Fob James' Letter to Ira DeMent

What follows is former Alabama Governor Fob James' letter to Judge Ira DeMent, written on June 27 of 1997. It does a fabulous job of analyzing separation of church and state extremism from both an historical and a legal perspective. The bullets below allow readers to navigate through the letter with a little more ease.

 

Introduction
The Framework Prior to the Constitution
The Constitutional Convention
The First Amendment's "Religion" Clause
Proposals to Amend the Constitution to Make the Religion Clause Applicable to the States
The Prayer and Bible Reading Decisions of 1962-1963
Due Process of Law
The Oath of Office
Wildcards and Metaphors
Bring Down the Wall
Restore the Foundation

 

BY HAND-DELIVERY

Honorable Ira DeMent
United States District Judge
Post Office Box 2149
Montgomery, Alabama 36102

RE: Chandler v. James, et al.; Civil Action No. 96-D-169-N

Dear Judge DeMent:

Pursuant to Your Order I have received a courtesy copy of your Memorandum Opinion and Order in this case. Thank-you for sending it to me. I must confess that I was not previously aware of the specific details of this case, or of the legal arguments which had been made in it on my behalf.

I have now read Your Opinion, though, and I see in it the integrity of motive which has long marked your service to our state and Nation, as well as your concern for religious freedom. It is out of respect for Your Honor, and out of confidence in the Court's integrity, that I write this letter.

In the case at bar, I share Your Honor's discomfort with the Alabama statute at issue, which I have now read and which purports to allow "non-sectarian, non-proselytizing student-initiated voluntary prayer". The statute seems to me to be anemic and beggarly. Prayer, if it is really prayer, is communication with God, not man, and is neither "sectarian" nor "proselytizing". Infra at 29. I therefore believe that the statute needs to be repealed, but also believe, for reasons which will be shown, that the Constitution vests that responsibility in the State of Alabama. In addition, I have been most concerned to hear that this case also involves prayers by teachers and coaches as well as students, all of whose prayers I have the utmost desire to protect.

One thing in particular struck me about Your Honor's Memorandum Opinion and Order. On page 3 in a footnote Your Honor wrote:

The Court is keenly aware that the First Amendment directs that "Congress shall make no law..." U.S. Const. amend. I (emphasis added). However, the Supreme Court has held that the guarantees of the First Amendment, through the Fourteenth Amendment, are equally applicable as against the States. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). (my emphasis added)
 

Although your Honor noted it, the jurisdictional issue is most often overlooked.

The question I will put to Your Honor in the end, as I must also put to myself, since we both have sworn pursuant to Article VI to uphold "this Constitution" of the United States, is how we as constitutional officers can obey United States Supreme Court decisions which are openly based on these propositions antithetical to our oaths of office:

With these matters in mind, let me address what Your Honor described as the "landscape" of First Amendment "jurisprudence" on church-state issues.


1 Brennan, William, Speech of November 21, 1982, at 18-19, attached hereto as Appendix I.

2 Id. at 5.

3 Id. at 18.

4 Id. at 16.

5 Id. at 17.

6 Douglas, William O., quoted in Forrester, W. "Are We Ready For Truth In Judging?" American Bar Association .lournal 63 (1977): 1212.

 


Your Honor's awareness, already "keen", that the First Amendment operates as a restriction on federal power, may become more keen still as the Court realizes how the Supreme Court, in all of its school prayer and other church-state cases, has so assiduously avoided the First Amendment's legislative history. That legislative history could be said to begin with the Articles of Confederation.

The Framework Prior to the Constitution

With the Articles of Confederation, signed by each of the 13 States between July 9, 1778, and March 1, 1781, the States entered "into a firm league of friendship" and delegated some of their powers to the United States in Congress assembled, reserving to themselves every power not so delegated.

The power to legislate with respect to religion was not delegated to Congress under the Articles of Confederation. That power remained with the respective States, which had varying church-state frameworks, including several with officially established churches.

Thus, in May of 1784, after a representative of the Roman Catholic Church had requested

permission from Congress to appoint a bishop in America, Congress responded that the request, "being purely spiritual...is without the jurisdiction and powers of Congress, who have no authority to permit or refuse it, these powers being reserved to the several States individually".(7)

The Constitutional Convention(8)

At the Federal Convention of 1787 delegates of 12 of the original 13 States drafted the U.S. Constitution which was later ratified by the highest authority of each of the 13 States, namely by a State ratifying convention elected by the people of each state. By this Constitution the people of the United States created a government of the United States to which they delegated certain governmental powers similar to those which the people had previously delegated to their State governments under State Constitutions. These federal powers are enumerated in the Constitution. In order to carry into execution these enumerated powers, Art. I, Sec. 8, Cl. 18 authorized Congress to make all laws which shall be "necessary and proper" for this purpose. These are the only "implied" or "inherent" powers possible in the Constitution.


7 Stokes and Pfeffer, Church and State in the United States (Harper and Row 1950, 1964), at 86.

8 I want to acknowledge my indebtedness to the late Hermine Herta Meyer, a former justice department lawyer who in my first term illuminated for me the jurisdictional nature of the U.S. Constitution, whose work I liberally make use of herein.

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Outside of the U.S. Constitution, no federal power can legitimately exist. See Reid v. Covert, 354 U.S. 1 (1957), wherein the Supreme Court said:

The United States is entirely a creature of the Constitution. Its power and authority have no other source It can only act in accordance with all the limitations imposed by the Constitution. Id. at 5-6. 
In The Federalist Papers, No. 45 (pp. 292-293 Mentor Book ed.), Madison explained that the powers delegated to the federal government by the proposed Constitution were few and defined, and were mostly over external matters, while the powers which were to remain in the State governments were numerous and indefinite. "The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the state".

The powers of government not delegated by the Constitution to the United States have remained in the States, where the people themselves are better able to hold their state and local officials accountable for their actions. The only Constitutional way to take any of these powers reserved to the people of each State is through a Constitutional amendment. The Supreme Court itself has admitted this in Ullmann v. United States, 350 U.S. 422, 428 (1958), where it said:

Nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process. 
The only legal way to amend the Constitution is that provided for by Art. V thereof. It is entrusted exclusively to persons elected by, and responsible to, the people and requires the consent of two-thirds of both Houses of Congress and of the Legislatures or Conventions of three-fourths of the States. The Constitution gives no power of amendment to the judiciary.

Moreover, the U.S. Constitution enumerates no power in the federal government to legislate with respect to "religion". This was evident, for example, in the Virginia Ratifying Convention when Patrick Henry objected that the proposed Constitution did not expressly protect religion. James Madison assured the Convention in response that:

There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it, would be a most flagrant usurpation. 5 The Writings of James Madison 176 (G. Hunt, ed. 1904). [(emphasis added) (hereinafter bold-type or underlined quotations automatically indicate added emphasis) Not indicated throughout this document at present.
Therefore, the authority of the people of each State to make their own laws respecting religion had remained unaffected by the new Constitution. But the people wanted an explicit Constitutional Amendment to make sure that no one would ever forget it.

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The First Amendment's "Religion" Clause

The First Amendment was the idea of some of the state conventions which had ratified the new Constitution. The overriding purpose of its religion clause was to make sure that authority to make church-state policy in America would be diffused among 13 or more states and not concentrated in the central government. This is evident in the debates of the First Congress.

The first version of the religion clause which ultimately passed was introduced in the House by Madison on June 8, 1789, as follows:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed". (1 Annals of Cong. 434).
The amendment was referred to a committee of eleven which reported back the following version:
"no religion shall be established by law, nor shall the equal rights of conscience be infringed". (Id. at 729).
It was considered by the House on August 15, 1789, acting as a Committee of the Whole. Mr. Sylvester objected to it:
"He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to have a tendency to abolish religion altogether". (Id.)
Mr. Gerry said:
"it would read better if it was, that no religious doctrine shall be established by law". (Id. at 730).
Mr. Sherman thought the amendment unnecessary because Congress had no authority whatever delegated to it by the Constitution to make "religious establishments". Id.

Madison then said:

he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he
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did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as mi ht infrin e the ri hts of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit". (Id. 730)
Mr. Huntington feared, "that the words might be taken in such latitude as to be extremely hurtful to the cause of religion". For instance, "a support of ministers or building of places of worship might be construed into a religious establishment". "He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all". (Id. 730-731).

Madison then suggested that the word "national" be inserted before the word " religion":

"He believed that the people feared one sect might obtain a pre- eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word "national" was introduced, it would point the amendment directly to the object it was intended to prevent". (Id. 731).
But there was objection to the word "national". The reason is explained by what happened at the Federal Convention of 1787. The so-called Virginia Plan, on the basis of which the Convention began its work, had proposed to establish a "national government" with a National Legislature which could "negative" all state laws which it believed contravened the Articles of Union. (1 Farrand 20- 23)(9) Robert Yates, Chief Justice of New York, who was a participant in the Federal Convention wrote that Edmund Randolph, the sponsor of the Virginia Plan, had been candid that it was "not intended for a federal government -- - he meant a strong consolidated union, in which the idea of states should be nearly annihilated." (Id. at 24.)

When the delegates of some States perceived the implications of the Virginia Plan, Mr. Patterson of New Jersey submitted to the Convention the so-called New Jersey Plan which proposed to delegate to "the United States in Congress" additional enumerated powers, and under which the States would retain full power to make laws in all matters not delegated to "the United States in Congress", without any control by any central authority. (1 Farrand 242-245). While the new Constitution did create a central government, it left, however, to the States a residual sovereignty free from any federal control. In order to allay the concerns of people anxious to ensure that the new


9 Farrand, Max, The Records of the Federal Convention of 1787, Vol. 1, Yale University (1933 ed., reprinted 1966).

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government was to be a "federal" and not a "national" government, the word "national" was removed from the final Constitutional plan and replaced with "the United States". (Id. at 334, 335)

Thus what Madison had described as the fear that "Congress....might infringe the rights of conscience, and establish a national religion", supra at 6, was expressed, without the use of the word "national", in both the House's and Senate's final versions of the amendment, which were passed without further recorded debate. The final House version read, "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." (1 Annals of Congress 766) The final Senate version read, "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." See Wallace v. Jaffree,472 U.S. 38, 96-97 (1985) (Rehnquist, C.J. dissenting).

A conference committee then met, Wallace, id., at 97, and presented this version:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
In the late 18th Century, the term "establishment of religion" was well known as an equivalent expression for "national church". This is seen in the contemporaneous legal commentaries of William Blackstone, who used such terms as "national church", "ecclesiastical establishment", "national religion", "national establishment", and "established church" interchangeably.(10) An American edition of Blackstone was published in 1771-1772, attained immense American popularity from 1776 to 1787, and remained the core of a lawyer's professional education for over a century. See Solberg, The Federal Convention And The Formation Of The Union (Liberal Arts Press, Inc. 1958, at XLV).

The conference committee's version of the Amendment was adopted by the House on September 24, 1789, and by the Senate on September 25, 1789. (1 Annals of Congress 913-914). At that time, upon sending it to the States for proposed ratification, Congress called on President Washington to proclaim a "day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God". (1 Annals of Congress 949) This


10 Speaking of England's established church, Blackstone wrote...."I would not be understood to derogate from the just rights of the national church. I only mean to illustrate the excellence of our present establishment......Under these restrictions, it seems necessary for the support of the national religion, that the officers of the church should have power to censure heretics, but not to exterminate them......Yet certainly our ancestors were mistaken in their plans of compulsion and intolerance. The sin of schism, as such, is by no means the object of temporal coercion and punishment. If .... men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it..... [But the civil magistrate] is bound to protect the established church....for, if every sect were to be indulged in a free communion of civil employments, the idea of a national establishment would at once be destroyed, and the episcopal church would no longer be the church of England...". 4 William Blackstone, Commentaries (1769), at 49, 52-53.

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Washington did, urging all "...to unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech him to pardon our national and other transgressions..."(11)

Proposals To Amend The Constitution To Make The Religion Clause Applicable To The States

Having explicitly foreclosed federal authority to make church-state policy for the whole nation by the First Amendment, Congress and the ratifying States also undertook to prevent future unintended expansions of federal power by implication. They added the Ninth Amendment to assure that the particular exceptions to federal power in Amendments 1-8 would not themselves be used as an argument that powers not so excepted were given to Congress. (1 Annals of Congress 439). It read:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people".
As an even further precaution, they added the Tenth Amendment, which like the previous nine, were meant to assure the nation that there was no surreptitious grant of federal power in the constitutional text:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In submitting the first ten proposed amendments to the thirteen States on September 25, 1789, Congress wrote in preamble: "The conventions of a number of states having at the time of their adopting the Constitution expressed a desire, in order to prevent misconstruction or abuse of its powers, that proper declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the government will best insure the beneficent ends of its creation --" (1 U.S. Stat. At Large, p. 97)

Thus the "PEOPLE of the United States" who "ordain[ed] and establish[ed] this CONSTITUTION", had the right to expect that any change in the First Amendment (or any other constitutional provision) would not be made by "surreptitiousness", or by "deceit", but only by a Constitutional Amendment pursuant to Article V of the Constitution, that is, with the consent of two-thirds of Congress and at least three-fourths of the States.

Such a constitutional change to make the First Amendment's religion clause applicable to the States was attempted in 1875. In response to a recommendation of President Grant in his annual


11 Richardson, J., Messages and Papers of the Presidents, Vol. I, 1789-1897, at p. 64 (1897).

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message (4 Cong. Rec. 175), the 44th Congress considered several resolutions for the adoption of such an amendment,(12) including one introduced by James G. Blaine which, as passed by the House, provided that "No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof...... and that no money raised.... for the support of public schools....shall ever be under the control of any religious sect or denomination..." (4 Cong. Rec. 5580 (1876)). The proposal, after amendment in the Senate adding more restrictions on the states, failed to pass the Senate (4 Cong. Rec. 5595).

This happened in the 44th Congress, only seven years after the ratification of the Fourteenth Amendment. During extensive debates no one in the 44th Congress even suggested, as the Supreme Court would later contend, infra at 11, that the Fourteenth Amendment had made the First Amendment's religion clause "applicable to the States". These debates from the Congressional Record are attached to this letter as Appendix II, and contain the following:

Senator Frelinghuysen of New Jersey, an amendment proponent, said:

There is, sir, no room for two opinions on the two propositions that religion and conscience should be free, and that the people should not be taxed for sectarian purposes....and nothing could be clearer than that these fundamental rights should be secured in [the] Constitution.... Thus the article as amended by the Senate prohibits the States, for the first time, from the establishment of religion, from prohibiting its free exercise, and from making any religious test a qualification to office. (4 Cong. Record 5261 (1876))
Senator Kernan of New York, an amendment opponent, said:
"No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State." That provision has my most hearty commendation; but for all that it is not necessary to put it in the Federal Constitution. That matter was discussed in the convention that made the Constitution, and it was not thought wise to put in any such provision, but to leave it to the States..... There is a provision in the constitution of [New Hampshire] that no one can be elected governor unless he is of the Protestant religion, and so as to members of the Legislature of the State. But I am willing to trust that to the people of that State, believing that very soon in this age of ours and in this country of ours

12 See Ames, The Proposed Amendments to the Constitution of the United States during the First Century of its History, H. R. Doc. No. 353, Pt. 2, 54th Cong., 2d Sess., pp. 277-78.

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they will adopt the liberal provisions which are found in the constitutions of the other States on the subject of the sacred rights of conscience. (4 Cong. Record 5581)
Senator Morton of Indiana, a proponent, said:
What guarantee have we in the States? A majority of the people of a State can change the Constitution of that State and according to the doctrines we have heard here to-night, doctrines I think that will startle this nation, we are told that the States must be left free, if they desire to do so, to establish a church, to establish denominational schools, and maintain them at public expense.... What is the reason the States cannot do it? He will say that in most of the constitutions there are provisions preventing them; but my friend knows very well that the majority who made those constitutions can unmake them. (4 Cong. Record 5591-5592)
Senator Bogy of Missouri, an opponent, said:
And among the most sacred of these rights, lying at the very foundation of all liberty, was that of freedom of conscience and the right to worship God according to the dictates of each one's individual conviction. That was left to the States, and was not placed in the hands or under the control of the Federal Government. The attempt here to exercise this power takes from the States that right and gives it to the Federal Government.... For one hundred years the States have existed; and for all this time they have had the power of legislation on this subject; and who can rise in this Chamber and say within that long period of time any one of them has in any way whatsoever attempted in the most distant manner to trample upon the rights of conscience? Mr. President, the safety of this Government is in the denial of all such powers to the Federal Government. Keep it where the fathers placed it, in the States, and maintain it there..... (4 Cong. Record 5591)
If the adoption of the Fourteenth Amendment in 1868 had made the First Amendment's religion clause applicable to the States, no one in Congress in 1876 knew about it.

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The Prayer and Bible Reading Decisions of 1962-1963

While President of the United States, George Washington said:(13)

The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all......
In 1962-1963, without an "explicit and authentic act of the whole people" (such as the failed Blaine Amendment, supra) applying the First Amendment's religion clause to the States, the U.S. Supreme Court nevertheless found an implicit federal judicial power to do it themselves. The Court held that the "establishment clause" of the First Amendment had been made "applicable" to the States by the Fourteenth Amendment, and that public prayer and bible reading in the schools of the American States "violated" the "establishment" clause.

In Engel v Vitale, 370 U. S. 421 (1962), Justice Black wrote the Court's opinion, which prohibited public prayer in the schools of New York. On 14 printed pages, he gave a historical review of the quarrels over the Book of Common Prayer in England and of the history of the early establishment and later rejection of official churches in the American States. But one thing he did not do was to look into the legal history of the "establishment" clause of the First Amendment in order to find out its intended meaning, for if he had, he would have found that its overriding purpose was to prevent a concentration of power in a central authority which might "establish" a national church. Also, Justice Black wrote that the provisions of the Fourteenth Amendment had "reinforced" the First Amendment's religion clause so as to make it applicable to the States, id. at 430, but he did not tell us how such a "reinforcement" had occurred.

In habington School District v. Schempp, 374 U. S. 203 (1963), Justice Clark wrote the Court's opinion, which prohibited public prayer and bible reading in the schools of Pennsylvania. It is 22 printed pages long. But he too did not base it on the constitutional history and meaning of the First Amendment's religion clause. And in explanation of how the Fourteenth Amendment had made that clause applicable to the States, he referred to other cases where the Supreme Court had ruled that "the liberties guaranteed by the First Amendment" are "embraced" by the "fundamental concept of liberty" implicitly found in the due process clause of the Fourteenth Amendment. 374 U. S. at 215-216, citing at n. 8. Gitlow v New York, 268 U.S. 652, 666 (1925).

Thus it was through the due process clause, almost 100 years after it adoption in the Fourteenth Amendment, that the Court suddenly found implicit power to remove public prayer and


13 His farewell address is set out in more detail, infra at 17-19.

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bible reading from the schools of America, although the "people of the United States" had never approved an "authentic and explicit" constitutional amendment giving the Justices that power.

Due Process Of Law

After the Civil War, Congress proposed the Fourteenth Amendment, which was then ratified by the States.

The language of the Fourteenth Amendment contains only one provision of the Federal Bill of Rights (Amendments 1-8), namely the due process clause of the Fifth Amendment. In the Joint Committee on Reconstruction of the 39th Congress, where the Fourteenth Amendment was drafted, Representative Bingham of Ohio, who drafted what later became part of the first section of the Fourteenth Amendment, tried to add a second clause, namely the just compensation clause of the Fifth Amendment, by proposing, "Nor shall any State...take private property for public use without just compensation." (Journal of the Joint Committee on Reconstruction 29.) This was rejected.

No provision of the First Amendment, nor any other provision of the Federal Bill of

Rights, was proposed for inclusion in the Fourteenth Amendment. Thus, the due process clause has remained the only provision of the Federal Bill of Rights which the Fourteenth Amendment has made applicable to the States.

The due process clause of the Fourteenth Amendment reads:

"...nor shall any State deprive any person of life, liberty, or property without due process of law."
There was no discussion of the "due process" clause when the Fourteenth Amendment was debated in 1866 in the 39th Congress. However, five (5) years later, in 1875, in the 42nd Congress, a debate arose about the meaning of the first section of that Amendment.

Representative Garfield who had attended the debates of the 39th Congress which adopted the Fourteenth Amendment, said with respect to the due process clause that it was copied from the Fifth Amendment. There, it operates only as a restraint on Congress, while here it is a direct restraint on the States:

"It realizes the full force and effect of the clause in Magna Carta, from which it was borrowed, and there is now no power in either the State or the national Government to deprive any person of...life, liberty and property, except by due process of law; that is by an impartial trial according to the laws of the land". (Cong. Globe, 42nd Cong., 1st Sess., App. 153 (1871))
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The history of the due process clause shows that at the time of adoption of the Fourteenth Amendment the clause had maintained substantially the same meaning since its inception in the primordial forests of England and early formulation, at Runnymede, in Chapter 39 of the Magna Carta of 1215.(14)

One of the chief grievances of the baronage and commonality against King John was that he had violated their right to have law - habeat legem -- that is court proceedings with judgment and proof, by issuing writs of execution without court proceedings. In Chapter 39 of the Great Charter, the barons forced the King to promise that no freeman should be arrested and imprisoned, or diseized or outlawed, or in any way destroyed, nor would the King himself go, nor send his men, to inflict punishment on him through the use of armed force, except by the lawful judgment of his peers and by the lex terrae (literally, "by the law of the land.").

In 1354, in the formal confirmation of "the Great Charter, and the Charter of the Forest, and all other statutes before this time made and used", 28 Edw. 3, c.1,3 (1354), King Edward III extended the benefit of the provision to any man "of what estate and condition that he be" and replaced "except by the lawful judgment of his peers and per legam terrae" with "without being brought in answer by due process of law". The right to answer meant the right to defend himself against an accusation and, in case of denial, have a proof procedure. By 1354 the old modes of proof of the Magna Carta had partly been abolished, partly died out, and had been replaced by other types of procedure: in the common law courts by the jury procedure, and in the King's Council by the ecclesiastical procedure which developed into the equity procedure. While the lex terrae had referred to a particular proof procedure, due process of law now referred to any regular procedure pursuant to law.

Several hundred years later, the expression "due process of law" was adopted by New York, and from there it got into the Constitution's Fifth Amendment,(15) which provides:

no person shall....be deprived of life, liberty, or property, without due process of law.
When it became part of the Fifth Amendment the clause had essentially meant, since King Edward III's decree in 1354, that the authorities could not put any person to death, or into prison, or take away his property, without first giving him a trial in accordance with preestablished rules


14 See Meyer, H.H., The History And Meaning Of The Fourteenth Amendment (Vantage Press 1977), at 125-149.

15 Id. at 147-149.

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applicable to all alike.(16)

Thus it made sense after the Civil War, in order to counteract the lawlessness against African Americans and others in certain States, to have a national rule that no U.S. citizen could be subjected to mob violence or otherwise deprived by State authorities of life, liberty, or property without the benefit of the same laws of that State as applied to its other citizens.

Even Supreme Court Justice Hugo Black, who very much wanted to find some basis to apply the provisions of the federal Bill of Rights to the States, had to admit the 700 year old legal meaning of "due process of law":

Thus the origin of this clause was an attempt by those who wrote Magna Carta to do away with the so-called trials of that period where people were liable to sudden arrest and summary conviction in courts and by judicial commissions with no sure and definite procedural protections and under laws that might have been improvised to try their particular cases. Chapter 39 of Magna Carta was a guarantee that the government would take neither life, liberty, or property without a trial in accord with the law of the land that already existed at the time the alleged offense was committed. This means that the Due Process Clause gives all Americans, whoever they are and wherever they happen to be, the right to be tried by independent and unprejudiced courts using established procedures and applying valid pre-existing laws. Duncan v. Louisiana, 391 U.S. 145, 169 (1968) (Black, J., concurring).
When the Supreme Court interpreted the language of the due process clause with judicial integrity and gave the clause its legally recognized meaning, the Court held that it guaranteed to any person charged with a crime a trial pursuant to pre-established law. At the same time the Court also had to rule, based on the language and history of the Fourteenth Amendment, that this amendment had not made any other provisions of Amendments 1-8 "applicable to the States". See Walker v. Sauvinet, 92 U.S. 90, 93 (1875) (holding the Seventh Amendment inapplicable to the States); United States v. Cruikshank, 92 U.S. 542, 551, 553 (1875) (holding the First and Second Amendments inapplicable to the States); Davidson v. New Orleans, 96 U.S. 97, 105 (1877) (holding the Fifth amendment's "just compensation" clause inapplicable to the States); Hurtado v. California, 110 U.S. 516, 534-535 (1884) (holding the Fifth Amendment's "grand jury" provision inapplicable to the States).

In 1915, the Court said in Frank v. Magnum, 237 U.S. 309, 326 (1915):


16 Id. at 213.

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As to the 'due process of law' that is required by the Fourteenth Amendment, it is perfectly well settled that a criminal prosecution in the courts of a State, based upon a law not in itself repugnant to the Federal Constitution, and conducted according to the settled course of judicial proceedings as established by the law of the State, so long as it includes notice, and a hearing, or an opportunity to be heard, before a court of competent jurisdiction according to established modes of procedure, is 'due process' in the constitutional sense.....[ citing a long line of Supreme Court decisions].
As if to reaffirm such rulings, the Supreme Court stated in Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543 (1922):
.....as we have stated, neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about "freedom of speech" or the "liberty of silence"; nor, we may add, does it confer any right of privacy upon either persons or corporations.
And finally, in Bartkus v. Illinois, 359 U. S. 121, 124 (1959), the Supreme Court again explicitly rejected the notion that the "due process" clause had been intended to make other provisions of the Bill of Rights applicable to the states. Justice Frankfurter, speaking for the Court, wrote:
We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.
It is therefore clear, by the Supreme Court's own admission, that there is no constitutional provision which has made the religion clause of the First Amendment applicable to the States.

The above-cited rulings of the Supreme Court that the Due Process Clause of the

Fourteenth Amendment does not apply to the States any of the other provisions of the first eight amendments, are irreconcilable with the Court's rulings in school prayer cases such as Abington v. Schempp, supra, that the clause did make the First Amendment applicable to the States.

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The First Amendment reads:

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievance."
The due process clause of the Fourteenth Amendment reads:
"...nor shall any State deprive any person of life, liberty, or property without due process of law."
Any Supreme Court Justice who can read English and takes the trouble of reading the First and Fourteenth Amendments could easily see that the due process clause does not, like the First Amendment, prohibit any interference with the free exercise of religion, or freedom of speech, or of the press. On the contrary, the due process clause of the Fourteenth Amendment clearly authorizes the States to take freedom -- liberty --, but not without some procedure.

And if, as the Supreme Court has said, the free exercise of religion, freedom of speech and of the press were protected by the due process clause, that clause should read: "nor shall any State deprive any person of the free exercise of religion, or freedom of speech, or of the press without due process of law". That means that a State that provides for a procedure could take away the free exercise of religion, freedom of speech and of the press. That would be nonsense.

Nevertheless, the Supreme Court has said that prayers in State public schools violate the First Amendment's prohibition against Congress making any law respecting an establishment of religion, as made applicable to the States by the Fourteenth Amendment's due process clause. The only word which the two clauses have in common is the word "law". But, in the First Amendment the Constitution prohibits Congress from making certain laws, while in the Fourteenth Amendment's due process clause the Constitution tells the States that they must have certain laws. How can there by any connection between them? The truth is that there is no connection.

Where neither the language of a constitutional provision is considered, nor the intent of its framers, nor its history, we cannot very well speak of "constitutional law".

The Supreme Court itself has practically conceded that it had not given the due process clause its legal interpretation, but has assumed the right to read into it what, in the Court's opinion, are fundamental rights "implicit in the concept of ordered liberty". Bartkus v. Illinois, supra, at 127; Palko v. Connecticut, 302 U.S. 319, 324-325 (1937). In this way, the Supreme Court has enabled itself to create a "constitutional" issue and declare a federal or State law unconstitutional whenever the Court considers it to be "arbitrary, capricious, unreasonable, or

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oppressive" or, in the Court's belief, it "has no 'rational or justifying' purpose, or is offensive to a 'sense of fairness or justice'",(17) although the State law under scrutiny does not violate any constitutional provision.

By this practice, the Supreme Court of the United States has attempted to fundamentally change the Constitution of the United States. This, the real Constitution, is based on the principle of self-government of the people. In such a system, the decision as to what is "implicit in the concept of ordered liberty", is a policy decision and belongs to the people who make their will known through their elected representatives. In the judge-created substitute constitution, judges have arrogated to themselves the right to destroy a law enacted by elected representatives of the people, or the people themselves, because the judges disagree with their judgment as to what is in the interest of the people.

The Constitution has given the Supreme Court no authority to change it. The only legal way to change the Constitution is that prescribed by Article V, namely with the consent of two- thirds of Congress and of the legislatures of three-fourths of the States. By disregarding this constitutional mandate, the Supreme Court has acted against the Constitution, willfully forgetting that every judicial officer is solemnly committed by oath pursuant to Article VI, Clause 3, "to support this Constitution", that is the Constitution as written and as legally amended.

The Oath Of Office

In 1796, after leading the nation to Independence from Great Britain, serving as President of the Constitutional Convention of 1787 and twice as President of the United States, George Washington said his farewell to his fellow citizens on September 17 of that year:

Friends and Fellow Citizens: 

The period for a new election of a citizen to administer the Executive Government of the United States being not far distant...I should now apprise you of the resolution I have formed to decline being considered among the number of those out of whom a choice is to be made........ 

Here, perhaps, I ought to stop. But a solicitude for your welfare which cannot end but with my life, and the apprehension of danger natural to that solicitude, urge me.....to offer to your solemn contemplation and to recommend to your frequent review some sentiments which are the result of much reflection.....and which 


17 Griswold v. Connecticut, 381 U.S. 479, 511 (1965) (Black, J., dissenting).

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appear to me all important to the permanency of your felicity as a people..... 

To the efficacy and permanency of your union a government for the whole is indispensable...... Sensible of this momentous truth, you have improved upon your first essay by the adoption of a Constitution of Government better calculated...for the efficacious management of your common concerns. This Government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing in itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all...... 

All obstructions...with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive...... They serve...to put in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community........ They are likely in the course of time and things to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion..... 

It is important...in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power and proneness to abuse it which predominates in the human heart is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasion by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the people the distribution or the modification of the constitutional powers be in any way wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; 

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for this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed...... (18) 

GO. WASHINGTON 

However, scarcely two (2) years after Washington's farewell to the nation, Justice Chase of the United States Supreme Court contended for the prerogative of the judiciary to strike down legislative acts which, though admittedly not violative of the Constitution, were nevertheless thought by the judiciary to be contrary to an extraconstitutional "social compact":
There are acts [...although not expressly restrained by the Constitution...] which the federal or state legislatures cannot do, without exceeding their authority...An act of the legislature (for I cannot call it law), contrary to the great first principles of the social compact cannot be considered a rightful act of legislative authority. Calder v. Bull, 3 U.S. (3 Dali.) 386, 387-388 (1789):
Justice Iredell disputed this issue with Chase in the same case:
If...the legislature of the Union, or the legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standards; the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice...Id. at 398-399.
This exchange between Justices brings to mind the issue of whether the Constitution of the United States, as it says in its Article VI, is the "Supreme Law of the land". Washington so viewed it, and reached the conclusion that it was "sacredly obligatory" on all three branches of government and could only be "changed by an explicit and authentic act of the whole people". For Washington, "change by usurpation" at the hands of any constitutional officer was an act of lawlessness.


18 See Kaufman, B. A., Washington's Farewell Address: The View from the 20th Century (Chicago / Quadrangle Books / 1969), at pp. 15-30.

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This was not so for Justice Chase, or for many Supreme Court Justices who have followed him. They have looked at the Constitution not as "law" but as a sort of ongoing negotiable contract, and have reasoned that they may, to meet the perceived exigencies of the times, change it (or more accurately ignore it) on a case by case basis. This has led to "judicial" decisions based on extra-Constitutional abstractions, like that suggested in Calder, such as "vital principle of republican institution", "natural equity", and "universal law", Chicago, Burlington, and guincy R..R.. C'o. v. Chicago, 166 U.S. 226, 235-236 (1897); rights "implicit in the concept of ordered liberty" and required by "the conscience of mankind", Bartkus v. Illinois, supra, at 127; Palko v. Connecticut, supra, at 323-325; and in Brennan's words, "concepts of natural law", "a moving consensus", and "rights" which "transcend the printed page". (Appendix I, at 9, 12, 18)

Perhaps it will be significant to Your Honor, and to others who read this letter, that in the foundational case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which was rendered after Calder v. Bull, Chief Justice John Marshall firmly grounded the role of the American Judiciary in the Constitution alone, not in any extraconstitutional powers that the judiciary might wish to explore. He said:

It cannot be presumed that any clause in the Constitution is intended to be without effect.... 

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most condone to their own happiness is the basis on which the whole American fabric had been erected...... The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent....... 

The original and supreme will organizes the government, and assigns to different departments their respective powers...... 

The Constitution is either a superior, paramount law, unchangeable by ordinary means....or is alterable when the legislature shall please to alter it.....5 U.S., at 174-177. 

Then, reasoning that "an act of the legislature, repugnant to the Constitution, is void", Marshall appealed to his oath of office for authority to declare it so:
........the framers of the Constitution contemplated that instrument as a rule of government for the Courts, as well as the legislature. Why otherwise does it direct the judges to take an oath to support
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it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swore to uphold? Id., at 177, 179.
Yes, how immoral to impose an oath of office on constitutional officers, and then require that they be knowing instruments for violating the oath they swore to uphold.

>From the foregoing, it is clear that Marshall teaches that the Constitution, which is "permanent" and can only be changed by the "seldom act" of constitutional amendment rather than "ordinary means", has well-defined content as the "fundamental" law of the land. If the peoples' "supreme will", expressed in the Constitution, did not have well-defined content, then in no way could it be considered "permanent" or "fundamental"or even "amendable". Moreover, if it did not have well-defined content, in no way could it be considered "law" and thus binding on constitutional officers by their oaths of office.

Accordingly Marshall presupposes that the power of "judicial review" (as distinguished from judicial "construction" of ordinary legislation) can only be exercised when a legislative or executive action violates the well-defined "paramount law" of the land. Only then is the judiciary justified, on grounds of their oaths of office, to hold a contrary act of a coordinate branch of government "unconstitutional". If the peoples' "paramount law" -- -- the Constitution -- - is not clear on a given point, then there is no basis for the judiciary to say under oath that a legislative or executive act is contrary to it, and thus no basis to hold the act unconstitutional.

The oath of office taken by judges pursuant to Article VI of the Constitution is to "this Constitution" alone. But in the church-state cases, the Justices have avoided the requirements of their constitutional oaths by avoiding the constitutional record itself.

In those church-state cases arising in the 50 states, the Court has willfully ignored the

constitutional record, because that record "emphatically" vests legal jurisdiction over such cases in the States themselves, not in federal authorities. Supra at 4-10. In such cases the Constitution determines who will make church-state policies (all 50 States), not what those policies will be.

In 1925, rather than address the constitutional record, the Court suddenly announced:

...we may and do assume that....[provisions of the First Amendment]....are among the fundamental ...'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States....Gitlow v. New York, 268 U.S., at 666.
Thus out of the clear blue the Court staked its claim to take control of church-state cases in the

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States, with no authority to do so from the people of the United States, or from the peoples' Constitution, but only from the Justices' willingness to "assume" whatever they wanted to "assume", in order to accomplish whatever they wanted to accomplish, with no limits to their "power" and no integrity in the "judicial" process.

Moreover, in those church-state cases arising in the U.S. territories and areas of federal municipal jurisdiction, the Court has willfully ignored the constitutional record, because that record clearly identifies the term "establishment of religion" with "national church" or "established church", and clearly reveals the framers' central focus to be not a "secular mandate" but the protection of rights of conscience from infringement by the federal government.(19) Thus the Court's majorities have also avoided the numerous early examples of Congressional or Presidential action favorable to "religion", such as the Northwest Ordinance of 1787 providing for the teaching of "religion and morality" in the schools of the U.S. territories (which the First Congress, the same Congress which drafted the First Amendment, re-enacted). See Wallace v. Jaffree,472 U.S., at 100. (Rehnquist, C.J. dissenting).

Rather than adhere to the constitutional record, Justices such as Felix Frankfurter arrogantly announced:

We are all agreed that the First and the Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an "established church." McCollum v. Board of Education of School District No. 71, Champaign County, Illinois, 333 U.S. 203, 213 (1948)
(Frankfurter, J. separate opinion).

Indeed Frankfurter and his colleagues "all agreed" among themselves to force a secular mandate on the nation, but the people of the United States never "agreed" to such a mandate.

The idea since 1962 that prayer in the public schools by willing teachers and students is an impermissible "establishment of religion" comes neither from the text of the Constitution, nor from any legally recognized meaning of the term "establishment of religion", nor from the congressional debates on the First Amendment, all of which the Supreme Court has most


19 Both Madison in the federal convention debates and Blackstone in his Commentaries, associate a religious establishment with an element of compulsion. For Madison, a "national religion" might "infringe the rights of conscience". Supra at 6. For Blackstone, a "national establishment" would "at once be destroyed" if its adherents did not enjoy favorable treatment in "civil employments". Supra at 7, n.10. Accordingly, the U.S. Constitution, in addition to the provisions of the First Amendment, specifically prohibits in Article VI a "religious test" as a "qualification to any office or public trust under the United States".

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religiously" avoided in all their decisions for the last 35 years. This idea comes only from the ideological preferences of the justices, who regard themselves as "the essentially disinterested, rational and deliberate element of our society", a society which but for the justices' oversight, would hold on to "older values" too long. Supra at 2. For these Justices, their oath of office to support the Constitution as the well-defined and "permanent" law of the land, as explained so clearly by John Marshall in Marbury -- -- -- means absolutely nothing.

It should not therefore be surprising that former Justice Brennan, in his attempts to escape the obligations of his oath of office, contended that only "laymen" would think that "constitutional law" was "fixed and certain". Supra at 2. Was John Marshall a layman?

Perhaps it will also be significant to Your Honor, and to others who may read this letter, that in the almost 200 years since Marbury, not once has the U.S. Supreme Court ever quoted what Marshall wrote about the constitutional oath of office in that case.(20) Instead, the Supreme Court and other federal and state courts have cited Marbury hundreds of times for another proposition, namely, that "it is emphatically the province and duty of the judicial department to say what the law is". 5 U.S. at 177. This statement, which was rejected as dangerous by the nation's then President Thomas Jefferson,(21) was made by Marshall only in the context of the judicial duty to determine the "original and supreme will" of the people expressed in the Constitution. Later Supreme Court justices have divorced it from its context and perverted it to mean that "the law is what the judges say it is", even if what they say has no basis in the Constitution.

In so acting, the Supreme Court has in an odd way adopted the views of the southern secessionist John C. Calhoun. For Calhoun, the Constitution was not essentially "law" binding upon all, but a mere contract of which the states were the principals and the federal government was the agent. Therefore, he reasoned, if the federal government, in the opinion of the states, overstepped its authority, the states as principals were ultimately free to cancel the contract and take remedial action such as seceding from the Union. See Coit, M.L., John C Calhoun (University of South Carolina Press 1950), at 230-238.


20 We were not able to find such a case through computerized legal research ( LEXIS).

21 ".... The Constitution intended that the three great branches of government should be.... independent of each other....Where different branches have to act....under any law, they may give to it different and opposite constructions....From these different constructions....less mischief arises than from giving any one of them a control over the others....On this construction....I shall ever act....against any control which may be attempted by the judges.... I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, and denounced as not law...the doctrines of that case were given extrajudicially and against law, and their reverse will be the rule of action with the Executive...". Bergh 1:150 (1807), quoted in The Real Thomas Jefferson (National Center for Constitutional Studies 1983), at 536-537, hereinafter "Jefferson".

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The Justices of the U.S. Supreme Court have surpassed the Calhounian doctrine that the States are accountable to no one but themselves under the Constitution, with their doctrine that every branch of government, federal or state, is accountable to no one but the justices. In their system, by admittedly reserving the right to change or ignore the meaning of Constitutional provisions as they see fit, the justices treat the Constitution as a contract which they may unilaterally "reform" to their wishes, not as a law binding on them as well as everyone else. The legislative and executive branches of government, in this system, are agents of the judiciary, and must carry out judicial orders. The Justices alone remain above the law.

This is exactly opposite to the understanding of George Washington, who spoke of the necessity of reciprocal checks in the exercise of political power...... and constituting each [branch of government] the guardian of the public weal against invasion by the others." Supra at 18.

Every year across America thousands of citizens raise their hands in oaths to tell the truth on the witness stands of American Courts. If they lie under oath, they do so upon criminal penalty of perjury. Every year, at the insistence of the U.S. Supreme Court, federal and state judges and other constitutional officers are required to violate their oaths of office in order to perpetuate the "constitutional" perjuries of the justices of that Court.

George Washington spoke of a time when "cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government", and that "change by usurpation" was the "customary weapon by which free governments are destroyed". In opposition to this, Justice William Brennan told us that in our society "obviously we Americans must accept that...upon judges, and particularly Justices of the Supreme Court, rests a great share of the delicate responsibility of deciding what must be preserved and what must be changed..." Supra at 2. Was George Washington an American?

Wildcards And Metaphors

Late in his career on the Supreme Court, Justice William Douglas said publicly what had been known for decades in the higher echelons of the legal community: that "due process" was the "wildcard to be put to such use as the judges choose". Supra at 2. This meant that when the Supreme Court wanted to implement a particular social or political policy for the nation, the justices would first pick a case involving the issue in question, and then simply say that "due process" required the policy they favored. Then the Court would give their ideological reasons for the policy in a written Opinion. Finally they would insist that their Opinion, containing their ideological reasons for the policy, was now the law of the land and must be obeyed by the rest of society, at least until they changed their mind and made different policy in a new case. This is the sum and substance of modern American "jurisprudence".

However, the first case of which I am aware that the U.S. Supreme Court used "due

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process" as a "wildcard" was Dred Scott v. Sanford, 60 U.S. 393 (1857). In this case, the Court declared that a slave, Dred Scott, who had been taken by his owner to the northern territories did not become free under the terms of the Missouri Compromise, an Act of Congress which had prohibited the extension of slavery in those territories. The Court held that the Missouri Compromise had been "unconstitutional", for, the Court said, to deny the rights of a slave owner to take his slave "property" to the territories "could hardly be dignified with the name due process of law". Id. at 450. In other words, the Court discerned a fundamental right implicit in the due process clause -- -- -- the right to hold "slave" property just like any other "property". Id. at 451. Then the Court used its newly announced fundamental "right" to hold "unconstitutional" a Congressional Act which was contrary to the political policy favored by the Court -- -- -- the extension of slavery to all the territories. In so ruling the Court helped precipitate the Civil War.

The Civil War did not stop, but only postponed, the Court's adventures with the due process clause. In fact, now there were two such clauses at the Court's disposal, one in the 5th Amendment to control Congress, and one in the 14th Amendment to control State authorities.

By the beginning of the Twentieth Century the Court's prevailing ideology had focused on "free" labor markets, which the Court wished to protect from State or Congressional regulation. Thus, from "due process", the Court created new and "fundamental" economic "rights" with which to strike down various laws the Justices opposed. The Court struck down laws prohibiting bakery employees from working more than 60 hours per week, Lochner v New York, 198 U.S. 45 (1905); laws prohibiting employers from requiring their employees to sign contracts to remain non-union, Coppage v Kansas, 236 U.S. 1 (1915); laws requiring employers to pay a minimum wage, Adkins v. Children 's Hospital, 261 U.S. 525 (1923); and laws requiring bakeries to sell bread to the public within prescribed weight standards, Burns Baking Co. v. Bryan, 264 U.S. 504 (1924).

Years later, the Supreme Court would chide itself for ever having been so presumptuous as to "substitute" its beliefs for those of legislatures:

We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws....... Legislative bodies have a broad scope to experiment with economic problems, and this Court does not sit to 'subject the State to an intolerable supervision hostile to the basic principles of our Government'..... Ferguson v. Skrupa, 372 U.S. 726,729 (1963).
Of course the Court did not mean what it said in Ferguson in 1963, for even then, its Justices were embarking on their most expansive adventures yet with "due process". The United States Supreme Court, nine distinguished lawyers, went from protecting labor markets at the start of the Twentieth Century to protecting sex markets toward the Century's end. The Court's new "fundamental" rights included the right to pornography, see Jenkins v. Georgia, 418 U.S. 153

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(1974) ("nudity alone is not enough to make material legally obscene...", id. at 161); the right to pornography consisting of "the graphic sexually explicit subordination of women" including, inter alia, "women.....as sexual objects who enjoy pain...or experience sexual pleasure in being raped", "women ....as sexual objects....mutilated...or dismembered....or severed into body parts", and "women...as being penetrated by objects or animals..", see America Booksellers Association v. Hudnut, 771 F. 2d 323, 324 (7th Cir. 1985) ("....Indianapolis left out of its definition [of pornography] any reference to literary, artistic, political, or scientific value", id. at 331), affirmed 475 U.S. 1001, 106 S. Ct. 1172 (1986); the right to birth control, Griswold v. Connecticut, supra; and the right to abortion as a means of birth control, Roe v. U'ade, 410 U.S. 113 (1973).

The Court was again using its wildcard to transform American "culture" into what the Justices thought it ought to be. In the minds of the justices, mere "legislators", whether state or federal, were less capable than the justices themselves on "social" matters. As Brennan said, there was "a degree of deception" in the "older values", and it was up to the "legal profession" to educate America's "laymen" on the Court's role of "re-defining" constitutional provisions in "every generation". supra at 2.

Thus the Court also decided that public prayer and bible reading in the schools needed to stop. The "religious function" must remain "altogether private", said the Justices in the Schempp case, 374 U.S. at 219.

Since nothing in American constitutional history gave the Justices the authority to say whether the prayers to God of U.S. citizens must be private as opposed to public, the Court simply feigned legal authority and invoked a nice-sounding metaphor with no legal content -- -- the "wall of separation of Church and State". This metaphor, which does not appear in the U.S. Constitution, had been used by Thomas Jefferson in a letter to a Baptist group in Connecticut. See Wallace, supra, at 91-92 (Rehnquist, C.J., dissenting).

And of course, the Supreme Court did not quote what Jefferson really said, in his Second Inaugural Address no less, on the subject of constitutional authority to act "in matters of religion":

In matters of religion I have considered that its free exercise is placed by the constitution independent of the powers of the general government. I have therefore undertaken on no occasion to prescribe religious exercises suited to it, but have left them, as the constitution found them, under the direction and discipline of the church or state authorities acknowledged by the several religious societies. See Inaugural Addresses of the Presidents of the United States (Washington, D.C.: GPO, 1965), at pp. 17,18.
Nor of course, did the Court mention what Jefferson wrote about the tendency of the judiciary to become tyrannical:

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....You seem...to consider the judges as the ultimate arbiters of all constitutional questions -- a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy....Our judges are as honest as other men, and not more so.... They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is, "Boni judicis est ampliare jurisdictionem"; and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots.....Letter to Jarvis (1820), quoted in Jefferson, supra note 21, at p. 498.
If the Supreme Court is going to quote Jefferson, shouldn't they quote all of what he said which bears on the subject under discussion?

There is, however, constitutional language and history which does support what the Supreme Court has done in its church-state cases:

For the purpose of securing ..... real freedom of conscience, the church is to be separated from the state and the school from the church, and the right of religious and antireligious propaganda is accorded to every citizen. Constitution of the Russian Socialist Federated Soviet Republic, Article Two, Para. 13 (1918).
Accord Engel v. Vitale, supra; habington v. Schempp, supra; Jaffree v. Wallace, 472 U.S. 38 (1985); Lemon v. Kurtzman, 403 U.S. 602 (1971); Stone v. Graham, 449 U.S. 39 (1980).

As the Supreme Court said in Schempp:

secular education... [must]...be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that after the individual has been instructed in worldly wisdom he will be better fitted to choose his religion. 374 U.S. at 218.
Yes, Mr. Supreme Court Justice, we have seen what 35 years of your "worldly wisdom" has done to the schools of America.

Undoubtedly the Justices regard their role, in relation to things of the Almighty, to be "lofty". They alone reserve the right to say when and where American citizens, such as school

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teachers and government officials, may pray. Who gave the Supreme Court this authority? Not the people of the United States.

George Washington, a man who could have had virtually unlimited power but refused it in favor of constitutional limitations, publicly and officially humbled himself before "the Great Lord and Ruler of Nations", asking "Him to pardon our national and other transgressions". Supra at 8. So did Lincoln.(22)

Hugo Black of Alabama and the other Justices, who through much deceit usurped power not given them by the Constitution, castigated "official" prayers of dependence on God as the "unhallowed perversions of a civil magistrate". Engel, 370 U.S. at 422, 425, 432.

Who was guilty of the "unhallowed perversion", Washington and Lincoln, or the Justices of the United States Supreme Court?

Bring Down The Wall

In the Engel case, the Supreme Court came out against public prayers in the schools because such prayers expressed a "religious belief', which in fact they did. The "belief' was the existence of God and public dependence on Him. 374 U.S. at 422, 430. Similarly, in the Schempp case, the Court forbade "all legislative power respecting religious belief or the expression thereof'. 374 U.S. at 222. These statements express the Court's core ideology that the "religious function" must remain "altogether private". 374 U.S. at 219.

In both Engel and Schempp, and almost every other church-state case of consequence for the last 50 years, the Court has quoted heavily or cited with approval James Madison's Memorial And Remonstrance Against Religious Assessments, which Madison wrote in opposition to state taxation for the support of Christian ministers in Virginia. See Memorandum Opinion, at 4. One would assume, therefore, since the Supreme Court relies so heavily on this document, that it would contain strong statements against public expression of "religious belief' like those made by the Court in the Engel and Schempp cases.

But it does not. Instead, Madison's Remonstrance is full of expressions of his "religious


22 "... we have vainly imagined, in the deceitfulness of our hearts, that all these blessing were produced by some superior wisdom and virtue of our own. Intoxicated with unbroken success, we have become too self-sufficient to feel the necessity of redeeming and preserving grace, too proud to pray to the God that made us. It behooves us, then, to humble ourselves before the offended Power, to confess our national sins, and to pray for clemency and forgiveness...", quoted in Richardson, J., Messages and Papers of the Presidents, supra note 11, at p. 165.

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beliefs". Indeed his religious beliefs form the conceptual basis for his opposition to compulsory support of churches, and for his view of religious freedom.

For Madison, "God" is "Creator", "Governor of the Universe", and "Universal Sovereign".(23) Remonstrance, para. 1. Man's "duty" and "allegiance" to the Almighty precedes his duties to "civil society", which Madison describes as a "subordinate Association". Id. As to matters of man's religious duty or allegiance, such as tithing, "To God, therefore, not to men, must an account....be rendered."(24) Id. at para 4. With this the people of Alabama, the Alabama Constitution,(25) and I, all agree.

But the Supreme Court must not agree, because it dares to forbid prayer to the "Universal Sovereign", an authority -- -- according to Madison -- -much higher than the Supreme Court. Prayer is rendered to God, not to men. The Supreme Court, a mere human court, has no "jurisdiction" over it or authority to forbid it. But in the Engel case, the Court did forbid prayer by saying that it was too "personal"and too "sacred" for "public" or "official" expression. 374 U.S. at 432. Whether prayer is "personal" or "relational", "individual" or "corporate", "private" or "public", is up to those who pray and the God to Whom they pray, and not to the Supreme Court.

Individual prayers like those of the sinner who fell down silent and alone in repentance before God in the Temple (Luke 18: 9-14), or public and joyful prayers like those of the children of Israel in the Psalms of ascension to Jerusalem (Psalms 120-134), or "official" prayers of national repentance offered by American Presidents such as Washington and Lincoln, or the heartfelt prayers of teachers, coaches, or students in the schools, are all beyond the reach of the Justices.

The Constitution is a charter of positive law, that is, law "ordained and established" by the "people of the United States". Its jurisdictional provisions place exclusive constitutional authority in the people of each state to decide whether they will permit, or even forbid (tragically), prayers in the schools of their state. Do not think I am asking Your Honor to base your ruling on anything other than the U.S. Constitution. I am not. But having said this, I also will say why, as a State Governor, I reject the personal ideologies of Supreme Court Justices who say that public


23 We also see Madison "earnestly praying" that the Almighty, by "illuminating" the Virginia legislature, would "turn their councils from every act which would affront his holy prerogative" and "guide them into every measure which may be worthy of his [blessing]". Id. at para.15.

24 Compare "Render therefore to Caesar the things that are Caesar's, and to God the things that are God's." Matthew 22:21

25 See Alabama Constitution, Preamble (invoking guidance of Almighty God); Art. I, Sec 1. (Recognizing endowment by Creator of inalienable rights); Sec. 3. (Prohibiting religion established by law, compulsory tithing, religious test for public office, or religious qualification for civil rights).

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prayers by those in positions of authority should be prohibited.

It is a cause for hope when the people themselves and their constitutional officials, in recognition of their own limitations, acknowledge that the "Church is greater than the State". The recognition by those in authority of a higher "authority" or "sovereignty" was expressed in the Declaration of Independence,(26) came to America from Judeo-Christian history, and is as old as the bible itself, for instance:
2 And a certain centurion's servant, who was dear to him, was sick and ready to die. 
3 So when he heard about Jesus, he sent elders of the Jews to him, pleading with Him to come and heal his servant. 
4 And when they came to Jesus, they begged Him earnestly, saying that the one for whom He should do this was worthy, 
5 "for he loves our nation, and has built us a synagogue." 
6 Then Jesus went with them. And when He was already not far from the house, the centurion sent friends to Him, saying to Him, "Lord, do not trouble Yourself, for I am not worthy that You should enter under my roof. 
7 "Therefore I did not even think myself 
worthy to come to You. But say the word and My servant will be healed. 
8 " For I am a man placed under authority, having soldiers under me. And I say to one, 'Go', and he goes; and to another, 'Come', and he comes; and to my servant, 'Do this', and he does it. 
9 When Jesus heard these things, He marveled at him, and turned around and said to the crowd that followed Him, "I say to you, I have not found such great faith, not even in Israel!" 
10 And those who were sent, returning to the house, found the servant well who had been sick. 

Luke 7:2-10 (NKJ) 

Only the Spirit of God can heal the kid hurting from a broken family, deliver the hopeless addict, set free the emotionally bound, restore the ruined life, bring order to the schools, or peace to the streets. We will have no justice in our Courts, or integrity in our government, without the blessing of God upon us. This, America recognized for most of her history. This, the Supreme Court has unconstitutionally opposed with all its power.

The Supreme Court recognizes no authority greater than itself. Not the Constitution. Not the Almighty. In the name of "separation of Church and State", the Court seeks to rule the Church. It tells the believing community -- -the church -- -- - where and when they may not pray.(27) How dangerous a situation when human government steps over this line. The Supreme Court ignores Madison about "the equal right of every citizen to the free exercise of his religion according to the dictates of conscience". Remonstrance, para.15. This "equal right...of


26 Those who declared independence from Great Britain in 1776 appealed to "the Supreme Judge of the world for the rectitude of our intentions".

27 Compare Daniel 6:1-28.

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conscience" is as true on public ground as on private.

There is no difference in a majority compelling a minority to perform a "religious" duty, and a minority preventing a majority from exercising their faith according to their consciences.

In 1982, during my first term as Governor, the Alabama Legislature passed a law at my request which recognized the rights of willing teachers and students to pray to God in the schools. During legislative hearings on the proposed law, we pointed out that when the President of the United States, Ronald Reagan, had been shot a couple of years earlier, no one knew for several hours whether he would live or die. Those teachers in Alabama who stopped their classes to pray that the Almighty would spare the life of the President, supposedly acted "unconstitutionally" and could have been sued under "precedents" of the U.S. Supreme Court. These prayers were motivated by the desire that God would spare the life of the President. What court on earth really had jurisdiction over these prayers? None according to Madison's reasoning. Yet the Supreme Court forbids such prayers.

In forcing the silence of millions of American citizens, the Justices of the United States Supreme Court have fully brought upon themselves the condemnation of James Madison:

The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves. Remonstrance, at para. 2.
In the Twentieth Century, a secular tyranny overwhelmed much of Europe. There, tyrants built a Wall of Separation. It has now fallen. The Wall of Separation erected by the United States Supreme Court still stands. It separates the people of the United States from their Constitution and from religious freedom. Let it fall.

Restore The Foundation

Your Honor, the Constitution of the United States is not a "wildcard". It is the Supreme Law of the land. Wildcards belong in casinos, not in the judicial branch of government.

The Supreme Court's use of the due process clause or any constitutional provision as a wildcard is, in the words of Washington, an "obstruction....with the real design to...control...the regular deliberation and action of the constituted authorities." Supra at 18. It is "destructive". Id. It puts "in the place of the delegated will of the nation, the will of a party.... a small but artful and enterprising minority of the community". Id.

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It renders meaningless what John Marshall described in Marbury as "the greatest improvement on political institutions -- -a written Constitution,....in America, where "written constitutions have been viewed with so much reverence...". 5 U.S. at 178.

It rests not on a principle of law but a tenet of jackleg anthropology: that the legal profession and its judges are more "rational" and "deliberate" than the rest of society. supra at 2. It is an arrogance that makes the publicized commitment of the legal profession and judiciary to their own canons of ethics subject to mockery by the society they serve. It disgraces the thousands of lawyers who will swear to their own hurt to keep their integrity, and of judges, state and federal, who cannot be bought with money, fame, or illicit power.

John Marshall always presumed that the judiciary would act with total integrity to apply the Constitution, as he had said in Marbury, as the "original and supreme will" of the people, "fundamental" and "permanent" in its "distribution of powers" among the branches -- - America's "paramount law, unchangeable by ordinary means". Supra at 20-21. But because he could not foresee judges to whom the judicial oath of office would be meaningless, he did not address the issue of what would happen if the Sapreme Court, rather than the Congress, attempted wholesale "change by usurpation" and rendered decisions decade after decade beyond constitutionally authorized "judicial" power. Such decisions "repugnant to the Constitution" would be just as "void", to use Marshall's reasoning in Marbury, as an unconstitutional legislative act. Also in such cases other constitutional officers, again to use Marshall's reasoning, would be required as a "rule of government" to act in accordance with their oaths to uphold a supreme authority, the Constitution, rather than "void" decisions of the Supreme Court.

What a noble and essential role the Judiciary could have served in this country if they had stayed true to their constitutional commission. When they spoke, their decisions would have carried great authority. Their influence would have tended to stabilize political dispute rather than exacerbate it. Their good faith and fidelity to their judicial duty would have engendered great deference, even when there was disagreement with them over a particular issue, from the other branches of government and from the people.

The exercise of true judicial authority depends on the judges' adherence to their oaths of office. Marbury v. Madison. Since the Justices of the Supreme Court have left their oaths of office far behind in their quest to find "fundamental rights" which change with the times, they have lost any legitimate power "to say what the law is". They cannot have one without the other.

In the final analysis, the oath of office is to "this Constitution", not to the Supreme Court. U.S. Constitution, Article VI.

The oath of office which commands obedience to the Constitution must also command opposition to the unrelenting lawlessness of any branch of government, including the Supreme Court. Those who would instead urge obedience to the Court, until such time as a constitutional amendment might be passed to "correct" the Court, only strengthen the Court in its lawlessness. You do not change the Supreme Law of the Land because it has been broken.

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If for instance Congress decided to usurp judicial authority under the Constitution by appointing a special Congressional "court" to which Supreme Court cases could be further appealed, the remedy for Congress's usurpation would not be to amend the Constitution to correct a particular ruling of the illegal Congressional court. The remedy would be for all constitutional officers of integrity to resist, with all executive, legislative, and judicial authority at their disposal, the unconstitutional usurpation of judicial authority by Congress.

What has happened in this country is, rather than Congress setting itself up as a court, the Supreme Court has set itself up as a legislature, and indeed, a legislature which even assumes the power to amend the Constitution as it pleases. By these means the Justices have tasted unlimited power in American society, and they like it. By these means the Justices have taken from "the people of the United States" authority that belongs to the people alone under their Constitution.

Therefore I ask Your Honor in accordance with the judicial oath of office to dismiss this case for lack of a federal question. I have instructed my lawyers to file the appropriate Motion. I will also ask the judges of the Eleventh Circuit to do the same. Then I will ask the Justices of the Supreme Court to cease destroying the Constitution they have sworn to uphold.

Only if constitutional officers have the resolve to resist the Supreme Court will the foundation of constitutional rule be restored in the United States. The Supreme Court may well "respond" to lower judges who resist them by removing them from cases, but the Justices will do so at the expense of having their deceit brought increasingly into public awareness.

I am also copying this letter to the Honorable Justices of the Alabama Supreme Court in the hope that they too will follow their oaths of office and rule that there is no federal issue in the "Ten Commandments" case or other cases before them based on the U.S. Supreme Court's "prostitution" of the Constitution.(28)

There is an honor greater than the honor of peers.

Your Honor must choose between heeding Brennan and his peers, or heeding a mere "layman", George Washington, whose last speech was to entreat his countrymen that "the Constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all...".

Your Honor must choose between following Justice Felix Frankfurter's quest to decree "rights implicit in the concept of ordered liberty", or Justice John Marshall's principle that it is "immoral" to require judges to be "knowing instruments of violating the Constitution they swore to uphold".


28 Shortly before his death in 1982 Leon Jaworski wrote my attorneys, "I have long felt that leaning on the Fourteenth Amendment for support in depriving the states from determining the propriety of religion in public schools is an abomination. It distorts the meaning of the Fourteenth Amendment and prostitutes its use."

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Do your duty, Your Honor, as I will do mine.

Former Justice Brennan closed his speech in 1982 (at p. 19) on what he called the "always old" but "never old" quest of the Supreme Court for "freedom" by quoting the Irish playwright Yeats. "Did you see an old woman going down the path?" Asked Bridget. "I did not," replied Patrick, who had come into the house just after the old woman left it, "But I saw a young girl and she had the walk of a queen."

Your Honor closed your Memorandum Opinion (at p. 38) by quoting Justice Frankfurter who, borrowing the words of the American poet Robert Frost, said, "If nowhere else, in the relation between Church and State, 'good fences make good neighbors'."

But I close with the words of the ancient psalmist and king of Israel, David, without whose kingdom neither Irish playwrights nor American poets would ever have known the light of free civilization --

"The Spirit of God spoke by me, 
And His word was on my tongue. 
The God of Israel said, 
The Rock of Israel spoke to me: 
'He who rules over men must be just, 
Ruling in the fear of God. 
And he shall be like the light 
of the morning when the sun rises, 
A morning without clouds, 
Like the tender grass 
springing out of the earth, 
By clear shining after rain.'" 

2 Samuel 23:2-4 (NKJ) 

Respectfully Submitted:
 
 

Fob James, Jr.

cc. Counsel of record
Justices of the Alabama Supreme Court

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