APRIL FOOL!

Did you fall for the gag? Did you get taken in? Don't feel bad; you're in good company. These arguments are very persuasive, and thousands, perhaps millions of Americans agree with them. But, as the name implies, the website is a Big Lie, an April Fool! The facts are that the Constitution of the United States, as amended by the First Amendment, does indeed prohibit government support of religion; courts do, in fact, have authority to control the actions of citizens; and the Supreme Court definitely has the authority to declare Acts of Congress unconstitutional! On the other hand the Supreme Court does NOT have the authority to change or amend the Constitution. And it has never even attempted to do so.

The Constitution itself says nothing about support of religion, but it acknowledges religion generally in Article VI when it prohibits religious tests as a qualification for office, and the Christian religion in particular when it mentions "our Lord" in Article VII. The usage reflects the social norms in 1789. "Year of our Lord" was no more an endorsement of religious belief than "God damn!" would be today. The first direct mention of support of religion is indeed made in the First Amendment, which enumerates certain specific freedoms which the framers (perhaps inadvertently) left out of the original document.

The introductory phrase, "Congress shall make no law respecting an establishment of religion" does indeed refer to an establishment of religion, including religions which are already established, or may be later established by The People. The word "establishment" refers to the religions themselves, not everything that might be construed as a religious practice. Thus, if you smoke marijuana, Congress has the right to keep you from doing it. On the other hand, if your established religion requires it, Congress has less latitude. There is evidence that the Framers were casually concerned about Congress creating a national religion, but the First Amendment takes care of that possibly quite nicely.

James Madison wrote the first amendment "religion clauses," and an earlier draft made his intentions clear:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established..."

Thomas Jefferson wrote the famous phrase "separation of church and state" in a letter to the Committee of the Danbury Baptist Association in Connecticut. He was responding to the letter they had written, part of which said:

"...Our Sentiments are uniformly on the side of Religious Liberty -- That Religion is at all times and places a Matter between God and Individuals -- That no man ought to suffer in Name, person or effects on account of his religious Opinions -- That the legitimate Power of civil Government extends no further than to punish the man who works ill to his neighbor ..."

"...Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."

Congress has the authority under the Constitution to assist people to practice their religion as long as it doesn't promote the religion itself. For example, it can relieve religious organizations (religious organizations) from paying taxes on income from contributions, or build roads that help you get to church, but Jefferson made the intent of the First Amendment very clear. It is intended to create "a wall of separation between Church and State."

The fact that "All legislative Powers herein granted shall be vested in a Congress of the United States..." does in fact exclude any other federal authority from having any legislative powers of any kind, and is an example of what today is called "separation of powers." Only Congress can make it illegal to do something, and then only before it is done. But what Congress does is pass laws, written words, that define and explain what behavior is required or prohibited. The courts, including the Supreme Court explain, when required, what the words mean in a situation in which their meaning is in doubt. Sometimes it turns out that what the courts interpret the words to mean is not what Congress meant them to mean. In such cases, Congress can modify, add to, or repeal the law, or pass a new one. The law is intended for broad application, but the interpretation applies to specific applications in specific cases. Once the application in a case is established, common sense would suppose it to apply to similar cases. Whether the cases are similar enough for the same interpretation to apply is sometimes itself subject to interpretation. But interpretation of a law presupposes the existence of a valid existing law to be interpreted. This is why the courts are not involved (at all) in the legislative process. They get involved only after the application of an existing law is disputed by those affected by it. If it turns out that the application or interpretation of the law is not to your liking, you can always call your congressman and ask him to change it.

The enumeration of cases involving Ambassadors, public Ministers, Consuls, admiralty and maritime Jurisdiction, Controversies in which the United States shall be a party, Controversies between two or more states, between Citizens of different States, and between Citizens of the same States claiming Lands under Grants of different States (and other jurisdictions since withdrawn) does not limit the jurisdiction to these cases; it specifically includes them. Similarly, "cases arising under the Constitution, the Laws of the United States, and Treaties..." identifies the Supreme Court as the arbiter of Federal law.

An act of Congress represents a "controversy" with respect to a person or agency subject to its authority if and only if the person or agency argues that the law does not apply (for some reason), not that he didn't violate it. Thus, the Supreme Court doesn't have to hear all cases involving every violator of every federal law, only those appeals from a lower court that finds that the law, as written, applies when the violator claims it does not. The burden of proof is on the violator in such cases. Even in such cases, the Supreme Court does not have to act; it can simply refuse to hear the case and let a lower court ruling stand.

The Constitution gives Congress the authority to regulate the size of the Supreme Court. It can increase it at any time, but cannot reduce the size unless there is a vacancy, since judges hold their offices "during good behavior." Thus, Congress cannot remove a justice to make the Supreme Court smaller. Because it makes laws, Congress can create inferior courts of virtually any size, composition or jurisdiction, but, once such courts are established, it cannot remove judges on them.

It is the case that arises "under" the Constitution, the Laws of the United States, and Treaties..., not the court. However, it is true that the Supreme Court can only apply the language of "the Constitution, the Laws of the United States, and Treaties..." to cases which it hears. It definitely has jurisdiction over or power to change the understanding of the meaning of the language, but not the language itself. Congress creates the language and the courts interpret what it means to cases in which the language is unclear. If Congress doesn't like the result, its only recourse is to change the language. This is, in fact, frequently done.

The fact that the terms "separation of powers," "separation of church and state," or "checks and balances," are not in the Constitution does not suggest that these ideas are not there any more than the fact that the word "English" is missing suggests that the Constitution is written in Latin. Jefferson's "thus building a wall of separation between Church and State" certainly shows that he saw that idea there. A government "of The People, by The People, and for The People," (which is in the Gettysburg Address, not the Constitution) is responsive to The People through their ability, through their elected representatives, to pass laws or to amend the Constitution itself. But if the representatives pass a law that is so vague that its application is in doubt, The People have an instrument that interprets, for all The People, what the law actually means. Then, if The People think the law is inappropriate, they can petition their representatives to change it, initiate one themselves, or have a popular vote. They can even recall representatives who pass vague, confusing, contradictory or obfuscatory laws.

Every State, and, indeed, every citizen, does indeed have the absolute right to require the federal government, and each agent thereof, to clearly justify each and every act, if called upon to do so, by referencing the specific statement in the Constitution which gives it that right. Of course, most of the rights of the Government are given by specific laws, passed by Congress, which has that right under Article I. Any act of the government not specifically authorized by the Constitution (i.e. as authorized by a law passed by Congress) is in fact null, void and without any affect whatever. But clearly, if the Government claims that it has the right to do thus and so, and a state or citizen disputes that claim, there has to be a Resolver of Disputes, whose decision is final and from whom there is no appeal. That is the Supreme Court. If it decides to hear the case, The Supreme Court looks at the law, hears arguments on both sides, and then decides what the law means. Of course, because it's a Supreme Court, it can decide anything it wants, including reversing a previous decision or deciding not to hear the case at all. But it is still a Court, not a legislature, so it cannot change the wording at all, only explain what the written words actually mean.

A case in point: In "Kelo versus New London" (Connecticut), Suzette Kelo's home was condemned to make way for a baseball stadium and other private buildings that would create new jobs and tax revenue. She, and other property-rights activists and advocates for elderly and low-income urban residents, argued that forcibly shifting land from one private owner to another, even with fair compensation, violates the Fifth Amendment to the Constitution, which prohibits the taking of property by government except for "public use."

Justice John Paul Stevens, writing for the majority, cited cases in which the court has interpreted "public use" to include not only such traditional projects as bridges or highways but also slum clearance and land redistribution. He concluded that a "public purpose" such as creating jobs in a depressed city can also satisfy the Fifth Amendment.. Stevens added that "promoting economic development is a traditional and long accepted function of government." Kelo and others, including the four Supreme Court justices who did not agree with Justice Stevens, disagreed. But the Court, as a body, has spoken, and the interpretation that "public use" as written in the Constitution, includes private development encouraged by the Government is the rule in any similar case.

Note that the Supreme Court did not change a single word of the Constitution. People who claim that the "Supreme Court rewrote the Constitution" are at best mistaken and at worst outright liars.

"Kelo" was seen by many as essentially granting to the state the right to take private property for any purpose it chose. But that was not the issue involved (and, in fact, has yet to be decided). The matter at issue is whether the Constitution prohibits the states from forcibly buying private property from one owner and giving or selling it to another private owner for a legitimate public purpose. The Supreme Court ruled that it does not. The states themselves can limit their authority to do that through their own legislatures simply by passing state laws. "Kelo" simply says that the limitation does not reside in the Constitution of the United States.

Since the whole purpose of the Supreme Court is to interpret what is written by Congress and in the Constitution itself, the Founding Fathers left to the Court itself to interpret the Constitution regarding its own functions. Since the U.S. Supreme Court first convened in 1790, it has rendered thousands of opinions on everything from the powers of government to civil rights and freedom of the press. The Supreme Court has evolved out of these decisions into what it is today.

"The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function."

	- Louis D. Brandeis, Associate Justice of the U.S. Supreme Court, Burnet v. Coronado Oil and Gas Co., 1932

Often called the most important decision in the history of the Supreme Court, Marbury v. Madison established the principle of judicial review and the power of the Court to determine the constitutionality of legislative and executive acts.

In 1800, Thomas Jefferson, a Democratic-Republican, defeated the incumbent president, John Adams, a Federalist. In the closing days of Adams's administration, the Federalist-dominated Congress created a number of judicial positions, including 42 justices of the peace for the District of Columbia. The Senate confirmed the appointments, the President signed them, and it was the responsibility of the Secretary of State, James Madison, to seal the commissions and deliver them. In the rush of last-minute activities, the outgoing Secretary of State failed to deliver commissions to four justices of the peace, including one William Marbury.

Madison refused to deliver the commissions because the new administration was angry that the Federalists had tried to entrench members of their party in the judiciary. Marbury brought suit in the Supreme Court to order Madison to deliver his commission under Section 13 of the Judiciary Act, passed by Congress, to grant the Supreme Court original jurisdiction in such cases.

If the Court sided with Marbury, Madison might still have refused to deliver the commission, and the Court had no way to enforce its order against the Commander in Chief of the armed forces. If the Court ruled against Marbury, it risked surrendering judicial power to the Jeffersonians by allowing them to deny Marbury the office to which he was legally entitled. Although finding for Marbury, Chief Justice John Marshall masterfully resolved this dilemma by ruling that the Supreme Court did not have authority to act in this case. Marshall stated that Section 13 of the Judiciary Act was unconstitutional because the Constitution granted the Supreme Court only appellate jurisdiction. By ruling that it had no original jurisdiction, notwithstanding the Judiciary Act, the Court (1) declared itself to be the arbiter of the Constitution, (2) used this authority to declare an Act of Congress unconstitutional and therefore null and void, (3) established the precedent that the Court could refuse to resolve a case, and (4) did so in a manner which neither Congress nor the President was able to reverse. Marbury v. Madison is considered the case which defines the Supreme Court as a coequal branch of Government with Congress and the Presidency.

The second notable mention of the phrase "separation of church and state" came in the 1947 Supreme Court case, Everson v. Board of Education. The plaintiff argued that the New Jersey law that reimbursed parents for the cost of bus transportation -- to public and religious schools -- violated the Establishment Clause of the First Amendment. The Supreme Court said that it did not. In effect, the Court ruled that the process of riding the bus to school, in itself, is not a religious act. The government, in such cases, assists the practice of religion by making it possible for children to exercise their religious freedom to ride the bus to a religious school. But it doesn't promote the religion itself. In the majority opinion, Justice Black used language to set the stage for such rulings in the future. He wrote that the Establishment Clause created a "complete separation between the state and religion," thus affirming the concept expressed in Jefferson's letter written 10 years after the ratification of the First Amendment. Black's interpretation of Jefferson's words is entirely consistent with the text of the First Amendment, and set a precedent for future rulings.

Justice Black's opinion also outlined a number of principles (broken into sections for clarification) which have evolved into the Establishment Clause legal precedent: The "establishment of religion" clause means at least this:

(1) Neither a state or a government can set up a church.
(2) Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
(3) Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
(4) No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
(5) No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt, to teach or practice religion.
(6) Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.

Lemon v. Kurtzman (1971). On June 28th, 1971, the Court unanimously (7 to 0) determined that the direct government assistance to religious schools was unconstitutional. This decision created the three-part "Lemon test" for determining violations of the Establishment Clause. To avoid a violation, an activity must meet the following criteria:
(1) have a secular purpose;
(2) not advance or inhibit religion (in principle or primary effect);
(3) not foster excessive entanglement between the government and religion.

Stone v. Graham (1980). The Court struck down a Kentucky law requiring public schools to post the Ten Commandments in each public school classroom in the state. The court ruled that even if the schools hope for the Ten Commandments to be viewed through a secular framework, their historical and religious basis makes them irrefutably religious.

Lynch v. Donnelly (1983) Petitioners brought a suit against the city of Pawtucket, Rhode Island claiming that a display owned and operated by the government and including religious scenes violated the Establishment Clause because it clearly sponsored religion. The Court ruled 5 to 4 that the city could continue to display a nativity scene as part of its Christmas display. The city's inclusion of the creche in its Christmas display had a legitimate secular purpose in recognizing "the historical origins of this traditional event long [celebrated] as a National Holiday," and that its primary effect was not to advance religion.

In McCreary v. ACLU of Kentucky the Court ruled that posted copies of the Ten Commandments had an impermissible purpose of endorsing religion. In Van Orden v. Perry, the Court ruled that the inclusion of the Ten Commandments in a patriotic monument that had no religious purpose was permissible under the Constitution.

Observe the symbol of the United States, the bald eagles. They neither sow nor reap nor gather into barns, and yet their Heavenly Father feeds them. They do not go to church; they do not read the Bible; they do not erect monuments of the Ten Commandments. They simply live freely, pursuing happiness, as do we all.

"Our Founders conceived of a Republic receptive to voluntary religious expression, and provided for the possibility of judicial intervention when government action threatens or impedes such expression. Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices... Tying secular and religious authority together poses risks to both."

"It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this Nation would eventually provide a home... We owe our First Amendment to a generation with a profound commitment to religion and a profound commitment to religious liberty -visionaries who held their faith 'with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.'"

	- Sandra Day O'Connor, Associate Justice of the U.S. Supreme Court, McCreary v. ACLU of Kentucky, 2004

And that's the Truth!

John Lindorfer