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Friday, October 22, 2010

Separation of Church and State

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 grievances — First Amendment to the U.S. Constitution.

In the Delaware Senate debate between Republican candidate Christine O'Donnell and her Democrat opponent, Chris Coons, the O’Donnell asked Coons to list the five freedoms in the First Amendment. He couldn't do it. But according to the Left Wing Media (LWM), the story here is that O'Donnell doesn't know what's in the First Amendment.

The two were talking about science and religion in schools when O'Donnell asked, "Where in the Constitution is the separation of church and state?" Coons, of course, pointed to the First Amendment, which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." She replied, "You're telling me the First Amendment does?" Her point was, to us, obvious -- the First Amendment does not contain the words "separation of church and state," a phrase which emanates from Thomas Jefferson's 1802 letter to the Danbury Baptist Association, not the Constitution.

Jefferson’s letter has been used by courts in a plethora of cases limiting “the free exercise thereof” potion of the Amendment. Cases from using public school buses to transport children to parochial schools to banning the singing of Silent Night at school Christmas pageants.  Over and over again, in case after case, the anti-religious left has slowly eroded our rights to exercise religion in the public square.

When O’Donnell asked Coons where in the First Amendment could we find the words “separation of church and state” he blustered a long-winded answer. Never referring to Jefferson’s letter he went on and on about numerous Supreme Court decisions that, over the years, has constructed this wall. Each new decision was based on some previous finding by the Court (stare decisis — to stand by that which is decided). To the law professors, students and media attending the debate this was the answer they wanted to hear. Coons was right – O’Donnell was stupid.

While the doctrine of stare decisis is a fundamental building block of common or case law it is not cast in stone regarding the Constitution of the United States. Decisions that were once rendered by the Court have been overturned by succeeding Supreme Courts in many cases. If we were ruled by stare decisis alone we would still have slavery (abolished by the 14th and 15th Amendments), separate but equal and the right to intern certain elements of the population in concentration camps.

On March 6, 1857 the Supreme Court, led by Chief Justice Roger B. Taney, rules in the case of Dred Scott v. John F. A. Stanford that slaves were to be considered as private property and under the Due Process Clause of the Fifth Amendment and the federal government was prohibited from freeing slaves that were brought into federal territories. This decision stood until the Civil War and the ratification of the 14th and 15th amendments to the U.S. Constitution. Stare decisis was thrown into the dust bin of history, never to be used again in the case of slavery.

On May 18, 1896 the Supreme Court ruled, in a 7-1 decision, in the case of Homer A. Plessy v. Ferguson that the "separate but equal" provision of private services mandated by state government was constitutional under the Equal Protection Clause. This meant that segregation of the races was constitutional as long it was done on a equal basis, i.e. equal schools, equal bathrooms and drinking fountains swimming pools and country clubs. Again the doctrine of stare decisis was thrown out the window by the 1954 Court decision in the landmark case of Brown v. Board of Education. Segregation was deemed unconstitutional.

In my final example I refer to the December 18, 1944 when the court upheld President Franklin Executive Order 9066 calling for the internment of Japanese-Americans in concentration camps during World War II. In the case of Fred Korematsu v. United States the Court ruled, by a 6-3 decision that Roosevelt’s order was constitutional. Ruling in the majority were the staunch progressive justices; Douglas, Black and Frankfurter, with the opinion being authored by Black.

Korematsu’s conviction was overturned by a district court in 1984, but only the matters of fact were reversed, not the matter of law. The law in the Korematsu case was upheld in the 2004 case of Rasul v. Bush. The Court held;”The degree of control exercised by the United States over the Guantanamo Bay base is sufficient to trigger the application of habeas corpus rights. The right to habeas corpus can be exercised in all dominions under the sovereign's control.” While the Korematsu case was not over ruled the decision was narrowed under Rasul v. Bush

These three cases illustrate the doctrine of stare decisis and how it can be changed or overturned by succeeding Court decisions or Constitutional Amendment. Court cases are decided by judges appointed by politicians. They are not infallible gods of the law and are prone to the influences of their political philosophies, life experiences and understanding of the Constitution. Any decision rendered by one Court can be overturned by a succeeding Court wherever a case involving a similar set of circumstances comes before it. Courts are fallible, the Constitution means what it says. Coons was wrong, O’Donnell was right.

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