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School Prayer Amendment is More Constitutional Mischief

Copyright 1997 by David W. Neuendorf

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Defending the Constitution is like driving in a parking lot: danger can come from any quarter. If we stay focused in one direction for too long, weíre likely to be blind-sided from another. Most threats come from the left, as big government advocates do their best to circumvent the fundamental law. Unfortunately, some of the most direct attacks have been coming from supposed conservatives.

The latest example is the so-called "Religious Freedom Amendment." On March 24, 1997, the Christian Coalition announced that they would go all out to promote its passage by Congress. Here is the text of the amendment.

      To secure the peopleís right to acknowledge God: The right to pray or acknowledge religious belief, heritage or tradition on public property, including public schools, shall not be infringed. The government shall not compel joining in prayer, initiate or compose school prayers, discriminate against or deny a benefit on account of religion.

As with most such proposals, this one sounds harmless enough. With all of the horror stories about children being harassed for prayer or Bible reading in schools, donít we need to do something?

Yes, we do need to do something. Under pressure from the ACLU and other gadflies of the left, the federal courts have turned the First Amendment completely around. Instead of protecting the peopleís practice of religion from the government, the courts use the First Amendment to hamper the practice of religion.

The proposed amendment approaches the problem as if there were some ambiguity in the Constitution. It seeks to clarify what is already perfectly clear in the Bill of Rights: "Congress shall make no law respecting an establishment of religion." An established religion is an official state church, such as the Church of England which the Pilgrims and others fled when they came to America. Rather than authorizing government to limit religious activities of citizens in schools or anywhere else, the First Amendment merely forbids Congressís creation of a state funded and operated church. If this isnít clear to the Supreme Court justices as it now stands, it is hard to see how the wording of the Religious Freedom Amendment will make it more clear.

As with any amendment which tries to undo some judicial malinterpretation, this one weakens the Constitution by conceding that there was room for misunderstanding in the original document. That gives to the courtís twisted interpretations the blessing of Congress and the ratifying states. While it may fix the immediate symptom, it leaves the root problem -- judicial dictatorship -- in place to strike again somewhere else.

Another problem with the amendment is that it perpetuates the idea that the federal judiciary has the power to set local educational policies. We need less federal oversight of our local school systems, not more. It is easy to visualize a federal judge ruling that this amendment requires a high school, for example, to allow Shinto or Moslem students to conduct student-initiated prayer services over the schoolís PA system.

Finally, the amendment contains what would be the first mention of the concept of federal "benefits" to appear in the Constitution. With the Constitution as it now stands, it is easy to show that the government has not been granted the power to confer "benefits" on anyone. Add this amendment and suddenly the New Deal will have a foot in the Constitutional door.

The Framers of the Constitution gave Congress the means to control misbehaving government officials, including Supreme Court justices. The House of Representatives can impeach, and the Senate can try, any federal official for "high crimes and misdemeanors." Maliciously reinterpreting our fundamental law to suit a political agenda sounds like a crime to me. We should have seen some federal judges thrown out long ago. Itís not too late to start now.

The amendment process was provided to correct deficiencies in the Constitution, not in the particular people who currently hold federal judicial positions. Letís keep our hands off of the Constitution until we find real problems with it. Meanwhile, we need to remind the Supreme Court justices that they too are subject to the limitations imposed by our Constitution.