Federal Court Shows Establishment Clause Ignorance

On Thursday a federal judge in Wisconsin  ruled the National Day of Prayer unconstitutional, claiming it to be a call for religious action that violates our nation's supreme law. Needless to say, U.S. District Judge Barbara Crabb could not be farther off the mark in her ruling.

According the the Associated Press, Judge Crabb "wrote that the government can no more enact laws supporting a day of prayer than it can encourage citizens to fast during Ramadan, attend a synagogue or practice magic."

Actually, the government could do all of those things and still fall within the pale of the Constitution. Regretfully, the judge's ignorance of the Constitution's meaning is glaring. The First Amendment to the US Constitution merely forbids laws respecting the establishment of religion--an understandable concern for a nation founded as a refuge for religious liberty. Anything that falls short of an establishment of a national church/religion is not the least bit unconstitutional. Of course, the Court has over the years attempted to set up arbitrary barriers around Church-State interactions, but whether or not these barriers are good policy is beside the point. It is constitutionality, not the effects of policy, which should be the Court's concern.

I think it is personally bad policy for the event to happen, but that does not mean I can call such unconstitutional. I believe the National Day of Prayer is a superficial act which does nothing to further the Gospel or health of the Christian faith. To me it is an event that has turned into one big DC charade, therefore, I could care less if it was done away with. But, when it faces cancellation based on false rulings by a federal court, I will be quick to call foul.

Whether or not one agrees with prayer in a political setting is of no concern in the matter. The simple question is "What does the Constitution mean, and is this particular act a violation of such?" If properly approached, a ruling contrary to the Wisconsin court should be the result.

I hold to the classical evangelical position that goes beyond a forbidding of establishment and calls for a lack of mingling the business of church and state, believing that such causes harm to both and a compromise to the Gospel. But even if I think something is in poor taste, I would never be as foolish as to call such unconstitutional.The court system would be wise to follow suit.

Almost as bad as the misguided ruling of the court is the cry of many conservatives.

The American Center for Law and Justice, which represented 31 members of Congress who joined the federal government as defendants, called Crabb's ruling flawed and promised to appeal.

"It is unfortunate that this court failed to understand that a day set aside for prayer for the country represents a time-honored tradition that embraces the First Amendment, not violates it," ACLJ Chief Counsel Jay Sekulow said in a statement.

The Alliance Defense Fund, an Arizona-based group of Christian lawyers, issued a statement saying Crabb's ruling undermines American tradition dating back to the nation's birth.

Completely missing the mark, these opponents of the ruling point to tradition for support. Tradition is not the final word; the Constitution is. The document's actual meaning should be their source of strength.

What we see in this case is failure on both sides to respect the Constitution. The court appeals to a need for a "significant secular purpose" to constitute prayer. (What could that even be?!?!) And the defendants point to tradition. I would merely like to see the document given the final say; apparently that is too much to ask.

PS: In case you were wondering, the Obama administration is not backing down and intends to go ahead with the National Day of Prayer.

A Reflection on J. Stevens and the Future

On Friday news broke that Justice John Paul Stevens, leader of the Supreme Court's liberal bloc, is retiring. Despite President Obama's claim, Stevens has been far from an "impartial guardian of the law."

The CATO Instiutite rightly notes:

While a friend of liberty in certain limited circumstances, he ultimately hangs his hat on supporting government action over the rights of individuals in contexts ranging from property rights (Kelo v. New London) to the Second Amendment (D.C. v. Heller) to free speech (Citizens United and Texas v. Johnson, the flag-burning case) to executive agency power (Chevron).  And even on those issues where friends of liberty can disagree in good faith as a matter of policy, such as abortion and the death penalty, Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.

I could not agree more with this assessment. Justice Stevens, consistently a friend to liberal policy, did much harm to the Constitution during his time on the bench--the second longest in the Court's history. Even though I most often, though not always, found myself an opponent of Steven's jurisprudence, he was a good natured fellow. But this good personal constitution is no excuse for his neglect of the US Constitution.

Of course, President Obama's intent will be to fill the vacancy with another reliable liberal vote. So not much should change in the Court's ideological composition. Hopefully, Stevens' replacement will not forsake the sound positions held by his predecessor. While Stevens may have been wrong 97% of the time, that is much better than 100%. May his successor not fail in the other 3 percent!

One valuable thing each modern judicial nomination process brings is a reevaluation of proper jurisprudence. Questions will be asked to determine judicial philosophy, and the proper guiding philosophy will be considered.

As an originalist I believe in a strict adherence to the Constitution, interpreted according to its original meaning. I could care less about intent, outcome, or pragmatism. But I realize that no one who President Obama nominates will share my Jeffersonian views. So what is the job of the Senate in this nomination process?

As legislators who have sworn to defend the Constitution, each senator has a responsibility to oppose any candidate who does not adhere strictly to the Constitution--regardless of their party allegiance. Of course, most will neglect this duty, and those who do attempt to defeat poor nominations may ultimately prove unsuccessful. But bad appointments still should be opposed, and a fight should still be put up. Likewise, if the president nominates a good candidate, both parties should offer support.

Regardless of who is appointed, the next justice will have a major impact on our nation as we continue forward. Whether the result will be good or bad, the nomination process will truly show that it matter who governs and elections have consequences.

"A Supreme Court with a Mission is a Tyranny."

Here is a short statement delivered by European Parliament Member Daniel Hannan on sex equality and judicial activism. Top-notch stuff. Give it a listen and pay close attention to his conclusion.