Supreme Court sleight-of-hand
Ed Vitagliano
Ed Vitagliano
AFA Journal news editor

September 2005 – You just can’t trust human nature.

At least that’s what the Founding Fathers believed. Which is why they would not ratify the U.S. Constitution – and thus establish a centralized national government – without including in that same document a list of limitations on centralized power. That list of limitations is called the Bill of Rights, and it consists of the first Ten Amendments to the Constitution.

The First Amendment to the Constitution has always been the shining jewel in the Founders’ crown. The freedoms guaranteed there, especially regarding religion and the press, have been an example to humankind for over 200 years.

This should be a simple lesson in civics. But over the last 60 years or so the U.S. Supreme Court has issued rulings in one particular area – church-state cases – that have so muddled the simplicity of the First Amendment as to cause ordinary Americans to despair of understanding its meaning. The most recent high court rulings on public displays of the Ten Commandments – which some even consider to be contradictory – manifested this legal confusion.

Not a federal case
The wording in the Constitution appears to be simple and straightforward. The First Amendment contains two principles related to religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

For obvious reasons, the first part of that dual statement is called the “Establishment Clause,” and much of the confusion over Supreme Court decisions revolves around it.

Up until the middle of the last century, understanding the meaning of those words was not difficult. The Establishment Clause was seen as restricting only the power of the U.S. Congress, by prohibiting it from interfering with established religions and certainly forbidding the federal government from creating a national church or religion.

This was the view of the First Amendment held by the Founding Fathers. Thomas Jefferson, for example, wrote in an 1808 letter: “Certainly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General [national] Government. It must then rest with the States, as far as it can be in any human authority.”

Prior to 1940, the Supreme Court consistently ruled in a manner which reflected this belief. In Permoli v. New Orleans (1845), for example, the Supreme Court ruled: “The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws: nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.”

Of course, since most state constitutions were closely modeled after the U.S. Constitution, citizens found their religious liberties safeguarded by state courts. But the federal judiciary stayed out of the fray.

A ‘revolution’ in law
However, this all changed abruptly in 1940, when the Supreme Court ruled in Cantwell v. Connecticut that the First Amendment applied not just to Congress, but to the states.

How did the court suddenly arrive at this novel view? It relied, not on the First Amendment, but on the Fourteenth. That amendment says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Brian Fahling, senior trial attorney for the AFA Center for Law and Policy, said this legal view – which uses the Fourteenth Amendment to encompass the First – is called the “Incorporation Doctrine.” 

He explained: “The Incorporation Doctrine was invented by the Court, and it rests upon the dubious premise that the first eight amendments to the Constitution are magically incorporated through the due process clause of the Fourteenth Amendment and now apply as limitations on the states.”

However, this newly-minted interpretation, which was upheld and strengthened in Everson v. Board of Education (1947), was devoid of both historical and legal support.

As a matter of history, the Thirteenth, Fourteenth and Fifteenth Amendments were passed in rapid succession between 1865 and 1870, in the wake of the Civil War. The Thirteenth abolished slavery, the Fourteenth was passed to make sure that states – especially in the South – did not deny rights to African-American citizens, while the Fifteenth ensured them the right to vote.

Thus, as David Barton explained in his book The Myth of Separation, the purpose of the Fourteenth Amendment was “to guarantee that recently emancipated slaves would have civil rights in all states.”

In the historical setting in which the Fourteenth Amendment was passed, the federal judiciary rejected the ideas which would come to be known as the Incorporation Doctrine. Justice Felix Frankfurter wrote in Adamson v. California (1947): “The notion that the Fourteenth Amendment was a covert way of imposing upon the States all the rules which it seemed important to 18th Century statesmen to write into the Federal Amendments was rejected by judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution.”

Even some of those who agreed with this expansive view of the Fourteenth Amendment saw the inconsistency. Justice Stewart, for example, said in his dissent in Abington School District v. Schempp (1963): “I accept too the proposition that the Fourteenth Amendment has somehow absorbed the Establishment Clause, although it is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy.”

Later, having already adopted this novel view of the Fourteenth Amendment, the Supreme Court had no problem admitting that it was a radical departure from history and precedent. In Walz v. Tax Commission (1970), the Supreme Court pointed to “the revolution initiated by the adoption of the Fourteenth Amendment, reversing the historic position that the foundations of those liberties rested largely in state law. … The Establishment Clause was not incorporated in the Fourteenth Amendment until Everson v. Board of Education” was decided.

Vacuuming state power
Consideration of this “revolution” might be nothing more than a dry discussion of abstract and inconsequential theory, except for the fact that it produced results that were only too concrete. The Supreme Court in the Cantwell and Everson rulings infused the Fourteenth Amendment – and thus the federal judiciary – with the power of a legal vacuum cleaner, enabling it to suck up state power like so much worthless dust.

And make no mistake – the federal judiciary has used that power to systematically dismantle local and state authority on matters of religious expression.

Daniel L. Dreisbach, professor of law at American University, wrote in his book Thomas Jefferson and the Wall of Separation Between Church and State: “Thus, a barrier [the First Amendment] originally designed, as a matter of federalism, to separate the national and state governments, and thereby to preserve state jurisdiction in matters pertaining to religion, was transformed into an instrument of the federal judiciary to invalidate policies and programs of state and local authorities. … Incorporation, in short, destroyed a vital purpose for which the First Amendment … had been written.”

Rather than allowing local and state governments – as expressions of public will through the voting process – to decide about matters of religion, federal judges now decide what does and does not violate the Establishment Clause. 

But who can know what a judge will decide from case to case? Fahling said, “Unshackled, so to speak, from the chains of the Constitution, justices have felt free to fashion tests and change rules in a manner that permits them to arrive at outcomes agreeable with their personal judgment, if not with constitutional law.”

As one might predict, the decisions of the Supreme Court often shift at the whim of those who sit upon it, while the rest of the American people wait with bated breath for an announcement from on high.

According to Barton, Thomas Jefferson seemed worried about this very possibility. Jefferson wrote in 1820 that to “consider the judges as the ultimate arbiters of all constitutional questions” would be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy”.

Which is to prove the point that you just can’t trust human nature – like our Founding Fathers believed.  undefined

More about church-state issues
Helpful Web sites, as recommended by WallBuilders (see listing below), an organization that is a friend to AFA:

The American Christian History Institute –
 Claremont Institute  –
 Documents in Law, History and Diplomacy –
 The Founders’ Constitution –
 Peter Marshall Ministries 
 Religion and the Founding of the American Republic –
 WallBuilders –