Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (31 page)

What Part of This Didn't Justice Black
and the Court Understand?

"I believe the Court has no power to add to or subtract from the procedures set forth by the founders.... I shall not at any time surrender my
belief that the document itself should be our guide, not our own concept
of what is fair, decent, and right."

Justice Hugo L. Black

Rehnquist had been appointed to the Supreme Court by President
Richard Nixon, whose 1968 presidential campaign took aim at the
Supreme Court. And Rehnquist took dead aim at Hugo Black's Everson
decision: "It is impossible," Rehnquist wrote, "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 [`wall of separation'] metaphor for nearly forty
years." After noting that Jefferson had had no role in writing or ratifying
the Bill of Rights, including the Establishment Clause, Rehnquist concluded that Jefferson "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."

Rehnquist went on to describe the First Amendment's course through
the first federal Congress, noting, among other facts, that James Madison's
original draft had said, "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." When another congressman pro posed changing this to "[N]o religion shall be established by law, nor
shall the equal rights of conscience be infringed," he was met with the
objection that this might tend "to abolish religion altogether" in the public sphere, and his proposal was rejected.

There Are "Absolutes"-and There Is
the Court's Absolute Power

"It is my belief that there are 'absolutes' in our Bill of Rights, and that they
were put there on purpose by men who knew what the words meant and
meant their prohibitions to be 'absolutes.'"

Justice Hugo L. Black

Madison then said that his intention was to provide "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." His proposal, he further explained, responded to ratification
opponents' claims that the new government would establish a national
church.

When a congressman from Connecticut, which still had an established
church (and would for nearly thirty more years), objected that the proposal might interfere with his state's religion policy, Madison answered
that it would not. In the wake of this discussion, the House passed the
current language. It also rejected Madison's proposed amendment giving
federal courts power to enforce certain individual rights against state
governments-which is why the Incorporation Doctrine had to be
invented by twentieth-century federal judges bent on overturning perfectly constitutional state laws in this area.

Note that, as Rehnquist pointed out, James Madison did not advocate
making the Virginia Statute for Religious Freedom the federal government's policy. Had he made such a proposal, congressmen desiring to
protect their states' established churches against federal intervention
would have defeated him. His role, rather, was to seek a compromise provision preventing Congress from establishing a federal church. So Judge
Hand was entirely correct in opining that the Establishment Clause did
not bar Alabama from establishing a religion: it had been crafted partly
to prevent Congress from interfering with states' establishments.

The issue, of course, in Wallace v. jaffree was not whether Alabama
should establish a state church. It was whether the people of Alabama should decide their state's religious policies (as per the Constitution) or
whether federal judges should decide and dictate their own policy preferences to the people of Alabama, despite the Constitution.

The Court's excesses have never been reversed. Everson, Engel, Lemon,
and Wallace remain what lawyers call "good law"-the precedents courts
follow in lieu of the Constitution. They cannot plead ignorance in doing
so, for Rehnquist's dissent is right there in the casebooks law students
study in law school.

On the basis of this line of cases, the Court has struck down science
curricula the justices disliked [Edwards v. Aguillard (1987)1; banned the
centuries-old tradition of having invocations at school commencement
ceremonies [Lee v. Weisman (1992)]; held a city's display of a nativity
scene unconstitutional, but its display of a menorah constitutional
[County of Allegheny v. ACLU (1989)]; negated a Texas statute exempting
religious publications from taxation [Texas Monthly, Inc. v. Bullock
(1989)]; and struck down a Massachusetts law banning the sale of alcoholic beverages within five hundred feet of a church or school if the
church or school objected [Larkin v. Grendel's Den (1982)].

Need it be said that none of the statutes had anything to do with establishing a national church? The joined decisions about menorahs and nativity scenes seem to demonstrate that the Court majority really just dislikes
Christianity-any religion is okay, so long as it is not Christianity.

The Court also found that the Nebraska legislature's practice of having
a chaplain say prayers was somehow permissible under Lemon. There
was, the pompous Chief Justice Warren Burger counseled in Marsh v.
Chambers (1983), "no real threat," posed by the chaplain, "while this
Court sits."

The arrogance of that line-that the Supreme Court exists to protect
Nebraskans from decisions their elected officials make about religious
observances-says all that needs to be said.

he First Amendment guarantees that "Congress shall make no
law... abridging the freedom of speech, or of the press." But
legal academics have used this perfectly clear language as an
excuse to concoct "freedom of expression," another of those elastic judicial concepts that swallow the clear intent of the Constitution.

In 1943, at the height of American involvement in World War II, the
Court said in West Virginia State Board of Education v. Barnette that children could not be compelled to salute the flag and say the Pledge of Allegiance because that would violate their freedom of thought. "If there is
any fixed star in our constitutional constellation," wrote justice Robert
H. Jackson, "it is that no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opinion
or force citizens to confess by word or act their faith therein."

What historical evidence did he cite in support of his claim, which,
incidentally, reversed the Court's decision in a virtually identical case,
Minersville School District v. Gobitis (1940), handed down only three
years earlier? To ask the question is to answer it: none at all. Nor did he
feel the lack: Jackson pointed to no specific clause of the First Amendment to justify his ruling and did not even bother with the pretence of
dragging in the Incorporation Doctrine.

Guess what?

-40 The First
Amendment
protects freedom of
speech and pressnot freedom of
armbands, freedom
of flag burning, or
freedom of Internet
pornography.

-sW The Fourteenth
Amendment did not
ban the Pledge of
Allegiance or racial
segregation, but left
those matters to the
states.

-.' The Court's decision
in Brown v Board
of Education
allowed it to
assume the moral
high ground but
had no basis in the
Constitution.

The "inarticulate roars" of the Court

In time, and using similar extra-constitutional logic, the Court would
hold in a succession of cases that "freedom of expression" was included
in the First Amendment. It therefore invalidated, in Tinker v. Des Moines
(1969), a school dress code prohibition of armbands (which were going
to be worn as a political protest). And it enforced its invented right of
"freedom of expression" in Texas v. Johnson (1989), also known as the
Flag-burning Case. In that case, a Communist had stolen an American
flag, taken it to the site of the 1984 Republican National Convention, and
burned it.

Justice William Brennan, for the majority, conceded, "The First
Amendment literally forbids the abridgement only of `speech.' " He then
added, "We have long recognized that its protection does not end at the
spoken or written word." (Translation: "This Court long ago embarked on
a career of striking down state statutes regulating not only speech and the
press, but also other kinds of conduct we deem 'expressive.'") Brennan
dismissed Texas's argument that its statute-which banned flag burning
as a breach of the peace and as the destruction of a sacred object-was
valid. Forty-eight other states had similar statutes.

What the Court should have recognized was the simple fact that the
First Amendment left these issues to the states. But neither Chief Justice
Rehnquist in his dissent nor any other justice offered the correct, originalist arguments. Rehnquist did not argue that the Incorporation Doctrine
was wrong or even that burning a flag is not speaking. He instead argued
that burning a flag was no more expressive than "an inarticulate grunt or
roar." But if inarticulate roars could be banned, we wouldn't be reading
many Supreme Court opinions.

Louisiana briefly considered responding to the Court's decision in the
Flag-burning Case by making it legal to beat up flag-burners. Perhaps
such violence is covered by "freedom of expression." In the end, Louisiana didn't go ahead with the idea: state legislatures often are more
restrained in their behavior than the Court is.

If the American people wanted the broadcast media covered under the
First Amendment clause that protects "freedom of the press," they could
bring the Constitution into line with modern technology through a constitutional amendment. It is not a self-evident truth that "the press"
(newspapers, magazines, book publishers) is identical to broadcast media,
or that the ratifiers intended, in preventing Congress from abridging freedom of "the press," to prevent state legislatures or local governments
from banning cable companies from broadcasting nudity, sex acts, and
other indecent material. Nevertheless, in Wilkinson v. Jones (1987) the
Court protected such "speech" carried by cable companies. Had the First
Amendment been interpreted as written, cable TV would not be protected by it-and, of course, the amendment would not cover actions by
state and local governments.