The Constitution: Artifact of American History?

I turned my eyes away from “In God We Trust,” engraved deeply in the stone above the Speaker’s chair, and walked under the direct stone gaze of Moses as I left the chambers of the U.S. House of Representatives. I walked through statuary hall in the U.S. Capitol, where Thomas Jefferson and James Madison were among the first presidents to attend regular church services. The House chaplain had given the opening prayer to start the legislative day and our member’s chapel in the Capitol was open for morning meditation as I walked briskly across the Capitol grounds to the Supreme Court. The cases of Van Orden v. Perry and McCreary County v. ACLU were to be heard this day. I went expecting to hear profound constitutional arguments before the only court created by the Constitution, the Supreme Court. I walked up the steps of the high courthouse. From the top of the pediment, looming, larger than life, Moses gazes down, holding the Ten Commandments. All who pause here and all who enter here are on notice: This is a nation built upon a moral foundation, a nation of laws, not of men, a nation founded upon the belief in “the laws of Nature and Nature’s God.” I climbed the long steps, walked past the huge columns, stepped out of the sunlight and into the presence of a security guard. I introduced myself to the guard who replied, “I’m Moses and I’ll escort you to your seat.” “Moses! Moses?” I responded. The guard smiled and nodded his head. “There couldn’t be a better person to lead me to hear the Ten Commandments cases,” I said. Modern-day Moses led me to the chambers, through the huge oak double doors, engraved with the Ten Commandments, and to my seat in the chambers. The courtroom was soon full when we all stood to the Supreme Court marshal’s announcement, “The Honorable associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! . . . God save the United States and this Honorable Court.” The justices filed in and were seated. On the frieze above them and to their left, sculpted in stone, stands Moses with the Ten Commandments. It is a rare privilege to be in the presence of the most powerful and unaccountable shapers of American society that our nation has ever seen. The oral arguments before the Supreme Court in the two cases before it will likely determine if there will be changes in whether and under what circumstances religious displays can be placed on public property. As I listened to the questions and remarks from the justices, I considered the implications of what had become of our constitutional right to religious freedom and the Constitution itself. A growing uneasiness slowly turned into a sinking feeling in my stomach. Before I get to the cases at hand, I remind you that the Constitution is written to protect the rights of the minority against the will of the majority and the rights of the majority against the whim of the court. Without the Constitution and the Bill of Rights, the will of the majority would be imposed on the minority. Put simply, a pure democracy is two coyotes and a sheep taking a vote on what’s for dinner. The Founders understood this and rejected democracy in favor of their new invention, a constitutional republic. Our republic is a unique design of the carefully balanced executive, legislative and judicial branches. The three branches of government were not designed to be “separate but equal” branches but three carefully balanced branches, the weakest of which is the judicial branch. They were to function together so that the will of the majority could not overturn constitutional guarantees. The Founders were concerned about the power of an unchecked court so they put limits on its power. The Supreme Court’s constitutional charge is to rule on the letter and the intent of the Constitution, “with such Exceptions, and under such Regulations as the Congress shall make,” according to Article III, Section 2. The questions before the court were: Do the displays of the Ten Commandments violate the “establishment clause”? Do the displays violate the separation of church and state implied in the Constitution? Those of us who came to the Supreme Court expecting to hear profound constitutional arguments were sadly disappointed. To my ear, no justice referenced the Constitution or quoted from it or asked a question directed to the text of our foundational document. The questions were, “What is the context of the display?” “Was it a religious display, secular, or historical?” “What was the intent of those who displayed them? Religious? Secular? Historical?” “How would the display be perceived by a reasonable person? Religious? Secular? Historical?” “Is anyone offended by the Ten Commandments?” All pro-religious freedom arguments were carefully and narrowly designed to preserve the two displays–one in Texas and one in Kentucky–in question before the court. There was no effort made in oral argument that might have expanded religious freedom by establishing a precedent that would provide for true constitutional religious freedom. The entirety of the oral arguments before the court and the interest of the justices were focused on issues that cannot be found in the text of the Constitution. The First Amendment to the Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” There are initially only two qualifying questions to be asked of a religious display. Did Congress, or any of the states (14th Amendment), make a law that established a religion? The obvious answer is no. The Constitution has not been violated if Congress has made no law to establish a religion. There is no need to deliberate further. Case closed. For the sake of argument, the second question is: Did Congress or any of the states prohibit the free exercise of religion? Again the answer is no. Again the case is closed because no congressional or state action prohibited the free exercise of religion although the court has done so many times and may well be poised to do so again. Sadly, these two elemental and operative questions were not asked or answered, yet they are the qualifiers that must be met before any religious freedom case can be constitutionally argued beyond these two points. Since 1963, in the case of Murray v. Curlett when the Supreme Court ordered prayer out of the public schools, there have been a series of decisions that have diminished religious liberty, one creative, convoluted, extra-constitutional case at a time, until the basis of a “constitutional” decision is distorted beyond the recognition of even those of us who have lived through and with the changes. Imagine how astonished and irate our Founding Fathers would be if they were alive to see the magnitude to which unelected judges have warped our sacred constitutional covenant with their original intent. James Madison, the father of our Constitution, attended church services in the Capitol rotunda, where regular Sunday church services were held for 60 years. I can hear Madison now, “We gave you an amendment process! Why didn’t you use it? Why would you honor the opinions of appointed judges who dishonor the Constitution?” In case after case, the courts have ruled against the letter and the intent of the Constitution to the effect of diminishing religious freedom until they have now painted themselves into a legal corner. If their case precedents are to be the path, there is no way out of the room to the door marked “constitutional guarantees” because of the principle called stare decisis, Latin for: to stand by things that have been settled. Because of their activist arrogance, for the justices, the wet paint of case law precedent never dries. Therefore, we can’t walk back across the paint through the doorway to our guaranteed constitutional freedoms. Consequently, our freedoms are reduced with each stroke of the activist’s pen until they are no longer recognizable and the Constitution becomes meaningless. Last fall, in a small and private meeting, I asked Chief Justice Rehnquist, whom I admire, this question: “If the Constitution doesn’t mean what it says, and as the courts move us further and further from original intent (of the Constitution), what protects the rights of the minority from the will of the majority and what protects the will of the people from the whim of the courts? And, considering the prevalent ‘living breathing Constitution’ decisions, hasn’t the Constitution just become a transitional document that has guided our nation from 1789 into this ‘enlightened’ era where judges direct our civilization from the bench? Is the Constitution now an artifact of history?” The core of Rehnquist’s answer: “I acknowledge your point.” To acknowledge my point concedes that the Constitution has become meaningless, become an artifact of history, as far as the courts are concerned. Constitutional law is taught in law schools across the land without teaching the Constitution itself. Constitutional law is too often a course study about how to amend the Constitution through litigation. In fact, we had a law professor before the House Judiciary Committee who testified, “You give me a favorable judge and I will write law for the entire United States of America, in a single courtroom on a single case.” Our nation has suffered through more than 40 years of activist judges wandering in their anti-religion desert–a desert hostile to Christians and Jews and devoid of constitutional boundaries. Let my people go! It will take another Moses to lead us out of the desert and back to the Promised Land of our Founding Fathers, a land wisely provided for and abundantly blessed by God.