A Supreme Court Malfunction…
The phrase ‘separation of church & state’ is found nowhere in The Constitution but rather was lifted from a letter of assurance to the Danbury Connecticut Baptists Association by Pres. Thomas Jefferson. It is upon that phrase in that letter that aggressive anti-establishment cultists such as The American Civil Liberties Union (ACLU), The Freedom from Religion Foundation (FRF) and militant atheists base their extreme policies. There is a problem with it.
While certainly among the most brilliant, and probably the most libertarian of the Founders, Thomas Jefferson had no hand in writing The Constitution, being engaged in Paris as United States ambassador to France at the time of The Convention in Philadelphia. Plus, reports are that he was very upset with it when he returned & read it.
The sessions were secret, so the only way he could have had knowledge of the thoughts of the delegates was through the notes of the official secretary, William Jackson, and some of the delegates who also kept notes (not all did) but also possibly through the recollection of some of the delegates, especially from the Virginia delegation, whom he obviously might have known. So can we really say that Jefferson’s statement reflects the intent of Founders the letter? I don’t think so.
I have read numerous discussions on the entire church-state issue including the references to The Barbary Treaty signed on November 4, 1796 by John Adams after being passed unanimously by the Fifth Congress. It is invoked regularly by ACLU, etc. This is the relevant Article 11: “As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen, and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”
Many of the members of that Fifth Congress and Adams himself had attended the Constitutional Convention, strengthening their argument. But there’s a problem with this also.
The Fifth Congress & Adams were the very same congress & president who passed The Alien & Sedition Acts just five months before, in June. That raises very serious questions about their judgment. If you argue the Treaty is a constitutionally accurate description of the religious orientation of the United States, you must accept the argument that those same people must have felt that the Alien & Sedition Acts were constitutionally sound. It wasn’t sound but you can not accept one argument & not the other. The people who voted for them were identical. ACLU, especially, would rail at those laws just as it did over the Patriot Acts. No libertarian can support those laws so The Barbary treaty becomes suspect.
But it gets worse for the anti-establishment cultists who cite court decisions on constitutionality, such as a member of FRF did recently on the Tucker Carlson Show. He mentioned all the court decisions in FRF’s favor. Jefferson was far more prolific and emphatic in his questioning of the validity of courts ruling on the constitutionality of laws. Here are two quotes:
1. “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”
2. “I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public & denounced as not law.”
A simple web search will lead anyone to many more. If anyone cites Jefferson as a source for their version of anti-establimentarianism, it’s inconsistent to rely on the courts, as they so often do, when he so obviously had a very dim view of constitutional review? Again, they can not have it both ways.
I agree with Jefferson. There is no empowerment of the courts to rule on the constitutionality of any law. That is a power that was insisted upon by John Jay, the first Chief Justice of the Supreme Court. Pres. George Washington and the Congress acquiesced. It was an unfortunate precedent and precedents are extremely important in government.
It was increased exponentially by The John Marshall Court in the Marbury vs. Madison that Jefferson found so noxious. Marshall is regarded as a ‘great jurist.’ He was great in the same way Franklin D. Roosevelt and Lyndon B. Johnson were. They vastly increased the power of the federal government, especially the executive far beyond their constitutional limits as did Marshall with the judiciary. Evidently, trampling on The Constitution, at the expense of the states and the people, is a sign of greatness.
The Marbury vs. Madison case is especially galling. Marshall wrote the decision even though he was involved in the case. That was a major conflict of interest and he should have withdrawn from it. Today, it would result in impeachment and removal from the bench, not to mention disbarment.
As far as the power of the courts, aside from Jefferson’s view, there can be no doubt that it is unseemly for any branch of government or any agency to decide its own power, yet that is precisely what the courts have done. So what is the proper interpretation of the non-establishment clause? One thing for certain, it should not be the exclusive province of the courts.
~ About the Author ~
Dr. Roderick T. Beaman is a board certified family osteopathic physician who practices in Jacksonville, Florida. He is a published poet, has composed a blues song and is trying to have his first novel published. It deals with the dangers of big government. He offers anyone who wishes to dignify the trash he writes with a comment, to do so.