Tuesday, August 24, 2010

Ignoring Original Intent by David Barton

Yet, amazingly, most of the contemporary rulings currently proceeding from that Amendment involve neither “Congress” nor the “making of a law.” It is truly remarkable that the Court now considers a rabbi to be the equivalent of “Congress,” and that offering an invocation or benediction is now the equivalent of “making a law.” The free exercise of religion is no longer the inalienable right recognized by our Founding Fathers.

In fact, the First Amendment’s guarantee for the free exercise of religion is now often ruled by the Court as the unconstitutional establishment of religion prohibited by that same Amendment. Therefore, because of the current Court’s absurd interpretation, public free exercise of religion is now an unconstitutional establishment of religion, thus causing the First Amendment to violate itself.

Recall that when school prayer was struck down in Engel, the Court acknowledged that it had failed to cite a single precedent. From that point, the use of precedents by the Court has been haphazard and unpredictable. Quite simply, the Court makes its decisions almost solely on the basis of its own current prejudices rather than with any regard to original intent. In fact, when invoking authority for its decisions, it almost exclusively cites only its own recent case law.

To illustrate this, simply count the post 1947 citations the Court uses in its cases. Why use that year? Recall that it was the 1947 Everson case in which the Court began its radical reconstruction of the intent of the First Amendment, introducing not only its religion-hostile separation rhetoric but also extending its jurisdiction over religious issues into States and local communities rather than just the federal government.

Interestingly, despite the Court’s haphazard use of historical precedents, it can invoke them with purpose if so inclined. For example, when the Court upheld the constitutionality of Congressional Chaplains in Marsh v. Chambers, 1983, it relied heavily upon history and original intent. However, such cases are infrequent.

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