Original judicial philisophy: Examining the first amendment

Photo of author
Written By Red Phillips

In a recent column I suggested that all the fuss about Harriet Meirs’credentials and by implication her intelligence, which is probably higher than many of her critics, is a distraction. What matters is not that she have previous experience as a judge or be several standard deviations to the right on the Bell Curve, but that she have an originalist judicial philosophy. The problem with her now withdrawn nomination is that she had little track record on which to judge her philosophy and some of the track record she did have was problematic. Her apparent support as head of the Texas Bar Association for race and gender quotas and set asides for the legal profession is alone disqualifying. (What the Texas Bar does is not a Constitutional matter, but it indicates that she is willing to bow to the sinister forces of political correctness.) I am happy she has done the honorable thing and chosen to withdraw.

I made the observation that the primary skill needed for a Supreme Court Justice to correctly interpret the Constitution is the ability to read. I also noted that from an originalist perspective, it is as important to have knowledge of history as it is knowledge of Constitutional law.

These observations elicited a few criticisms from readers that I was being naïve. To paraphrase, I was told “A Justice not only needs to read and be familiar with the Constitution, but he must also read all the legal decisions that have since been rendered about that particular issue.” Well this is the heart of the matter, is it not?

What matters is what the Constitution says and what was the original intent of the Founders. To determine original intent, it would be important to read such contemporaneous documents as the “Federalist Papers,” the “Anti-Federalist Papers,” (the Anti-Federalist have actually proven quite prescient in their objections, but I will leave that discussion for a future column) the debate in the Constitutional Convention, the debates in the several States’ Ratifying Conventions, early court decisions, etc. It would even be helpful to read non-legal sources such as contemporaneous newspaper articles and editorials to get a sense of what the average man thought they were ratifying. The further you get chronologically from the original document or legislation, however, the less helpful the ancillary material will likely be.

Allow me to illustrate by example how a simple plain reading of the Constitution would eliminate a lot of confusion and strife and wrongheaded judicial decisions. Let’s look at the much abused First Amendment. For the sake of brevity, we will primarily look at the first part of the Amendment which deals with the so-called “separation of church and state,” a grossly erroneous concept as we shall see.

The Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The “respecting the establishment of religion” phrase is admittedly too vague. One could understandably wish, as do I, that the language there had been a little more precise. No national tax for a particular denomination. No federal church. That sort of thing. But as originalist we look at the historical context and the intent of the Founders. These perspectives clearly indicate that ACLU style “separation” is not what the Founders had in mind. What is clear is that they intended something closer to a “separation of denomination and state” at the national level but certainly not “separation of Christianity and state” or “separation of religion and state.” The clearest evidence of this is that established State churches and religious tests for office at the State level persisted well after the Constitution was ratified. The ACLU lawyers can lie and obfuscate all day, but they can not change history. An originalist understanding would clearly perceive that the Founders did not intend to prohibit those things at the State level, because they made no effort to argue that those pre-existing State laws were now unconstitutional.

The point of this article is not, however, to fully debate the establishment clause. For readers interested in a fuller treatment of this subject I recommend Original Intent: The Courts, the Constitution and Religion by David Barton. (Mr. Barton would be alright if he would just let go of his delusion that the Republican Party as currently constituted somehow represents his interests and the interests of his readers.)

My point is to discuss how a plain reading of the part of the First Amendment that is unarguably clear would clarify the current debate. The Amendment states, “Congress shall make no law…” So clearly the Amendment applies ONLY to Congress and ONLY to laws passed by Congress. So Congress and Congress alone is the only entity that can possibly violate the First Amendment. That is so clear that it is hardly debatable.

Here are a few recent and historical examples of how this correct, originalist understanding of the Constitution would set right some extremely misguided past decisions. Judge Roy Moore could not possibly have violated the First Amendment by placing the Ten Commandments in his courtroom because he is not Congress, and he is not passing a law. Likewise, the State of Alabama can not violate the First Amendment. Faculty lead school prayer at the local level can not be a violation of the First Amendment (Engel v Vitale). Neither can school Bible reading (Abington v Schempp), or a student lead prayer before a football game (Santa Fe Independent School District v DOE), or prayer at a high school graduation (Lee v Weisman), because none involve Congress or a law passed by Congress. Simple. What about this is not crystal clear to anyone with more than an elementary reading level?

Currently making news is a court battle in Pennsylvania about “intelligent design.” Two “civil liberties” organizations filed suit against a very innocuous statement regarding intelligent design that is to be read in the local government (socialist) schools. According to an Associated Press article the lawsuit alleges, “…that intelligent design is merely a secular variation of creationism, the biblical-based view that regards God as the creator of life. They maintain that the Dover district’s curriculum mandate may violate the constitutional separation of church and state.” They maintain what? Exactly what Constitution are they reading? Nowhere in my copy do the words “separation of church and state” appear. Mine just simply says “Congress shall make no law…” Is a local Pennsylvania school board Congress? Are they dealing with a law passed by Congress? No and no. So what else is there to discuss? It is conceivable that the law could violate the Pennsylvania Constitution. I am not familiar with it. But this is a federal lawsuit, and it is alleging a violation of the First Amendment. It is painfully obvious that a local Pennsylvania school board can not violate the First Amendment even if it expressly set out to do so.

According to the same Associated Press article, “In Georgia, a suburban Atlanta school district plans to challenge a federal judge’s order to remove stickers in science textbooks that call evolution ‘a theory, not a fact.’” Again, is a local Georgia school board Congress? Then it is not possible that they violated the First Amendment.

I could go on, but I suspect you get the point. There are only three explanations for why obviously bright people such as Justice Stephen Breyer and Justice Ruth Bader Ginsburg and all their liberal yahoo friends at the ACLU do not understand this incredibly simple concept. Either they can’t read the Constitution, they have never bothered to actually read the Constitution, or they don’t really care what the Constitution says. I believe you will agree with me that the third explanation is the most likely.

To divert for a minute to the free speech aspect of the First Amendment, in our incredibly upside down world of Constitutional interpretation (or ignorance), the Supreme Court upheld Campaign Finance Reform which is clearly a violation of the First Amendments’ prohibition against abridging freedom of speech. That case did involved a law passed by Congress. And an originalist understanding reveals that the Founders intended to protect political speech most of all, as oppose to protecting porn or nude dancing which was not their intent. So Congress can abridge political speech but Judge Moore can not display the Ten Commandments? We are obviously living in some liberal alternate reality.

For those inclined at some point in the above argument to object that the Fourteenth Amendment expanded the Bill of Rights to the States, a simple originalist understanding of history reveals that the Fourteenth Amendment is clearly INVALID because it was passed under duress. Just as a contract signed at gunpoint is invalid, so is an amendment ratified in part by duly seceded States that were forcibly brought back into the Union by an invading Yankee horde.

But even if we concede for the sake of the argument that the Fourteenth Amendment is valid, the so-called “incorporation doctrine” was a legal fantasy that developed later and was clearly not the intent of the Amendment at the time of its ratification.

Now that Harriet Meirs has withdrawn her nomination, let us hope that President Bush will appoint an originalist in her stead. If he is interested, my “short list” would include Judge Roy Moore, Michael Peroutka and Herb Titus to name a few. I’m sure all these men have actually bothered to read the Constitution and would attempt to interpret it as the Founders intended.


Published originally at EtherZone.com : republication allowed with this notice and hyperlink intact.”

Leave a Comment