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Scool District v. Schempp, sira, tee Court agair misused the Fourteenth imendrent to the Constitution to prevent the people in the states from mal:in teir osm. laws wits respect to religion and substitute the Court's our beliefs.

The federal courts have no jurisdiction in suits
by individuals against a State arising under the
retained powers of the States.

The Constitution has granted no federal judicial poser over suits by individuals against a State, or by citizens of one State against citizens of the same State, arising wder the powers reserved to the States. See Const. Art. III, Sec.2, cl.l, erd Amerdment XI. The power to make laws concerning religion has never been delecated by the Constitution to the federal government and is therezore protected by the Tenth cendrent. The school prayer cases are in essence suits by individuals against a State. Over such suitsonstitution has not granted any federal judicial power, and therefore federal courts cannot lerally tałce jurisdiction in such cases.

The Supreme Court has prevented the people in the
States from exercisins their right to make their
own laus resrecting relirion.

As shown above, supra 2, 3, the only legal way to change the Constitution is by a constitutional amendment pursuant to Art.), that is wits the consent of two-thirds of Congress and of the Lerislatures or convertions of three- fourths of tie states. The Constitution has given the Supreme Court no autorit to change it. It follows that t:e Surreme Courts could not really chance tre Constitution by the Court's attempts to change it in the school prayer cases. But it succeeded in preventing the people in the States from exercisins teir constitutional right to enact their om laws in this field because, to speak with Abraham Lincoln, federal authorities, law professors and the American news media have thrown around a Supreme Court decision a degree of sacredness absolutely unknown in the western world and also urinown to the United States Constitution.

In the famous Lincoln-Douglas debate, Dourlas insisted that every pronouncement in the Supreme Court's decision in Dred Scott V. Condford, 50 (19 Ecw.) 393 (1956), was of generally binding effect, although the Court had declared that it had no jurisdiction in the matter. In that case, tie Supreme Court had declcred (1) tant no I To slave, is orted as such from frica, nor his descendents, could ever become a citizen/in. te sense of that teras used in the Constitution of the United States; and (2) that neitier Consress ror & territorial lerislature can exclude sla er from any 0.3.territory.

Lincoln insisted tiiat the only thing whic' had to be resrected was the Supreme Court's actual decision, and that was that Scott

was still a slave. He ridiculed the position taken by Douglas. He said:

"The sacredness that Judge Douglas torows around this
decision is a degree of sacredness that has never been
before thrown around any other decision. I have never
heard of such a thing." 5

Today, that is being done by those wro insist that a Supreme Court decision interoreting or pretending to interrret e constitutional provision tates the place oi tie constitutional provision itself and can be changed by the representatives of tre people in the State and Federal Legislatures only by a constitution Arendrent pursuant to Article V of the Constitution. The practical effect has been to prevent the people from making their own laws with respect to religion because such a Supreme Court decision has been given the force and effect of a constitutional provision.

Under the Constitution, a Supreme Court decision
has no generally binding effect.

Such a position is incompatible (1) with the lancuage of the Constitution and (2) with the intent of its framers.

(1) The very first article says without any possibility of misunderstanding: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of 2 Senate ard House of Representatives." (3rhasis added). Nowhere in the Constitution is a Supreme Court decision given the st. tus of a "law of tie United States," nor does the Constitution anywhere provide that a Suprece Court decision interpreting a costitutional provision should tale the place of the constititioral provision itself.

(2) The languace of tre Constitution reflects the intent of its framers, as it appears from Madison's notes which he made at the Federal Convention of 1787 where the Constitution was drafted. An earlier draft had given the Supreme Court jurisdiction over "all cases arising under laws passed by the Legislature of the United States." Dr. Johnson of Connecticut moved that the jurisdiction be exterded "to all cases arising under this Constitution." Madison doubted "wiether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution." But then he arreed after it was generally understood "that the jurisdiction given was limited to cases of a Judiciary nature." Madison emphasized that "the right of expounding tre Constitution in cases rot of this nature ought not to be given to that Department." 2 ferrand 430. Tois was understood to mean that tie feder I courts, including the Supreme Court, world are jurisdiction to interpret constitutional quesvions in a case or contro

5) Created Equal? The complete Lincoln- Dourlas Debates, ed. and

with an introduction by Paul i. Angle, 36-37 (Chicago 1958).

versy brought before them, but that such interpretation would bind only the parties properly before the courts.

6)

The dangers of S.J.Res. 199.

5.J.Res. 199, if adopted as part of the Constitution, is apt to have an effect opposite to that which was intended.

The first sentence, standing alone, could be considered of the same nature as the first ten amendrrents which, as the Senate explained in its prear:ble thereto, were "declaratory and restrictive clauses" which had been added to the Constitution won the desire expressed by the conventions of a rumber of the States at the time of adopting tiie Constitution, "in order to prevent misconstruction or abuse of its

7)

powers." But te last sentence of S.J.Res.199 is a trap which would catch the States Ceain in tie net of supreme Court jurisdiction, except that the Supreme Court could do then legally what it is doins now only by usurpation, beca:se a claim that school prayers are not voluntary would allece a real violation of a constitutional provision, namely the provision that no person shall be required to participate in prayers. claim that school prayers are not voluntary would then not be a claim arising under the retained rights 02 the States, but a claim arising under the Constitution over which federal courts can rightfully take jurisdiction pursuant to Article III of the Constitution. If this amendment proposal is adopted as drafted, the people mignt soon find themselves in the same predicament as they are today. The Supreme Court will be able to destroy school prayers by an "interpretation" of "required" participation as surely as it does today by its insistence of separation of state and church, a requirement which is nowhere in tre Constitution.

the best way to re-establish constitutional
conditions under the existing Constitution

It must never be forgotten that it is tie Surre e Court that has succeeded in suppressing school prayers by an "interpretation" of the First Amendzent's relicion clause ard the Fourteenth Amedrent's due process clause which has no basis in the real Constitution. There is no assurance that the Supreme Court will chanre its ways, until Con Tess is willing to use the

power which has been given to Cor Tess by the Constitution for the purpose to check possible usurpations of the Supreme Court. See Hamilton in The Federalist arers, 0.80 at 461, No.81 at 488 and 491. It is, of course, the power of Congress over the appellate jurisdiction of t.e supreme Court. There is no doubt trat that power is plenary. 6) To George Banı ruit, history of the formation of the Constitution

of the l'nited States of Africa 198 (New York 1882). 7) Journal of the first

the Senate of the t'nited States of America. Appendix 96 (1789).

S SSon of

The Suprece court itself has admitted this when it urged Con:ress by letter of June 22, 1978, to relieve it of its mandatory aprellate jurisdiction.(Printed as app.l to Senate Rep.No.96-35, to accompany s.450). Dut the most authoritative testimony cane from the maker of the clause in art.III. trat the Supreme Court small have appellate jurisdiction "with such Oxceptions, and ur.der such Regulations as the Congress small madre," namely Chief Justice Ells orth in Viscart v. Dauchy, 3 U.S. (3 Dall.) 321, 327 (1796), where he said: "If Congress has provided no mile to regulate our proceedincs, we cannot exercise our a:pellate jurisdiction; and if the rule is provided, we cannot depart from it." Similarly, the Supreme Court said in Carroll v. United States. 354 U.S.394, 399 (1957), that the existence of appellate jurisdiction "is dependent upon authority expressly conferred by statute."

However, the only question for Congress is the question who under the Constitution is entitled to make laws respecting religion. As shown above, only the States have that right. Therefore Congress cannot tell the States what laws they should make as, for instance, whether prayers should be voluntary. But Congress need not worry. The school prayers wrick the Supreme Court suppressed were all voluntary prayers. The constitutions of the states have guaranteed freedom of religious wors in from the very beginning of their existence. Tae word "voluntary" in a law to prevent federal courts from takins jurisdiction in cases relating to school prayers would only bring the federal courts back, because they could rightly say that Congress had not prevented them from taking jurisdiction in cases where the issue of voluntariness is raised, and that will happen in every case where a prayer is said in a class room of a public school.

A law to prevent the federal courts from taking jurisdiction in cases relating to religion would be a first step to relieve the Supreme Court of its heavy case load about which the judzes have been complaining. No doubt, a large part, if not the largest part, of the supreme Court's mandatory case load is due to the Court's usurpations of jurisdiction over tie retained right of tire States. Acts of Congress to prevent the federal courts from taking jurisdiction in cases relating to prayers, schools, abortion and songs other matters belongis rightfull; to tre retained rights of the States would be tire che pest way of relievine the Supreme Court of its heavy cese load of appeals, perit it to devote adquate attention to cases properly within its jurisdiction crd, most important for the Nation, re-establish constitutional conditions.

Every member of con:ress is solemny committed by oath or affirmation pursuant to Article VI, clause 3, of the Constitution to support this constitution, that is the Constitution as written and intended and as legally amended. No one has sworn an oath to support a decision of the Supreme Court.

Summary and Conclusion.

From the foregoing, it spears that the porter to male laws respecting religion has never been delegated to the United States by the Constitution of the United jtates. Therefore that power, which includes the power to provide for prayers in the States' public schools, is part of the powers reserved to the States and protected by the Tenth Amendment.

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The United States Supreme Court has made it practically impossible for the States to have prayers in their public schools by assuming jurisdiction over cases over which the Constitution has crarted no federal judicial power, and by attempting to change the Constitution in the guise of constitutional interpretation.

S.J.Res.199, the proposed constitutional acendrent, would for the first time place into the Constitution an indirect admission that a Supreme Court decision interpreting or preterding to interpret a constitutional provision tales tie place of the constitutional provision itself, wrich can be changed by the people only by a constitutional arendrent pursuant to Article V of the constitution. It would, in other words. recognize that the Supreme Court can change the constitution in the guise of interpretation. This would bring create an irreconcilable conflict with Article V of the Constitution wiich provides that the constitution c n be chanced only by persons elected by and responsible to the people.

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Furthermore, the second sentence of S.J. Res.199 would create a new constitutional right, namely a right not to be required to participate in prayer. Under the constitutions of the States, no one can be required to participate in prayer, because these constitutions, without exceptions, guarantee freedom of relirious wors ip. To transfer, what is now a retained right of the States, into tie 1.3.Constitution, this would permit the Supreme Court to place its own interpretation on what "required" means and would prevent the states from varing teir ow". laws.

The State of Alabara wishes to be able to exercise its retained rifit to "ace its own laws resrecting religion, as Tiara' teed but the Terth Amendcent of the 5.3. Constitution. what is needed is not a constitutional arendcent, ut merely an act of Congress to prevent the Supreme Court from tarring jurisdiction in matters relating to religion, especially to school prayers. The Constitution has given Congress complete authority to enact such a law.

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