Yesterday’s action by the United States Supreme Court to let stand a lower court ruling barring prayer from public meetings because they were too often “Christian” sparks within anyone a series of fundamental questions that go to the very foundation of the American Nation… and which may well be a significant signal to Christians in other countries.
For the purpose of this blog, I’d like to examine one of those questions; one that I’ve heard people ask for decades when Court rulings are announced, and that is simply this:
How is it possible that a Court can make a law that affects every American and nobody gets to vote on it?
The simple answer to the question is that they can’t. OK attorneys, they also didn’t. They simply re-interpreted the Constitution with the effect that existing Constitutional provisions or Statutes now mean something that they didn’t mean on Monday.
In effect, however, they have made law. A good lawyer can dance around that fact, but if I violate it, I’ll face prosecution just the same.
Under the Constitution that the Court has acted so carefully in this decision to interpret and protect, only the Congress can make laws. This makes perfect sense because the Congress is an elected body; if the people are not happy with the laws they pass, they can be fired at the next election. Thus, we can maintain a government of the people, by the people and for the people. I think we’d all agree that this is a fundamental principle of free government. Sadly, when the Court, which is not elected and which is an appointment for life, chooses to insert itself into the process, that fundamental principle is shaken to its very core.
The U.S. Constitution provides for its own amendment. When it was adopted in 1787, it provided for the institution of slavery. When the time came (thank God) that this repugnant institution was no longer acceptable, the Constitution was amended to abolish and prohibit slavery. The Supreme Court did not just “re-interpret” the Constitution! In fact, in those days such a thing was unthinkable. In our time, “activist” courts have re-interpreted many things, including a ban on school prayer, legalizing abortion on demand, banning the words “under God” from the Pledge and numerous other issues, some good and some bad. The problem with this of course, is that by the Court inserting itself into the legislative process, it has taken the core value of government by “the consent of the governed” out of the picture, and few people have any idea what they can do about it.
During this period of judicial activism, the Congress has been oddly silent, considering that it is the only body with a Constitutional remedy for the problem. You see, the Constitution provides the legal remedy of Impeachment for Judges and Justices who abuse their offices. Since it is the power of Congress that the Courts have encroached upon, you’d think the Congress would be willing to do its duty to put a stop to it, and yet they do not act… and they will not act until they are under sufficient pressure by the voters back home.
Life Reference is a blog about references, not a blog about political action. This is an election year; I hope we will cast informed votes (for a change) and that is all I will say on this point. However, being a blog about references, I will purse the frame of reference that makes all of this possible. The reference that makes all of this possible is this: “The Constitution is a living, breathing document and its meaning changes as society changes.” The Supreme Court decides what that meaning is as society changes. If you think about the living breathing doctrine, it kind of makes sense; the world of the 21st century is certainly different from George Washington’s world! Of course the country’s needs and values will change with the times; shouldn’t the Constitution?
A careful reader will note at once that we’ve already covered that; the Constitution proves for amendments. Anyone from third grade forward will quickly recognize that saying that the First Amendment, which guarantees freedom of religion, of speech, and of the press really means “abortion on demand” is utterly stupid. But that’s what the Court ruled in Roe v. Wade in 1973. If the people want abortion on demand, why not amend the Constitution? Of course the answer is that it could never pass. If we don’t want prayer in public meetings, why not amend the Constitution? Yesterday the Court decided that “Congress shall pass no law respecting the establishment of religion” means there shall be no prayer in public meetings: What Congress cannot do, the Court did because the Constitution lives and breathes!
In short, the frame of reference that we were taught in school of a living breathing Constitution, has the result that the Court can say that the Constitution “means” something quite different from what it says. If this is true, then the Constitution really isn’t worth the paper it’s written on.
Would it surprise you to learn that the living breathing Constitution didn’t start out as a legal principle? Well, it didn’t. It began as a political principle, invented by theorists who were looking for a way to get around the restrictions in the Constitution that stood in the way of creating the truly “Progressive” society. I will, in an upcoming post provide you with the historical citations to prove this statement, and the information you need to look it up for yourself. In the meantime, as men and women of faith, we all might want to prayerfully consider if this frame of reference is one that we should continue to buy into.
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