Our Forefathers' Business

By John W. Howard

As perennial as the season itself, is the annual emergence of the secular left to file lawsuits challenging the presence of Christian symbols, however benign, on public property.  It is, I suppose, a festive tradition for some whose lives are otherwise joyless except to the extent they can snatch seasonal delight from others who enjoy more spiritual richness with which to color their days.

So, as the Christmas season winds down, the good citizens of Flathead Valley, Colorado, and the owners of White Fish Mountain resort find themselves under fire because a small statue of Jesus occupies a 3 foot by 3 foot section of the resort that sits on Forest Service land.  The effigy was installed 50 years ago to honor members of the 10^th Mountain Division of the U.S. Army, becoming a cherished local landmark.   There it has rested, without objection, ever since. 

The complaint seeking its removal was filed by the Freedom from Religion Foundation and the only thing about the controversy with which most can agree is that the complaint is, in the words of Foundation president Laurie Gaylor, a "no-brainer"; words redolent with unintended irony.

It is a wonder such complaints have lately been so successful.  They proceed from a consistent misconstruction of the First Amendment starting in 1947 with a Supreme Court decision, Everson v. Board of Education, in which the Court, for the first time, invoked the words of Thomas Jefferson calling for a "wall of separation" between church and state.  In using that convenient phrase, the Court remarkably overlooked the fact that Jefferson did not participate in the debate over the ratification of the Constitution or, for that matter, over the subsequent adoption of the First Amendment with which the Court rationalizes decisions barring religion from the public square. (He was in France at the time.)  The phrase appears in none of the debates that led to the enactment either of the Constitution or of the First Amendment.  Indeed, the expression was not even used by Jefferson until fourteen years after the amendment was adopted, thus providing no illumination as to intention of those who actually approved it.

The Supreme Court's jurisprudence with respect to government's relationship to religion is chaotic and intellectually rudderless, likely because it is so ungrounded in original intent or in the text on which the Court relies for doctrinal development.  The Court has based its decisions on the First Amendment which reads, in relevant part:

"Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof...." 

The Court's rationale is that the presence of religious displays on government property constitutes, by endorsement, the "establishment of religion" prohibited under the first clause of the First Amendment (the "Establishment Clause").  The Court is apparently untroubled by the fact that those who wrote and adopted the First Amendment believed no such thing.

How do we know that those who wrote the First Amendment did not interpret the Establishment Clause as prohibiting, in the Court's words, "government entanglement with religion"?  We know it because on September 26, 1789, the day after the final language of the First Amendment was adopted by Congress, so taken was the assembly by its success in adopting the Amendment, that it passed a resolution in celebration, calling on the president to "recommend to the people of the United States, a day of public fasting and prayer, to be observed, by acknowledging with grateful hearts, the many signal favors of the Almighty God."

We know it, too, because during Jefferson's administration, Congress -- constituted, as it was, by many in the founding generation -- allowed the Capitol Building to be used for Christian worship services; services regularly attended by President Jefferson himself, apparently unconcerned that doing so surmounted a constitutionally required "wall of separation."

We know it because from the very first Congress onward, proceedings have always opened with a prayer.

And, yet, here we are, more than 200 years on, in continuing argument over whether the First Amendment was intended to prohibit religious symbols on public property; whether public schools can constitutionally begin commencement exercises with a prayer; whether the Establishment Clause prohibits exultant high school football players from "Tebowing."

Some argue that Congress has a right to constitutional interpretation coextensive with that of the Supreme Court.  Whether or not that power exists, Congress has never exercised it and doing so would upset a delicate constitutional balance and an established and stabilizing separation of powers.  What Congress does have the power to do, though, is to amend the Constitution, if it thinks the Court has, through its jurisprudence, guided the ship of state off course.  It also has the power to set the means and extent of judicial redress and jurisdiction.

There is, then, a path of return to original intent; one we should follow.  It is certainly well past time to do so.

The first, easiest and most immediate remedy is for Congress to adopt a statute setting a time limit on actions challenging religious symbols or displays on public land.  Governments enjoy sovereign immunity.  This means that government -- at all levels -- cannot be sued unless it consents and it can set the conditions for doing so.  So, for example, the federal government has consented to its being sued to establish a right in land to which the government lays claim.  But it enacted a statute of limitations for bringing such actions and made it effective on a date earlier than its adoption.  Local governments typically set short time limits -- some as short as ninety days -- in which to make claims, and those attenuated limits are consistently upheld.

Congress should approve such a statute for actions challenging the existence of religious symbols on federal land -- say, one year -- after which time an action would be barred by the passage of time.  This would establish an expiration date on actions like that in Flathead Valley.

The structure of judicial decision making is deliberately slow and the courts' commitment to the doctrine of stare decisis, very strong.  (Stare decisis is that doctrine that obligates courts to respect the decisions of previous tribunals.  Major changes in judicial doctrine do not occur unless demanded by overwhelming historical circumstance.)  The structural impediments of the judicial process provide salutary stability to American society. But they also make constitutional interpretation painfully slow.  It is unlikely that even the present Supreme Court, populated as it is by sound original intent thinkers, will overrule Everson or its progeny and reestablish the intent of the Founders.

So, short term, the attack on religion in the public square by the secular left will go on unless Congress short circuits the process by shortened time limitations and jurisdictional restrictions.  Perhaps an enterprising or ambitious member of Congress could be persuaded to pursue a clarifying constitutional amendment that would provide a more comprehensive solution by more carefully defining the extent of the power of the Establishment Clause.  But that is a long and painful process; one not likely to enjoy sufficient immediacy to provide staying power to its sponsors.

For the time being, legislative reform can get us more than halfway there and vigorous resistance to judicial depredation can chip away at the wall of separation erected, by fiat, sixty-five years ago.  Since that time, Americans have stood helplessly by as courts systematically dismantled cherished traditions.  We can stop them if we will but use the tools the Founders provided.  The time has come for us to be about our forefathers' business.