School District v. Schempp, supra, the Court again misused the Fourteenth Amendment to the Constitution to prevent the people in the States from making their own laws with respect to religion and substitute the Court's own 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 power over suits by individuals against a State, or by citizens of one State against citizens of the same State, arising under the powers reserved to the States. See Const. Art. III, Sec.2, cl.1, and Amendment XI. The power to make laws concerning religion has never been delegated by the Constitution to the federal government and is therefore protected by the Tenth Amendment. The school prayer cases are in essence suits by individuals against a State. Over such suitonstitution has not granted any federal judicial power, and therefore federal courts cannot legally take jurisdiction in such cases.

The Supreme Court has prevented the people in the
States from exercising their right to make their
own laws respecting religion.

As shown above. supra 2, 3, the only legal way to change the Constitution is by a constitutional amendment pursuant to Art. 7, that is with the consent of two-thirds of Congress and of the Legislatures or Conventions of three-fourths of the states. The Constitution has given the Supreme Court no authority to change it. It follows that the Supreme Courts could not really change the 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 exercising their constitutional right to enact their own 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 unknown to the United States Constitution.

In the famous Lincoln-Douglas debate, Doulas insisted that every pronouncement in the Suprene Court's decision in Dred Scott v. Sandford, 50 (19 How.) 393 (1956), was of generally binding effect, although the Court had declared that it had no jurisdiction in the matter. In that case, the Supreme Court had declared (1) that no No ro slave, in-orted as such from Africa, nor his descendents, could ever become a citigen in Sense of that term as used in the Constitution of the United States; and (2) that neither Congress nor a territorial legislature can exclude slaver from any U.S.territory.

Lincoln insisted that the only thing which had to be respected 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 throws 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 who insist that a Supreme Court decision interpreting or pretending to inter ret a constitutional provision takes the place of the constitutional provision itself and can be changed by the representatives of the people in the State and Federal Legislatures only by a constitution Amendment 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 language 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 a Senate and House of Representatives." (3mphasis added). Nowhere in the Constitution is a Supreme Court decision given the st tus of a "law of the United States," nor does the Constitution anywhere provide that a Supreme Court decision interpreting a constitutional provision should take the place of the constitutional provision itself.

(2) The language of the 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 extended "to all cases arising under this Constitution." Madison doubted "whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution." But then he agreed after it was generally understood "that the jurisdiction given was limited to cases of a Judiciary nature." Madison emphasized that "the right of expounding the Constitution in coses not of this nature ought not to be given to that Department." 2 Farrend 430. This was understood to mean that the feder 1 courts, including the Supreme Court, would have jurisdiction to interpret constitutional questions in a case or contro

5) Created Equal? The complete Lincoln- Douglas Debates, ed. and with an introduction by Paul . Angle, 35-37 (Chicago 1958).

versy brought before them, but that such interpretation would bind 6) only the parties properly before the courts.

The dangers of S.J.Res. 199.

S.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 amendments which, as the Senate explained in its preamble thereto, were "declaratory and restrictive clauses" which had been added to the Constitution upon the desire expressed by the conventions of a number of the States at the time of adopting the Constitution, "in order to prevent misconstruction or abuse of its powers." 7)

But the last sentence of S.J.Res. 199 is a trap which would catch the States again in the net of Supreme Court jurisdiction, except that the Supreme Court could do then legally what it is doing now only by usurpation, beca se a claim that school prayers are not voluntary would allege a real violation of a constitutional provision, namely the provision that no person shall be required to participate in prayers. A claim that school prayers are not voluntery would then not be a claim arising under the retained rights of 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 might 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 the Constitution.

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

It must never be forgotten that it is the Supree Court that has succeeded in suppressing school prayers by an "interpretation" of the First Amendment's religion clause and the Fourteenth Amendment's due process clause which has no basis in the real Constitution. There is no assurance that the Supreme Court will change its ways, until Congress is willing to use the EXEE power which has been given to Corress by the Constitution for the purpose to check possible usurpations of the Supreme Court. See Hamilton in The Federalist Farers, No.80 et 481, No.81 at 488 and 491. It is, of course, the power of Congress over the appellate jurisdiction of the Supreme Court. There is no doubt that that power is plenary.

6) To George Bancroft history of the formation of the Constitution of the United States of America 198 (New York 1882).

7) Journal of the first session of the Senate of the United States of America. Appendix 96 (1789).

The Supreme Court itself has admitted this when it urged Con ress by letter of June 22, 1978, to relieve it of its mandatory appellate jurisdiction. (Printed as App.l to Senate Rep. No.96-35, to accompany S.450). But the most authoritative testimony came from the maker of the clause in Art.III, that the Supreme Court shall have appellate jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make," namely Chief Justice Ellsworth in Wiscart v. Dauchy, 3 U.S. (3 Dall.) 321, 327 (1796), where he said: "If Congress has provided no rule to regulate our proceedings, we cannot exercise our appellate 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 which the Supreme Court suppressed were all voluntary prayers. The constitutions of the States have guaranteed freedom of religious worship from the very beginning of their existence. The word "voluntary" in a law to prevent federal courts from taking 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.

ر

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 judges 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 the retained right of the States. Acts of Congress to prevent the federal courts from taking jurisdiction in cases relating to prayers, schools, abortion and many other matters belonging rightfully to the retained rights of the States would be the cheapest way of relieving the Supreme Court of its heavy case load of appeals, permit it to devote adquate attention to cases properly within its jurisdiction and, most important for the Nation, re-establish constitutional conditions. Every member of Congress 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 appears that the power to make laws respecting religion has never been delegated to the United States by the Constitution of the United States. 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.

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

S.J.Res. 199, the proposed constitutional amendment, would for the first time place into the Constitution an indirect admission that a Supreme Court decision interpreting or preter ding to interpret a constitutional provision takes the place of the constitutional provision itself, which can be changed by the people only by a constitutional amendment 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 which provides that the Constitution can be changed only by persons elected by and responsible to the people.

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 religious worship. To transfer, what is now a retained right of the States, into the U.S. Constitution, This would permit the Supreme Court to place its own interpretation on what "required" means and would prevent the States from making their own laws.

The State of Alabama wishes to be able to exercise its retained right to make its own laws respecting religion, es Guaranteed by the Tenth Amendment of the 5.5. Constitution. What is needed is not a constitutional amendment, but merely an act of Congress to prevent the Supreme Court from taking jurisdiction in matters relating to religion, especially to school prayers. The Constitution has given Congress complete authority to enact such a law.