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Restore States Rights and Public Morality

Synopsis: Pat traces the history of the balance of powers in government, concluding that the framers of the constitution intended Congress to be the dominant branch with more authority than the chief executive or the Supreme Court. This intent has been undermined, first by enhanced authority assumed by the presidency and then by Supreme Court actions. The Court has become an "unelected oligarchy" that has gone beyond its mandate by concluding that the constitution grants a right to privacy. That interpretation has denied state and local authorities powers due them to guarantee rights unique to their constituencies. It has led to decisions on abortion and religion that undermine public morality and the fabric of our culture. He calls for a restoration of constitutional balance, emphasizing that the American people have the integrity and will to make that a reality.

Yale University Law School, March 25, 1986

James McGregor Burns wrote a book called Power to Lead in which he indicated that we have a serious crisis of leadership among the states. He calls for a restructuring of the constitutional system that has endured for almost 200 years.

At the same time, Senator Robert Dole is bringing before the United States Senate on Thursday a balanced budget amendment to the United States Constitution. If that fails to get the required 2/3 majority needed for approval, there is also a move to call a constitutional convention. That proposal is only two states short of approval. So we may have, in the next couple of years, either a balanced budget amendment or a constitutional convention -- about 200 years after the first one. There are people who predict dire results from such events. Others think it would be a triumph of our republican form of government. But in any event, a convention could open up some kind of a Pandora's box.

What the Authors Had in Mind

When I was at law school, I studied constitutional law for a whole year. I read a thick book of cases on constitutional law. I did all kinds of research. But I confess to you, I never read the Constitution. I graduated without anybody asking me about that. This past weekend, I set out to remedy that. And, I began to get a feeling of what the framers of the Constitution of the United States intended. I have always assumed that we have a separation of powers -- separate, but essentially equal powers. The legislature was one power, the executive was another power and the judiciary was another, and essentially, they were co-equal. None was supposed to be above or below the other. But as I read this document, I found something entirely different. In terms of just lines and copy and text, there are 255 lines of copy addressing the legislature. There are 114 lines of copy addressing the chief executive and there are 44 lines addressing the court system, the Supreme Court particularly. And as I got more deeply involved in it, I said this looks a great deal like the articles of incorporation for the Christian Broadcasting Network that gave powers to a board of directors, who in turn are able to choose the chief executive who in turn is in charge of the daily business of the operation. But that executive is extremely limited in what he can do. For example, in my organization, I can't appoint a vice president without the permission of the board of directors.

Likewise, the U.S. Constitution says the President of the United States can't appoint anybody unless the Congress approves it. And although he is in charge of the military, the Commander in Chief of the military of the United States, he does not have the power to levy armies. That's given to Congress. He doesn't have the power to raise any money. That's given to the Congress. He doesn't have the power to coin money. That's given to the Congress. He doesn't have the power to set the value of money. That's given to the Congress. In case the president gets out of line, the impeachment power is given to the Congress. This is where our framers intended the seat of power in Washington to be.

Congress Has Lost its Power

Now I have spoken to Congressmen about their duties and responsibilities and one of them, Congresswoman Millicent Fenwick said, "We just frankly can't trust each other enough to do that." Well, she is no longer in the House of Representatives, but she knew her colleagues better than I do. I believe there has been an abdication of power. The framers gave most of the power to the Congress united. But Congress has lost this power -- a change triggered, perhaps, by the Great Depression when the imperial presidency emerged. In 1932, Franklin Roosevelt, one of the great communicators, learned how to lobby Congress and sometimes go over the heads of congressmen. For his first hundred days in office, the Congress essentially gave Roosevelt almost anything he asked for because of the crisis. And today, there is an incredible centralization of power in Washington in the executive branch of government as opposed to the legislative branch where constitutional framers meant for the power to reside.

During the Watergate era, the power of the executive was diminished. But there has been a resurgence in executive power. I read a recent editorial in The Wall Street Journal that said Ronald Reagan should spend a $100 million on the Contras whether Congress likes it or not because the President is in charge of foreign affairs. But the Constitution gives that power to Congress. And it seems that somewhere down the line, Congress has got to reestablish itself as, in a sense, the leading branch of the government.

Congress also holds power with respect to the judicial branch of government. Congress had the power to establish all the interior courts in the United States. The judges of the Supreme Court system were given a designated number of cases that they could deal with, and the Congress had the power to impeach the justices. The justices were not to serve for life, they were to serve for good behavior. Congress has the privilege under the Constitution to establish the appellate jurisdiction of the Supreme Court which means they can determine essentially the category of certain cases that will come up to the court on review. Congress has the power by a simple majority vote to contract the number of Supreme Court justices or expand it because they have done so on several occasions in the history of the United States. Congress today could expand the Supreme Court to 12 members. That's all they would have to do, a simple majority. So Congress was envisioned as a repository of vast power by the authors of the Constitution.

Power Shifts to Supreme Court

Now, we have seen in our day, the power shift first from Congress to the Presidency, and then under Chief Justice Earl Warren, it moved over to the Supreme Court. And in today's world, the Supreme Court has taken a power, in my view, which the Constitution never gave it. Here are a few of the statements of some of the framers of our government and those who were involved in the presidency in the early days of our nation. I think it is very significant in terms of what these people intended our government to look like.

Thomas Jefferson, 1820, Sept. 28. Letter to William Jarvis. He said, "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. The Constitution has erected no such single tribune, knowing that whatever hands confided with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co-sovereign within themselves..."

James Madison, 1788. He wrote that in the state constitutions, and, indeed, in the federal one also, no provision is made for the case of a disagreement in expounding the laws; and as the courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law to stamp it with its final character. This makes the judiciary department paramount in fact to the legislature which was never intended and can never be proper.

Abraham Lincoln at his first Inaugural March 4, 1861. He said, "I do not forget the position assumed by some that Constitutional questions are to be decided by the Supreme Court. Nor do I deny that such decisions must be binding in any cases of the parties to the suit as to the object of that suit...(but) if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they remain an ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers having to that extent practically resigned their government into the hands of that eminent tribunal."

An Unelected Oligarchy

Now that's precisely what happens in a case. If two parties go to law, you and I must be their attorneys or relinquish standing in that case. We have no voice in it. We have no ability to discuss it. It is not open to public debate. We cannot vote on it. Our legislators can't vote. Our Congressmen can't vote. But that case works its way up through the federal system. As Lincoln says, "if that dispute between two parties is settled by the Supreme Court, is that irrevocably then the supreme law of the land?" Well the Constitution is very clear that it should be no such thing. The supreme law of the land would be the constitution, laws made under the constitution, treaties, etc. But the Supreme Court, regretfully, in our lifetime, has excelled at making by its own decisions what is called the supreme law of the land. And that was never intended. It was warned against. This doctrine of judicial review, started innocently in the early Marbury vs. Madison case, little by little is working its way through the system, until in our day and age, the Supreme Court has become essentially an unelected oligarchy of five people, who, as Lincoln said, "have taken away the liberties of hundreds of people."

Let's look again at the constitution's intent to empower the legislature. With Congress holding such power, the states got nervous. They reasoned that relinquishing so much power to the Congress threatened state sovereignty. After all, this is a United States of America. It is not one vast democracy of homogeneous people. It is Maryland. It is Connecticut. It is Massachusetts. It is New York. These are separate states. So the Constitution was enhanced by the Bill of Rights. The first point in the Bill of Rights, the First Amendment to the Constitution, said "Congress shall pass no law respecting the establishment of religion or prohibiting the free exercise thereof." There were certain states at that time that had established religions. Massachusetts was a case in point. They had a state religion. And they didn't want this enormously powerful Congress to superimpose a religious system on their state system. To guarantee the states retained critical rights, the tenth amendment said, "All the power that is not expressly delegated to the federal government is reserved for the states." The intent? The people, i.e. the states, have delegated power. They gave up some powers, but they did not give up all powers because they are sovereign states.

Now, what's happened? Following the Civil War, there were amendments added to the Constitution dealing with the subject of slavery and the terrible deprivation of rights of certain citizens of the United States. Those amendments ensure that if you're a citizen of the United States, you have to be treated as such. Your rights for equal protection under the law cannot be denied.

What Rights Remain for the States?

Now, did the Fourteenth Amendment incorporate the First Amendment and the rest of the Bill of Rights into the Constitution? (The Fourteenth Amendment reads in part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") Did it do it or didn't it? Well, the people who were in the Congress who passed that amendment didn't seem to think so five of six years later.

An explicit attempt to impose those national requirements on all states was denied when Congress refused to consider an amendment proposed in 1875. So the same essential Congress that passed the Fourteenth Amendment said "The Fourteenth Amendment does not embrace the First Amendment and apply it to the states." It was very simple, and they voted it down. That was the law of the land. That was the law in accordance with the Constitution. That was the law voted by the Congress..until somehow, the Supreme Court began to discover things. Thus began a rather long and tortuous process.

Now, what do we have today? Well, we have had two egregious breaches of that concept established by Congress and reiterated in 1875. The Supreme Court has ruled indeed, that the Fourteenth Amendment does bring the First Amendment and make it apply to the states. Instead of saying Congress shall pass no law, it says state legislatures shall pass no law. School boards may pass no law. Local city councils may pass no law. Nobody, in the state government at any level may pass a law that in any way establishes a religion.

Meaning of "Established Religion" Clear

In the days of the Constitution, an established religion meant just what my forefathers fought about in Virginia. An established religion was a religion where the state paid the clergy and where there were civil liabilities to those who did not belong to that religion; where such things as marriages could only be performed with the blessing of a particular church; where, unless a person was a member thereof, he or she was denied the right to hold public office, etc. That's an established religion. All the people of the framers knew it was to take one sect and prefer it above another.

But in no way would that have been considered by the framers of our Constitution to prohibit a child from saying grace in the first grade or kindergarten over milk and cookies. In no way would it have been applied as it was in El Paso, Texas, in the case of a legally blind Vietnamese child who was saying her Rosary on a school bus and teaching the principle of Rosary beads to some of her fellow bus riders. She was told she was establishing a religion under the Constitution. And no way would that have to do with the holding of a Bible study group voluntarily on a high school campus after hours as was the case with Williamsport, N.Y. students. No way would it include a case in the University of Missouri school system where a group of religious students were denied equal access to the facilities of the university even though the Nazi party, the Maoist party, the Communist party, the Staff Club, every other club ad access to those facilities.

The Court Has Done What Congress Cannot

Daniel Moynihan, US senator from New York, has said that the current treatment of the First Amendment is an intellectual scandal. And there is no question in the history of the United States of America that the courts have done what Congress has never been permitted to do. Congress could never pass a law prohibiting the free exercise of religion. But the courts have successfully, in the district court level, in the circuit court level, in the Supreme Court level, restricted the right of religious people to involve themselves in their faith. And in so doing, they have violated the time-honored customs of this country clearly intended by the framers of the Constitution.

There is one other case that deals with the same basic issue. And before I talk about this, I want to state personally that I firmly believe in contraceptives. But there was a law in Connecticut a few years ago that prohibited the sale of contraceptives. And so somebody sued the state. The claim was that the prohibition was unconstitutional in that it denied basic rights. Well, there is nothing in the Constitution that says you have the right to have contraceptives. How do you go about justifying this? Well, William 0. Douglas, who was formerly a professor at Yale University, discovered a penumbra (a vague glow produced in a solar eclipse) around the Fourteenth Amendment of a right to privacy. And so, before long, you read in The New York Times that there is a constitutional right to privacy.

No Constitutional Right to Privacy

According to Robert Bork, also a professor at Yale, there is no right to privacy -- it never existed in the Fourteenth Amendment. Hard cases make bad laws. This was a hard case about what was seen as a terrible statute. The judges wanted to take it off the books and send it back to the legislature and say we can not deal with it, there is nothing in the constitution that gives you this right. But if you want to go back to your legislature, go back and ask them to reverse their laws, or go and elect some different legislators and let them repeal it for you. That is the Democratic process in our country. You can't make laws, and you cannot create the Supreme Court as a super legislature, that is wrong, and that is what has been done.

The impact of this shift has been enormous. Having put the right of privacy in the constitution, it was one step beyond that for the Supreme Court to negate the laws of 50 states with Roe v. Wade. It is terrible law, whether you are pro-life or not. It is improper constitutional procedure. Proper constitutional procedure would conclude that if the Court sees nothing that deals explicitly with the issue, the legislatures of the states have spoken. With no precedent whatsoever, justices began to rule with medical evidence, and as Justice Sandra Day O'Connor said, in a recent decision on this, how can we build current medical theory into the U.S. .Constitution, because medical opinion changes. And so they said life begins at the first trimester, or maybe the second. It was a very confusing kind of decision. Five Justices negated the laws of 50 states and they did it on the strength of a penumbra. There was no other justification. They had some sociological research from the Rockefeller Foundation that had nothing to do with constitutional law, nothing to do with theological canon law, nothing from science. They just felt it was time to permit abortion.

No Religion Equals No Public Morality

This country desperately needs moral guidance. Parents see 250,000 crimes being committed every month. They see 27 million functional illiterates. They see 50 percent of black young people of inner cities not being able to read or write, and they sense a crisis in education. We know we must restore morality. George Washington said, "Forbid us to expect public morality in the absence of religious principle." If you don't have some form of religion, you're not going to have public morality. But the court has stripped us of the ability to muster this morality. Justices don't let children pray and, at the same time, they go overboard to protect pornography. But what about the rights of all the people to engage in what they know is correct for their children, or their states? These are matters that should be handled by their legislature.

Could this problem be solved? It certainly could. It could be solved very easily by a majority vote of Congress or in a number of other ways. It seems to me there must be a restoration of constitutional balance. We must go back to the original intent of the framers. The constitution is not a sociological document that can be changed by every sociological whim and fancy that comes along. It must be a document we can rest upon.

I believe the people of this country can be trusted. And it seems like Jefferson warned, Lincoln warned, Madison warned, we have an imbalance right now in our constitution because there are a number of social actions coming into the process. But we are seeing a political groundswell right now which is caused by an imbalance of what the original framers intended. I believe we are going to see this country return to the intent of the framers. We will not have to use some draconian methods that have been suggested by several. We won't need a constitutional crisis. This nation will come together, and it is my fervent prayer that we once again become one nation under God.

I can do all things through Christ who strengthens me.
—Philippians 4:13

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