The Government-Through Judges-Now Controls the Constitution

By Thomas L. Jipping
CNS The Free Congress Commentary
28 June, 2000

The Supreme Court has continued its scorched-earth policy of removing any public religious expression from our culture. On June 19, the Court voted 6-3 that a public school even allowing a student the opportunity to pray publicly at a school event is an "establishment of religion."

The Court long ago abandoned using the real Constitution in deciding such cases. The First Amendment, as you know, prohibits the federal government from passing any laws involving an establishment of religion. This means the federal government may not interfere with how the states deal with religion and may not itself create an establishment of religion. That's all.

While the Constitution prohibits the federal government from establishing religion, the Supreme Court now prohibits a local school district from even allowing students to offer a statement that might or might not be a prayer before a football game. How did we get to this point?

A majority of the Court now believes that they determine what the Constitution means. For 150 years, Justices believed that those who wrote the Constitution determined what it means. All the Justices did was uncover that meaning, apply it to the facts of a case, and announce the result. This approach kept the Constitution stable, and allowed it to limit and shape what government could do. The Constitution was law that governed government.

In the 1930s, Americans had a decision to make. The real Constitution,
the one with meaning provided by those who wrote it, limited the federal government's power to regulate the economy. The Great Depression, however, created a national economic crisis and President Roosevelt promised a national economic response. Hence the choice between what the Constitution allowed government to do and what a growing number of Americans wanted government to do.

Roosevelt's choice was to get control of the economy by getting control of the Constitution. He appointed Justices who believed they, and not the authors of the Constitution, could determine what the document means. That switch in strategy turned everything upside down. The Constitution no longer controlled the government; the government, through judges, controlled the Constitution.

Once the rope connecting the Constitution to its authors was cut, the balloon was free to drift wherever the political winds would take it. Judges who could remove restraints on the federal government's economic power by wiggling a few words would certainly have no trouble with the First Amendment's religion clauses. Yes, the First Amendment says that it only applies to the federal government; judges simply found another amendment that applies other things to the states and said it incorporates the First Amendment. Yes, the First Amendment only prohibits an establishment of religion; judges simply said that an endorsement of religion is an establishment of religion.

If the meaning of the Constitution is determined by the political winds of the day, you know what direction it will take today. That's why the Supreme Court first banned religious activities or expression which the government directs, went on to ban those activities or expression in which the government participates, and now has banned activities or expression which the government merely allows.

If judges can make up the Constitution, then judges run the country. If judges make up the Constitution, their values define our culture. If judges make up the Constitution, then we have only the rights they grant us. If judges make up the Constitution, we have no freedom.

Tom Jipping is the director of the Center for Law and Democracy at the Free Congress Foundation.