Jewish World Review June 28, 2002 / 18 Tamuz 5762

Thomas Sowell

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Religion and the Constitution

Jewish Law prohibits the writing of the Creator's name out in full. The spelling below is not intended to be disrespectful, particulary given this column's topic --- editor. | Now that the decision of the 9th Circuit Court of Appeals to ban "under G-d" from the pledge of allegiance has been protested all over the landscape, perhaps we might step back and consider the broader implications of the fact that such a decision could have been made in the first place.

The ostensible basis for the 9th Circuit decision is the Constitution of the United States. Contrary to what some may think, there is no mention of "separation of church and state" in the Constitution, much less any "wall of separation" that keeps getting mentioned, even in Supreme Court decisions.

What the First Amendment to the Constitution says is that Congress shall make no law "respecting an establishment of religion." England had an established religion, supported by the taxpayers and with its members given privileges denied to members of other congregations.

Since the people who wrote the Constitution of the United States were Englishmen, they knew exactly what they meant when they said that they wanted no establishment of religion in the United States. Wise men wrote the Constitution, but clever judges have been destroying it, bit by bit, turning it into an instrument of arbitrary judicial power, instead of a limitation on all government power.

The 9th Circuit's decision is almost certain to be reversed by the U.S. Supreme Court. But the trend which that arbitrary decision represents is not only unlikely to be reversed, it has been exhibited in recent decisions of the Supreme Court itself.

One of the reasons courts at all levels get away with imposing judges' personal views as the law of the land is that so much of the public and the media view each decision in terms of whether they agree with the particular policy it represents. But the destruction of the separation of powers, which is central to the Constitution, is infinitely more important than whether policy A is better or worse than policy B.

Letting judges change the law by verbal sleight of hand is especially dangerous in a country where the people are supposed to have the power to control the laws they live under via their elected representatives.

Those who question whether the government ought to be in the business of promoting any religious concepts among school children can raise that as an issue that we can fight out among ourselves. It is denying us the right to fight it out among ourselves by judicial fiat that is the real danger.

We become diverted from that overriding danger when we allow ourselves to be distracted by the particular merits or demerits of particular arbitrary judicial decisions, whether on religion, property rights or the death penalty.

If the people can be conned into giving up their rights by pious rhetoric from judges who claim to be "interpreting" the "values" of the Constitution, then "con law" no longer means Constitutional law but laws imposed by con artists.

What are the options when judges themselves show the kind of reckless disregard of the law represented by this 9th Circuit decision?

We can, through apathy or inertia or outrage that blows over and then accepts the usurpation of power, let the erosion of our rights continue with a progressive extension of judicial tyranny. That would be a betrayal of all those who fought and died for those rights over the generations and centuries.

We could reach the point where elected officials simply refuse to follow what the courts say. As President Andrew Jackson declared: "John Marshall has made his decision. Now let him enforce it." If this becomes the prevailing practice, that way lies anarchy.

We could start impeaching judges, including Supreme Court justices, who twist the law beyond its plain and obvious meaning. This approach is not without dangers, but neither is supinely accepting judicial fiats.

We could elect a Senate that will confirm judicial nominees who have a record of sticking to what the written law says, not those who rule on the basis of their own whims or the dictates of political correctness. We have a chance to try that this November before resorting to more drastic measures.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, The Einstein Syndrome: Bright Children Who Talk Late.


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© 2002, Creators Syndicate