Can you imagine high school administrators being threatened with jail if their students said any of the following words? “Prayer,” “stand,” “bow your heads,” or “amen”?
Can you imagine a graduation ceremony in which the word “invocation” was replaced with “opening remarks” and “benediction” was replaced with “closing remarks”—by order of a federal judge? Or a judge declaring that such an order would be “enforced by incarceration or other sanctions for contempt of Court if not obeyed?”
This sounds like a scenario that might occur under a dictatorship, but it happened earlier this month in the Medina Valley Independent School District near San Antonio, Texas. It is just one recent example of how anti-religious many on the Left have become.
It is bad enough that NBC revealed its anti-religious bias by editing out “under God” from the Pledge of Allegiance last weekend.
It is bad enough that President Obama has skipped the phrase “our Creator” at least four times when citing the Declaration of Independence, even when the teleprompter read that we are “endowed by our Creator.”
At least neither NBC nor President Obama threatened to put anyone in jail.
Federal District Judge Fred Biery issued the order to stop the school’s valedictorian from saying a prayer as part of her graduation speech. He did so in the name of the First Amendment, which is supposed to prevent government prohibitions of the free exercise of religion and protect the freedom of speech.
Judge Biery’s decision clearly is not about defending the Constitution. It is the anti-religious judicial thought police at work here in America.
It is time for Americans who are fed up with this kind of repression by an anti-religious judiciary to act decisively. Judge Biery’s decision is so outrageous that the American people should not accept his continued employment on the federal bench.
The Federalist Papers and a Limited Judicial Branch
The Founders never intended for judges to have free reign to interpret the Constitution according to their own ideological purposes. In fact, Alexander Hamilton is quite clear in the Federalist No. 78 that judges who conduct themselves like Biery will have short tenures.
“The judiciary,” Hamilton writes, “…will always be the least dangerous to the political rights of the Constitution, because it will be least in capacity to annoy or injure them.” Among the three co-equal branches of government (each of which is charged with interpreting and upholding the Constitution), he writes that the judiciary “can never attack with success either of the other two.”
Hamilton’s description of a judiciary subordinate in power to the president and the Congress is a long way from the modern doctrine of judicial supremacy, by which the judiciary has asserted itself as the supreme authority for Constitutional interpretation.
By Hamilton’s standard, at least, Judge Biery has clearly failed to avoid the kind of offenses that should rightly provoke attacks by the legislative and executive branches.
In the Hamiltonian spirit, then, I would like to offer a simple solution to the problem.
Judge Biery, Meet Thomas Jefferson
President Thomas Jefferson—who, together with his Secretary of State James Madison, knew more than a little about the Constitution—had a solution for dealing with out-of-control federal judges: he abolished the judgeships of 18 out of 35 of them.
That’s right. In the Judiciary Act of 1802, Jefferson eliminated more than half the sitting federal judges.
As a first step toward reining in an out-of-control, anti-religious bigotry on the bench, let’s start with this modest suggestion: Judge Biery’s office should be abolished by Congress. He should go home.
The American people would be better off without a judge whose anti-religious extremism leads him to ban a high school valedictorian from saying even the word “prayer.”
Vote now on whether or not Judge Biery’s seat should be eliminated.
A Nation Like No Other
In my new book, A Nation Like No Other: Why American Exceptionalism Matters, I discuss the basis of Jefferson’s concern about the judiciary, and especially about its claim to supremacy as “the ultimate arbiter of all constitutional questions.” The idea that unelected and unaccountable judges would dictate to the people the meaning of the Constitution, he wrote in an 1820 letter to William Jarvis, was “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
Jefferson was adamant that the Constitution had not established a “single tribunal” to interpret its meaning specifically because the Founders understood that any group to whom alone that power was confided “would become despots.”
Instead, the branches of government were created to be co-equal, each itself charged with interpreting the Constitution and “responsible to the people in [its] elective capacity.”
“The exemption of the judges from that [accountability] is quite dangerous enough,” Jefferson wrote. “I know of no safe depository of the ultimate powers of society, but the people themselves.”
This challenge to judicial supremacy is intimately connected to the heart of what makes America exceptional. As I write in A Nation Like No Other, the final power in America lies not with judges or presidents or bureaucrats, but with the American people. We loan power to the government. And as Jefferson demonstrated dramatically when he abolished eighteen federal judgeships, we can take it back when it is abused.
Few things exhibit the danger of judicial abuse more clearly than when judges like Biery use their positions to advance agendas so far out of the mainstream that they end up dictating word choice at a local high school graduation.
In Biery’s case, the order was so extreme that thankfully it was stayed by the appeals court just hours before the graduation.
The broader encroachment of the anti-religious judiciary, however, has taken place below the radar of most Americans. It has proceeded, as Jefferson wrote of the branch in another letter, “like gravity, ever acting, with noiseless foot, unalarming advance, gaining ground step by step, and holding what it gains…engulfing insidiously the special governments into the jaws of that which feeds them.”
Thomas Jefferson was right. When judges are policing graduation speeches for religious content, the judiciary has clearly advanced too far. It is time for the American people to reassert their authority.
They can start in the U.S. District Court for Western Texas.
P.S. – The Actual Order
Just so no one will think I have exaggerated the outrageousness of Judge Biery’s attack on free speech, here is his order:
SIGNED this 1st day of June, 2011.
Accordingly, it is hereby ORDERED that the Medina Valley Independent School District and its officials, agents, servants, and employees, as well as all persons acting in concert with them, are prohibited from allowing a prayer (as defined in paragraph (b) below) to be included in the June 4, 2011 graduation ceremony for Medina Valley High School. More specifically:
a. The district was to remove the terms “invocation” and “benediction” from the program of ceremonies. The terms shall be replaced with ”opening remarks” and “closing remarks”.
b. The district, through its officials, shall instruct the students previously selected to deliver the invocation and benediction to modify their remarks to be statements of their own beliefs as opposed to leading the audience in prayer. These students, and all other persons scheduled to speak during the graduation ceremony, shall be instructed not to present a prayer, to with, they shall be instructed that they may not ask audience members to “stand”, “join in prayer”, or “bow their heads,”, they may not end their remarks with “amen” or “in a [deity’s name] we pray,” and they shall not otherwise deliver a message that would commonly be understood to be a prayer, nor use the word “prayer”. The students may in stating their own personal beliefs speak through conduct such as kneeling to face Mecca, the wearing of a yarmulke or hijab or making the sign of the cross.
c. The District, through its officials, shall review, and many any necessary changes to, the students’ revised remarks to ensure that those remarks comply with this Order, and shall instruct the students that they must not deviate from the approved remarks in making their presentations.
Because this suit seeks to enforce fundamental constitutional norms, it is further ORDERED that the security requirements of Federal Rule of Civil Procedure 65 ( c) is waived, and that this injunctive order shall be effective immediately and shall be enforced by incarceration or other sanctions for contempt of Court if not obeyed by District officials and their agents.
Newt’s Quick Links
• In my new book, A Nation Like No Other: Why American Exceptionalism Matters, I explain why the truths expressed in the Declaration of Independence—that we are “endowed by our Creator with certain unalienable rights”—are as vital today as they were in 1776.
• In his piece on Renewing American Leadership, Johnnie Moore discusses Israel’s Right to Exist and Our Call to Help. Read it here.