
obvious method of solemnizing an event. ***
Most striking to us is the evolution of the current policy from the longsanctioned office of "Student Chaplain" to the candidly titled "Prayer at Football
Games" regulation. This history indicates that the District intended to preserve the
practice of prayer before football games. ***
... But the religious liberty protected by the Constitution is abridged when the
State affirmatively sponsors the particular religious practice of prayer. ***
This holding and these statements by the Court violate some of its own prior cases, including Marsh v. Chambers, supra. The historical precedent referred to in this chapter shows how
clearly erroneous this decision is.
The first paragraph in Chief Justice Rehnquist's dissent was the first paragraph in this chapter. He gave many reasons why the majority decision was wrong, and again strongly attacked the
three pronged tests of the Lemon case, and the continual constitutional errors caused by this
precedent. He also said:
Finally, the Court seems to demand that a government policy be completely
neutral as to content or be considered one that endorses religion. See ante, at 14. This
is undoubtedly a new requirement, as our Establishment Clause jurisprudence simply
does not mandate "content neutrality."
I agree with Chief Justice Rehnquist that the majority of the current court exhibits hostility
toward religion that is the opposite of the intent purpose of our Founders who gave us the First
Amendment. This kind of conduct by the Court should not be tolerated by the people. It is the
people who have a right to govern this country, and it is not the province of the Court to govern
us by its own unlawful edicts.
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Chapter XI
Sodomy Cases
As the Court notes, ... the proscriptions against sodomy have very "ancient
roots." Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and
ethical standards. Homosexual sodomy was a capital crime under Roman law.
See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality and
the Western Christian Tradition 70-81 (1975). During the English Reformation
when powers of the ecclesiastical courts were transferred to the King's Courts,
the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6.
Blackstone described "the infamous crime against nature" as an offense of
"deeper malignity" than rape, a heinous act "the very mention of which is a
disgrace to human nature," and "a crime not fit to be named." 4 W. Blackstone,
Commentaries *215. The common law of England, including its prohibition of
sodomy, became the received law of Georgia and the other Colonies. (Chief Justice Burger, concurring opinion, Bowers v. Hardwick, 478 U.S. 176 (1986))
The first thing that should be considered in regard to homosexuality, which is synonymous
with sodomy, is that the sexual acts that define it cannot possibly be natural. Therefore, those
who engage in it must resort to acts that are contrary to nature, and that have been regarded as
vile and depraved throughout the history of Western Civilization, and in the United States, until
very recent times.
For obvious reasons, many prefer to think of this issue in the abstract, and talk of "discrimination" and "equal rights", but it cannot be reasonably evaluated without considering the details
of some of the most common acts defining homosexuality. If one is going to consider this "lifestyle" acceptable, he should know the details of what he is affirming. The following are some of
the most common acts:
If research statistics are correct, 100% of male homosexuals engaged in oral
sex. Approximately 93% engage in anal sex, inserting the penis into the anus of the
partner. 92% engage in "rimming", touching the anus of one's partner with one's
tongue and inserting the tongue into the anus. 47% engage in "fisting", inserting
one's fist into the anus of the partner. 29% engage in "golden showers", urinating on
each other. 17% engage in "scat", the eating of feces, or rubbing of feces on each
other, and in "mud rolling", rolling on the floor where feces have been deposited. It
is not uncommon for a homosexual person to declaw and defang a mouse or other
rodent to be inserted into the colon. (Homosexuality: Good and Right in the Eyes of
God?, by F. Earle Fox and David W. Virtue, Emmaus Ministries (2d Ed. 2002))
The above description of homosexual acts is from a summary of Chapter V of the book,
which may easily found at:
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http://theroadtoemmaus.org/RdLb/22Sx/BroSx/Html/ShrtEvid.htm
Anyone who doubts the acts and statistics described can easily verify them from other
sources by a Google computer search, or by library research. They are familiar to those who have
researched the subject.
Aided by both the media and academia, during the last half of the Twentieth Century, the
homosexual groups conducted a campaign to convince the people of America that homosexuality
was an acceptable lifestyle. Their success was indeed amazing –particularly during the last forty
years. Not only were they successful in convincing a large segment of the public, but they also
convinced many judges. They were successful in getting sodomy laws repealed in many states,
the age of consent lowered for sexual activity, and laws passed against discriminating against
homosexuals. The highest court of Massachusetts has now declared a constitutional right to
same-sex marriage.
In Doe v. Commonwealth's Attorney, 425 U.S. 901 (1976), the Supreme Court summarily
affirmed the judgment of a three judge District Court upholding a Virginia sodomy statute.
The first case to claim a constitutional right to engage in sodomy in which the Supreme
Court gave full consideration with an opinion appears to be Bowers v. Hardwick, 478 U.S. 186
(1986). In this case the Court upheld a Georgia sodomy statute that provided for punishment of
up to 20 years imprisonment. The alignment of judges:
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL,
REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C. J, and POWELL, J., filed concurring
opinions. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and
STEVENS, JJ., STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ.
From Justice White's opinion:
... Moreover, any claim that these cases [privacy cases] nevertheless stand for
the proposition that any kind of private sexual conduct between consenting adults is
constitutionally insulated from state proscription is unsupportable. Indeed, the
Court's opinion in Carey twice asserted that the privacy right, which the Griswold
line of cases found to be one of the protections provided by the Due Process Clause,
did not reach so far ... .
Precedent aside, however, respondent would have us announce, as the Court of
Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite
unwilling to do. ***
It is obvious to us that neither of these formulations would extend a fundamental
right to homosexuals to engage in acts of consensual sodomy. Proscriptions against
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that conduct have ancient roots. See generally Survey on the Constitutional Right to
Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525
(1986). Sodomy was a criminal offense at common law and was forbidden by the
laws of the original 13 States when they ratified the Bill of Rights. 5 In 1868, when
the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had
criminal sodomy laws. 6 In fact, until 1961, 7 all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for
sodomy performed in private and between consenting adults. See Survey, U. Miami
L. Rev., supra, at 524, n. 9. Against this background, to claim that a right to engage
in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit
in the concept of ordered liberty" is, at best, facetious.
Nor are we inclined to take a more expansive view of our authority to discover
new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation of much of the
substantive gloss that the Court had placed on the Due Process Clauses of the Fifth
and Fourteenth Amendments. There should be, therefore, great resistance to expand
the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes
to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls for short of overcoming this resistance. ***
From the concurring opinion of Chief Justice Burger:
I join the Court's opinion, but I write separately to underscore my view that in
constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.
As the Court notes, ante, at 192, the proscriptions against sodomy have very
"ancient roots." Decisions of individuals relating to homosexual conduct have been
subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical
standards. Homosexual sodomy was a capital crime under Roman law. See Code
Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality and the Western
Christian Tradition 70-81 (1975). During the English Reformation when powers of
the ecclesiastical courts were transferred to the King's Courts, the first English statute
criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not
fit to be named." 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and
the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here,
and that statute has been continuously in force in one form or another since that time.
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To hold that the act of homosexual sodomy is somehow protected as a fundamental
right would be to cast aside millennia of moral teaching. ***
The dissent purely and simply wants to extend the unlawfully created "right of privacy" to
make engaging in sodomy a constitutional right, making a shambles of the intent and purpose of
our Constitution.
As has previously been explained in Chapter V, the first "due process clause" was in the
Fifth Amendment, and it was identical to the same clause in the Fourteenth Amendment. It is beyond reason that the first Thirteen States, or their representatives that framed the Bill of Rights
could have intended to abrogate all of their sodomy laws. It is equally clear that those who
framed and introduced the Fourteenth Amendment, and the 37 states and their representatives
who ratified it, did not intend to nullify the sodomy laws in 32 of the states.
In 1996, with the activist members of the Court now in control, the majority decides Romer
v. Evans, 517 U.S. 620 (1996). After various Colorado municipalities passed ordinances banning
discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Colorado voters adopted by statewide referendum "Amendment 2" to the State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect
the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." The Colorado Supreme Court held this state constitutional amendment,
voted on by the people, as contrary to the federal Constitution. The Supreme Court affirmed. The
alignment of judges:
KENNEDY, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR,
SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in
which REHNQUIST, C. J., and THOMAS, J., joined.
From the majority opinion:
Sweeping and comprehensive is the change in legal status effected by this law.
So much is evident from the ordinances that the Colorado Supreme Court declared
would be void by operation of Amendment 2. Homosexuals, by state decree, are put
in a solitary class with respect to transactions and relations in both the private and
governmental spheres. The amendment withdraws from homosexuals, but no others,
specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. ***
A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class
of persons affected. "[I]f the constitutional conception of `equal protection of the
laws' means anything, it must at the very least mean that a bare . . . desire to harm a
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politically unpopular group cannot constitute a legitimate governmental interest."
Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). ***
We must conclude that Amendment 2 classifies homosexuals not to further a
proper legislative end but to make them unequal to everyone else. ...
From Justice Scalia's dissent:
The Court has mistaken a Kulturkampf for a fit of spite. The constitutional
amendment before us here is not the manifestation of a "`bare . . . desire to harm'"
homosexuals, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the
means chosen to achieve it, are not only unimpeachable under any constitutional
doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of
righteousness rather than judicial holdings); they have been specifically approved by
the Congress of the United States and by this Court.
In holding that homosexuality cannot be singled out for disfavorable treatment,
the Court contradicts a decision, unchallenged here, pronounced only 10 years ago,
see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as
racial or religious bias. Whether it is or not is precisely the cultural debate that gave
rise to the Colorado constitutional amendment (and to the preferential laws against
which the amendment was directed). Since the Constitution of the United States says
nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has
no business imposing upon all Americans the resolution favored by the elite
class from which the Members of this institution are selected, pronouncing that
"animosity" toward homosexuality, ante, at 13, is evil. I vigorously dissent. [ Emphasis added]
Let me first discuss Part II of the Court's opinion, its longest section, which is
devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians
in the same position as all other persons," and "does no more than deny homosexuals
special rights," ante, at 4. The Court concludes that this reading of Amendment 2's
language is "implausible" under the "authoritative construction" given Amendment 2
by the Supreme Court of Colorado. Ibid.
In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the
"protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Ante, at 8. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In
Evans v. Romer, 882 P.2d 1335 (1994), the Colorado court stated:
"[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination
based on age, 24-34-402(1)(a), 10A C. R. S. (1994 Supp.); marital or family
status, 24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, 28-3308
506, 11B C. R. S. (1989); and for any legal, off-duty conduct such as smoking tobacco, 24-34-402.5, 10A C. R. S. (1994 Supp.). Of course Amendment
2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of anti-discrimination laws intended to protect gays, lesbians, and bisexuals." Id., at 1346, n. 9 (emphasis added).
... The amendment prohibits special treatment of homosexuals, and nothing
more. ...
Despite all of its hand-wringing about the potential effect of Amendment 2 on
general antidiscrimination laws, the Court's opinion ultimately does not dispute all
this, but assumes it to be true. See ante, at 9. The only denial of equal treatment it
contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying
the Court's opinion is that one who is accorded equal treatment under the laws, but
cannot as readily as others obtain preferential treatment under the laws, ... .
The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must
have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why
the Court's opinion is so long on emotive utterance and so short on relevant legal citation. ***
I turn next to whether there was a legitimate rational basis for the substance of
the constitutional amendment - for the prohibition of special protection for homosexuals. 1 It is unsurprising that the Court avoids discussion of this question, since the
answer is so obviously yes. The case most relevant to the issue before us today is not
even mentioned in the Court's opinion: In Bowers v. Hardwick, ... we held that the
Constitution does not prohibit what virtually all States had done from the founding of
the Republic ... until very recent years - making homosexual conduct a crime. That
holding is unassailable, except by those who think that the Constitution changes
to suit current fashions. [Emphasis added] But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument
respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of
Oral Arg. 53. If it is constitutionally permissible for a State to make homosexual
conduct criminal, surely it is constitutionally permissible for a State to enact other
laws merely disfavoring homosexual conduct. (As the Court of Appeals for the District of Columbia Circuit has aptly put it: "If the Court [in Bowers] was unwilling to
object to state laws that criminalize the behavior that defines the class, it is hardly
open . . . to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than
making the conduct that defines the class criminal." Padula v. Webster, 822 F.2d 97,
103 (1987).) And a fortiori it is constitutionally permissible for a State to adopt a
provision not even disfavoring homosexual conduct, but merely prohibiting all levels
of state government from bestowing special protections upon homosexual conduct.
... As JUSTICE KENNEDY wrote, when he was on the Court of Appeals, in a case
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involving discharge of homosexuals from the Navy: "Nearly any statute which classifies people may be irrational as applied ... in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because
their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational." Beller v. Middendorf, 632 F.2d 788, 808-809, n. 20 (CA9 1980) (citation omitted). See also BenShalom v. Marsh, 881 F.2d 454, 464 (CA7 1989), cert. denied, 494 U.S. 1004
(1990).
Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amendment 2 - which is a facial challenge must fail.
"A facial challenge to a legislative Act is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739,
745 (1987). It would not be enough for respondents to establish (if they could) that
Amendment 2 is unconstitutional as applied to those of homosexual "orientation";
since, under Bowers, Amendment 2 is unquestionably constitutional as applied to
those who engage in homosexual conduct, the facial challenge cannot succeed. Some
individuals of homosexual "orientation" who do not engage in homosexual acts
might successfully bring an as-applied challenge to Amendment 2, but so far as the
record indicates, none of the respondents is such a person. See App. 4-5 (complaint
describing each of the individual respondents as either "a gay man" or "a lesbian").
...
The foregoing suffices to establish what the Court's failure to cite any case
remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits
what Colorado has done here. But the case for Colorado is much stronger than
that. What it has done is not only unprohibited, but eminently reasonable, with
close, congressionally approved precedent in earlier constitutional practice.
[Emphasis added]
First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward
homosexuality, as though that has been established as Unamerican. Of course it is
our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here:
moral disapproval of homosexual conduct, the same sort of moral disapproval that
produced the centuries-old criminal laws that we held constitutional in Bowers. The
Colorado amendment does not, to speak entirely precisely, prohibit giving favored
status to people who are homosexuals; they can be favored for many reasons - for
example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct - that is, it
prohibits favored status for homosexuality. ***
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There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to
be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books
teaching that homosexuality is an optional and fully acceptable "alternate life style."
The problem (a problem, that is, for those who wish to retain social disapprobation
of homosexuality) is that, because those who engage in homosexual conduct tend to
reside in disproportionate numbers in certain communities, see Record, Exh. MMM,
have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter),
and of course care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving
... not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay
Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay
rights proponents is to move the center of public discourse along a continuum from
the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation").
By the time Coloradans were asked to vote on Amendment 2, their exposure to
homosexuals' quest for social endorsement was not limited to newspaper accounts of
happenings in places such as New York, Los Angeles, San Francisco, and Key West.
Three Colorado cities - Aspen, Boulder, and Denver had enacted ordinances that
listed "sexual orientation" as an impermissible ground for discrimination, equating
the moral disapproval of homosexual conduct with racial and religious bigotry. See
Aspen Municipal Code 13-98 (1977); Boulder Rev. Municipal Code 12-1-1 to 12-111 (1987); Denver Rev. Municipal Code, Art. IV 28-91 to 28-116 (1991). The phenomenon had even appeared statewide: the Governor of Colorado had signed an executive order pronouncing that "in the State of Colorado we recognize the diversity
in our pluralistic society and strive to bring an end to discrimination in any form,"
and directing state agency-heads to "ensure non-discrimination" in hiring and promotion based on, among other things, "sexual orientation." Executive Order No. D0035
(Dec. 10, 1990). I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. But they are subject to being countered by lawful,
democratic countermeasures as well.
That is where Amendment 2 came in. It sought to counter both the geographic
concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single-issue
contest for both sides. It put directly, to all the citizens of the State, the question:
Should homosexuality be given ... special protection? They answered no. The Court
today asserts that this most democratic of procedures is unconstitutional. Lacking
any cases to establish that facially absurd proposition, it simply asserts that it must be
unconstitutional, because it has never happened before.
"[Amendment 2] identifies persons by a single trait and then denies them
protection across the board. The resulting disqualification of a class of per311
sons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself
instructive . . . .
"It is not within our constitutional tradition to enact laws of this sort.
Central both to the idea of the rule of law and to our own Constitution's
guarantee of equal protection is the principle that government and each
of its parts remain open on impartial terms to all who seek its assistance." Ante, at 11-12.
As I have noted above, this is proved false every time a state law prohibiting or
disfavoring certain conduct is passed, because such a law prevents the adversely affected group whether drug addicts, or smokers, or gun owners, or motorcyclists from changing the policy thus established in "each of [the] parts" of the State. What
the Court says is even demonstrably false at the constitutional level. The Eighteenth
Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state
legislation, but even of the power to alter it through state constitutional amendment
or federal legislation. ...
But there is a much closer analogy, one that involves precisely the effort by the
majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma,
and Utah to this day contain provisions stating that polygamy is "forever prohibited."
See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, 4; N. M. Const., Art. XXI, 1;
Okla. Const., Art. I, 2; Utah Const., Art. III, 1. Polygamists, and those who have a
polygamous "orientation," have been "singled out" by these provisions for much
more severe treatment than merely denial of favored status; and that treatment can
only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy
must be permitted in these States on a state-legislated, or perhaps even localoption, basis - unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals. [Emphasis added]
The United States Congress, by the way, required the inclusion of these anti polygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and
Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36
Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat.
269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the antipolygamy provisions be "irrevocable
without the consent of the United States and the people of said State" - so that not
only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional
provision on its own, but the 51st Congress, which admitted Idaho into the Union,
found its constitution to be "republican in form and . . . in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 215 (emphasis
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added). Thus, this "singling out" of the sexual practices of a single group for
statewide, democratic vote - so utterly alien to our constitutional system, the Court
would have us believe - has not only happened, but has received the explicit approval
of the United States Congress.
I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even
further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U.S. 333
(1890), Justice Field wrote for a unanimous Court:
"In our judgment, 501 of the Revised Statutes of Idaho Territory, which
provides that `no person . . . who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of
any order, organization or association which teaches, advises, counsels, or
encourages its members or devotees or any other persons to commit the
crime of bigamy or polygamy, or any other crime defined by law . . . is
permitted to vote at any election, or to hold any position or office of honor,
trust, or profit within this Territory,' is not open to any constitutional or legal objection." Id., at 346-347 (emphasis added).
... the proposition that polygamy can be criminalized, and those engaging in that
crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U.S.
24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of
the equal protection of the laws." Among the Justices joining in that rejection were
the two whose views in other cases the Court today treats as equal-protection lodestars - Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U.S. 537, 559
(1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes
among citizens," quoted ante, at 1, and Justice Bradley, who had earlier declared that
"class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U.S. 3, 24 (1883) ***
This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said:
"[A]dverse impact will not always lead to a finding of impermissible targeting. For
example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U.S. 333
(1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 (1993).
It remains to be explained how 501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an
"impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and
the perceived social harm of homosexuality is not? [Emphasis added]
I strongly suspect that the answer to the last question is yes, [Emphasis added] which leads me to the last point I wish to make: The Court today, announcing
that Amendment 2 "defies . . . conventional [constitutional] inquiry," ante, at 10, and
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"confounds [the] normal process of judicial review," ante, at 11, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including
the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15
(1885), rejecting a constitutional challenge to a United States statute that denied the
franchise in federal territories to those who engaged in polygamous cohabitation:
"[C]certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take
rank as one of the co-ordinate States of the Union, than that which seeks to
establish it on the basis of the idea of the family, as consisting in and
springing from the union for life of one man and one woman in the holy
estate of matrimony; the sure foundation of all that is stable and noble
in our civilization; the best guaranty of that reverent morality which is
the source of all beneficent progress in social and political improvement." Id., at 45. [Emphasis added]
I would not myself indulge in such official praise for heterosexual monogamy,
because I think it no business of the courts (as opposed to the political branches)
to take sides in this culture war. [Emphasis added]
But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces,
but even by verbally disparaging as bigotry adherence to traditional attitudes.
[Emphasis added] To suggest, for example, that this constitutional amendment
springs from nothing more than "`a bare . . . desire to harm a politically unpopular
group,'" ante, at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528,
534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to
call "politically unpopular" a group which enjoys enormous influence in American
media and politics, and which, as the trial court here noted, though composing no
more than 4% of the population had the support of 46% of the voters on Amendment
2, see App. to Pet. for Cert. C-18.)
When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins - and more specifically with the Templars, reflecting the views
and values of the lawyer class from which the Court's Members are drawn. How that
class feels about homosexuality will be evident to anyone who wishes to interview
job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer;
because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur;
or even because he hates the Chicago Cubs. But if the interviewer should wish not to
be an associate or partner of an applicant because he disapproves of the applicant's
homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member-schools to exact from job interviewers:
"assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. 6-4(b); Executive Committee Regulations of
314
the Association of American Law Schools 6.19, in 1995 Handbook, Association of
American Law Schools. This law-school view of what "prejudices" must be stamped
out may be contrasted with the more plebeian attitudes that apparently still prevail in
the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e.g., Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil
Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which
took the pains to exclude them specifically from the Americans With Disabilities Act
of 1990, see 42 U.S.C. 12211(a) (1988 ed., Supp. V).
Today's opinion has no foundation in American constitutional law, and
barely pretends to. The people of Colorado have adopted an entirely reasonable
provision which does not even disfavor homosexuals in any substantive sense, but
merely denies them preferential treatment. Amendment 2 is designed to prevent
piecemeal deterioration of the sexual morality favored by a majority of Coloradans,
and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment,
but of political will. I dissent. [Emphasis added]
As Justice Scalia states, the majority opinion is constitutionally insupportable. The Court
imposes its views on homosexuality not only on the people of Colorado, but on all of the people
in America by this decision. It also should be clear to any legal scholar at this point, as it was to
Justice Scallia, that this decision is directly contrary to Bowers v. Hardwick. It foretold that the
Court must either overrule this Romer v. Evans case or Bowers v. Hardwick when the sodomy
laws again come before it. As we see below, it overruled Bowers v. Hardwick, also creating a
constitutional right to engage in sodomy. Both cases are a deplorable travesty of constitutional
law. There are no clearer cases showing the gross misbehavior of the Court in usurping and
trampling on the rights reserved only to the people under our Constitution. Justice Scalia's criticism of the Court is mild. Judges that engage in such misbehavior should not be allowed to continue on the Court. Because of this and other misbehavior outlined in this book, many are calling
for Congress to impeach judges who engage in this conduct. It is a sad day for our country that
our Supreme Court has sunk to this level. It should not be tolerated.
A part of the homosexual agenda is to get laws that force the people and all organizations,
private and public, to accept the homosexual lifestyle and associate with homosexuals, individually, and in all organizations, both private and public. For over 200 years all people and organizations had the right to take good moral character into consideration in determining with whom
they associate, who they hired, who they worked for, and who they had on their premises. They
also had a right to exercise their religious views in making those determinations. After this long
period of time those rights have been removed. Unless of course they have succumbed to the
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more than forty years of brainwashing and concluded that engaging in sodomy is not only acceptable, but commendable, as has six members of our Supreme Court.
Homosexuals acquire their classification by the acts in which they engage, which constitute
sodomy. They are no more a class of people than are polygamists, pedophiles, those who engage
in incest, prostitution, gambling, or are drug addicts, or alcoholics. Every state in the union once
discriminated against all of these classes by criminal laws. Now the Supreme Court puts homosexuals in a special class. Not only the people of Colorado, but the people in all other states, are
prevented from making a law discriminating against homosexuals, such as sodomy laws. In addition, the people cannot, even by Constitutional amendment, prevent laws giving them special
privileges.
As Justice Scalia said, the Supreme Court has taken sides in the cultural war. It has adopted
the homosexual agenda, and is doing everything it can to force it on the American people. It has
determined that the people must accept homosexuality as a good and moral lifestyle, and calls
those who do not "bigots."
However, for some reason, which I cannot fathom, Justices O'Connor and Kennedy
switched sides in Boy Scouts of America v. Dale, 530 U.S, 640 (2000). In this case, Dale, an Assistant Scoutmaster was expelled after he publicly announced he was a homosexual. He brought
an action for reinstatement and damages against the Boy Scouts under a New Jersey law that
prohibited discrimination on the basis of "sexual orientation" in places of public accommodation.
The New Jersey Supreme Court strangely held that the Boy Scouts was a public accommodation
coming within the law. This construction of what the law covered was therefore binding on the
Untied States Supreme Court. However, in a five to four decision, the United States Supreme
Court reversed, holding that the Scouts were within their rights under the First Amendment of
the United States Constitution. The alignment of judges:
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy,
and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and
Breyer, JJ., joined. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ.,
joined.
Excerpts from Chief Justice Rehnquist's opinion:
... The Boy Scouts is a private, not-for-profit organization engaged in instilling
its system of values in young people. The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent is James Dale, a
former Eagle Scout whose adult membership in the Boy Scouts was revoked when
the Boy Scouts learned that he is an avowed homosexual and gay rights activist. ***
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... With respect to the right of expressive association, the court [New Jersey]
"agree[d] that Boy Scouts expresses a belief in moral values and uses its activities to
encourage the moral development of its members." Ibid., 734 A. 2d, at 1223. But the
court concluded that it was "not persuaded ... that a shared goal of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral." ...
Accordingly, the court held "that Dale's membership does not violate the Boy Scouts'
right of expressive association because his inclusion would not `affect in any significant way [the Boy Scouts'] existing members' ability to carry out their various purposes.' " ... The court also determined that New Jersey has a compelling interest in
eliminating "the destructive consequences of discrimination from our society," and
that its public accommodations law abridges no more speech than is necessary to accomplish its purpose. ***
In Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984), we observed
that "implicit in the right to engage in activities protected by the First Amendment" is
"a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." This right is crucial
in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. See ibid. (stating that protection of the right to
expressive association is "especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority").
Government actions that may unconstitutionally burden this freedom may take many
forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire."
Id., at 623. Forcing a group to accept certain members may impair the ability of the
group to express those views, and only those views, that it intends to express. Thus,
"[f ]reedom of association ... plainly presupposes a freedom not to associate." ***
The Boy Scouts is a private, nonprofit organization. According to its mission
statement:
"It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical
choices over their lifetime in achieving their full potential.
"The values we strive to instill are based on those found in the Scout Oath and
Law:
"Scout Oath
"On my honor I will do my best, To do my duty to God and my country,
and to obey the Scout Law; To help other people at all times; To keep myself physically strong, mentally awake, and morally straight.
"Scout Law
"A Scout is: Trustworthy, Obedient, Loyal, Cheerful, Helpful, Thrifty,
Friendly, Brave, Courteous, Clean Kind, Reverent." App. 184.
Thus, the general mission of the Boy Scouts is clear: "[T]o instill values in
young people." ... The Boy Scouts seeks to instill these values by having its adult
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leaders spend time with the youth members, instructing and engaging them in activities like camping, archery, and fishing. During the time spent with the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy Scouts'
values--both expressly and by example. It seems indisputable that an association that
seeks to transmit such a system of values engages in expressive activity. ***
The values the Boy Scouts seeks to instill are "based on" those listed in the
Scout Oath and Law. App. 184. The Boy Scouts explains that the Scout Oath and
Law provide "a positive moral code for living; they are a list of `do's' rather than
`don'ts.' " Brief for Petitioners 3. The Boy Scouts asserts that homosexual conduct is
inconsistent with the values embodied in the Scout Oath and Law, particularly with
the values represented by the terms "morally straight" and "clean."
Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual
orientation. See supra, at 6-7. And the terms "morally straight" and "clean" are by no
means self-defining. Different people would attribute to those terms very different
meanings. For example, some people may believe that engaging in homosexual conduct is not at odds with being "morally straight" and "clean." And others may believe
that engaging in homosexual conduct is contrary to being "morally straight" and
"clean." The Boy Scouts says it falls within the latter category. ***
... it is not the role of the courts to reject a group's expressed values because they
disagree with those values or find them internally inconsistent. See Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981) ("[A]s
is true of all expressions of First Amendment freedoms, the courts may not interfere
on the ground that they view a particular expression as unwise or irrational"); see also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 714
(1981) ("[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection"). ***
We are not, as we must not be, guided by our views of whether the Boy Scouts'
teachings with respect to homosexual conduct are right or wrong; public or judicial
disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would
derogate from the organization's expressive message. "While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with
speech for no better reason than promoting an approved message or discouraging a
disfavored one, however enlightened either purpose may strike the government."
Hurley, 515 U. S., at 579.
The judgment of the New Jersey Supreme Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
The dissent of Justice Stevens states in part:
... It is plain as the light of day that neither one of these principles--"morally
straight" and "clean"--says the slightest thing about homosexuality. Indeed, neither
term in the Boy Scouts' Law and Oath expresses any position whatsoever on sexual
matters. ***
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[The Court notes recent] remarkable changes in attitudes toward homosexuals.
That such prejudices are still prevalent and that they have caused serious and
tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes. That
harm can only be aggravated by the creation of a constitutional shield for a policy
that is itself the product of a habitual way of thinking about strangers. As Justice
Brandeis so wisely advised, "we must be ever on our guard, lest we erect our prejudices into legal principles." [Emphasis added]
It is clear from the dissenting opinion that the dissenters see nothing whatsoever wrong with
homosexuality, and that they consider those who do to be "prejudiced." It is equally clear that
they believe that because of changing times, our Constitution should be changed to embrace sodomy. The next case reviewed makes this even clearer.
Since the Court had already classified homosexuals as a "group" which not only could but
should be protected from discrimination, in Romer, it is odd that O'Connor and Kennedy would
join to overturn this New Jersey law to the extent that it applied to the Scouts, which was designed to afford such protection. Perhaps they feared the opposite decision would inflame the
public more than the Romer decision did, or perhaps it was something not mentioned by the
Court, which was the well known fact that many Boy Scouts had been sexually abused by homosexual pedophiles.
It was well known in the country that both the Catholic Church and the Boy Scouts of
America were having immense problems with the infiltration of homosexual pedophiles as
Priests and Scout Leaders, and their sexual abuse of boys. The Catholic Church had the greatest
problem and paid untold millions of dollars resulting from successful lawsuits and from defending them. But the problems and expenses of the Boy Scouts were great, also.
The following is from The Homosexual Deception: Making Sin A Civil Right, published by
Concerned Women for America in 1991 and 1992:
Knowing that between one fourth and one third of child molestations involve
man-boy contact, homosexual extremists are now conveniently attempting to claim
that male molesters of boys should not be considered homosexuals. However, a recent Canadian study of male child molesters revealed the following: (1) 30% of the
offenders studied admitted to having engaged in homosexual acts with adults; and
(2) 91% of molesters of non-familial boys admitted to no lifetime sexual contact other than homosexual—i.e., their sexual orientation was clearly homosexual (Marshall,
W. L., et. al., \"Early onset and deviant sexuality in child molesters.\" (Journal of Interpersonal Violence, 1991, 6, 323-336).
Among homosexual activists themselves, a heated debate rages over whether the
homosexual community should include among their ranks homosexuals who have
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sex with the young. In a typical editorial favoring inclusion that appeared recently in
the homosexual newspaper Bay Area Reporter (Feb. 13, 1992, p. 6), one Bradley
Rose said:
...What is a pedophile? A pedophile is not a rapist or murderer, or a
devil, but a person who loves... As a gay child, I would have welcomed
sexual relations with males, of adult age as well as my own...
Gay liberation is stuck in backwaters as long as gay children are denied
their sexuality and as long as parents are allowed to push their gay children
into the roles of hetero adults... Most of the heteros just don't know how to
give gay-affirming support to their children (the homosexual ones as well as
the non-gay ones). Let's give them a hand.
Similarly, support for "gay men who love boys" is found in a recent editorial in
the San Francisco Sentinel, another homosexual newspaper. In fact, the editorial
states that "the love between men and boys is the foundation of homosexuality" ("No
Place for Homo Homophobia," March 26, 1992). ***
A nationwide investigation of child molestation in the Boy Scouts of America
(see Insight magazine, June 17, 1991) reported 1,151 complaints by Boy Scouts of
abuse by Scout leaders in the past 19 years, in all 50 States and the District of Columbia. This makes, the article stated, "sex abuse more common in Scouting than
accidental deaths and serious injuries.... In that time, at least 416 men have been arrested or banned from Scouting for molesting boys in their care." The Boy Scouts
have spent literally millions of dollars in litigation related to this abuse.
"The national organization [Boy Scouts of America] removed 1,800 Scoutmasters suspected
of molesting between 1971 and 1991, according to files that attorney Michael Rothschild obtained for a lawsuit." (The Albuquerque Tribune, 10-15-93) A screening program is explained
in the article. The homosexual community vehemently opposes such screening as it keeps out
homosexuals as Scout Leaders.
The decision in the Boy Scout case has not at all stopped the homosexual movement, and its
ardent supporter, the ACLU, from trying to force the Boy Scouts to accept homosexual leaders.
They have switched from the Courts, for now, and have been successfully pressuring organizations all over the Country to quit contributing to the Boy Scouts, and to deny them use of their
facilities.
As was expected, in Lawrence v. Texas. No. 02-102, decided June 23, 2003, the Supreme
Court overruled Bowers v. Hardwick, supra, and held that there was a constitutional right to engage in sodomy. It struck down a Texas statute that made it a criminal offense for persons of the
same sex to enter into certain sexual conduct. The alignment of judges:
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and
Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a
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dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion.
From Justice Kennedy's opinion:
In Griswold the Court invalidated a state law prohibiting the use of drugs or
devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at
485.
After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird,
405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection
Clause, id., at 454; but with respect to unmarried persons, the Court went on to state
the fundamental proposition that the law impaired the exercise of their personal
rights, ibid. It quoted from the statement of the Court of Appeals finding the law to
be in conflict with fundamental human rights, and it followed with this statement of
its own:
"It is true that in Griswold the right of privacy in question inhered in the
marital relationship... . If the right of privacy means anything, it is the right
of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." ***
... In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness
that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are
the starting point but not in all cases the ending point of the substantive due process
inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J.,
concurring). [Emphasis added]
This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and
made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). ***
The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of
other authorities pointing in an opposite direction. A committee advising the British
Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The
Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years
later. Sexual Offences Act 1967, §1.
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Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing
homosexual who desired to engage in consensual homosexual conduct. The laws of
Northern Ireland forbade him that right. He alleged that he had been questioned, his
home had been searched, and he feared criminal prosecution. The court held that the
laws proscribing the conduct were invalid under the European Convention on Human
Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ ;52. Authoritative in
all countries that are members of the Council of Europe (21 nations then, 45 nations
now), the decision is at odds with the premise in Bowers that the claim put forward
was insubstantial in our Western civilization.
... The central holding of Bowers has been brought in question by this case, and
it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. [Emphasis added] ***
To the extent Bowers relied on values we share with a wider civilization, it
should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own
decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App.
No. 00044787/98, ¶ ;56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259
Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations,
too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been
accepted as an integral part of human freedom in many other countries. There has
been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. ***
Bowers was not correct when it was decided, and it is not correct today. It ought
not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
... The petitioners are entitled to respect for their private lives. The State
cannot demean their existence or control their destiny by making their private sexual
conduct a crime. *** [Emphasis added]
This decision and the language quoted show an utter disregard of the intent and purpose of
the phrases in the Fifth and Fourteenth Amendments that a person shall not be deprived of "life,
liberty, or property, without due process of law." There is nothing in this opinion that goes to the
intent and purpose of those who gave us our Bill of Rights, or of the intent and purpose of the
Fourteenth Amendment. It is clear beyond any doubt that the majority is basing this decision on
their own personal ideas and biases and that they prefer certain changes in thinking of modern
times to our Constitution. And the acts and cases of European countries in recent years could not
possibly have influenced those who formed and adopted our Constitutional provisions long before these changes ever occurred.
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The intent and purpose of those who gave us our Constitutional rights should control as to
their meaning – not that of European countries in modern times, nor any of the Court's chosen
modern institutes, and not the personal ideas of these justices.
The decision also shows the acceptance of the homosexual lifestyle as something moral and
commendable. It states that it cannot be "demeaned" and is entitled to respect.
The constitutional right to sodomy was enacted by this activist court, and is contrary to our
Constitution.
There could be no more blatant disregard of Article V of our Constitution giving the people
and their representatives the sole right to change it, and of the basic purpose of our Constitution
for the people to govern themselves. This is pure judicial despotism.
Justice Scalia's dissenting opinion referred to a 17-year crusade to overrule Bowers v.
Hardwick. The homosexual agenda finally prevailed. Excerpts from Justice Scalia's opinion:
... I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620
(1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting). ***
I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition
is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that certain
forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196--the
same interest furthered by criminal laws against fornication, bigamy, adultery, adult
incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest.
The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers
no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis added). The Court embraces instead
Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing
majority in a State has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the
above-mentioned laws can survive rational-basis review.
Finally, I turn to petitioners' equal-protection challenge, which no Member of
the Court save Justice O'Connor, ante, at 1 (opinion concurring in judgment), embraces: On its face §21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, §21.06 does distinguish between
the sexes insofar as concerns the partner with whom the sexual acts are performed:
men can violate the law only with other men, and women only with other women.
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But this cannot itself be a denial of equal protection, since it is precisely the same
distinction regarding partner that is drawn in state laws prohibiting marriage with
someone of the same sex while permitting marriage with someone of the opposite
sex. ***
... This reasoning leaves on pretty shaky grounds state laws limiting marriage to
opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory
statement that "preserving the traditional institution of marriage" is a legitimate state
interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a
kinder way of describing the State's moral disapproval of same-sex couples. Texas's
interest in §21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence Justice O'Connor has
seemingly created, judges can validate laws by characterizing them as "preserving
the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad). ***
Today's opinion is the product of a Court, which is the product of a lawprofession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at
eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law
Schools (to which any reputable law school must seek to belong) excludes from
membership any school that refuses to ban from its job-interview facilities a law firm
(no matter how small) that does not wish to hire as a prospective partner a person
who openly engages in homosexual conduct. See Romer, supra, at 653. [Emphasis
added]
One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante,
at 14. It is clear from this that the Court has taken sides in the culture war, departing
from its role of assuring, as neutral observer, that the democratic rules of engagement
are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and
destructive. The Court views it as "discrimination" which it is the function of our
judgments to deter. So imbued is the Court with the law profession's anti-antihomosexual culture, that it is seemingly unaware that the attitudes of that culture are
not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals
to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d
Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975);
that in some cases such "discrimination" is mandated by federal statute, see 10
U. S. C. §654(b)(1) (mandating discharge from the armed forces of any service
member who engages in or intends to engage in homosexual acts); and that in some
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cases such "discrimination" is a constitutional right, see Boy Scouts of America v.
Dale, 530 U. S. 640 (2000).
Let me be clear that I have nothing against homosexuals, or any other group,
promoting their agenda through normal democratic means. Social perceptions of
sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals
have achieved some success in that enterprise is attested to by the fact that Texas is
one of the few remaining States that criminalize private, consensual homosexual
acts. But persuading one's fellow citizens is one thing, and imposing one's views in
absence of democratic majority will is something else. I would no more require a
State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is
well within the range of traditional democratic action, and its hand should not be
stayed through the invention of a brand-new "constitutional right" by a Court that is
impatient of democratic change. It is indeed true that "later generations can see that
laws once thought necessary and proper in fact serve only to oppress," ante, at 18;
and when that happens, later generations can repeal those laws. But it is the premise
of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. [Emphasis supplied]
One of the benefits of leaving regulation of this matter to the people rather than to
the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is
strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial
imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after
having laid waste the foundations of our rational-basis jurisprudence--the Court says
that the present case "does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter." Ante, at 17.
Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which
notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,"
and then declares that "[p]ersons in a homosexual relationship may seek autonomy
for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added).
Today's opinion dismantles the structure of constitutional law that has permitted a
distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual
conduct is "no legitimate state interest" for purposes of proscribing that conduct,
ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality),
"[w]hen sexuality finds overt expression in intimate conduct with another person, the
conduct can be but one element in a personal bond that is more enduring," ante, at 6;
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what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.?
Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only
if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is
so.
Justice Thomas, besides joining in Scalia's dissent, wrote an interesting dissent The following is its full text:
I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U. S.
479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear
to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide
cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And,
just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part
of the Constitution a] general right of privacy," ibid., or as the Court terms it today,
the "liberty of the person both in its spatial and more transcendent dimensions," ante,
at 1.
I do not agree with Justice Thomas that a law against sodomy is "uncommonly silly," but I
do very much respect his integrity in not joining with the activist members of the Court to make
their personal views a part of our Constitution.
As has been clear from all Constitutional decisions based on the true intent and purpose of
our Constitution, statutes upholding the morals of the community have always been an important
part of our laws passed by both the federal and state governments. For a Court to strike down
such legislation as was done here, or substitute its own ideas on what is moral, as was also done
in this case, strikes at the very heart of our Constitution, and at the basic rights of the people to
govern themselves.
Heed should be paid to Justice Scalia's warning on homosexual marriage.
In the polygamy cases, covered in the last chapter, the right claimed was based on the claim
of freedom to exercise the religion prescribed by the Mormon Church. No such explicit constitutional provision can be argued to support sodomy.
From the information and cases in the last chapter, we see that the religious precepts of the
Bible are the bases of a large number of our laws. All of our laws upholding the morals of the
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community fall within this category. Laws prohibiting bigamy, polygamy, same-sex marriage,
sodomy, incest, adultery, prostitution, gambling, obscenity, bestiality, and pedophilia are all such
laws. The have the exact same basis. This book is full of cases and precedent upholding the right
of Congress and the states to pass such laws. Whether or not any one of them should be changed
or eliminated is solely the business of the people – it is no business whatsoever of the United
States Supreme Court. If there is a constitutional right to sodomy, then there is a constitutional
right to all of these other things. They all have the same basis in the law. This also includes pedophilia if a young person is of sufficient age to decide such matters. The same principle applies
to abortion and many other things that have been prohibited on a moral basis.
Let us compare polygamy and sodomy, remembering that they all have the same basis – the
moral precepts of the Bible. Which in Biblical history is the most condemned? Clearly it is sodomy. In fact, I know of no direct statement in the Bible prohibiting polygamy. Two of the most
revered figures in the Old Testament, King David, and his son, King Solomon, each had many
wives. The Christian concept of the marriage of one man to one woman, a precept which is recognized many times in cases previously cited, came about from inferences from the teachings of
the New Testament.
On the other had, after having researched the matter, I believe that, next to murder, sodomy
is the most condemned thing in the Bible. And, as previously noted, Western Civilization has at
times imposed the death penalty for it. Following are some of the Bible references condemning
sodomy. The References are from the Holy Bible, King James Version. The word, sodomy, is not
used in the Bible, but the proscriptions are clear. Sodomy is a word that historically came about,
because the primary basis for the destruction of Sodom and Gomorrah was the inhabitants engaging in that sin.
THE OLD TESTAMENT
Genesis 13:13: "But the men of Sodom were wicked and sinners before the Lord
exceedingly."
[Genesis Chapter 18 relates the Lord considering whether or not to destroy the cities
of Sodom and Gomorrah, "because their sin is very grievous." On questioning by
Abraham, the Lord said that if ten righteous people could be found, he would not destroy the cities.]
[Genesis Chapter 19 tells of the visit of Lot, the nephew of Abraham, to Sodom,
and his learning of their wickedness, and their seeking of the men with him for their
evil purposes:]
And they called unto Lot, and said unto him, Where are the men which came in
to thee this night? bring them out unto us, that we may know them.
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And Lot went out at the door unto them, and shut the door after him. And said,
I pray you, brethren, do not so wickedly.
Behold now, I have two daughters which have not known man; let me, I pray
you, bring them out unto you, and do ye them as is good in your eyes; only unto
these men do nothing; for therefore came they under the shadow of my roof. ...
But the men [Angels of the Lord] put forth their hand, and pulled Lot into the
house to them, and shut to the door.
And they smote the men that were at the door of the house with blindness, both
small and great: so that they wearied themselves to find the door.
And the men (Angels of the Lord) said unto Lot, Hast thou here any besides ?
son in law, and thy sons, and thy daughters, and whatsoever thou hast in the city,
bring them out of this place:
For we will destroy this place, because the cry of them is waxen great before the
face of the Lord; and the Lord has sent us to destroy it. ...
And when the morning arose, then the angels hastened Lot, saying, Arise, take
thy wife and thy two daughters, which are here; lest thou be consumed in the iniquity
of the city.
And while he lingered, the men laid hold upon his hand, and upon the hand of
his wife, and upon the hand of his two daughters; the Lord being merciful unto him:
and they brought him forth, and set him without the city.
***
The sun was risen upon the earth when Lot entered into (Zoar).
Then the Lord rained upon Sodom and upon Gomorrah brimstone and fire from
the Lord out of Heaven.
And he overthrew those cities, and all of the plain, and all the inhabitants of the
cities, and that which grew upon the ground. (Genesis 19:5-16, 23-25)
Leviticus 18:22-25:
Thou shalt not lie with mankind as with womankind: It is an abomination.
Neither shalt thou lie with any beast to defile thyself therewith: it is confusion.
Defile not ye yourselves in any of these things: for in all these the nations are defiled
which I cast out before you; ... .
Leviticus 20:13: "If a man also lie with mankind, as he lieth with a woman, both
of them shall surely be put to death; their blood shall be upon them."
Deuteronomy 22:5: "The woman shall not wear that which pertaineth unto a
man, neither shall a man put on a woman's garment; for all that do so are abomination unto the Lord, thy God."
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Deuteronomy 23:17 "There shall be no whores of the daughters of Israel, nor a
sodomite of the sons of Israel."
1 Kings 14:24: "And there were also sodomites in the land; and they did according to all the abominations of the nations which the Lord cast out before the children
of Israel."
1 Kings 15:11-12: "And Asa did that which was right in the eyes of the Lord, as
did David his father. And he took away the sodomites out of the land ... .
THE NEW TESTAMENT
Mark 6:11 [(These are the words of Jesus]: "And whosoever shall not receive you,
nor hear you, when ye depart thence, shake off the dust under your feet for a testimony against them. Verily I say unto you, it shall be more tolerable for Sodom and
Gomorrha in the day of judgment, than for that city."
Mark 7:21-23 [Again, the words of Jesus]:
For from within, out of the heart of men, proceed evil thoughts, adulteries, fornications, murders. ...
All these evil things come from within and defile the man.
Romans 1:24-32 [The words of the Apostle Paul]:
Wherefore God also gave them up to uncleanness through the lusts of their own
hearts, to dishonour their own bodies between themselves: ...
For this cause God gave them unto vile affections; for even their women did
change the natural use unto that which is against nature:
And likewise also the men, leaving the natural use of the woman, burned in their
lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which is meet.
And even as they did not like to retain God in their knowledge, God gave them
over to a reprobate mind, to do those things which are not convenient; ...
Without understanding, covenantbreakers, without natural affection, implacable,
unmerciful:
Who knowing the judgment of God, that they which commit such things are
worthy of death, not only do the same, but have pleasure in them that do them.
1 Corinthians 6:9-10:
Know ye not that the unrighteous shall not inherit the kingdom of God? Be not
deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind,
Nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God.
1 Corinthians 10:8:
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Neither let us commit fornication, as some of them committed, and fell in one day
three and twenty thousand. [This passage is not speaking of Sodom and Gomorrah,
but as we see from other passages, fornication appears to apply to all sex out of wedlock, including sodomy.]
2 Corinthians 12:20-21: ...
And lest, when I come again, my God will humble me among you, and that I
shall bewail many which have sinned already, and have not repented of the uncleanness and fornication and lasciviousness which they have committed.
1 Thessalonians 4:2-5:
For you know what commandments we gave you by the Lord Jesus.
For this is the will of God, even your sanctification, that ye should abstain from
fornication:
That every one of you should know how to possess his vessel in sanctification
and honour;
Not in the lust of concupiscence, even as the Gentiles which know not God.
2 Timothy 3:1-4:
This know also, that in the last days, perilous times shall come ...
Without natural affection, truce-breakers. false accusers, incontinent, fierce, despisers of those that are good,
Traitors, heady, highminded, lovers of pleasures more than lovers of God;
2 Peter 2:6-10 [The words of Simon Peter, the first of the twelve disciples of Jesus
Christ]:
And turning the cities of Sodom and Gomorrha into ashes condemned them ... making them an ensample unto those that after should live ungodly;
And delivered just Lot, vexed with the filthy conversations of the wicked ... . [Conversations was a word used here to apply to sexual acts, and it is still today used that
way in legal and other terminology.]
Jude 1:7-8:
Even as Sodom and Gomorrha, and the cities about them in like manner, giving
themselves over to fornication, and going after strange flesh, are set forth for an example, suffering the vengeance of eternal fire. [Here we see the word, fornication,
definitely is used in reference to sodomy.]
Likewise also these filthy dreamers defile the flesh, despise dominion, and speak evil
of dignities.
We see from the above condemnations, saying that these acts were worthy of death, reasons
why in early history there had been the death penalty for it. However, in regard to the extremely
strong condemnation of sodomy in the Bible, no one should conclude that homosexuals should
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be gathered up and executed or indiscriminately punished, because of the statements in the Old
and New Testaments that such acts are worthy of death. The Old Testament, and more particularly the New Testament, do not appear to substantially dwell on or prescribe punishments to be
meted out by others to those who sin. All of us are or have been sinners. Punishment in the Bible is usually left to God. Also we should consider the fact that death, as used in the statements
referred to, is often meant to be the opposite of eternal life, in both the Old Testament and the
New Testament.
In the Old Testament, we have Daniel 12:2: "And many of them that sleep in the
dust of the earth shall awake, some to everlasting life and some to everlasting torment."
In the New Testament, we have the words of the apostle Paul in Romans 6:23:
"For the wages of sin is death, but the gift of God is eternal life through Jesus Christ
our Lord."
We see throughout this book that the United States Supreme Court has always upheld the
rights of Congress and of the states to pass laws upholding the morals of the community and the
country. Sometimes they have called them laws preventing "social harm" to the community. The
people and their representatives are the only ones with authority to decide the nature of such
laws. They are solidly backed by valid historical precedent. These Romer and Lawrence cases
are either trying to deny that right, or they are trying to usurp for the Court the prerogative of deciding what those laws should be. Obviously, both cases are unlawful and malicious acts of the
majority judges. In addition to the exercise of rights never given to the Court, these cases violate
all of the time honored rules for interpreting the Constitution, referred to in Chapters II and III,
which prohibit the Court from injecting its own ideas and prejudices onto our Constitution, and
protect the intent and purpose the people and their representatives when a constitutional provision is framed and adopted by them. Some of these rules that are directly violated are:
The Constitution is a written instrument. As such its meaning does not alter.
That which it meant when adopted, it means now. ... Those things which are
within its grants of power, as those grants were understood when made, are still
within them; and those things not within them remain still excluded. (Justice
Brewer, State of South Carolina v. U. S., 199 U.S. 437 (1905))
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed
the Constitution. The duty of the court is, to interpret the instrument they have
framed, with the best lights we can obtain on the subject, and to administer it as
we find it, according to its true intent and meaning when it was adopted. ***
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No one, we presume, supposes that any change in public opinion or feeling, ... in
the civilized nations of Europe or in this country, should induce the court to give
to the words of the Constitution a more liberal construction ... than they were
intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it.
If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it
must be construed now as it was understood at the time of its adoption. It is not
only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges
to the citizen; and as long as it continues to exist in its present form, it speaks
not only in the same words, but with the same meaning and intent with which it
spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the
popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and
it must not falter in the path of duty. ***
(Opinion of Chief Justice Roger Taney, Scott v. Sandford, supra.)
... the judge's role was the carrying out of instructions, with a meaning already
given, whether given clearly or in a manner requiring further steps of discovery. It did not involve conceiving new meanings, whether based on later insights, judicial conscience, or the philosophical values presumed to motivate the
original law. (Blackstone; Sowell, "Judicial Activism Reconsidered")
"I do not expect or think it desirable that judges should undertake to renovate
the law." He said, "This is not their province." (Justice Oliver Wendell Holmes;
Sowell, "Judicial Activism Reconsidered")
I think the proper course is to recognize that a state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful
not to extend such prohibitions beyond their obvious meaning by reading into
them conceptions of public policy that the particular Court may happen to entertain. (Justice Holmes, Tyson & Brother v, Blanton, 273 U.S. 418, at 445-46)
Courts are the mere instruments of the law, and can will nothing. ...Judicial
power is never exercised for the purpose of giving effect to the will of the Judge;
always for the purpose of giving effect to the will of the Legislature; or, in other
words, to the will of the law. (Chief Justice John Marshall, Osborn v. Bank of the
United States, 22 U.S. 738 (1824))
The question, whether a law be void for its repugnancy to the constitution, is, at
all times, a question of much delicacy, which ought seldom, if ever, to be decided
in the affirmative, in a doubtful case. ... it is not on slight implication and vague
conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong convic332
tion of their incompatibility with each other. (C.J. Marshall, Fletcher v. Peck, 10
U.S. 87 (1810))
It is but a decent respect due to the wisdom, the integrity, and the patriotism of
the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable
doubt. This has always been the language of this Court, when that subject has
called for its decision; and I know that it expresses the honest sentiments of each
and every member of this bench. (Justice Bushrod Washington, Ogden v Saunders,
25 U.S. 213 (1827))
It must also be remembered that the framers of the Constitution were not mere
visionaries, toying with speculations or theories, but practical men, dealing with
the facts of political life as they understood them; putting into form the government they were creating, and prescribing, in language clear and intelligible,
the powers that government was to take. Mr. Chief Justice Marshall, in Gobbons v. Ogden, 9 Wheat. 1, 188, 6 L. ed. 23, 68, well declared:
'As men whose intentions require no concealment generally employ the
words which most directly and aptly express the ideas they intend to convey, the
enlightened patriots who framed our Constitution, and the people who adopted
it, must be understood to have employed words in their natural sense, and to
have intended what they have said.' ***
To determine the extent of the grants of power, we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and
inquire what they must have understood to be the meaning and scope of those
grants. *** (C.J. Tanney, Scott v. Sandford, supra)
For the removal of unwise laws from the statute books appeal lies, not to the
courts, but to the ballot and to the processes of democratic government. ***
(Justice Stone, dissent, with Justices Holmes and Brandeis concurring, U.S. v. Butler,
297 U.S. 1 (1936))
"Whether wisdom or unwisdom resides in [the law], it is not for us to say. ... "
***
... Moreover, the presumption of constitutionality with which this enactment,
like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it. (Justice Harlan,
Flemming v. Nestor, 363 U.S. 603 (1960))
The majority in these cases show no respect for the true meaning of our Constitution, and
even less for the basic right of the people to govern themselves. There are no decisions more
contrary to sound Constitutional law. They are a mockery to our Constitution.
The precepts of George Washington, Benjamin Franklin, James Madison, John Jay, Alexander Hamilton, and our other great founders who gave us our Constitution and Bill of Rights, have
333
now been discarded by our Supreme Court in favor of the modern anti-Christian ideas of some of
our elitist institutions, and of the Europeans and their anti-Christian institutions.
The people of this country need to take action to curb the present despotic majority of the
Supreme Court, and change their status from our rulers back to judges, as was intended by our
Constitution. This kind of despotism also needs to be prohibited in the future.
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Chapter XII
Fixing Our Runaway Courts  Once and For All
It is rather for us to be here dedicated to the great task remaining before us –
that from these honored dead we take increased devotion to that cause for
which they gave the last full measure of devotion; that we here highly resolve
that these dead shall not have died in vain; That this nation, under God, shall
have a new birth of freedom; and that government of the people, by the people,
and for the people shall not perish from the earth. (Abraham Lincoln, The Gettysburg Address, 1863)
The above is the last sentence and last paragraph in Lincoln's address at Gettysburg.
Our original Constitution starts with the words: We the people. The whole document reflects our forefathers' intentions to set up a system of self-government by the people. Article V
gives the people the sole right to change our Constitution. Many died in both the Revolutionary
War and the Civil War to give us the freedom we are now frittering away today.
Certain justices of the United States Supreme Court act as if they wish to change our government to one of the courts, by the courts, and for the whims of the courts.
The activist judges on that Court continually try to change and mold our Constitution to fit
their own ideologies, and they have been very successful. Those activist judges have engrafted
on the Constitution their own personal ideas, thereby creating "constitutional rights" never before
heard of – and certainly not by those who framed and adopted the provisions in our Constitution.
By doing so they are destroying the primary purpose of our Constitution, which was to insure the
right of the people to govern themselves.
The Civil War amendments, including the Fourteenth Amendment, came about because of
the ideals and the ideas of Abraham Lincoln and others like him. The primary purpose of all of
those amendments was to free the slaves, and to give all negroes the same rights that citizens of
the United States already enjoyed. It was not intended that any of the amendments would give to
the courts any additional powers. The courts have maliciously usurped powers that our founders
who gave us our Constitution, and those who formed and ratified the Fourteenth Amendment,
considered as belonging only to the people.
The Supreme Court, beginning with the Warren Court, has not only severely reduced the
right of the people to govern themselves with what is called the "police power" of the States, but
has unlawfully given the power taken from the people to the Court. There is no support in valid
prior decisions, and there is no support in historical precedent behind the Fourteenth Amendment, or our Bill of Rights, for this unlawful action by the Court.
335
This misbehavior, and the consternation we now face was brought about by the simple fact
that there have been no binding rules as to how the Court should interpret a Constitutional provision, or even a statutory provision. They have made their rules as they go along, and they now
change them to fit the outcome they wish in a particular case. The intent and purpose of those
who enact or adopt a provision are frequently completely disregarded. It is the will of the Court
that counts.
Robert H. Bork, an eminent jurist, educator, and writer posits that the best way to stop our
serious court misbehavior would be a constitutional amendment making any federal or state
court decision subject to being overturned by a majority vote of each house of Congress.
(Slouching Towards Gomorrah. New York; HarperCollins Publishers, Inc., 1996; p. 117). In a
later book, he adds three other possibilities to help to some extent: (1) Removing all federal jurisdiction as to certain cases, such as abortion, under Article III, Section 2, of the Constitution;
(2) Appointing judges who will construe the Constitution according to the original understanding
of its principles; (3) Persuade the Court itself to mend its ways. (Coercing Virtue, The AEI Press,
Washington, D.C., 2003; pp. 81-82). Judge Bork fully recognizes the improbability of any of
these reforms in our current political climate, and their limitations if they could be accomplished.
Phyllis Schlafly, in her fine article, "We Must Reject the Rule of Judges," The Phyllis
Schlafly Report, March, 2004, recommends such things as the Constitution Restoration Act,
pending in Congress, removing jurisdiction from the federal courts to hear cases brought against
a federal, state, or local government, or officer for acknowledging God. Mrs. Schlafly also states:
The Constitution Restoration Act also orders federal courts not to rely on foreign
laws, administrative rules or court decisions. Americans have been shocked to learn
that five U.S. Supreme Court Justices have cited foreign sources, even though it is
self-evident that U.S. judges should be bound by the U.S. Constitution and U.S.
laws, not foreign ones.
The Constitution Restoration Act also states that a judge who engages in any activity
that exceeds the jurisdiction of the court thereby commits "a breach of standards of
good behavior" and may be removed by impeachment and conviction.
The temerity of our Supreme Court justices in referring to the law of liberal European nations, and of the United Nations, instead of our own valid historical precedent, and in decimating
our Constitution by doing so, shows their utter disregard our Constitution, and their lack of fear
of impeachment.
David Barton strongly recommends that the people try to pressure Congress into impeaching
judges who are engaging in the misbehavior that I have outlined in this book. He clearly points
out their constitutional power to do so. He also states:
336
If impeachment is not soon restored to its original role as a tool to reign in the
judiciary, then Thomas Jefferson's portentous warning will become established reality:
The Constitution ... is a mere thing of wax in the hands of the judiciary
which they may twist and shape into any form they please. (Jefferson,
Memoirs, Vol. IV, p. 317) (Barton, David, Restraining Judicial Activism,
Wallbuilders, Aledo, Tex. 2003; p.50)
Many reputable leaders around the country are calling for impeachment of our activist judges because of their misbehavior for their decisions regarding God, the Ten Commandments, religion, abortion, homosexuality, and other things that I have covered in this book.
I am for all of these things but all would be temporary, all would be very difficult, and none
would repair the past serious erosion of our Constitution and the rights of the people to govern
themselves. I certainly think that Congress has failed in its duty to impeach these activist judges,
as do Bork, Schlafly, Barton, and a great number of our cultural leaders.
As to such things as the Constitution Restoration Act, I am all for it. But it is only a piecemeal solution, and may be an overextension of the power of Congress. The Supreme Court, if it
passes, may well declare it unconstitutional, whether it is or not. They have already exhibited
that propensity, time and again. Sooner or later we must have a constitutional amendment to turn
judges from makers of the law, including constitutional law, back to being judges and properly
interpreting the law.
Persuading judges to refrain from their misbehavior has never worked in the past, and would
always be up to the discretion of each judge.
I do not like the idea of taking away from the Court the power to overturn legislation, state
or federal, that is truly unconstitutional.
Our Constitution, as provided for us by our founding fathers, is the world's greatest instrument for just government. Our problem has been misbehavior of judges, and particularly liberal
justices of the United States Supreme Court.
We have been plagued for many years by judges changing our Constitution to their own personal views. This has been in the face of severe criticism by our best legal writers and authorities, by a great number of our citizens, and, over and over, by the judges themselves.
We witness congress wasting great amounts of time because of filibusters against judicial
appointments by certain members who want to get judicial activists on the court who they think
will carry their particular liberal political agendas, rather than making decisions according the
Constitution as they should. Committees hold up appointments, when their party is in the majori337
ty; and all kinds of jockeying and procedures are engaged in by both parties to try to get judges
and justices favorable to particular views and political agendas. It is a very serious and longstanding problem that should now be corrected for the benefit of our people and our constitutional form of government.
If our Constitution was restored to the intent and purpose of our Founders by a group or a
series of amendments, it would take a very large number of provisions to cover all of the damaging and unlawful changes foisted on us by our activist judges. And some, such as directly removing the right to privacy, right to abortion, or right to commit sodomy would be so violently opposed by the liberal element and various special interest groups that in today's atmosphere of so
many aggressive liberal legislators and pusillanimous Republicans, the task would be enormous,
if not hopeless. I believe that there is a better approach, and in the end even more will be accomplished.
This problem can not only be corrected, but past misbehavior, over time, can also be corrected. And it can be done in a simple and straightforward manner.
The answer lies in making it inadvisable for a justice or a judge to make a decision that is
contrary to the intent and purpose of a law or a constitutional provision. Prior to now, there have
been no binding guidelines for determining the meaning of laws and constitutional provisions. It
has become quite evident that lack of such guidelines has led to very serious erroneous decisions
that affect our very lives, liberty, property, and posterity.
Federal judicial appointments are made by the President with the advice and consent of the
Senate. Removal of a judge or justice for misbehavior is much more cumbersome. In fact, it is so
difficult that they seem to have no fear at all of impeachment, even when their misbehavior is as
grievous as some of the decisions referred to in this book.
I believe that we can cure this grave problem, once and for all, by making such removal easier, and by delineating how the Constitution and laws should be construed. And by making willful failure to abide by the Constitution, including the rules of construction, grounds for removal.
This of course would require an amendment to the Constitution. But it would eliminate so
many problems, and, in time, cure so many past problems, that it definitely should be done, and
it should be done as soon as possible. And it would be straightforward and simple. There would
be no direct attack on our various special interest groups' particular agendas, except those who
would necessarily have to expose their adversity to our Constitution in opposing this amendment.
They would be in an awkward position.
What should now be done is clear.
338
It is recommended that the people and their representatives enact an amendment to the United States Constitution with wording such as the following.
------------------------------------------AMENDMENT XXX
Section 1. The meaning of a provision of the Constitution of the United States shall be determined by the courts as follows:
A. It shall be given the meaning intended by the framers and those who ratified it, at the
time it was ratified, with emphasis on the intention of the ratifiers, when such can be reasonably
established.
B. The following factors shall be considered in arriving at the intended meaning:
1. Primary consideration shall be given to the plain wording of the provision. Phrases
and ideas of judges or others not in the constitution shall not be engrafted and treated
as a part of the constitution. Where the wording needs further construction for application to a particular question, the following additional factors shall be considered to
the extent needed.
2. Reliable and relevant legal and general history of this country, and of Great Britain, where applicable, up to the date of ratification.
3. Relevant debates, speeches, and writings of our founders, framers, and those who
took part in ratification.
4. Relevant matters of official record, including congressional records, legislative
records, and other official records.
5. Extraneous matters such as personal views of judges and justices, events at a later
date, changes in conditions, and what other countries may be doing in like cases shall
not be considered, as those are matters for the people and their representatives, who
have the sole prerogative to change the Constitution when changes are needed.
C. The precedents of prior cases shall not be followed unless those decisions were based on
the principles of judicial construction herein stated.
D. A law enacted by the United States or a law or constitutional provision enacted by a State
is presumed to be valid, and shall not be overturned by a federal court unless its invalidity, as
contrary to this Constitution, is beyond any reasonable doubt.
E. Each court opinion on a constitutional issue or an important question of law shall set forth
its basis; and the judges or justices joining in the majority opinion and those participating in any
dissenting opinion shall be shown. Each judge or justice may be held accountable for his position.
Section 2. The meaning of a law enacted by the United States shall be construed to mean
what Congress intended it to mean when it was passed. When needed and where applicable, the
same factors shall be used to determine the intent and purpose of Congress as are stated for determining the intent and purpose of a provision of the Constitution. When the meaning of a state
law has been determined by the highest court of the state, that meaning shall be followed by fed339
eral courts. If it has not been so determined, the meaning of a state law shall be the meaning intended by the State Legislature, or the people, when it was passed. The same factors should be
used in determining the intent and purpose of the State Legislature, or of the people, as are used
in determining the intent of congress as to federal laws.
Section 3. All United States Supreme Court justices and all federal appellate and lower court
judges shall take an oath to uphold the Constitution of the United States, including the rules set
forth herein for construing it. The wording of such oath shall be prescribed by Congress. Willful
failure to abide by the oath shall be misbehavior requiring removal. This amendment shall have
no effect on other grounds or provisions for removal or impeachment provided in the Constitution.
Section 4. Removal under this amendment of any justice of the United States Supreme Court
or of any appellate or lower court federal judge shall be by a bill of removal which may be initiated by any member in either the House of Representatives or the Senate. On such presentment
of a bill of removal in either the House or the Senate, it shall be voted on by the body in which it
was first presented. If as many as one-fourth of the members of that body vote to proceed with
the bill of removal, each defendant judge or justice named for misbehavior in the bill shall be
given a fair and impartial hearing in a judiciary committee of that body, which shall make a record of the hearing. The judiciary committee shall then recommend for or against removal, but the
recommendation shall only be informative and not binding on the House or the Senate, which
shall proceed to consider and vote on the bill. No other committee shall hear or act on the bill. If
passed by votes of simple majorities by both bodies, and signed by the president, the offending
judge or justice is thereby removed. A presidential veto of the bill of removal may be overridden
by another simple majority vote of the Senate and of the House of Representatives. No filibuster
or other hindrance shall be allowed to stop the voting on a bill of removal.
A bill of removal may be brought against one or more judges or justices at the same time.
The bill of removal voted by each body of Congress shall set forth the alleged misbehavior of the
accused justice or judge, and it is not subject to review by any court.
Section 5. Where a final decision of any federal court has had the effect of declaring unconstitutional any law of the United States or of any state, including a constitutional provision of a
state, a bill for review may be passed by congress or a legislature of any state affected, stating
grounds for possible error in said decision, and notice thereof given to the United States Supreme
Court. The Supreme Court shall then in due course review the prior decision and render another
decision thereon on the questions presented, using the rules set forth in this amendment. .
There shall be no limitation on the period of time in which a bill for review may be presented on any final decision of a federal court, whether made before or after this amendment. A bill
for review in Congress may be initiated and passed in the same manner as a bill for removal. A
bill for review by any state affected by a decision shall be passed in the manner determined by
the state legislature. The United States Supreme Court shall hear and consider only one bill for
review of a decision, and the decision on the questions presented in a bill for review shall not be
subject to another bill for review. The decision shall set forth grounds as required in other decisions, and it can be grounds for a bill for removal of any justice or judge for misbehavior.
-----------------------------------------------340
Each and every one of the rules of construction set forth in this recommended amendment
are time honored rules which were all formulated by the best and most reputable jurists we have
had on the United States Supreme Court.
Erroneous precedent in the form of prior cases should not be followed. This only compounds the error. The idea that time alone, and subsequent affirmation, makes a decided case
more valid should not be followed when the precedent decision was in fact unconstitutional.
Rule C, recommended above, will cause judges to have to do a little more work in some cases,
but it will prevent the compounding of prior errors, and be beneficial in undoing this damage
previously done to our Constitution. In the end, not only will correct decisions be brought about,
but the caseloads and work of the courts will be greatly reduced.
This one amendment would take care of all of the problems brought about by our activist
judges, and put our courts into a position that they should abide by our Constitution, instead of
changing it to their liking.
Moreover, it would retain our full tripartite government with its separation of powers, and
its checks and balances. Our Constitution is a beautifully formed and balanced instrument of
government. The problem has been that judges have not retained their integrity and followed it.
Many today obviously prefer precepts of liberal European governments, and the United Nations,
to our own Constitution. These have been the problems and it is only this judicial misbehavior
that should be corrected. And the corrections should be designed to repair our Constitution for
past damages that have been done, as well as preventing such misbehavior in the future.
I firmly believe that enactment of this provision would in time correct the past destruction of
our Constitution and the rights of the people to govern themselves. It would tend to immediately
stop such misbehavior in the future. Not only that, fair and honest judges should welcome a binding guideline on making such important decisions.
Uniformity in court decisions and in different jurisdictions would be encouraged. The likelihood of a correct decision on the law and the Constitution would be greatly increased, and it
would be less likely to be overruled in the future.
A very large number of our Supreme Court cases, and a great portion of the time spent by
the Supreme Court, is because of conflicts in decisions of our many federal appellate courts,
called Circuit Courts. A proper guide for interpreting the statutory and constitutional law would
tend to cause much more uniformity and validity in our federal district courts and appellate
courts. It would also encourage and be a guideline for state courts on the many federal issues
341
they are called upon to decide. The United States Supreme Court would not be called upon so
often to review state court decisions.
This would immensely reduce all federal and state caseloads. It pulls the rug out from under
such special interest organizations as the American Civil Liberties Union (ACLU), which have
been continually using the activist courts to further their political and atheistic agendas.
It would be easier for lawyers and judges to figure out what the law really is and predict the
outcome of litigation. We would no longer have to look at the political views and biases of the
individual judges to predict the outcome of a case. We could truly assess a case by studying the
relevant common, statutory, and constitutional law. This in itself would greatly reduce caseloads.
It would go far in curbing the excess of a society that has become so excessively litigious.
It would tend to eliminate judge and jurisdiction shopping in an effort to get a case before a
particular judge of particular biases, either by attorneys or by organizations like the ACLU, as is
often done today.
This should eliminate most of the problems a president has in getting judicial appointments
approved. If we could depend on judges to follow the laws and Constitution, instead of changing
them according to their own particular personal and political views and prejudices, it should
make little difference to Congress what an appointee's political views are. It would eliminate the
striving of liberals for litmus tests on the views so dear to liberals, such as abortion and homosexual rights. It would very greatly reduce Congress' work in this regard.
Enforcement of this provision would help take politics out of judging. And judges would be
encouraged to try to become true jurists of integrity.
Above all, this would put changing the Constitution back in the hands of the people and
their representatives, as provided by Article V of our Constitution. It would restore the right of
the people to run their governments at both the state and federal levels, as provided by our Constitution.
I am sure that many liberal judges and politicians would express great fear that an amendment such as this proposal would remove judicial independence and put the judiciary in fear of
congress. The answer to this is that mischief caused by the abuse of that independence would be
curtailed. And if the judiciary cannot trust the people and their representatives to treat judges
with fairness, then why should the people trust a judiciary that has been usurping their basic
rights of self government for so many years. All that is required by the amendment is that the
342
judges construe our laws and constitutional provisions with fairness and integrity, which was the
clear intention of the founding fathers of America.
If the people could really become informed on this matter, I believe that they would pressure
our representatives into bringing it about. We also have many representatives with the integrity
to support this proposed amendment.
Any fair and honest person who truly believes in our Constitution should favor this amendment.
343
APPENDIX
THE DECLARATION OF INDEPENDENCE
AND
THE CONSTITUTION OF THE UNITED STATES
DECLARATION OF INDEPENDENCE
In Congress, July 4, 1776. The unanimous Declaration of the thirteen united States of America,
When in the Course of human events, it becomes necessary for one people to dissolve the
political bands which have connected them with another, and to assume among the powers of the
earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle
them, a decent respect to the opinions of mankind requires that they should declare the causes
which impel them to the separation.-We hold these truths to be self-evident, that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are Life,
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,-That whenever any Form of Government becomes destructive of these ends, it is the Right
of the People to alter or to abolish it, and to institute new Government, laying its foundation on
such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath
shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses
and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide
new Guards for their future security.-Such has been the patient sufferance of these Colonies; and such is now the necessity which
constrains them to alter their former Systems of Government. The history of the present King of
Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a
candid world.-He has refused his Assent to Laws, the most wholesome and necessary for the public good.-He has forbidden his Governors to pass Laws of immediate and pressing importance, unless
suspended in their operation till his Assent should be obtained; and when so suspended, he has
utterly neglected to attend to them.-344
He has refused to pass other Laws for the accommodation of large districts of people, unless
those people would relinquish the right of Representation in the Legislature, a right inestimable
to them and formidable to tyrants only.-He has called together legislative bodies at places unusual, uncomfortable, and distant from
the depository of their public Records, for the sole purpose of fatiguing them into compliance
with his measures.-He has dissolved Representative Houses repeatedly, for opposing with manly firmness his
invasions on the rights of the people.-He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for
their exercise; the State remaining in the mean time exposed to all the dangers of invasion from
without, and convulsions within.-He has endeavoured to prevent the population of these States; for that purpose obstructing
the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations
hither, and raising the conditions of new Appropriations of Lands.-He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing
Judiciary powers.—
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount
and payment of their salaries.--
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our
people, and eat out their substance.-He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.-He has affected to render the Military independent of and superior to the Civil power.-He has combined with others to subject us to a jurisdiction foreign to our constitution, and
unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:-For quartering large bodies of armed troops among us:-For protecting them, by a mock Trial, from punishment for any Murders which they should
commit on the Inhabitants of these States:-For cutting off our Trade with all parts of the world:-For imposing Taxes on us without our Consent:-For depriving us in many cases, of the benefits of Trial by Jury:-For transporting us beyond Seas to be tried for pretended offences:-For abolishing the free System of English Laws in a neighbouring Province, establishing
therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:-For taking away our Charters, abolishing our most valuable laws, and altering fundamentally the Forms of our Governments:-345
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.-He has abdicated Government here, by declaring us out of his Protection and waging War
against us.-He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of
our people.-He is at this time transporting large Armies of foreign Mercenaries to compleat the works of
death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely
paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.-He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against
their Country, to become the executioners of their friends and Brethren, or to fall themselves by
their Hands.-He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble
terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose
character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free
people.
Nor have We been wanting in attentions to our British brethren. We have warned them
from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us.
We have reminded them of the circumstances of our emigration and settlement here. We have
appealed to their native justice and magnanimity, and we have conjured them by the ties of our
common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity.
We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them,
as we hold the rest of mankind, Enemies in War, in Peace Friends.-We, therefore, the Representatives of the united States of America, in General Congress,
Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do,
in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that
they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free
and Independent States, they have full Power to levy War, conclude Peace, contract Alliances,
establish Commerce, and to do all other Acts and Things which Independent States may of right
do.-And for the support of this Declaration, with a firm reliance on the protection of divine
Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Signers of the Declaration of Independence
Delegate (state)
Occupation Birthplace
Born
346
Died
Adams, John (MA)
Lawyer
Braintree (Quincy), MA
Oct. 30, 1735
July 4, 1826
Adams, Samuel (MA)
Political
leader
Boston, MA
Sept. 27, 1722
Oct. 2, 1803
Bartlett, Josiah (NH)
Physician,
judge
Amesbury, MA
Nov. 21, 1729
May 19, 1795
Braxton, Carter (VA)
Farmer
Newington Plantation,
VA
Sept. 10, 1736
Oct. 10, 1797
Carroll, Chas. of Carrollton
(MD)
Lawyer
Annapolis, MD
Sept. 19, 1737
Nov. 14, 1832
Chase, Samuel (MD)
Judge
Princess Anne, MD
Apr. 17, 1741
June 19, 1811
Clark, Abraham (NJ)
Surveyor
Roselle, NJ
Feb. 15, 1726
Sept. 15, 1794
Clymer, George (PA)
Merchant
Philadelphia, PA
Mar. 16, 1739
Jan. 23, 1813
Ellery, William (RI)
Lawyer
Newport, RI
Dec. 22, 1727
Feb. 15, 1820
Floyd, William (NY)
Soldier
Brookhaven, NY
Dec. 17, 1734
Aug. 4, 1821
Franklin, Benjamin (PA)
Printer,
publisher
Boston, MA
Jan. 17, 1706
Apr. 17, 1790
Gerry, Elbridge (MA)
Merchant
Marblehead, MA
July 17, 1744
Nov. 23, 1814
Gwinnett, Button (GA)
Merchant
Down Hatherly, England c. 1735
May 19, 1777
Hall, Lyman (GA)
Physician
Wallingford, CT
Apr. 12, 1724
Oct. 19, 1790
Hancock, John (MA)
Merchant
Braintree (Quincy), MA
Jan. 12, 1737
Oct. 8, 1793
347
Harrison, Benjamin (VA)
Farmer
Berkeley, VA
Apr. 5, 1726
Apr. 24, 1791
Hart, John (NJ)
Farmer
Stonington, CT
c. 1711
May 11, 1779
Hewes, Joseph (NC)
Merchant
Princeton, NJ
Jan. 23, 1730
Nov. 10, 1779
Heyward, Thos. Jr. (SC)
Lawyer,
farmer
St. Luke's Parish, SC
July 28, 1746
Mar. 6, 1809
Hooper, William (NC)
Lawyer
Boston, MA
June 28, 1742
Oct. 14, 1790
Hopkins, Stephen (RI)
Judge, educator
Providence, RI
Mar. 7, 1707
July 13, 1785
Hopkinson, Francis (NJ)
Judge, author
Philadelphia, PA
Sept. 21, 1737
May 9, 1791
Huntington, Samuel (CT)
Judge
Windham County, CT
July 3, 1731
Jan. 5, 1796
Jefferson, Thomas (VA)
Lawyer
Shadwell, VA
Apr. 13, 1743
July 4, 1826
Lee, Francis Lightfoot (VA)
Farmer
Westmoreland County,
VA
Oct. 14, 1734
Jan. 11, 1797
Lee, Richard Henry (VA)
Farmer
Westmoreland County,
VA
Jan. 20, 1732
June 19, 1794
Lewis, Francis (NY)
Merchant
Llandaff, Wales
Mar., 1713
Dec. 31, 1802
Livingston, Philip (NY)
Merchant
Albany, NY
Jan. 15, 1716
June 12, 1778
Lynch, Thomas Jr. (SC)
Farmer
Winyah, SC
Aug. 5, 1749
(at sea) 1779
348
McKean, Thomas (DE)
Lawyer
New London, PA
Mar. 19, 1734
June 24, 1817
Middleton, Arthur (SC)
Farmer
Charleston, SC
June 26, 1742
Jan. 1, 1787
Morris, Lewis (NY)
Farmer
Morrisania (Bronx Coun- Apr. 8, 1726
ty), NY
Jan. 22, 1798
Morris, Robert (PA)
Merchant
Liverpool, England
Jan. 20, 1734
May 9, 1806
Morton, John (PA)
Judge
Ridley, PA
1724
Apr., 1777
Nelson, Thos. Jr. (VA)
Farmer
Yorktown, VA
Dec. 26, 1738
Jan. 4, 1789
Paca, William (MD)
Judge
Abingdon, MD
Oct. 31, 1740
Oct. 23, 1799
Paine, Robert Treat (MA)
Judge
Boston, MA
Mar. 11, 1731
May 12, 1814
Penn, John (NC)
Lawyer
Near Port Royal, VA
May 17, 1741
Sept. 14, 1788
Read, George (DE)
Judge
Near North East, MD
Sept. 18, 1733
Sept. 21, 1798
Rodney, Caesar (DE)
Judge
Dover, DE
Oct. 7, 1728
June 29, 1784
Ross, George (PA)
Judge
New Castle, DE
May 10, 1730
July 14, 1779
Rush, Benjamin (gPA)
Physician
Byberry,PA (Philadelph- Dec. 24, 1745
ia)
Apr. 19, 1813
Rutledge, Edward (SC)
Lawyer
Charleston, SC
Nov. 23, 1749
Jan. 23, 1800
Sherman, Roger (CT)
Lawyer
Newton, MA
Apr. 19, 1721
July 23, 1793
349
Smith, James (PA)
Lawyer
Dublin, Ireland
c. 1719
July 11, 1806
Stockton, Richard (NJ)
Lawyer
Near Princeton, NJ
Oct. 1, 1730
Feb. 28, 1781
Stone, Thomas (MD)
Lawyer
Charles County, MD
1743
Oct. 5, 1787
Taylor, George (PA)
Ironmaster
Ireland
1716
Feb. 23, 1781
Thornton, Matthew (NH)
Physician
Ireland
1714
June 24, 1803
Walton, George (GA)
Judge
Prince Edward County,
VA
1741
Feb. 2, 1804
Whipple, William (NH)
Merchant,
judge
Kittery, ME
Jan. 14, 1730
Nov. 28, 1785
Williams, William (CT)
Merchant
Lebanon, CT
Apr. 23, 1731
Aug. 2, 1811
Wilson, James (PA)
Judge
Carskerdo, Scotland
Sept. 14, 1742
Aug. 28, 1798
Witherspoon, John (NJ)
Clergyman, Gifford, Scotland
educator
Feb. 5, 1723
Nov. 15, 1794
Wolcott, Oliver (CT)
Judge
Windsor, CT
Dec. 1, 1726
Dec. 1, 1797
Wythe, George (VA)
Lawyer
Elizabeth City Co.
(Hampton), VA
1726
June 8, 1806
CONSTITUTION OF THE UNITED STATES
We the people of the United States, in order to form a more perfect Union, establish justice,
insure domestic tranquility, provide for the common defense, promote the general welfare, and secure
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the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the
United States of America.
Article I
Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which
shall consist of a Senate and House of Representatives.
Section 2 (1). The House of Representatives shall be composed of members chosen every second year
by the people of the several states, and the electors in each state shall have the qualifications requisite
for electors of the most numerous branch of the state legislature.
Section 2 (2). No person shall be a representative who shall not have attained to the age of twenty-five
years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.
Section 2 (3). Representatives and direct taxes shall be apportioned among the several states which
may be included within this Union, according to their respective numbers, [which shall be determined by
adding to the whole number of free persons, including those bound to service for a term of years, and
excluding Indians not taxed, three-fifths of all other persons]. The actual enumeration shall be made
within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall
not exceed one for every thirty thousand, but each state shall have