by David Barton
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Ignoring Original Intent
Recall that when school prayer was struck down in Engel, the Court acknowledged that it had failed to cite a single precedent.1 From that point, the use of precedents by the Court has been haphazard and unpredictable. Quite simply, the Court makes its decisions almost solely on the basis of its own current prejudices rather than with any regard to original intent.
In fact, when invoking authority for its decisions, it almost exclusively cites only its own recent case law. To illustrate this, simply count the post-1947 citations the Court uses in its cases. Why use that year? Recall that it was the 1947 Everson case in which the Court began its radical reconstruction of the intent of the First Amendment, introducing not only its religion-hostile separation rhetoric but also extending its jurisdiction over religious issues into States and local communities rather than just the federal government.
Interestingly, despite the Court’s haphazard use of historical precedents, it can invoke them with purpose if so inclined. For example, when the Court upheld the constitutionality of Congressional Chaplains in Marsh v. Chambers, 1983, it relied heavily upon history and original intent. However, such cases are infrequent. Today, the ability to enjoy “the free exercise of religion” and to participate in traditional religious activities is completely subject to the discretion and “good will” of the Court rather than to any constitutional provision.
The following cases will illustrate not only the Court’s reliance upon its own recent case-law, but also its avoidance of historical citations that would tend to establish original intent.
Abington v. Schempp, 1963
In Abington,2 the Court struck down the official use of the Bible in public education. Although the Court cited several pre-1947 cases in examining procedural questions, the count is still heavily skewed toward recent precedents. PRE-1947: 112; POST-1947: 356.
Epperson v. Arkansas, 1968
This case3 challenged an Arkansas statute which made it unlawful for schools to teach “that mankind ascended or descended from a lower order of animals.”4 The U. S. Supreme Court ruled the statute violated the First Amendment. On what sources? PRE-1947: 6; POST-1947: 12.
However, the Arkansas law which the Court struck down in this case was identical to the one that the Tennessee Supreme Court had upheld in the 1927 Scopes decision.5 Since the U. S. Supreme Court was in effect overturning the Tennessee Supreme Court decision of forty-three years earlier, it had been forced to reexamine that 1925 case, thus injecting several pre-1947 allusions into its decision. When these references are added, the final tally becomes: PRE-1947: 23; POST-1947: 16.
Board of Education of Central School District v. Allen, 1968
In this ruling,6 the Supreme Court found that a New York law requiring public school authorities to lend textbooks to private schools – and thus possibly to religious schools – was not a violation of the Constitution. What was the basis of this decision? PRE-1947: 8; POST-1947: 27.
Lemon v. Kurtzman, 1971
In this case,7 the Court struck down two State statutes: a Rhode Island law providing a salary supplement to nonpublic teachers if the “eligible teachers agree not to teach courses in religion,”8 and a Pennsylvania law which allowed the State to purchase “secular educational services” (including textbooks and instructional materials) from nonpublic schools if the materials contained no “religious teaching, or the morals or forms of worship of any sect.”9
Despite the attempt to limit the State aid to purely secular aspects of education, the Court struck down both laws under what is now called the “Lemon Test.” Under this test, a public religious activity is constitutional only if: (1) it has a predominately secular purpose; (2) it neither inhibits nor advances religion; and (3) it creates no “excessive entanglement” between government and religion. On which precedents did the Court construct this new test for constitutionality and strike down the State laws? PRE-1947: 37; POST-1947: 105.
Levitt v. Committee for Public Education, 1973
New York law mandated that all schools within the State – both public and nonpublic – keep certain secular administrative records (i.e., testing, attendance, etc.). The required record-keeping was costly; therefore, the legislature appropriated money for public schools to cover these expenses and felt it should do the same for the nonpublic schools upon whom it was forcing the requirements. The legislature therefore:
Appropriated $28,000,000 for the purpose of reimbursing nonpublic schools throughout the State “for … the preparation and submission to the State of various other reports as provided for or required by law or regulation.”10
Although the aid was for nonreligious, State-mandated activities, the Court ruled it unconstitutional. On what basis? PRE-1947: 0; POST-1947: 21.
Committee for Public Education v. Nyquist, 1973
To ensure that students had safe facilities in which to attend school, the New York legislature provided money for the “ ‘maintenance and repair’ of facilities and equipment to ensure the students’ ‘health, welfare and safety.’ ”11 The funding was made available in large amounts for public schools; and since the State also collected school taxes from private-school families, it provided funding in token amounts for qualifying nonpublic schools. The Court declared the legislature’s action unconstitutional. On which First Amendment precedents? PRE-1947: 22; POST-1947: 177.
Stone v. Graham, 1980
When the Court ruled it unconstitutional for students to view the Ten Commandments while at school,12 what was the basis for its decision? PRE-1947: 0; POST-1947: 15.
Marsh v. Chambers, 1983
The Marsh case13 involved a challenge against legislative chaplains. The Court ruled the chaplaincy to be constitutional, which is not surprising since it relied primarily on earlier sources. Which sources? PRE-1947: 46; POST-1947: 13.
Lynch v. Donnelly, 1984
This was the case14 in which the Supreme Court upheld the display of a government owned crèche, ruling that the city of Pawtucket, Rhode Island, had a secular purpose with its nativity display, that it had not advanced religion, and that the display had not created an excessive entanglement between religion and government – thus satisfying all three prongs of the Court’s “Lemon Test.” What was the basis for this decision? PRE-1947: 16; POST-1947: 118.
Wallace v. Jaffree, 1985
This was the case15 in which the Court struck down Alabama’s statute authorizing a one-minute period of silence in schools. What precedents caused the Court to rule that a period for silent prayer by students was unconstitutional? PRE-1947: 25; POST-1947: 197.
Edwards v. Aguillard, 1987
The issue in this case16 was a Louisiana statute mandating a so-called “balanced-treatment” in science instruction. The State law forbid “the teaching of the theory of evolution … unless accompanied by instruction in the theory of ‘creation science.’ ”17 The Court ruled the law violated the “Lemon Test” and therefore declared it unconstitutional. On which First Amendment precedents? PRE-1947: 13; POST-1947: 114.
Allegheny v. ACLU, 1989
Here the Court struck down “stand-alone” crèches displayed in public buildings.18 On what basis? PRE-1947: 0; POST-1947: 126.
Westside v. Mergens, 1990
In this case,19 the Court upheld the 1984 federal law which provided “Equal Access” to public school buildings for both religious and nonreligious groups.20 Since Westside High School had allowed nonreligious clubs (e.g., Chess, Journalism, Scuba, etc.), the Court ruled that the school must also allow Christian clubs “equal access.” On what precedents was this decision based? PRE-1947: 0; POST-1947: 69.
Lee v. Weisman, 1992
This was the case21 in which the Court forbade clerical invocations and benedictions at student graduation ceremonies. From what sources did the Court derive its justification? PRE-1947: 16; POST-1947: 112.
However, recall that in Justice Souter’s concurring opinion, he offered his “history” lesson
before declaring that the Founding Fathers had “turned their backs” on the ideals in the First Amendment – at least according to his standards.22 When his “precedents” are added, the final tally for the Court’s decision becomes: PRE-1947: 84; POST-1947: 182.
Lamb’s Chapel v. Center Moriches Union Free School Dist., 1993
A New York law allowed equal-access rental of school property for after-hours use. When a school board prohibited a church which had rented the facility from showing a film series, the Court overturned the school board’s policy.23 On what basis? PRE-1947: 0; POST-1947: 18.
Zobrest v. Catalina Foothills School District, 1993
In this case,24 the Court upheld a law which authorized the hiring of a sign-language interpreter for a deaf student, even though the student attended a religious high school. On what basis did the Court permit this service for the handicapped student? PRE-1947: 0; POST-1947: 63.
Rosenberger v. Rector and Visitors of University of Virginia, 1995
Student publications at the University of Virginia were reimbursed for printing costs from student activity funds. However, Wide Awake, a Christian publication, was denied reimbursement. The U. S. Supreme Court sided with the paper and ordered the reimbursement.25 On what basis? PRE-1947: 5; POST-1947: 159.
Boerne v. Flores, 1997
A Catholic church in Boerne, Texas sought to enlarge its structure on its own property, but the city of Boerne denied a building permit. The church brought suit under the Religious Freedom Restoration Act of 1993, which Congress passed to prevent government agencies from placing a substantial burden on the free exercise of religion unless the government could prove that the burden was in furtherance of a compelling governmental interest and was the least restrictive means of furthering that interest. The Court struck down that law and would not allow the church to expand its facilities.26 What precedents caused the Court to say that Congress could not pass a law to protect the free exercise of religion? PRE-1947: 9; POST-1947: 17.
Santa Fe Independent School District v. Doe, 2000
Schools were prohibited from allowing a student to offer a prayer for the sportsmanship and safety of the players over the public address system before a football game.27 What First Amendment sources did the Court use to strike down this longstanding tradition? PRE-1947: 1; POST-1947: 18.
Good News Club v. Milford Central School, 2001
The Milford elementary school allowed community groups to use its facilities after-hours, but when a religious group sought to use the facilities for student activities, the school denied access to the group. The Court struck down the school policy. On what grounds?28 PRE-1947: 0; POST-1947: 16.
Van Orden v. Perry, 2005
The Texas State Capitol was permitted to retain a 6-foot high granite display of the Ten Commandments among the other 16 monuments on the Capitol grounds.29 What First Amendment precedents made the display permissible? PRE-1947: 0; POST-1947: 16.
McCreary County, Ky. v. ACLU of Ky., 2005
A county courthouse was prohibited from displaying a copy of the Ten Commandments among a collection of nine documents (such as the Declaration of Independence and the Star-Spangled Banner) entitled “The Foundations of American Law and Government.”30 What was the basis for this decision? PRE-1947: 3; POST-1947: 24.
Hein v. Freedom From Religion Foundation, 2007
The federal faith-based office was created by the President and operates in several cabinet-level departments of the Executive Branch to ensure that community faith-based groups may compete for federal funds on the same basis as secular groups. The Court rejected a taxpayer challenge to these programs.31 On what basis? PRE-1947: 5; POST-1947: 20.
Clearly, in its numerous rulings on religious issues since 1947, whether ruling for or against religious activities and expressions, the Court now relies almost exclusively upon its own recent case-law precedents – the very precedents under which it has essentially rewritten the First Amendment. In fact, as the above statistics demonstrate, as far as the Court is concerned, the First Amendment of the U. S. Constitution is no longer dated 1789 but rather 1947.
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The Court’s Selective Use of History
In recent decades, the Court has often avoided any reliance on historical records. However, when it has referred to history, it has been usually to its own series of carefully crafted misportrayals manipulated to add an appearance of the Founders’ approval to its decisions. This chapter will expose five of the Court’s frequent historical distortions; and although the Court has become adept in their use, each has fatal flaws.
1. The Fourteenth Amendment
Nearly every First Amendment case appearing before contemporary courts contains a phrase declaring “the First Amendment made applicable to the States by the Fourteenth Amendment … ”
By using this phrase, the Court is invoking its decisions from the 1940s that reinterpreted the Fourteenth Amendment. The Court’s reinterpretation provided it a mechanism by which, for the first time, it could intervene in virtually all practices of States and local communities, including religion.
The Fourteenth Amendment was the second of a succession of three Constitutional Amendments passed immediately following the Civil War. When the Thirteenth Amendment abolishing slavery was passed (1865), some voices in the South protested bitterly. While conceding that former slaves might now be legally free, those dissidents vowed to withhold from former slaves the rights belonging to a citizen in their State.
Congress’ response was two more Amendments: the Fourteenth (1868), which guaranteed that freed slaves would enjoy all the privileges and rights conveyed by being a citizen either of the State or of the nation;1 and the Fifteenth (1870), which secured for freed slaves the right to vote and thus to participate in the political affairs of their State.
For seventy years following its passage, the Court recognized (but unfortunately did not uphold†) the Fourteenth Amendment for what it was: a constitutional amendment to protect racial civil rights; they properly refused to broaden it to any other issue, especially that of religion.7 This is not surprising, however, for those Courts were simply following the elementary judicial principle described by Chief Justice John Marshall in McCullough v. Maryland (1819):
An exposition of the Constitution deliberately established by legislative acts … ought not to be lightly disregarded.8
That is, determine the legislative intent for an act before applying it. The adherence to this principle was long practiced by the Courts. For example, the Holy Trinity Court reminded all courts of their primary responsibility of always first examining and establishing:
[T]he evil which was intended to be remedied, the circumstances surrounding the appeal to Congress, the reports of the committee of each house … [and] the intent of Congress.9
In the Fourteenth Amendment, the “evil intended to be remedied” and “the intent of Congress” was clear: to make recently freed slaves citizens of the State in which they resided. Very simply – and very specifically – the Fourteenth Amendment was a badly needed racial civil rights amendment.
How, then, could the Courts of the 1940s manage so completely to rewrite the intent? Because the wording of the Fourteenth Amendment, if divorced from its purpose, seems to condone such an interpretation. The wording of the Fourteenth states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
As a result of separating the wording from its intent, in Cantwell v. Connecticut (1940),10 Murdock v. Pennsylvania (1943),11 Everson v. Board of Education (1947),12 and other decisions, the Court substituted a totally revised and foreign interpretation for the Fourteenth Amendment. In those decisions, the Court declared that the purpose of the Fourteenth Amendment was to limit the States not just on racial civil rights issues,
but on the numerous items contained within the Bill of Rights.
Under this reshaped purpose for the Fourteenth – and thereby under its new extended scope of power – the First Amendment would now limit every State and community, and no longer just the federal government as originally intended. (This process of individually subjugating issues from within the Bill of Rights to the jurisdiction of federal courts through the redefined scope of the Fourteenth Amendment is now described by the Court as “selective incorporation.”13)
Even though the selective incorporation of the First into the Fourteenth Amendment is a recent innovation, in Abington, the Court announced that the joining was now permanent and irrevocable:
[T]his Court has decisively settled that the First Amendment’s mandate that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ” has been made wholly applicable to the States by the Fourteenth Amendment…. The Fourteenth Amendment has rendered the legislatures of the States as incompetent as Congress to enact such laws.14 (emphasis added)
What has been the effect? According to Justice William Douglas in Walz v. Tax Commission (1970), the result has been a national revolution …
… reversing the historic position that the foundations of those liberties [in the Bill of Rights] rested largely in State law…. [T]he revolution occasioned by the Fourteenth Amendment has progressed as Article after Article in the Bill of Rights has been [selectively] incorporated in it [the Fourteenth] and made applicable to the States.15 (emphasis added)