in 1820, the author of the Declaration of Independence wrote to William C. Jarvis:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. 35
Neither the history of our founding nor the establishment of our government supports the current arrangement in which the judiciary rules supreme. Indeed, Marshall’s ruling in Marbury was nothing short of a counter-revolution. For 200 years, the elected branches have largely acquiesced to the judiciary’s tyranny.
CHAPTER THREE
I N THE C OURT W E T RUST ?
“The Constitution was never meant to prevent people from praying; its declared purpose was to protect their freedom to pray.”
Ronald Reagan 1
T he First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 2 The framers thought that religious faith was important to our system of government. They believed in the protection of religious minorities and sought to avoid the intolerance and threat to religious liberty that might arise from a nationally established church.
But we’ve come a long way since the First Amendment was ratified. As Chief Justice William Rehnquist has written, the Court “bristles with hostility to all things religious in public life.” 3 For the last several decades, the Court, based on a misreading of Thomas Jefferson’s now famous letter to the Danbury Baptists 4 (which we will discuss in due course), has seized on the mistaken idea that the Constitution requires a severe “wall of separation” between church and state.
As a result, the Supreme Court’s cases involving the religion clauses are hopelessly complicated and riddled with inconsistent conclusions. But there is one conclusion we can draw: The Supreme Court has simply abolished your right to the free exercise of your religion in public. And unless the courts are called to account on this, religious freedom in this country is seriously endangered.
Many of the men who founded America came here to escape religious persecution, and when the Constitution’s Bill of Rights was drafted, their goal was to make sure every American maintained his right to practice his faith free from government interference and with no federal favoritism to a particular creed. So the federal government was prohibited from establishing a religion and equally prohibited from interfering with the people’s free expression of their religion.
What does it mean to “establish” a religion? Liberals today believe the government establishes religion if a nativity scene is placed on a town square at Christmas. But the framers had a much different understanding. They had in mind the Church of England: a formal union of political and ecclesiastical authority in the hands of the state.
The First Amendment’s establishment clause—“Congress shall make no law respecting an establishment of religion”—was written to prevent the federal government from establishing a national church. States, however, retained the right to have established churches—and in fact, several of them did. The Puritans (later the Congregationalists), for instance, were the officially established church in Massachusetts. 5
Not only did many colonies collect taxes for maintaining established
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. 35
Neither the history of our founding nor the establishment of our government supports the current arrangement in which the judiciary rules supreme. Indeed, Marshall’s ruling in Marbury was nothing short of a counter-revolution. For 200 years, the elected branches have largely acquiesced to the judiciary’s tyranny.
CHAPTER THREE
I N THE C OURT W E T RUST ?
“The Constitution was never meant to prevent people from praying; its declared purpose was to protect their freedom to pray.”
Ronald Reagan 1
T he First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 2 The framers thought that religious faith was important to our system of government. They believed in the protection of religious minorities and sought to avoid the intolerance and threat to religious liberty that might arise from a nationally established church.
But we’ve come a long way since the First Amendment was ratified. As Chief Justice William Rehnquist has written, the Court “bristles with hostility to all things religious in public life.” 3 For the last several decades, the Court, based on a misreading of Thomas Jefferson’s now famous letter to the Danbury Baptists 4 (which we will discuss in due course), has seized on the mistaken idea that the Constitution requires a severe “wall of separation” between church and state.
As a result, the Supreme Court’s cases involving the religion clauses are hopelessly complicated and riddled with inconsistent conclusions. But there is one conclusion we can draw: The Supreme Court has simply abolished your right to the free exercise of your religion in public. And unless the courts are called to account on this, religious freedom in this country is seriously endangered.
Many of the men who founded America came here to escape religious persecution, and when the Constitution’s Bill of Rights was drafted, their goal was to make sure every American maintained his right to practice his faith free from government interference and with no federal favoritism to a particular creed. So the federal government was prohibited from establishing a religion and equally prohibited from interfering with the people’s free expression of their religion.
What does it mean to “establish” a religion? Liberals today believe the government establishes religion if a nativity scene is placed on a town square at Christmas. But the framers had a much different understanding. They had in mind the Church of England: a formal union of political and ecclesiastical authority in the hands of the state.
The First Amendment’s establishment clause—“Congress shall make no law respecting an establishment of religion”—was written to prevent the federal government from establishing a national church. States, however, retained the right to have established churches—and in fact, several of them did. The Puritans (later the Congregationalists), for instance, were the officially established church in Massachusetts. 5
Not only did many colonies collect taxes for maintaining established
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