Within a twenty-four hour period this week two important court cases, both turning on the First Amendment's Establishment Clause, sent political shockwaves across America. Each case is significant: one terribly wrongheaded, the other a great step forward in correcting a half-century of disastrous jurisprudence. Viewed together they reveal the massive split in America about the meaning of constitutional government, which is the constitutional crisis of our time.
On Wednesday, Judge Alfred Goodwin, writing for a three judge panel of the U.S. 9th Circuit Court of Appeals, ruled in Newdow v. U.S. Congress that the words "under God" in the Pledge of Allegiance are unconstitutional, and therefore so is a public school district policy of reciting the Pledge in class.
The following day, the U.S. Supreme Court upheld an Ohio educational reform program in which parents are given a voucher — tax dollars — to send their children to any school of their choice, public or private (Zelman v. Simmons-Harris). The American Civil Liberties Union and other liberal groups argued that this violated the Establishment Clause because some parents used the vouchers to send their children to private religious schools. But the Supreme Court rightfully pointed out that simply providing parents a choice of schools is in no way an establishment of religion.
The Circuit Court's decision in the Pledge case is diametrically opposed to the decision in the Supreme Court voucher case. Yet, we would miss the most important lesson if we dismiss the Pledge ruling as one instance of a liberal extremist judge attacking a patriotic tradition, or if we view the differences between the Pledge and voucher cases as merely disagreement between some federal judges and justices over the meaning of the First Amendment. Rather, these cases make clear the supremacy of politics in America — that the judiciary and other branches of government, in the end, are a reflection of public opinion.
Seizing on the patriotic sentiment that Americans have for the Pledge, pundits and politicians are decrying the Circuit Court's ruling against it. Even the Democratic controlled U.S. Senate was quick to condemn the Court's opinion and affirm the Pledge. But we must not lose sight of the fact that Judge Goodwin's opinion relied on fifty years of Supreme Court Establishment Clause jurisprudence, beginning with the 1947 Everson v. Board of Education case. The Pledge simply failed to pass the three leading Establishment Clause tests invented by the Supreme Court. Indeed, the Circuit Court's opinion makes perfect sense if one accepts the modern liberal premise that religion and morality are incompatible with free society and ought to be driven out of the public square.
That the Supreme Court and many lower courts have twisted the meaning of the First Amendment and much of the rest of the Constitution in service of their liberalism has caused many conservatives to attack the judiciary. Some have gone so far as to suggest altering the Constitution's separation of powers and allow Congress to overrule court decisions. But the problem is not the judiciary itself. After all, how did these liberal judges and justices come to sit on the bench? They were appointed by Presidents and confirmed by the Senate.
The real crisis of America is that many Americans, Democrats and Republicans, in and out of government office, have come to accept the doctrines of modern liberalism. As our elected bodies have become increasingly liberal, so have our courts. It should come as no surprise that a federal court has struck down the Pledge. In fact, if Americans continue to elect liberals to office we should expect much more of the same.
We need national leaders who will appoint to the courts men and women who believe in and will defend the original principles of the Constitution, the principles of the American Founding. In turn, the American people themselves must understand those principles if they are to elect those kinds of leaders to office. This is what James Madison meant when he noted that in the end, "a dependence on the people is no doubt the primary control on the government."
The fact that the Supreme Court reached the correct decision in the school voucher case is encouraging. If Americans want more of the sensible, constitutional opinions such as that handed out Thursday by the Supreme Court, they should take note of who sits on the Court, and who appointed them, and they should vote to elect more of the same kinds of people to national office. Meanwhile, if sitting judges prefer to substitute their own liberal preferences for the original meaning of the Constitution, the Constitution itself provides a mechanism for that kind of problem: impeachment. Perhaps that would send a shockwave back to the courts, reminding them that Americans take it seriously when their Constitution is trampled.
- The Claremont Institute's Amicus Brief in Zelman vs. Simmons-Harris (pdf)
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