National Center for Constitutional Studies

Can God Save the United States Supreme Court?

"The Honorable Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

Every day of every session of the Supreme Court, the Marshal of the Court pronounces these words after the Justices enter the room.

We have documented so many times in these letters and in the many writings over the years by NCCS authors, the absolute conviction by the America’s Founding Fathers, that the founding of this country was God-inspired and God-directed, from Columbus and the Great Migration of early colonists to the establishment of our founding documents and our plan of government as outlined in the United States Constitution. The most precious liberty-preserving principles of limited, divided, and balanced government was a result of God-fearing men seeking His will as to the best way to preserve the precious God-given gift of individual liberty.

When the Court’s Marshal proclaims: “God save the United States and this Honorable Court!", is this not a daily plea that the decisions made by the Court will preserve those Godly principles so well established at our Founding? How then is it possible that decisions of the Court would so violate these founding principles that it puts in serious jeopardy those sacred institutions that the Justices have just asked God to preserve?

Two recent cases are examples of the United States Supreme Court going directly contrary to the God-inspired principles set forth by the Founders in our Constitution. There are many details in these cases, which are interesting to study, but which cannot be outlined in this brief writing. Readers are encouraged to read the Court’s majority and dissenting opinions in these cases which can easily be found at the Supreme Court internet site at: www.supremecourtus.gov

One discovery, which will be made by reading these decisions, is that the majority of the Justices of the Court do not agree with the original intent of the Founders. They seldom quote the Founders and in some cases actually argue that the Founders’ thinking is archaic and that more modern doctrine must apply, hence the heavy use of recent Supreme Court cases as their “authority.” Those justices who dissent from the majority sometimes do so based on the Founders’ original thinking and so cite. It is becoming a lost cause, however, because they are usually in the minority. It will readily be seen that the majority of the present justices do not agree with the Founder’s original plan to preserve individual liberty.

Before commenting on two of these cases, it should be pointed out that under the original thinking of the Founders, neither of these cases would have had any business being argued in the United States Supreme Court. Both of these cases deal with subjects referred to in the Bill of Rights. It was the Founders’ clear intent that the provisions of the Bill of Rights in the U. S. Constitution were restrictions only on what the Federal Government could do or not do. It was not until 1925, in the Gitlow case, that the Supreme Court decided that all levels of government would now come under the restrictions of the federal Bill of Rights, all to be enforced at the federal level. This has allowed nearly every issue to be taken to the federal level and has been the main reason why the federal judiciary has been greatly expanded in order to handle the increased workload. The original thinking of the Founders, as to what kind of cases should be on the federal level, is clearly outlined in Article III of the Constitution and limits federal court jurisdiction to only eleven kinds of cases. All other cases, such as these two, were to be resolved on the local, county, or state level.

Taking Private Property for Public “Purposes”

From the summary attached to the Supreme Court case of Kelo vs. City of New London in Connecticut, the Court held that the city can take private property for “public purposes” and is not limited to the narrow “public use” language. Here is the wording of the headnote:

Though the city could not take petitioners' land simply to confer a private benefit on a particular private party, …the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted "to benefit a particular class of identifiable individuals,"…Moreover, while the city is not planning to open the condemned land--at least not in its entirety--to use by the general public, this "Court long ago rejected any literal requirement that condemned property be put into use for the ... public." Rather, it has embraced the broader and more natural interpretation of public use as "public purpose." Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings.

This is indeed a dangerous doctrine because it opens the way for a city to condemn private property under eminent domain and use it as part of a larger redevelopment project which usually involves private development spurred by tax incentives and other government granted benefits to the private developers. This is a modern doctrine which is sweeping the nation as cities and towns bid for business and other developments to come to their city as a means of attracting more sales tax revenue in order to stave off budget deficits usually caused by poor spending habits.

The concept of taking property for public use is the doctrine of eminent domain. It is referred to in the Fifth Amendment of the federal Bill of Rights and was intended to be very limited in its use. Justice Thomas, in his dissenting opinion explains:

Long ago, William Blackstone wrote that “the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property.” Commentaries on the Laws of England 134–135 (1765). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Defying this understanding, the Court replaces the Public Use Clause with a “Public Purpose” Clause, (or perhaps the “Diverse and Always Evolving Needs of Society” Clause), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.” I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.

Displaying of Ten Commandments in Public

The summary attached to the Supreme Court case of McCreary County vs. ACLU says:

After petitioners, two Kentucky Counties, each posted large, readily visible copies of the Ten Commandments in their courthouses, respondents, the American Civil Liberties Union (ACLU) et al., sued to enjoin the displays on the ground that they violated the First Amendment’s Establishment Clause. The Counties then adopted nearly identical resolutions calling for a more extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code.” The resolutions noted several grounds for taking that position, including the state legislature’s acknowledgment of Christ as the “Prince of Ethics.” The displays around the Commandments were modified to include eight smaller, historical documents containing religious references as their sole common element, e.g., the Declaration of Independence’s “endowed by their Creator” passage. Entering a preliminary injunction, the District Court said that the original display lacked any secular purpose because the Commandments are a distinctly religious document, and that the second version lacked such a purpose because the Counties narrowly tailored their selection of foundational documents to those specifically referring to Christianity. After changing counsel, the Counties revised the exhibits again. The new posting, entitled “The Foundations of American Law and Government Display,” consists of nine framed documents of equal size. One sets out the Commandments explicitly identified as the “King James Version,” quotes them at greater length, and explains that they have profoundly influenced the formation of Western legal thought and this Nation. With the Commandments are framed copies of, e.g., the Star Spangled Banner’s lyrics and the Declaration of Independence, accompanied by statements about their historical and legal significance. On the ACLU’s motion, the District Court included this third display in the injunction despite the Counties’ professed intent to show that the Commandments were part of the foundation of American Law and Government and to educate County citizens as to the documents. The court took proclaiming the Commandments’ foundational value as a religious, rather than secular purpose, and found that the Counties’ asserted educational goals crumbled upon an examination of this litigation’s history. Affirming, the Sixth Circuit stressed that displaying the Commandments bespeaks a religious object unless they are integrated with a secular message. The court saw no integration here because of a lack of a demonstrated analytical or historical connection between the Commandments and the other documents.

Justice Scalia, in his dissenting opinion, writes:

On September 11, 2001, I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

Then, after citing numerous incidents in American history of the reliance upon God and religion by the American people and a recognition that God is the source of our liberty, and that religion and morality are a necessary foundation of our republic—sources that we have cited many times in our NCCS writings—Justice Scalia asks:

With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “‘the First Amendment mandates governmental neutrality between . . . religion and nonreligion,’” and that “manifesting a purpose to favor . . . adherence to religion generally,” is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives, criticizing a Court of Appeals opinion that had held “under God” in the Pledge of Allegiance unconstitutional. Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century.

Today’s opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, the Court acknowledges that the “Establishment Clause doctrine” it purports to be applying “lacks the comfort of categorical absolutes.” What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that “[i]n special instances we have found good reason” to dispense with the principle, but “[n]o such reasons present themselves here.” It does not identify all of those “special instances,” much less identify the “good reason” for their existence.

Incredibly, Justice Stevens, who concurred with the majority opinion against the Kentucky counties, has held that “Reliance on early religious proclamations and statements made by the Founders is . . . problematic because those views were not espoused at the Constitutional Convention in 1787 nor enshrined in the Constitution’s text.” So much for original intent of the Founders.

From these two examples of recent Supreme Court decisions, it may be concluded that we have reached a point where attempts to prove principles of wise and good government by quoting the Founders are useless. Modern, strange, and foreign political doctrines are gaining a strong foothold in our laws. Many of those in political and judicial offices today have no respect for the Founders work. One can quote the Founders all day long only to be completely ignored.

Once again, the warning of Samuel Langdon in 1788 rings loudly in our ears. He declared:

"On the people, therefore, of these United States, it depends whether wise men, or fools, good or bad men, shall govern.... Therefore, I will now lift up my voice and cry aloud to the people....

"From year to year be careful in the choice of your representatives and the higher powers [offices] of government. Fix your eyes upon men of good understanding and known honesty; men of knowledge, improved by experience; men who fear God and hate covetousness; who love truth and righteousness, and sincerely wish for the public welfare.... Let not men openly irreligious and immoral become your legislators.... If the legislative body are corrupt, you will soon have bad men for counselors, corrupt judges, unqualified justices, and officers in every department who will dishonor their stations.... (The Making of America, p. 10)

We certainly have our work to do.

Sincerely,

 

Earl Taylor, Jr.