Separation of Church and State

Yesterday, much to the vexation of the ACLU and company, President George W. Bush invited a group of religious leaders to the East Room of the White House. There, he talked about the importance of prayer, and then (you'd best sit down) he prayed. Yes, on government time and on government property, he prayed.

Who does he think he is?

In this enlightened era when progressive, free-thinking liberals insist on the removal of all religious references and symbols (Crosses, Ten Commandment monuments, etc.) from federal, state and local public places, the President of the United States impudently promoted the merits of prayer and encouraged all Americans to do the same.

But wait, it gets worse.

"We pray to give thanks for our freedom," the President said. "Freedom is our birthright because the Creator wrote it into our common human nature. No government can ever take a gift from God away." He then asserted that giving thanks to God is writ through and through upon American history, from Plymouth Rock to the Revolution and to this day. He reminded us that in our nation's supreme founding document, the Declaration of Independence, "... our Founders... declared it a self-evident truth that our right to liberty comes from God." Then, he concluded, "We pray to acknowledge our dependence on the Almighty [and] we who ask for God's help for ourselves, [since we] have a particular obligation to care for the least of our brothers and sisters within our midst."

How can he, and other elected leaders, get away with such a blatant breach of the "wall of separation" between church and state? Because, in short, there is no such doctrine supported in our Constitution or its superior guidance, our Declaration of Independence. In fact, the First Continental Congress called for national prayer.

President Bush's adversaries, those aforementioned "enlightened liberals," know that if they take him on, they will lose in both the national courts and the court of public opinion. After all, the Supreme Court affirmed the right of state legislatures to open their sessions with prayer (Marsh v Chambers, 1983), and liberals understand the extension of this ruling. They also understand that a vast majority of Americans honor God through prayer on a regular basis (though, unfortunately, many of them don't vote because they have little faith in our politicians).

Thus, liberals choose much smaller targets, like the celebrated removal of a Ten Commandments monument from state grounds in Alabama, or removal of a memorial Cross from a city park above San Diego. They carefully choose targets in those venues where they have stacked the federal Circuit Courts with judicial activists who do their bidding -- and that means most venues.

Nonetheless, inquiring minds want to know, doesn't the Constitution ensure a "wall of separation" between church and state?

No.

Thomas Jefferson penned the words "wall of separation" in an 1802 letter to the Danbury Baptist Association. The Baptists objected to Connecticut's establishment of Congregationalism as their state church (because they aspired to be the state church) and wrote Jefferson for help. Jefferson assuaged their concerns that the national government would not anoint the Episcopal Church as the "national church" (thank goodness), but he concluded that the Constitution (specifically the Tenth Amendment's federalism provision) established a "wall of separation" prohibiting the national government from interfering with the matters of state governments.

There is ample evidence that Jefferson did not intend for that metaphor to become an iron curtain between church and state. Though he favored a secularist state, he knew that the Constitution offered no such proscription on religious observance and practice in the public square. Those who insist that that was Jefferson's original intent, and that of our Constitution, are either historically nescient or they harbor a disingenuous motive to serve a secularist constituent agenda.

American University professor Daniel Dreisbach and University of Chicago law professor Philip Hamburger argue, correctly, that the "wall of separation" has its ironic and erroneous origin in 1947. It was then that Supreme Court Justice Hugo Black (whose anti-Catholicism was nourished during his days in the KKK) ruled in Everson v. Board of Education that the First Amendment created a "high and impregnable" wall between religion and government. That decision forbade New Jersey from spending public funds for religious education -- and you know the rest of the story.

Clearly, the Everson decision launched a new era of constitutional interpretation that defied all precedent. Black was guilty of doing precisely what liberal judicial activists do today -- interpreting the Constitution to comport with their constituent agendas, or, as Jefferson predicted, "The Constitution [will become] a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."

Indeed, it has become just that.

As for that utterly phony "wall of separation," Princeton scholar Stanley Katz says that correcting the "Jeffersonian myth" will have a "profound impact on the current law and politics of church and state." Joining the debate, Justice Clarence Thomas argues, "This doctrine, born of bigotry, should be buried now."

However, this issue is not merely about public prayer. It is about the rule of law and the future of our constitutional republic. That is precisely why Senate Democrats are so insistent on blocking the President's judicial nominations. As noted in this column last week, they know that the real locus of central-government power resides on the federal bench, not in the legislature; this is the true nature of the current filibuster debate.

As for the President's call to prayer this week, he is fully aware of his nation's heritage -- and fully in tune with its heart. He understands this admonition from Founder George Washington: "It is the duty of all Nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favors."

Unfortunately, if Congress is not able to seat President Bush's constitutional-constructionist nominees on the circuit courts, then they will not be able to seat his constructionist nominees on the Supreme Court. In other words, the next president may not be able to offer prayer in public.

--The Federalist Patriot