By Douglass H. Bartley, former Wisconsin tax judge, affiliated with the Milwaukee law firm, Steiner & Schoenfeld
March 1995 – The flap over the proposed school prayer amendment shows once again the extremes to which liberals will go to distort reality. Readers of the November 23 Milwaukee Sentinel couldn’t have helped thinking that amendment proponents were modern Torquemadas hell-bent on rooting out religious non-conformity. As one amendment critic, John Huebscher, executive director of the Wisconsin Catholic Conference, put it, “We’d have a very serious problem with federally-mandated prayer.”
Time out, Mr. Huebscher. No one is suggesting any sort of mandatory prayer. The amendment is permissive, allowing states and localities to themselves decide if voluntary prayer belongs in their schools. Nor does the amendment involve any federal mandate. Quite the contrary, the amendment would end the existing federal mandate – a 1962 Supreme Court case – prohibiting voluntary prayer in all 50 states.
Huebscher was not alone in his mental somersaults. Sentinel editorialist Kenneth P. Roesslein accused “St. Gingrich” of promoting “government-sponsored prayer.” Roesslein’s analysis was an especially amazing performance, for in the same piece he quoted the specific amendment language explicitly prohibiting any government role in prayer composition. But it is the hallmark of liberal mentality to deny that which gets in the way of ideology, even if one has to claim “black is white.”
Undoing the Court’s “Judicial Verbicide”
Liberal logic inversion is legendary, but it’s not my purpose to dwell on the liberal’s ability to bury the facts for the sake of political brinkmanship. Rather, the point here is that school prayer is just one aspect of a much more pervasive jurisprudential problem, the problem captured by the phrase of the late Sen. Sam Ervin (D-NC), “judicial verbicide,” meaning the Supreme Court’s capacity for acting not as a court, but as “a continuing constitutional convention,” as someone once put it. The school prayer amendment is fine as far as it goes, but it falls far short of a cure for the judicial tyranny that plagues us.
There is no doubt that the court’s ruling in Engel v. Vitale outlawing voluntary school prayer in states is a very good example of judicial power run amok. Engel was itself an “outlaw” ruling, mainly because the court wrongly assumed that the 1st Amendment’s ban on establishment of religion was binding on states. The text of the 1st Amendment shows the Engel assumption to have been plainly false, for it says, “Congress shall make no law respecting an establishment of religion” (emphasis added), with no bar against state establishments.
There was good reason the framers limited the ban on establishment of religion to the federal government. When the 1st Amendment was enacted, at least three of the 13 states had established religions. It wasn’t until 1833 that the last state, Massachusetts, disestablished its official state religion. The 1st Amendment was not seen as a threat to those established religions.
Indeed, the 1st Amendment acted as a protection for those state-established religions, because the wording cut both ways—the amendment not only prohibited a federal establishment of religion, but by prohibiting all laws “respecting an establishment of religion,” also prohibited any federal disestablishment of any of the existing state established religions.
Jefferson Never Objected To Public School Prayer
Even Jefferson, the author of the Virginia Statute for the Disestablishment of the Anglican Church, and of the “wall of separation” between church and state statement that has become a canon of liberal theology, supported non-sectarian religious instruction at his beloved University of Virginia as he made plain in the so-called Rockfish Gap report of 1818, which envisioned the teaching of matters that all denominations were agreed on, and that he considered the core and essence of true religion: “proofs of the being of a God, the creator, preserver, and supreme ruler of the universe, the author of all the relations of morality ....” And in 1822, Jefferson went a step further, and expressed his support for the establishment of sectarian schools of divinity on the “confines” of the university.
Moreover, Jefferson thought it perfectly proper for elementary students in Virginia public schools to devote time to religious pursuits so long as “no religious . . . exercise . . . [was] inconsistent with the tenets of any religious sect or denomination,” as Jefferson put it in the draft of a bill sent to Joseph Cabell in 1817. Clearly, the non-denominational school prayer struck down in Engel would not have troubled Jefferson.
Furthermore, the framers never believed that the 1st Amendment (or any of the first eight amendments to the Constitution) were directives against states. In 1808, Jefferson stated the then-contemporary understanding that the religion clauses of the 1st Amendment were limitations on federal power, but not on states. When asked to endorse a national day of thanksgiving, President Jefferson declined on 1st Amendment grounds: “[N]o power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority.”
Jefferson’s view squares with those of the great Federalist himself, Chief Justice John Marshall, expressed 25 years later. For a unanimous Supreme Court in Barron v. Baltimore, Marshall wrote: “[The first eight amendments are] security against the apprehended encroachments of the general government – not against those of the [state or] local governments.”
It is no answer to say, as the liberals do, that the subsequent (1868) enactment of the 14th Amendment due process clause (prohibiting states from depriving persons of liberty without due process of law) changed the original understanding and made the Bill of Rights binding on the states. Due process of law has nothing to do with the protection of the substantive freedoms, such as freedom of religion, referred to in the Bill of Rights. As Alexander Hamilton said in 1789, due process has a “precise technical import” and pertains only to “the process and proceedings of courts of justice . . . [and] . . . never . . . to an act of the legislature.” To Hamilton, as Prof. Raoul Berger has noted, “due process” meant only that civil and criminal defendants had a right to receive all indictment or summons as a condition to the institution of legal proceedings.
The school prayer controversy is a very interesting debate in its own right, but it really reflects just one small part of a much larger problem – judicial usurpation of state government prerogatives. In the name of due process, for example, the Supreme Court has taken over the jurisdiction of state criminal procedure, holding in Miranda v. Arizona that criminal suspects must be advised of their right not to answer police inquiries; and holding in Mapp v. Ohio that incriminating evidence (usually drugs) seized improperly is constitutionally inadmissible, ignoring Justice Cardozo’s admonition that “the criminal [should not] go free because the constable has blundered.” Miranda and Mapp thus distorted Hamiltonian due process – service of an indictment – beyond all recognition.
In expanding the concept of due process, the court has gone well beyond state criminal procedure. In Roe v. Wade, in overruling the statutes of all 50 states, the court held that due process of law includes the right to an abortion.
Other examples abound. In Texas v. Johnson, the court, in effect, held that due process prohibits state statutes banning flag burning. And in Fanny Hill v. Massachusetts, the court turned state obscenity laws into a dead letter.
The common denominator of Roe, Johnson, and Fanny Hill is that each was based on the implicit premise that the due process clause gives federal courts jurisdiction over substantive state laws, a premise made plainly illicit by Hamilton’s admonition that due process never applies to legislative acts.
Reading the Due Process Clause As It Was Written
It’s time to enact an amendment that undoes not just the school prayer decision, but all of the mischief the Supreme Court has wrought in the name of due process. To amend the Constitution on a piecemeal basis, would, given the number of illegitimate Supreme Court decisions, turn our succinct Constitution into a prolix code deforming its simplicity and readability. We need generic reform, not the type that overrules illegitimate Supreme Court decisions on a decision-by-decision basis.
My suggestion is that we start with an amendment that restores due process to its original meaning using Hamilton’s and Marshall’s own words with only slight editing: “In this Constitution, ‘due process of law’ shall refer only to the process and proceedings of courts; and the rights and protections in the first eight amendments are security against the federal government, not against the states.”
That wording would have great political appeal, I should think – even liberals might have a bit of difficulty in challenging two of our greatest statesmen, the one a principal architect of the Constitution, and the other the father of the American judicial system.
In any case, we should begin at once to restore federalism to our constitutional system. And we should ignore the naysayers who claim that Miranda, Mapp, Roe, and all the other illegitimate decisions of the Supreme Court are too embedded to be undone. Nonsense. Using the words of Justice Holmes, these decisions are “an unconstitutional assumption of power by the courts of the United States which no lapse of time nor respectable array of opinion should make us hesitate to correct. 
