How to Beat the Supreme Court on School Prayer

                                       By Harry V. Jaffa

"We are a religious people, whose institutions presuppose a 
Supreme Being." 

There is no better way to confirm the truth of the foregoing aphorism of 
the late Justice William O. Douglas, than to take a tour through the state 
constitutions. Forty-seven of the fifty states have preambles invoking the 
name of Almighty God. A joint resolution of the Congress could declare that 
children in public schools might lawfully recite voluntary prayers 
employing only such acknowledgment of divine power and goodness as is 
present in their own state constitution, or in the constitutions of any of 
the other states. When this resolution is signed by the President--and it 
is difficult to imagine any reason to object to it--it could take effect 
immediately. It is also difficult to imagine that the Supreme Court could 
take exception to such a resolution. To do so would not only put it in 
direct opposition to the elected branches of government, but also would 
require it, in effect, to declare the state constitutions unconstitutional! 

Consider the perfectly nonsectarian piety embodied in the fundamental laws 
of the states: 

     We the people of Alabama, in order to establish justice, 
insure domestic tranquillity, and to secure the
     blessing of liberty to ourselves and our posterity, invoking 
the favor and guidance of Almighty God, do
     ordain and establish the following Constitution and form of 
government . . . 

     We the people of the State of California, grateful to 
Almighty God for our freedom, in order to secure
     and perpetuate its blessings, do establish this 
Constitution. 

     The people of Connecticut, acknowledging with gratitude the 
good providence of God, in having
     permitted them to enjoy a free government . . . 

This selection should be sufficient to illustrate the consistency in the 
patterns of all the preambles. Who could ask more in a school prayer than 
to acknowledge that it is through Divine Providence that we enjoy our civil 
and religious liberty, and that we reaffirm our faith in and constant 
reliance upon God to preserve and perpetuate it? 

It is notable that the state constitutions have provisions equivalent to 
the "no establishment" and "free exercise" clauses of the First Amendment 
to the United States Constitution. One example that will suffice for 
present purposes is that of California: 

     Free exercise and enjoyment of religion without 
discrimination or preference are guaranteed. This
     liberty of conscience does not excuse acts that are 
licentious or inconsistent with the peace and safety of
     the State. The legislature shall make no law respecting the 
establishment of religion. 

>From this it is apparent that the people of the states have seen no 
inconsistency between the guarantees of religious freedom in their 
constitutions, and the expressions of gratitude to God for the enjoyment of 
that freedom in the same constitutions. 

American constitutions whether federal or state, rest ultimately upon the 
theology of the Declaration of Independence. This fact has been obscured by 
the domination of a legal positivism which is simply unable to understand 
the relationship between natural and divine law on the one hand, and human 
law on the other. Yet this relationship was axiomatic for our Founding
Fathers. If however we ask why we have an obligation--that is to say, a 
moral duty--to obey the laws, either of our State, or of the United States, 
there is only one answer. It is because those laws exist "to secure these 
rights," rights with which we have been "endowed by [our] Creator." 
Constitutional governments have no other purpose but to render valuable 
rights whose origin is altogether independent of human will, rights which 
are unalienable because they are fixed eternally in "the laws of nature and 
of nature's God." Through the ages many governments which did not respect 
the rights of the individual have claimed to be based upon the consent of 
the governed. But the consent of the governed required by our republican
constitutions is derived from the equal and unalienable rights of each 
human person. 

Legal positivists deny to the Declaration any role in constitutional 
interpretation. However, according to the United States Code, adopted by 
the Congress, it is the first of the Organic Laws of the United States. 
That this is not merely formal or ceremonial is shown by the fact that 
every enabling act by the Congress for the admission of a State to the 
Union since the Civil War has had the following provision. 

     The Constitution of the State of ______ shall always be 
republican in form and shall not be repugnant to
     the Constitution of the United States and the principles of 
the Declaration of Independence. 

It can be seen that the rights secured to us by the human law, whether of 
the states or of the United States, are means of implementing antecedent 
rights whose origin is in a Supreme Being. It is difficult to imagine how 
we can teach citizenship to future citizens, without inculcating in them an 
understanding of and a reverence for this origin. 

..................

Harry V. Jaffa is a Distinguished Fellow of The Claremont 
Institute.



===============================  Message 2  ===============================



RELIGIOUS LIBERTY: FOUNDING FATHERS KNEW BEST 

                                       By Thomas G. West 

Until the 1960s, the principle of religious liberty was thought to require 
the separation of church and state, but not the separation of religion from 
politics. The American tradition was full of examples of 
government-sponsored prayers, religious music, and religious instruction. 

The Supreme Court has declared quite a few of the older practices 
unconstitutional. Liberals attack these traditions as relics of an earlier 
era of religious bigotry. Conservatives have resisted the expulsion of 
religion from public life, but they don't quite know how to explain or 
defend the older approach. 

The problem with the conservative defense is that it is based on a notion 
of religious liberty that is totally opposed to the American Founders. In 
today's view, largely accepted by liberals and conservatives alike, a 
forbidden "establishment of religion" exists whenever government supports 
or promotes a particular teaching on God. 

The strangeness of today's approach, from the earlier standpoint, can be 
seen most vividly by this fact: by today's logic, it is unconstitutional to 
teach the Declaration of Independence in public school. 

The Declaration contains four distinct references to God: he is the author 
of the "laws of God"; the "Creator" who "endowed" us with our inalienable 
rights; "the Supreme Judge of the world"; and "Divine Providence." 

The Supreme Court has ruled that government may not teach or practice 
religion. It may not exert "subtle coercive pressure" on students by 
prayers or religious instruction. If the Declaration were taught in a 
public school as the truth, the teacher would "teach religion." She would 
be exercising "subtle coercive pressure" on students. She would be 
promoting an establishment of religion in violation of the First Amendment. 

But this is absurd. Or are we really willing to say that our principles, 
announced in the Declaration at the moment of the nation's founding, forbid 
the public teaching of the source of our principles? Without an eternal 
foundation in God and nature, our rights become the arbitrary gift of 
government. And what government gives, government may take away. 

Of course, teaching the Declaration has not been declared unconstitutional. 
But that is only because the Court has been unwilling to admit the full 
consequences of its view of establishment. To avoid the public outrage that 
would follow if the Declaration were banned from the classroom, the Court 
falsely asserts that the document is not really religious. "Reciting
official documents such as the Declaration of Independence which contain 
references to the Deity" bears "no true resemblance" to school prayer, says 
the Court. Such exercises, Justice William Brennan explains, "no longer 
have a religious purpose or meaning."

In other words, the Court will allow the theology of the Declaration to be 
taught in the classroom as long as it is understood that it belongs to a 
past that is dead and gone, that it has nothing to do with the world that 
we live in here and now, that it is not a living faith that holds God to be 
the source of our rights, the author of the laws of nature, and the 
protector and Supreme Judge of America. 

The prevailing, incorrect view of religious liberty leads liberals to 
demand the elimination of the few remaining remnants of traditional 
morality and religious expression from public life. The limitation of 
marriage to a man and a woman, the lingering presence of Christmas holidays 
and songs in public schools, taxpayer support of legislative and military 
chaplains--all these holdovers of the repressive traditions of the past 
must go. 

Conservatives, holding the same view of religious liberty, cannot defend 
themselves from these assaults. "Neutrality" between religion and 
irreligion necessarily results in a "naked public square." 

Liberals need to learn that although the right to free exercise of religion 
is indeed sacred, it is both appropriate and necessary for government to 
support sound religious convictions in a nation that means to remain free. 
They need to recover the Founders understanding that a public life which 
allows no place for religious expression is not fit for human habitation. 

Conservatives need to learn not to be shy about their desire for public 
acknowledgment of the importance of God in our lives as long as every 
individual is protected in his natural and unalienable right to worship God 
according to the dictates of his own conscience, and reason. 

..................

Thomas G. West is Ahmanson Fellow in Religion and Politics at the Claremont 
Institute and a professor of politics at the University of Dallas. 

The Claremont Institute, May 14, 1996