by David Barton
On the other hand, the right to govern one’s personal appearance is not a fundamental constitutional right:
A public schoolteacher, while teaching, may not wear distinctly religious garb.15 FINOT v. PASADENA CITY BOARD OF EDUCATION, 1967
On Student-led Prayers
On the one hand, student led, student-initiated graduation prayers are constitutional:
[P]ermitting public high school seniors to choose student volunteers to deliver nonsectarian, nonproselytizing invocations at their graduation ceremonies does not violate the Constitution’s Establishment Clause.16 (emphasis added) JONES v. CLEAR CREEK INDEPENDENT SCHOOL DISTRICT, 1992
On the other hand, those same prayers are not constitutional:
[T]he fact that students set the assembly agenda and make decisions as to whether a prayer shall occur, who shall say it, and how it shall be said is … an Establishment Clause violation.17 (emphasis added) HARRIS v. JOINT SCHOOL DISTRICT, 1994
On Children
On the one hand, children are not wards of the state:
[T]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children…. The child is not the mere creature of the state. PIERCE v. SOCIETY OF SISTERS, 1925;18 REED v. VAN HOVEN, 196519
On the other hand, children are wards of the state:
The courts for many years have held: Children are the wards of the state.20 STATE BOARD OF EDUCATION v. BOARD OF EDUCATION OF NETCONG, 1970
However, not only do contemporary courts frequently repudiate themselves, they also regularly repudiate the rulings of their predecessors on identical issues. For example:
On Profanity
The current position:
Appellant was … wearing a jacket bearing the words “F___ the Draft” in a corridor of the Los Angeles Courthouse…. [T]he [California statute prohibiting public use of such words] infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution…. This is not … an obscenity case…. That the air may at times seem filled with verbal cacophony [a harsh, jarring, discordant sound] is, in this sense not a sign of weakness but of strength.21 COHEN v. CALIFORNIA, 1971
The previous position:
Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful … and shall we form an exception in these particulars to the rest of the civilized world?22 PEOPLE v. RUGGLES, 1811
On Lewdness and Indecency
In Erznoznik v. City of Jacksonville, the city sought to restrict adult movies shown in a public drive-in theater because the screen was facing a church and two public streets frequented by children. However, the Supreme Court struck down the ordinance, explaining that it could not “be justified as an exercise of the [city] … for the protection of children.”23
Notice the previous position:
The destruction of morality renders the power of the government invalid…. The corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences…. No man is permitted to corrupt the morals of the people.24 COMMONWEALTH v. SHARPLESS, 1815
On Blasphemy
In Grove v. Mead School District (1985), Cassie Grove, a high school sophomore, had been required to read A Learning Tree for her English Literature class. She filed suit to have that book removed from the curriculum because she objected to being forced to read several portions, including those:
Declaring Jesus Christ to be a “poor white trash God,” or “a long-legged white son-of-a-b___h.”25
The court refused to rule in her favor or to remove the book from the school’s required curriculum; all students taking that class would continue to use that book.
Notice the previous position:
“Jesus Christ was a bast___d, and his mother must be a whore”…. Such words … were an offense at common law…. [I]t tends to corrupt the morals of the people, and to destroy good order. Such offenses…. are treated as affecting the essential interests of civil society.26 PEOPLE v. RUGGLES, 1811
On Deterring No Religious Belief
In Walz v. Tax Commission (1970), the Court stated, as it frequently does, that all religious beliefs were to be tolerated:
The fullest realization of true religious liberty requires that government … effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief.27 (emphasis added)
Notice the previous position:
There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes as prompted by the passions of its members…. Should a sect of [these] kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretence that … their supporters could be protected in their exercise by the Constitution of the United States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world … must be suspended in order that the tenets of a religious sect … may be carried out without hindrance.28 DAVIS v. BEASON, 1890
They [the Founders] could not admit this [religious tolerance] as a civil justification of human sacrifices, or parricide [killing one’s parents], or infanticide, or thuggism [religious murders], or of such modes of worship as the disgusting and corrupting rites of the Dionysia, and Aphrodisia, and Eleusinia, and other festivals of Greece and Rome. They did not mean that the pure moral customs which Christianity has introduced should be without legal protection because some pagan, or other religionist, or anti-religionist, should advocate as matter of conscience concubinage, polygamy, incest, free love, and free divorce, or any of them.29 COMMONWEALTH v. NESBIT, 1859
On Atheism and Non-Religion
The current position:
[T]hese words [from the First Amendment] … are recognized as guaranteeing religious liberty and equality to ”the infidel, the atheist.”30 ALLEGHENY v. ACLU, 1989
Excluding agnosticism and atheism from First Amendment religion clauses is too narrow a view.31 THERIAULT v. SILBER, 1977
Atheism may be a religion under the establishment clause.32 MALNAK v. YOGI, 1977
Secular humanism may be a religion for purposes of First Amendment.33 GROVE v. MEAD SCHOOL DIST., 1985
Also included under the protection of the religion clauses of the First Amendment would be religions which do not teach a belief in the existence of God, including Buddhism, Taoism, Ethical Culture, Secular Humanism, and others.34 TORCASO v. WATKINS, 1961
The previous position:
[The First Amendment] embraces all who believe in the existence of God as well … as Christians of every denomination…. [T]his provision does not extend to atheists, because they do not believe in God or religion; and therefore … their sentiments and professions, whatever they may be, cannot be called religious sentiments and professions.35 COMMONWEALTH v. KNEELAND, 1838
In earlier decisions on the First Amendment, neither atheism nor secular humanism qualified as “religions” – for obvious reasons. Notice the comprehensive definition of “religion” from Webster’s original dictionary:
Religion: [I]ncludes a belief in the being and perfections of God, in the revelation of His will to man, and in man’s obligation to obey His commands, in a state of reward and punishment, and in man’s accountableness to God; and also true godliness or piety of life with the practice of all moral duties…. [T]he practice of moral duties without a belief in a Divine Lawgiver, and without reference to His will or commands, is not religion.36 (emphasis added)
At a minimum, the Founders identified a religion by its belief in some Supreme Being; witho
ut that belief, there could be no “religion.” Yet, by changing this standard of measurement, and by considering nonreligion as a religion, contemporary courts have created an irreconcilable conflict.
Recall that the Court has been very emphatic that no preference can be given either to religion or to nonreligion:
[G]overnment [must] … effect no favoritism … between religion and nonreligion.37 WALZ v. TAX COMMISSION, 1970
The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.38 EPPERSON v. ARKANSAS, 1968
Consider the difficulty of maintaining this government neutrality when atheism and secular humanism are considered religions. For example, courts prohibit the inclusion of religious activities in schools because the presence of a religious activity constitutes an endorsement of religion; however, if religious activities are excluded, then nonreligion has been given preference and thus is being endorsed. Therefore, since either religion or nonreligion will be endorsed by its presence, how can “neutrality” and “no favoritism” be maintained under such standards?
Court decisions now regularly erect standards which Justice William Rehnquist described as being “neither principled nor unified.”39 To support this charge, Rehnquist detailed a litany of paradoxes arising under the Court’s current standards:
[A] State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing “services” conducted by the State inside the sectarian school are forbidden, but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school, such as in a trailer parked down the street. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.40 (emphasis added)
Clearly, with the judicial departure from transcendent guidelines and values, and with the advent of positivism, the “standards” the courts now use are both confusing and contradictory, and therefore are not genuine standards at all.
~14~
Identifying the Spirit of the Constitution
As a result of the two distinctly differing philosophies of constitutional interpretation, there have now been two distinct eras of judicial decisions. The fundamental difference between these two was summed up by a U. S. Attorney General:
[U]nder the old system the question was how to read the Constitution; under the new approach, the question is whether to read the Constitution.1 (emphasis added)
The second era, which began with the slow accumulation of positivistic Justices on the Court throughout the 1930s and 1940s, was not fully actuated until the Court’s 1962-63 decisions. Those decisions openly repudiated the transcendent, Biblical, natural-law standards which had prevailed – or had at least not been set aside – since the time of the Founders, and instituted legal positivism as the replacement.
Today, there are avid proponents of both systems; yet does either really make a difference? Does either actually affect our lifestyle? The answer to that question rests in this ancient proverb:
Every good tree bears good fruit, but a bad tree bears bad fruit. Thus, by their fruit you will recognize them. MATTHEW 7:17, 20 (NIV)
Very simply, to determine if either philosophy had any substantial impact, compare the societal results from early years against those of more recent years – simply examine the “fruits.” In support of this approach, signer of the Declaration John Witherspoon affirmed:
[T]his rule of trying every principle … by its fruits…. is certain and infallible…. There seems, indeed, to be an exact analogy between this rule in religious matters, and reason in our common and civil concerns. Reason is the best guide and director of human life.2
The following charts are representative of several areas in which the Court has implemented its new approach and each accentuates the year in which positivism became the enforced standard. The correlations are striking.
The changes suggest that the new positivistic policies have resulted in drastic and unacceptable changes in morality, criminal behavior, education, and family stability – and these are but a few examples. Nevertheless, these are sufficient to suggest strongly that the institutionalization of positivism and the abandonment of the transcendent Biblical natural law principles have not produced national improvement or prosperity but have worked in the opposite direction.
While the Court’s change of standards has perhaps been a display of poor judgment, the Court’s actions have actually been illegal under the standards of original intent. Furthermore, they have violated the value system of “the laws of nature and of nature’s God” established in the Declaration of Independence.
Even though contemporary courts now regularly violate that legal standard, few today consider such violations significant for they believe the Constitution to be independent of the Declaration. This incorrect belief is of recent origin; in fact, it was rejected by earlier generations. As Samuel Adams pointed out:
Before the formation of this Constitution…. [t]his Declaration of Independence was received and ratified by all the States in the Union and has never been disannulled.3 (emphasis added)
For generations after the ratification of the Constitution, the Declaration was considered a primary guiding document in American constitutional government. In fact, well into the twentieth century, the Declaration and the Constitution were viewed as inseparable and interdependent – not independent – documents.
Perhaps the proper relationship between the Declaration and the Constitution is best understood by a comparison with the relationship between a corporation’s Articles of Incorporation and its By-Laws – the two documents vital to its legal existence. The Articles of Incorporation call the entity into legal existence, and the By-Laws then explain how it will be governed. However, the governing of the corporation under its By-Laws must always be within the framework and purposes set forth in its Articles; the By-Laws may neither nullify nor supersede the Articles.
Such is the relationship between the Declaration and the Constitution; the Declaration is America’s articles of incorporation and the Constitution is its bylaws. The Constitution neither abolished nor replaced what the Declaration had established; it only provided the specific details of how American government would operate under the principles set forth in the Declaration.
Today, as the knowledge of this interdependent relationship has been widely lost or ignored, many individuals complain of the difficulties arising from the fact that the Founders placed no explicit moral values or rights and wrongs into the Constitution. However, the Founders needed to place no values in the Constitution (the bylaws) for they had already done so in the Declaration (the articles of incorporation).
Is there proof that the Founders believed that the Declaration was the foundational document in our Constitutional form of government? The answer is an emphatic, “Yes!” Notice, for example, that in Article VII, the Constitution attaches itself to the Declaration:
Done in con
vention by the unanimous consent of the States present the seventeenth day of September in the Year of our Lord one thousand seven hundred and eighty seven, and of the independence of the United States of America the twelfth. (emphasis added)
Furthermore, under the Constitution, the Founders dated their government acts from the year of the Declaration rather than the Constitution. Notice a few examples (emphasis added in each quote):
Given under my hand and the seal of the United States, in the city of New York, the 14th day of August, A. D. 1790, and in the fifteenth year of the Sovereignty and Independence of the United States. By the President: GEORGE WASHINGTON4
In testimony whereof I have caused the seal of the United States to be affixed to these presents, and signed the same with my hand. Done at Philadelphia, the 22nd day of July, A. D. 1797, and of the Independence of the United States the twenty-second. By the President: JOHN ADAMS5
