Restore States Rights and Public Morality
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.
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.
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.
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
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.
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
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.
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.
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..."
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.