Constitution, no federal power can legitimately exist. See The powers not delegated by the Constitution to the United States nor prohibited by it to the States have remained in the States: With respect to those powers, the States have remained completely sovereign. The only constitutional way to take any of these reserved powers from them is through a constitutional amendment pursuant to Article V, which is the only legal way to amend the Constitution of the United States. No power to make laws with respect to religion appears in the original Constitution. That power, therefore, had been retained by the States. The first ten amendments to the Constitution were added upon request of the States. The purpose of Amendments 1-8, the so-called Federal Bill of Rights, was to secure for the inidivual the same protection from the federal government which the people of the several States had secured in the constitutions of the several States from their State governments. This will be easily understood if it is remembered that during the Federal Convention of 1787, where the Constitution was drafted, and also later during the ratifying process, ladison and Hamilton had pointed out that, while the old Confederation the federal powers operated almost exclusively on the States, the new "general government" was to operate mostly directly on the individual. 1) The restrictions in Amendments 1-8 were all powers retained by the States. The Ninth Amendment was added in order to guard against an interpretation that. by enumerating particular exceptions to the grant of power to the federal government, those rights which were not singled out, were intended to be assimed into the hands of the general government by implication and were therefore insecure. 1 Annals of Congress 439. The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' The rights retained by the people refer, of course. to the rights retained by the people of the several States. As an added precaution to protect the retined rights of the States, several State Conventions, in their amendment proposals, had particularly requested that it should be declared in the Constitution that the powers not therein delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people. This became the Tenth Amendment. One of the provisions of the Federal Bill of Rights was later made applicable to the States by the Fourteenth Amendment, namely 1) 1 Max Farrand, The Records of the Federal Convention of 1787, p. 464; 2 id. p.9; The Federalist Papers, New American Library ed.1961, Nos.16 and 39. the due process clause of the Fifth Amendment. No other provision of the Federal Bill of Rights has been made applical States through a constitutional amendment. 2) plicable to the This has been admitted by the Supreme Court on many occasions, because this is the only logical conclusion which can be drawn from the language and the history of the Fourteenth Amendment. Walker v. Sauvinet, 92 U.S. 90, 93 (1875), holding the Seventh Amendment inapplicable to the States; United States v. Cruikshank, 92 U.S. 542, 551, 553 (1875), holding the First and Second Amendments inapplicable to the States; Davidson v. New Orleans, 96 U.S. 97, 105 (1877), holding the Fifth Amendment's just compensation clause inapplicable to the States; Hurtado v. California, 110 U.S. 515, 534-535 (1884), holding that the Fourteenth Amendment's due process clause had not made the Fifth Amendment's "grand jury" provision applicable to the States; Frank v. Magnum, 237 U.S. 309. 326 (1915), holding that the due process clause in the Fourteenth Amendment was the "settled course of judicial proceedings as established by the law of the State." As if to reaffirm such rulings, the Supreme Court stated in Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543 (1922): "... as we have stated, neither the Fourteenth Amend- Finally, in Bartkus v. Illinois, 359 U.S. 121, 124 (1959), "We have held from the beginning and uniformly that It is, therefore, clear, by the Supreme Court's own admission, that there is no constitutional provision which has made the religion clause of the First Amendment applicable to the States. The truth is that the power to legislate respecting religion has never been deleted by the Constit tion to the United States 2) See ..Meyer, me History and Meaning of the Fourteenth Ferdent 72-73 (New York 17. The 14th Amendment's due process clause reads: "...nor shall any State deprive any person of life, liberty, or property, without due process of law." Its constitutional meaning is that no person may be sentenced to death, or inprisonment, or forfeiture of erry without having had access to a preof procedure. Government and therefore has remained reserved in the several In the School Prayer Cases, the Supreme Court did In the school prayer cases, the Supreme Court did not interpret the Constitution, but misused it for the purpose of forcing its om beliefs on the States that there ought to be a complete separation of state and church. The two leading cases are Engel v. Vitale, 370 U.S. 421 (1962), and Abington School District v. Schempp, 374 U.S. 203 (1963), in which the Supreme Court ruled for the first time that school prayers in State public schools violated the establishment clause of the First Amendment to the Constitution, as made applicable to the States by the Fourteenth Amendment. In Engel v. Vitale. supra. Justice Black wrote the opinion of the Court. On 14 printed pages, he gave a historical review of the quarrels over the Book of Common Prayer in England and of the history of the early establishment and later rejection of official churches in the American States. But the one thing he did not do was to look into the history of the religion clause in the First Amendment in order to find out its intended meaning, and tell us where in the provisions of the Fourteenth Amendment that clause had been "reinforced," as he said it had.3) In Abington School District v. Schempo, supra, Justice Clark wrote the opinion of the Court. It is 22 printed pares long. But he too did not base it on the constitutional history and meaning of the First Amendment's religion clause. And in explanation of how the Fourteenth Amendment had made that clause applicable to the States, he referred, not to a constitutional provision, but to other cases in which the Supreme Court had ruled that "the liberties guaranteed by the First Amendment" are "embraced" by the "fundamental concept of liberty" embodied in the due process clause of the Fourteenth Amendment. 374 U.S., at 215-216. Had the judges of the Supreme Court looked at the debates of the first Congress, where the First Amendment's religion clause was drafted, they could easily have found out the intent of the framers, instead of speculating about it. They would have found that it was requested by some States as an assurance that the new Congress would 3) The reason for his vagueness was that J.Black disapproved of the Court's use of the due process clause for the incorporation of the Federal Bill of Rights into the Fourteenth Amendment. He believed that the privileges or immunities clause had done this. Adamson v. California, 332 U.S. 46, 71 (1947), Black, J., dissenting. However, the language of the Fourteenth Amendment as well as its history speak against it. Aside from the due process clause, there was no incorporation of the Federal Sill of Rights by the Fourteenth Amendment. See H.H.Meyer, The History and leaning of the Fourteenth Amendment, 12-17, 90-111, 112-124 (New York 1977). not misuse the necessary and proper clause (supra p.3) to create a nationwide religion or a national church to which everybody would have to submit, but that there was opposition to the word "national," so that it could not be used. And had these judges looked at the Debates of the Federal Convention of 1787, they would have found out that the opposition to the word "national" in the First Congress was due to attempts in the Federal Convention to create a "national" government which would have reduced the States to administrative provinces by the requirement that every State law should be subject to approval by the national authorities. For that reason, the word "national" was removed from the constitutional text and replaced with "United States." 1 Farrand 334, 335. This opposition carried over into the First Congress and influenced the religion clause. The choice of "establishment of religion" in the First Amendment was merely a substitute for "national church." As explained above, supra pp.5-6, the Supreme Court has ruled that the due process clause of the Fourteenth Amendment does not apply to the States any of the other provisions of the first eight amendments, so, for instance, in Hurtado v. California, supra, and Bartkus v. Illinois, supra. These rulings are irreconcilable with the Court's rulings in the school prayer cases, in which the Court held that the due process clause of the Fourteenth Amendment did make the First mendment applicable to the States. In Abington v. Schempp, at 374 U.S., 215-216, for instance, the Court relied for those rulings on earlier cases in which the Court said that the liberties guaranteed by the First Amendment are "embraced" by the "fundamental liberties" embodied in t. e due process clause of the Fourteenth Amendment, citing Cantrell v. Connecticut, 258 U.S. 652, 665 (1925). Any one who can read English and takes the trouble of reading the First and Fourteenth amendments can easily see that the due process clause does not. like the First Amendment, prohibit any interference with the free exercise of religion, or freedom of speech, or of the press. On the contrary, the due process clause of the Fourteenth Amendment clearly authorizes the States to take life, liberty, or property, but not without some procedure. * Moreover, the Supreme Court has said that prayers in State public schools violate the First Amendment's prohibition from making any law respecting an establishment of religion, as made. applicable to the States by the Fourteenth Amendment's due process clause. The only word which the two provisions have in common is the word "law." But in the First Amendment the Constitution prohibits Conrecs from malin- certain lors, while in the Fourtee th Amerdnent's due process clause the Constitution tells te 3 tes that the must have certain laws. How can there be any cor ection between them? The truth is that there is no connection. Text supra, n. 2. Where neither the language of a constitutional provision is considered, nor the intent of its framers, nor its history, we carnot very well speak of constitutional interpretation. The Supreme Court itself has practically conceded that it has not really interpreted the due process clause,, but has assumed the right to put into it what, in the Court's opinion, are fundamental concepts "implicit in the concept of ordered liberty." Bartkus v. Illinois, 359 U.S. 121, 127 (1959); Falko v. Connecticut, 302 U.S. 319, 324- 325 (1937). In this way, the Supreme Court enabled itself to create a constitutional issue and declare a State law unconstitutional whenever the Court considers it to be "arbitrary, capricious, unreasonable, or oppressive" or, in the Court's belief, it "has no 'rational or justifying' purpose, or is offensive 1.4) to a 'sense of fairness and justice, although the State law under scrutiny does not violate any constitutional provision. In short, the Supreme Court has misused the Fourteenth Amendment's due process clause as a conduit for extending federal jurisdiction over powers reserved to the States in order to bring them under federal control. By this practice, the Supreme Court of the United States has attempted to fundamentally change the Constitution without a legal amendment pursuant to Article V. This, the real Constitution, like before it the constitutions of the States, is based on the principles of sovereignty and self- government of the people. In such a system, the decision as to what is "implicit in the concept of ordered liberty," is a policy decision and belongs to the people who make their will known through their elected representatives. By disregarding this constitutional mandate, the Supreme Court has acted against the Constitution, oblivious to the fact that every judicial officer is solemnly committed by oath pursuant to Art. VI, clause 3, "to support this Constitution," that is the Constitution as written and intended by the framers and as legally amended. In 1963, the Supreme Court must have sensed the impropriety of its action when it said in Ferguson v. Skrupa, 372 U.3. 726, 730 (1963): "We have returned to the original constitutional Regrettably, the Court has not extended this insight to the religion clause. ..t about the same time, navely in 1962 and 1963, when the Court rendered ingel v. Vitale, supra, and Abington 4) Griswold v. Comecticut, 361 U.S. 479, 511, 513 (1965). Black, J., dissenting. |