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The Reactionary Utopian (classic)
June 17, 2011

It's Power, Not Prayer
A classic by Joseph Sobran
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The U.S. Supreme Court strikes again. By a six-to-three vote it has ruled that student-led pre-game prayers at a public-school football game in Texas violated the First Amendment of the U.S. Constitution.

The school’s policy, the majority said, “involves both perceived and actual endorsement of religion.” Well, so does the First Amendment itself.

The amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” So religion enjoys a special status and protection — from Congress.

Congress had made no law in this case. The First Amendment doesn’t apply. So in asserting its jurisdiction over the local school, the Court itself violated the Constitution by usurping powers not given to the federal government and therefore, under the Tenth Amendment, reserved to the states and the people.

The three dissenting justices argued narrowly that the school hadn’t violated the Court’s previous strictures against public-school prayer. But those strictures, established in 1962, are themselves unconstitutional. They are based on a misreading of the Fourteenth Amendment, which has served as the basis for generations of bad jurisprudence.

According to that misreading, known as the “incorporation doctrine,” the Fourteenth Amendment makes the Bill of Rights binding on the states as well as the federal government. But even if that were true, no “right” is violated when a state endorses religion, so long as the free exercise of religion isn’t prohibited. The Fourteenth Amendment didn’t repeal the Tenth Amendment.

The problem here is judicial review run amok. The whole idea of judicial review was that the judicial branch of the federal government should offer a protection against usurpations by the legislative branch. That is, if Congress exercised a power not delegated to it in the Constitution, citizens could appeal to the courts to have that power declared void.
But the Court eventually (and not until well into the twentieth century) found that by invoking a strained interpretation of the Fourteenth Amendment, it could nullify just about any state law it disliked. Never mind that this interpretation was dubious on both logical and historical grounds: the “activist” judiciary decided that the Constitution was a “living document,” whose meaning could be “adapted to current needs” — which is to say, the current liberal agenda, which includes banishing religion from public life, even in the tiniest towns in Texas.

So instead of being a safeguard against the seizure of new powers by the federal government, judicial review has been perverted into a device for stripping the states and localities of their traditional powers, powers previously sheltered under the Tenth Amendment — powers whose constitutionality had never been questioned.

Thus the federal judiciary, far from preventing the centralization of power in the federal government, has become an aggressive agent of such centralization. The great constitutional design of decentralized powers has been stood on its head. The states now have powers not by constitutional right, but by sufferance of an all-powerful sovereign, the federal government.

This is the grand pattern that has been obscured by all the hair-splitting arguments over whether this or that prayer, slogan, or posting of the Ten Commandments is compatible with the First Amendment. If a local public school chose to have Buddhist prayers, it might be wrong, but it wouldn’t violate the Constitution.

Liberals don’t like the constitutional plan; they regard it as a “reactionary” obstacle to “progressive” (read: limitless) government. So they have adopted a clever strategy of arbitrarily inflating a few pet phrases in the document to nullify the rest, thereby making nonsense of the whole and frustrating its purpose of preventing monopolistic government.

But conservatives — and honest people generally — ought to know better. As James Madison wrote in The Federalist Papers, No. 45, the powers of the federal government are supposed to be “few and defined,” while those of the states are to be “numerous and indefinite.” Today federal powers are potentially infinite: all limits have been removed by the federal government itself, which has taken control of that instrument by which it was supposed to be controlled.

Conservatives who think of the Republican Party as “the lesser evil” should reflect that four members of the errant majority in this case were Republican appointees. So were the three dissenters, all of whom, alas, failed to challenge the majority’s false premise.

The Reactionary Utopian archives

Copyright © 2011 by the Fitzgerald Griffin Foundation. All rights reserved. This column was published originally by Griffin Internet Syndicate on June 20, 2000.

Joe Sobran was an author and a syndicated columnist. See bio and archives of some of his columns.

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