The Court's First Amendment to the Constitution

The United States Supreme Court is currently considering two cases (Van Orden v. Perry and McCreary County v. ACLU of Kentucky) which challenge displays of the Ten Commandments. The Court will consider “is it lawful to display the Ten Commandments on government property?” But the question we should be asking is, “who gave the Court the jurisdiction to hear that argument in the first place?”

The First Amendment, adopted in 1791, says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There was no mention of the Supreme Court because the people who drafted the Constitution never considered the Supreme Court lawmakers. Discussions of “judicial review” - the power of the Court to consider whether legislation passed by Congress was “constitutional” - proved to be highly controversial. So controversial, in fact, that had the power of judicial review been included in the Constitution, it is highly probable that the Constitution could not have been ratified.

The Supreme Court did not create the power of judicial review until some 12 years had passed - after the dust had settled from the Revolution and the debates over adopting the Constitution. In 1803, the Court handed down a decision in Marbury v. Madison wherein it claimed for itself the power to overturn an Act of Congress. There is no authority for such a decision in the Constitution; in fact, as pointed out in the previous paragraph, the founders specifically rejected the power of judicial review for the Court. The Marbury case is the first time the Supreme Court unilaterally amended the Constitution. By “interpretation,” it created something in the Constitution that wasn’t there before.

The First Amendment language, “Congress shall make no law . . .” should be read as “the government shall make no law prohibiting the free exercise [of religion].” At the time the Bill of Rights was adopted, Congress was the sole and exclusive lawmaking body. If the founders could have conceived, in their wildest imagination, that the Supreme Court would one day seize the power to make law, you can be sure the First Amendment would also have prohibited the Supreme Court from interfering with religion.

There is no dispute that the First Amendment restricted only the federal Congress from making laws that may curtail freedom of religion. The Bill of Rights were meant to restrain the power of the federal government. For the first 134 years after their adoption, the federal Bill of Rights were used as authority only in federal cases, although most states had similar provisions in their state constitutions. It was not until Gitlow v. New York (1925), that the Fourteenth Amendment “incorporated” the First Amendment right of freedom of speech and of the press in order to overturn a state law.

The modern Congress has abdicated its responsibility to keep the Court in check – article III of the Constitution says the Court shall have “appellate Jurisdiction both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make.” Under the plain words of the Constitution, Congress can make exceptions to the Court’s jurisdiction and remove entire classes of cases (including religious freedom cases) from consideration by the Court.

The Court must also depend on the Executive Branch to enforce its orders. When the Court makes one of its far-out pronouncements, with no constitutional authority, the president could “just say no!” Andrew Jackson reportedly said, “[Chief Justice] John Marshall has made his decision, now let him enforce it!" Historical evidence is scant that Jackson ever actually uttered those words but they certainly reflect his personality and his approach to governing.

There can be no mistake, however, that President Abraham Lincoln openly defied the Supreme Court when he issued the Emancipation Proclamation, freeing the slaves. The Court had ruled in the Dred Scott case that Americans of African descent were mere property with no rights.

So, if the Congress and the president won’t use the power they have to restrain the Court, what’s left? One thing would be a constitutional amendment giving Congress the power to override the Court by a two-thirds vote as it now can do with a presidential veto. However, if Congress will not use the power it already has to restrain the Court, it may not have the chutzpah to initiate such an amendment. In the absence of action by Congress, the states could initiate the amendment. Failing that, the only other solution may be civil disobedience. More about civil disobedience in a future essay on this site.

Let me be clear about one thing - I am not a strong supporter of ostentatious public displays of religion. In Matthew 6:5-6 (KJV) we read the words of Jesus,

5. And when thou prayest, thou shall not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.

6. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to the Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

I think you should quietly live your faith every day and let people see your religion, if any, in your good works. When I meet a stranger, and he immediately starts telling me what a “good Christian” he is, I always put my hand on my wallet – not to make a contribution but to make sure he doesn’t pick my pocket.

But whatever ambiguity I may have about public displays of religion, I am absolutely convinced that the Supreme Court has no legitimate power to prevent such displays – nor the display of the Ten Commandments, nor the killing of chickens to perform Voodoo ceremonies.

The Court has no business interfering with anybody’s religious freedom.