March 9, 2005

Employing his usual irony, Mark Twain advised, "Get your facts first, and then you can distort them as much as you please." What a world of truth exists in Twain's observation about that human frailty called duplicity, which applies especially to Liberal Activists who ignore facts regarding the Constitution and American history to spew distortions.  

For example, we hear much these days about the term "separation of church and state" as a constitutional principle which demands an absolute separation between government and religion. But what are the facts?  

First of all, the words "separation of church and state" do not exist in the Constitution. The First Amendment reads "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Therefore, the factual question is this: "What did the authors of the Constitution mean by "establishment of religion"?  

With respect to that question, Liberal Activists correctly point out that in referring to the First Amendment, Jefferson employed the metaphor "a wall of separation between church & state" in his "Danbury Letter" to Connecticut Baptists. But did Jefferson employ the metaphor to mean an absolute wall of separation? If he did, how do Activists explain his signing into law bills that provided for religious instruction to Indians, including payment of salary to a priest?  

In reality, however, Jefferson's personal position regarding the constitutional relationship between church and state is not to the point. The relevant issue concerns the prevailing opinion of the Framers. And because prevailing opinion lies at the heart of how laws are made in a democracy, Liberal Activists make a glaring error when they imply that any Framer who advocated absolute separation of church and state represented the majority. Yes, the opinion regarding absolute separation existed then as it does now. But it was never the prevailing opinion, not when the Constitution and Bill of Rights were written and ratified, not when they were implemented, and not for the next 150 years of American history.  

If Liberal Activists were correct in their arguments, American history would be devoid of the following facts, which trace their history to 1788: Congress has consistently approved funds for work in the public interest by "faith based institutions," approved religious texts and images to be engraved on and displayed in public buildings, approved the reading of the Bible in public schools, approved the displaying of religious symbols on public property, approved the hiring of chaplains for Congress and the military, approved the word "God" on the nation's currency.  

It is, therefore, undeniable that the majority of those who wrote the Constitution, including the Bill of Rights, and served in the government it established never construed the First Amendment to create an absolute "wall of separation" as envisioned by today's Liberal Activists.  

Nothing better illustrates how much this original intent was engrained in American culture than the proposals of President Grant and others who, motivated by a fear of Catholicism, argued for banning public money to religious schools. How would Grant and people such as Senator James G. Blaine of Maine implement the ban? They proposed a constitutional amendment.  

This proposed amendment tells us that federal officials of the time, in harmony with their predecessors, believed that it was entirely constitutional to allocate public funds to religious schools. It tells us that even amid the anti-Catholic sentiment of the time, an amendment to change past practice failed. And it tells us that permissible interactions between government and religion were matters left to the states; for some states passed their own versions of the Blaine Amendment while others did not. (It is furthermore a fact that states which adopted their own versions of the Blaine Amendment continued to allow Bible reading in public schools.)  

With real American history in mind, we can understand why Judicial Activists    ignore the facts regarding the Establishment Clause and every other part of the Constitution. After all, those who deem themselves empowered to decide what the Constitution ought to say will surely attempt to hide their true intentions. I say "attempt to hide" because an honest person will alter Gertrude Stein to say of every Judicial Activist: "A dictator is a dictator is a dictator."  

How pervasive is this tyranny of Judicial Activism that has poisoned our government and our culture? Consider this: To find the phrase "under God" in the Pledge of Allegiance constitutionally acceptable, even Justice Sandra Day O'Connor resorts to the contortion of arguing that it constitutes an acceptable "ceremonial deism."  

In contrast, Justice Antonin Scalia speaks the hard truth about the dictatorial basis of Judicial Activism in a recent dissent:  

"The Court thus proclaims itself sole arbiter of our Nation's moral standards and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent."  

Of course, Liberals smear Justice Scalia as a reactionary whose opinions the Founders would find abhorrent. But once again the facts tell a different story. And so I imitate Twain's love of irony by asking Liberals and their Judicial Activist friends, all of whom profess the deepest love for Jefferson's ideas, to join me in urging (not forcing) school boards throughout America to mandate that the following passages be included in the syllabus of every American history, civics, and government course from grades seven through twelve so that every student who graduates from an American school will understand Jefferson's position regarding the notion of Judicial Activism:    

"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. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], 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." Thomas Jefferson to William C. Jarvis, 1820.  

"The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." Thomas Jefferson to Spencer Roane, 1821.  

"It has long been my opinion, and I have never shrunk from its expression, . . . that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." Thomas Jefferson to Charles Hammond, 1821.  

I close with one final fact: Justice Scalia's recent "I dissent" echoes Jefferson's nearly two hundred year old "To this I am opposed." But the reality of human nature teaches that facts are mere nuisances to those who would distort them in the name of their personal vision of the "greater good." Thus, the idea of which both Jefferson and Scalia speak  --  that democracy means the rule of law, not the rule of men  --   is one which will forever require defending by Americans with the honesty and courage to oppose the "despotism of an oligarchy." Indeed, the future of constitutional democracy as it was created by the Founders and defended by millions since depends upon such honest and courageous opposition.  

Note: Readers who wish to read more of Jefferson, a great champion of all who despise the notion of any kind of Judicial Activism, should consult the University of Virginia''s Thomas Jefferson Digital Archive, from which the preceding quotations are taken.   

Copyright by A.J. DiCintio

This article was first published by MichNews.com on March 9, 2005, and is reposted here with the kind permission of the author.