Amicus Curiae Brief — McCreary County v. American Civil Liberties Union of Ky.

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| Supreme Count. US

cae FILED

Gg DEC 8 - 2004

No. 03-1693 L_OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

McCREARY COUNTY, KENTUCKY, ET AL.,

Petitioners,

Vv.

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, £7 AL.,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE OF

CONSERVATIVE LEGAL DEFENSE

AND EDUCATION FUND,

JOYCE MEYER MINISTRIES, COMMITTEE TO

PROTECT THE FAMILY FOUNDATION, LINCOLN

INSTITUTE FOR RESEARCH AND EDUCATION,

AMERICAN HERITAGE PARTY, PUBLIC

ADVOCATE OF THE UNITED STATES, RADIO

LIBERTY, AND SPIRITUAL COUNTERFEITS

PROJECT, INC.

IN SUPPORT OF PETITIONERS

HERBERT W. TiTus*

Attorneys for Amici Curiae WILLIAM J. OLSON

*Counsel of Record WILLIAM J. OLSON, P.C.

8180 Greensboro Drive

December 8, 2004 Suite 1070

McLean, VA 22102-3860

(703) 356-5070

a --- ———__— — — -- —-———

—————— oe Se —

TABLE OF CONTENTS

Page

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I. “Tuts CONSTITUTION ... SHALL BE THE SUPREME LAW

I a cain Ch 0 ae ne le 4

A. JUDICIAL REVIEW REQUIRES TEXTUAL FIDELITY .. 4

B. JUDICIAL REVIEW REQUIRES FIDELITY TO THE

ORIGINAL MEANING OF THE TEXT .............. 5

C. STARE DECISIS REQUIRES CONFORMITY TO THE

MEANING OF THE ORIGINAL CONSTITUTIONAL

Il. THE ESTABLISHMENT CLAUSE DOES NoT APPLY TO

eka oe ne 10

A. THE FOURTEENTH AMENDMENT’S DUE PROCESS

CLAUSE Dogs NoT INCORPORATE ANY OF

ee eee eae eae 10

B. THE FOURTEENTH AMENDMENT’S DUE PROCESS

CLAUSE DoEs NoT INCORPORATE THE

ESTABLISHMENT CLAUSE ............-eeeceees 18

C. No FOURTEENTH AMENDMENT PRIVILEGE OR

IMMUNITY HAS BEEN ABRIDGED IN THIS CASE ... 23

Ill. By OATH BEFORE GOD, THIS COURT IS OBLIGED TO

CONFORM ITS WILL TO THE CONSTITUTIONAL TEXT .

COURERSIUOEE occccbccckececenecessaseele

. 27

TABLE OF AUTHORITIES

Page

THE HOLY BIBLE

eid co ecdeees ess caseccesvevess 28

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ee coe coe sh6 hes beee sn eres 28

ee 28

EEE 28

ES EE Sa 28

EE er 29

ee eG kee nasandecepoecececs 28

U.S. CONSTITUTION

Asticte I, Section 2, Paragraph 2 .... 1... cccccccccee 26

Asticie I, Section 3, Paragraph 3 ...........ccccceees 26

Article II, Section 1, Paragraph 5 .................... 26

De es cc cecenesees 29

De eee re Cee wh dd eee ene ceees 11, 26

eee eee aeuee othe heeteeeseesees 17

EE ee 2, passim

EE ee 10

deere Cease eb eee neeseess 10, passim

Tee eee eebeneeewes 10

TT eked acces eueeeeetes 10

Ts ined eee bbb 6sebeseesee 3, 10

EE 10

EE ee 2, passim

CO eee 10

FEDERAL STATUTES

EE ccc cee ee sceccvecsceeoeses 4, 28

TATE CONSTI IONS

Constitution of Maryland (Nov. 3, 1776) ............. 21

Constitution of Pennsylvania (Aug. 16, 1776)....... 15, 20

CASES

Adamson v. California, 332 U.S. 46 (1947) .... 15, passim

Arizona Civil Liberties Union v. Dunham,

SES. SU, See ee Ge OE BD bo ccccccneesowss 24

Barron v. Mayor and City Council of Baltimore,

Se Se EF CD 06-65. 4060066605 6, passim

Benton v. Maryland, 395 U.S. 784 (1969) ............. 10

Books v. City of Elkhart,

ee ee I ED 00g ov be veddcevesséees 24

Brown v. New Jersey, 175 U.S. 172 (1899). ........... 13

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 19

Capitol Sq. Review Bd. v. Pinette, 515 U.S. 753 (1995) . . 23

Chicago, Burlington and Quincy Railroad Co. v.

City of Chicago, 166 U.S. 226 (1897) ........ 12, 13, 14

Cooper v. Aaron, 358 U.S. 1 (1958) ................ 3,8

County of Allegheny v. ACLU,

ic cope enneewenees 10, 23

Davidson v. f Administrat f th

City of New Orleans, 96 U.S. 97 (1878) ....... 3, 11,12

Davis v. Beason, 133 U.S. 333 (1890) ................ 21

DeJonge v. Oregon, 299 U.S. 353 (1937) ............. 14

Doe v. County of Montgomery, IIL,

fk pe 8. ce Xena 24

Duncan v. Louisiana, 391 U.S. 145 (1968) ...... 2, passim

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 10

Everson v. Board of Education, 330 U.S. |

ER FERS pe er ee 3, passim

Freethought Society v. Chester County, 334 F.3d 247

I ora a aa alte ee ee eae 2,9

Freethought Society v. Chester County, 191 F. Supp.

EE cial ube wanuedew kee en 24

Gitlow v. New York, 268 U.S. 652 (1925) ............ 14

Graves v. O’Keefe, 306 U.S. 466 (1939) ............... )

Holmes v. Jennison,

39 U.S. (14 Pet.) 540 (1840) ............... 5, passim

Hutto v. Davis, 454 U.S. 370 (1982) ................. 29

Jaffree v. Board of School Comm’rs of Mobile County,

554 F. Supp. 1104 (S.D. Ala. 1983) ................ 8

Lawrence v. Texas, 539 U.S. 558 (2003) .............. 17

Lemon v. Kurtzman, 403 U.S. 602 (1971)....... 2, passim

Lynch v. Donnelly, 465 U.S. 668 (1984) ........... 10, 23

Marbury v. Madison,

$US. (i Commat) 137 (1GGS) ... ccc ccccces 2, passim

Marsh v. Chambers, 463 U.S. 783 (1983) ............. 10

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) ..6

Murray v. Hoboken Land Improvement Co.

SP UB. CHB EW.) SI CUBS occ ccccccccccccccess 15

Near v. Minnesota, 283 U.S. 697 (1931) .............. 14

Osborn v. Bank of the United States,

22 US. © Wieet.) TIO CIRSS) onc ccc cccccccccccces 5

Palko v. Connecticut, 302 U.S. 319 (1937) ............ 14

Planned Parenthood of Southeastern Pennsylvania

Ce Se Es PED 6 0006 5neeacesevccvaos 7

Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922) ... 13, 14

Reuben Quick Bear v. Leupp, 210 U.S. 50 (1908) ...... 21

Reynolds v. United States, 98 U.S. 145 (1879) ......... 21

Richfield Oil Corp. v. State Board of Equalization,

ee ee eeeeee 17

Robinson v. California, 370 U.S. 660 (1962) .......... 10

Saladin v. City of Milledgeville, Ga.,

SIZ P.26 GB7 (1 1G Cir. 1967) 2... ccc cccccccccess 24

Santa Fe Indep. Sch. Dist. v. Doe,

RS 5 ob cc censecdbuceeneneeeaas 10

Schlib v. Kuebel, 404 U.S. 357 (1971) ............... 10

Schneider v. Irvington, 308 U.S. 147 (1939) ........ 19, 20

Slaughter-House Cases, 83 U.S. 36 (1873) ...... 3, passim

Suhre v. Haygood County, 131 F.3d 1083

(4th Cir. 1997) 00.0... ccc cece ce ceccuceccucees 24

Terrett v. Taylor, 13 U.S. (9 Cranch) 43 (1815) ........ 21

Twining v. New Jersey, 211 U.S. 78 (1908) ........... 13

U.S. Term Limits, Inc. v. Thornton,

I a a a es oe oe 11, 26, 27

Wallace v. Jaffree, 472 U.S. 38 (1985) ......... 8, passim

Watson v. Jones, 80 U.S. 679 (1872). ................ 21

West Virginia v. Barnette,

eT oie oben ne aku eis 22, 29, 30

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ....... 23

OTHER AUTHORITIES

W. B. Ball, Mere Creatures of the State? Education,

Religion and the Courts (Crisis Books: 1994) ........ 22

R. Berger, Government by Judiciary

I Pr ee 3, passim

R. Berger, Impeachment (Harvard Press: 1973) ........ 29

W. Blackstone, | Commentaries on the Laws of England

(U. Chi. Facsimile edition: 1765) .................. )

G. Carey, In Defense of the Constitution (Liberty Fund:

a a ee re a a 17

P. Carrington, “Restoring Vitality to State and

Local Politics by Correcting the Excessive

Independence of the Supreme Court,” 50

en ED 8.64 666540 04604000008 00008 30

T. Cooley, A Treatise on Constitutional

Limitations (5th ed. Little, Brown: 1883) ........ 13,14

Declaration of Independence (1776) ............... 4,25

D. Dreisbach, “In Search of a Christian

Commonwealth: An Examination of Selected

Nineteenth-Century Commentaries on References

to God and the Christian Religion in the United States

Constitution,” 48 Baylor L. Rev. 927 (1996) ......... 28

M. S. Evans, The Theme is Freedom

ST CT cs éuedsnsecennceesveueseaeeeee seen Z

Vil

C. Fairman, “Does the Fourteenth Amendment

Incorporate the Bill of Rights?,” 2 Stan. L.

I ath ee oe ae 16

M. Glendon and R. Yanes, “Structural Free

Exercise,” 90 Mich. L. Rev. 477 (1991) ............. 18

P. Hamburger, Separation of Church and State

EE ee ee 22

P. Johnson, A History of the American People,

, SE ovccscceadaceneueunesbsesees 3

J. Kent, | Commentaries on American Law (O. Halsted,

ge ere 9

W. Lietzau, “Rediscovering the Establishment Clause:

Federalism and the Rollback of Incorporation,”

39 DePaul L. Rev. 1191 (1990) .................... 3

SEED 6 vccudecuanuvessucceessecees 15

M. McConnell, “Establishment and Disestablishment

at the Founding, Part I: Establishment of Religion,”

44 Wm. and Mary L. Rev. 2105 (2003) ............. 21

E. Meese, “Perspective on the Authoritativeness of

Supreme Court Decisions: The Law of the

Constitution,” 61 Tul. L. Rev. 979 (1987) ............ 8

Note, “Rethinking the Incorporation of the

Establishment Clause: A Federalist View,”

105 Harv. L. Rev. 1700 (1992) ................. 3,27

Perry, ed., Sources of Our Liberties

id etched nckueeavndes<s 4, 15,21

C. Rice, “The Bill of Rights and the Doctrine of

Incorporation,” The Bill of Rights (E. Hickock, Jr.,

OF, UY. POUND GE VOLS TED cc ccccccccceccccccecs 2

C. Stern, “The Common Law and the Religious

Foundations of the Rule of Law Before Casey,”

38 U.S.F.L. Rev. 499 (2004) ................000eee 7

L. Tribe, | American Constitutional Law (3d ed. 2000) .. 27

G. Washington, Farewell Address (1799) .......... 17, 18

Vill

E. White, “Reflections on the Role of the Supreme Court:

the Contemporary Debate and the ‘Lessons’ of History,”

83 Judicature 162 (1979)

INTEREST OF AMICI CURIAE

The amici curiae, Conservative Legal Defense and

Education Fund, Joyce Meyer Ministries, Committee to Protect

the Family Foundation, Lincoln Institute for Research and

Education, American Heritage Party, Public Advocate of the

United States, Radio Liberty, and Spiritual Counterfeits Project,

Inc., are a coalition of nonprofit organizations, and a media

organization, sharing a common interest in the proper

construction of the Constitution and laws of the United States.

Each of the amici is tax-exempt under section 50i(c)(3),

section 501(c)(4), or section 527 of the Internal Revenue Code,

except for Radio Liberty, an independent media organization.

Each of the amici is involved in informing and educating the

public on important issues of national concern, including

questions related to the original intent of the Founders and the

correct interpretation of the United States Constitution, and/or

supporting organizations or causes with such educational goals.

The First and Fourteenth Amendment issues presented in this

case have a direct impact the right of organizations to express

their views on religious, educational, social, and political

issues, and are of great interest to these amici. In the past, most

of the amici have filed amicus curiae briefs in other federal

litigation, including matters before this Court. These amici

seek to provide this Court with a perspective that would not

otherwise be presented.’

' Pursuant to Supreme Court Rule 37.6, it is hereby certified that no counsel

for a party authored this brief in whole or in part, and that no person or

entity other than these amici curiae made a monetary contribution to its

preparation or submission.

> These amici curiae requested and received the written consents of the

parties to the filing of this amicus curiae brief, in the form of a letter from

counsel of record for petitioners and a notice of “giobal consent” from

counsel for respondents, and these have been submitted to the Clerk of

Court for filing. See Sup. Ct. R. 37.3(a).

SUMMARY OF ARGUMENT

The central question presented in this case is whether this

Court’s test laid down in Lemon v. Kurtzman, 403 U.S. 602

(1971), and any variant thereof, applying the Establishment

Clause of the First Amendment to the several states should be

overruled. For years, the Lemon test has been roundly

criticized as unworkable’, but that is only a secondary reason to

reject it. Rather, this Court should overrule Lemon because it

rests upon the wholly illegitimate premise that the

Establishment Clause applies to the States through

incorporation into the Fourteenth Amendment’s Due Process

Clause.

This Court has not entertained any serious challenge to that

doctrine since Duncan v. Louisiana, 391 U.S. 145 (1968), but,

if a constitutional doctrine proves to be erroneous, its longevity

is no reason to keep it. See C. Rice, “The Bill of Rights and the

Doctrine of Incorporation,” The Bill of Rights 11 (E. Hickok,

Jr., ed., Univ. Press of Va.: 1991). Each justice of this Court

has a continuing, sworn obligation to ensure that the Court’s

doctrines are consistent with the text of the Constitution. A

line of judicial precedents, no matter how long unbroken, must

never “close” the Constitution to reinspection, to ensure

conformity to its text. See Marbury v. Madison, 5 U.S. (1

Cranch) 137, 180 (1803).

Moreover, stare decisis is no bar to repudiation of this

Court’s Establishment separationist doctrine, even though

anbedded in a line of precedents stretching back for 59 years.

indeed, this Court’s decisions, which have transmuted the

original historical purpose of the Establishment Clause as a

* See, e.g., Freethought Society v. Chester County, 334 F.3d 247, 256 n.4

(3d Cir. 2003).

shield of protection of the states from the exercise of federal

power into a sword of supremacy of federal power over the

states — contrary to the powers reserved to the States and the

people by the Tenth Amendment — should be stricken as an

illegitimate exercise of political will by this Court. See W.

Lietzau, “Rediscovering the Establishment Clause: Federalism

and the Rollback of Incorporation,” 39 DePaul L. Rev. 1191

(1990); Note, “Rethinking the Incorporation of the

Establishment Clause: A Federalist View,” 105 Harv. L. Rev.

1700 (1992).

To correct this error, this Court should return to the original

meaning of the Fourteenth Amendment’s Due Process and

Privileges and Immunities Clauses, as set forth in this Court’s

opinions in the Slaughter-House Cases, 83 U.S. 36 (1873), and

Davidson v. Board of Administrators of the City of New

Orleans, 96 U.S. 97 (1878), neither of which has ever been

expressly overruled. Both preserve the Constitution’s federalist

structure, recognizing that the state and local citizenry retain

the constitutional authority to make their own decisions

concerning matters such as displays of the Law of God.

Finally, to continue to usurp power over the States and their

political subdivisions by misapplying the Establishment Clause

— as this Court has done since Everson v. Board of Education,

330 U.S. 1 (1947) — while requiring all other branches of the

federal and state governments to support this Court’s decisions

as the supreme law of the land — as this Court has done since

Cooper v. Aaron, 358 U.S. 1, 18-19 (1958) — would thrust a

dagger into the very heart of the rule of law. See R. Berger,

* «The wall of separation between church and state, then, if it existed at all,

was not between government and the public, but between the federal

government and the states.” P. Johnson, A History of the American People,

211 (HarperCollins: 1997).

Government by Judiciary 289 (Harvard Press: 1977). In truth,

any elevation of this Court above the Constitution undermines

the oaths of all federal judges before God to “support this

Constitution” as the “Supreme Law of the Land,” as prescribed

by 28 U.S.C. Section 453, and as further reflected in this

Court’s practice to open its public sessions with the prayer,

“God save this honorable court.” A court which disregards its

oath and its prayer risks judgment of the “rectitude of [its!

intentions” by the “Supreme Judge of the world” and

deprivation of the “Protection of Divine Providence” on the

nation, as invoked by America’s founders in the Declaration of

Independence (para. 31). Sources of Our Liberties at 321.

ARGUMENT

I. “THIS CONSTITUTION .. SHALL BE THE

SUPREME LAW OF THE LAND.”

A. Judicial Review Requires Textual Fidelity.

Fully 201 years ago, this Court embarked upon a visionary

journey to ensure that the newly-established government of the

United States would be a “government of laws, and not of

men.” See Marbury v. Madison, 5 U.S. at 163. To that end, the

Marbury Court believed that, through the power of judicial

review, it could apply the Constitution to the acts of the other

branches of government, while remaining itself under the law

of that instrument. Thus, Chief Justice John Marshall twice

proncunced that the written Constitution is a “rule for the

government of courts,” just as it is a rule governing the “other

departments” of the federal government (id., 5 U.S. at 179-80),

exhibiting prescient understanding that the rule of law “goes

out the window” if “words and phrases” of the Constitution

mean whatever the judges “may wish.” See M. S. Evans, The

Theme is Freedom 268 (Regnery: 1994).

Under Marbury, the judicial oath of office required the

courts to examine the language of the Constitution, to discover

the rule of law stated therein, and then to apply that rule to the

facts of the case. See E. White, “Reflections on the Role of the

Supreme Court: the Contemporary Debate and the ‘Lessons’ of

History,” 83 Judicature 162, 163 (1979). To that end, the

Court developed a rule of construction designed to ensure that

the Court would not stray from the written text:

In expounding the Constitution ... every word

must have its due force, and appropriate

meaning; for it is evident ... that no word was

unnecessarily used, or needlessly added....

Every word appears to have been weighed with

the utmost deliberation, and its force and effect

to have been fully understood. No word ...,

therefore, can be rejected as superfluous or

unmeaning.... [Holmes v. Jennison, 39 U.S. (14

Peters) 540, 570-71 (1840) (emphasis added). |

Under strict textual constraint, the Court sought to realize Chief

Justice Marshall’s vision that: “Courts are the mere

instruments of the law.... Judicial power is never exercised for

the purpose of giving effect to the will of the judge; always

for the purpose of giving effect ... to the will of the law.”

Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738,

866 (1824) (emphasis added).

B. Judicial Review Requires Fidelity to the Original

Meaning of the Text.

Because all government officials, including federal judges,

derive their just powers from the consent of the governed, the

Marbury Court understood that the courts, then and in the

future, were obligated to apply the original meaning of the

text:

That the people have an original right to

establish, for their future government, such

principles as, in their opinion, shall most

conduce to their own happiness, is the basis on

which the whole American fabric has been

erected.... The principles ... so established, are

... fundamental. And as the authority from

which they proceed is supreme, ... they are

designed to be permanent. [Marbury, 5 U.S.

at 176 (emphasis added). |

Thus, “the province and duty of the judicial department to

say what the law is” (id., 5 U.S. at 177) obligates the courts to

examine the actual words of the Constitution in deference to

the “form and ... substance” of the “government of the Union”

as having “emanate[d]” from the people, not from this Court.

See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-05

(1819). Because the courts “must never sorget[] that it is a

constitution [they] are expounding,” the “objects” and the

“limitations” prescribed therein must be applied as the people

originally ordained. /d., 17 U.S. at 407 (emphasis original).

This “originalist” restraint upon the power of judicial review

applied not only to judicial ascertainment of the powers of the

federal government (see id., 17 U.S. at 407-08, 411-25), but

also to the limits «n the powers of government, both federal

and state. Thus, the Marshall Court refused to apply the federal

Bill of Rights to limit the powers of the several States, because

the original language of the Constitution did not allow it:

The constitution was ordained and

established by the people of the United States

.. for their own government, and not for the

government of the individual states. [Thus]

the limitations on power, if expressed in general

terms, are ... necessarily applicable to the

government created by the instrument. [Barron

v. Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833)

(emphasis added). }

C. Stare Decisis Requires Conformity to the

Meaning of the Original Constitutional Text.

This Court has largely forgotten this fundamental principle

of textual restraint and has misused the power of judicial

review to replace the federal system of government established

by the express words of the Constitution with a unitary system

expressly contrary to the Constitutional text. As demonstrated

in Part II below, this Court has imposed its own political vision

upon the individual States by misappropriating the Fourteenth

Amendment’s Due Process Clause, and then misapplying the

doctrine of stare decisis to justify its unconstitutional

interpretation of “due process of law.”

For example, in Planned Pare ;

Casey, 505 U.S. 833 (1992), a plurality of this Court iewehed

“the rule of stare decisis” to retain and reaffirm “the essential

holding of Roe v. Wade.” J/d., 505 U.S. at 846. In order to

accomplish this goal, the Court “reformulat[ed] the doctrine of

stare decisis” as “a prop to preserve the power of the Court,”

equating its ruling in Roe v. Wade to “the rule of law.” See C.

Stern, “The Common Law and the Religious Foundations of the

Rule of Law Before Casey,” 38 U.S.F.L. Rev. 499, 520-22

(2004). According to Casey, the rule of law depends wholly

upon “the people’s acceptance of the Judiciary as fit to

determine what the Nation’s law means and to declare what

it demands.” /d., 505 U.S. 865 (emphasis added).

It is not this Court’s job, however, “to determine” the

meaning of the “Nation’s law,” as if it were a body of Platonic

guardians of the people. As enunciated in Marbury, only the

people have the authority to determine the law, and they have

previously made that determination by producing a written

Constitution which is, itself, “the Supreme Law of the Land,”

binding on this Court. See Marbury, 5 U.S. at 179-180. To

read Marbury otherwise — as this Court has done in Cooper v.

Aaron, 358 U.S. 1 (1958) — is to elevate judicial interpretation

of the Fourteenth Amendment, even if “misguided,” to be “the

supreme law of the land,” over the actual written Constitution.

See E. Meese, “Perspective on the Authonitativeness of

Supreme Court Decisions: The Law of the Constitution,” 61

Tul. L. Rev. 979, 982-83 (1987). To invoke stare decisis to

insulate this Court’s prior interpretations of the Constitution —

right or wrong — from examination in light of the

constitutional text undermines the rule of law, threatening a

regime of judicial despotism whereby the validity of the

Court’s constitutional interpretations is measured by its own

opinions.

Just short of two decades ago, this Court rebuked United

States District Court Judge Brevard Hand for daring to

reexamine — in the light of the constitutional text and history

— this Court’s Establishment Clause jurisprudence as applied

to the State of Alabama. Wallace v. Jaffree, 472 U.S. 38, 48

(1985). Remarkably, this Court dismissed Judge Hand’s

careful analysis of the original text and of the testimony of

constitutional historians, James McClellan and Robert Cord,°

with a perfunctory parade of its own precedents. See id., 472

U.S. at 48-55.

* See Jaffree v. Board of School Comm'rs of Mobile County, 554 F. Supp.

1104 (S.D. Ala. 1983).

At the time of America’s founding, the prevailing legal

authorities believed that a court was duty-bound to measure the

correctness of a judicial decision by a standard outside of its

own precedents. See W. Blackstone, | Commentaries on the

Laws of England 69-71 (U. Chi. Facsimile edition: 1765).

While “the decisions ... of courts [were] held in the highest

regard,” Blackstone warned that they were not “law”

themselves, but only “evidence” of law, “[s]o that the Jaw, and

the opinion of the judge are not always convertible terms, or

one and the same thing; since it sometimes may happen that the

judge may mistake the law.” Id. at 69-70, 71 (emphasis

original). New York’s Chancellor James Kent agreed, asserting

that “[e]ven a series of decisions are [sic] not always conclusive

evidence of what is law,” and where such decisions are shown

to be “hasty and crude,” they “ought to be examined without

fear, and revised without reluctance, rather than have the

character of our law impaired, and the beauty and harmony of

the system destroyed by the perpetuity of error.” J. Kent, I

Commentaries on American Law 444 (O. Halsted, New York:

1826) (emphasis added).

According to these venerable authorities — and further in

light of the utter failure of the Lemon test to provide a

comprehensible rule of law® — this Court must not shrink from

its task to reexamine, in light of the constitutional text, its

incorporationist decisions applying the Establishment Clause

to the States. As Justice Felix Frankfurter once observed, “the

ultimate touchstone of constitutionality is the Constitution itself

and not what we have said about it.” See Graves v. O’Keefe,

306 U.S. 466, 491-92 (1939) (Frankfurter, J., dissenting). See

generally R. Berger, Government by Judiciary at 296-99.

® See Freethought Society v. Chester County, 334 F.3d at 256 n.4.

Il. THE ESTABLISHMENT CLAUSE DOES NOT

APPLY TO THE STATES.

By its express language, the First Amendment’s

Establishment Clause applies only to Congress. Yet, this Court

has applied that Clause to local school boards, cities, counties,

state legislatures, and executive officials. See, e.g., Everson v.

Board of Education, 330 U.S. 1, 15-16 (1947); Lynch v.

Donnelly, 465 U.S. 668 (1984); County of Allegheny v. ACLU,

492 U.S. 573 (1989); Marsh v. Chambers, 463 U.S. 783 (1983);

Edwards v. Aguillard, 482 U.S. 578 (1987). The Court has

justified this extension on the ground that the Due Process

Clause of the Fourteenth Amendment incorporates all the nights

in the First Amendment, as well as all but one of the rights

specified in the Fourth, Fifth, Sixth, and Eighth Amendments.

See Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968);

Robinson v. California, 370 U.S. 660 (1962); Benton v.

Maryland, 395 U.S. 784 (1969); and Schlib v. Kuebel, 404 U.S.

357 (1971). Through its incorporation doctrine, this Court has

justified imposing its much-maligned, albeit modified, three-

part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), to

resolve Establishment Clause complaints against the States.

See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308, 316

(2000). If this Court’s incorporation doctrine is erroneous, then

so are both the original and modified Lemon tests.

A. The Fourteenth Amendment’s Due Process Clause

Does Not Incorporate Any of the Bill of Rights.

As noted above, this Court unanimously declared in 1833

that, of the ten articles of the federal Bill of Rights, only the

Tenth applied to the States. See Barron v. Baltimore, 32 U.S.

at 243, 247, 248-49. With the ratification of the Thirteenth,

Fourteenth, and Fifteenth Amendments came new

constitutional provisions addressed expressly to the several

States. After careful examination of the language of the three

amendments in their historical context, however, this Court

found that none had changed the fundamental federal structure

of the United States Constitution. See Slaughter-House Cases,

83 U.S. (16 Wall.) 36, 66-82 (1873). Emphasizing that the

Fourteenth Amendment had reaffirmed America’s unique dual

citizenship (id. at 72)’, the Court ruled that the protection

afforded by the Fourteenth Amendment from state abridgments

of “the privileges and immunities of citizens of the United

States” did not include those privileges and immunities arising

out of one’s state citizenship. Rather, except for the protection

afforded out-of-state citizens by Article IV, Section 2 of the

Constitution, those privileges and immunities arising out of an

American citizen’s state citizenship were secured to a state’s

own citizens by the constitutions of the several States, not by

the newly-enacted Privileges and Immunities Clause of the

Fourteenth Amendment. /d., 83 U.S. at 73-81.

Notwithstanding the Slaughter-House ruling, litigants

continued to press federal constitutional claims against the

States and their political subdivisions, invoking the Fourteenth

Amendment’s Due Process Clause. In 1878, in response to an

overcrowded docket of such cases, the Court observed “that

there exists some strange misconception of the scope of chis

provision as found in the XIVth Amendment.” Davidson v.

New Orleans, 96 U.S. 97, 104 (1878) (emphasis added). Thus,

the Davidson Court dismissed a Fourteenth Amendment Due

Process claim against New Orleans, ruling that the insertion of

that clause into the Constitution had not changed the holding in

Barron v. Baltimore that the “takings clause” of the Fifth

Amendment did not apply to the States. /d., 96 U.S. at 104-05.

7 See U.S. T Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995)

(Kennedy, J., concurring).

In support of its holding, the Court explained that the phrase,

“due process of law,” had not acquired a new meaning when it

was placed in the Fourteenth Amendment:

The prohibition against depriving the citizen

or subject of his life, liberty, or property,

without due process of law, is not new in the

constitutional history of the English race. It is

not new in the constitutional history of this

country, and it was not new in the Constitution

of the United States when it became a part of

the fourteenth amendment, in the year 1866.

The equivalent of the phrase “due process of

law”... is found in the words “law of the land,”

in the Great Charter... In the series of

amendments to the Constitution of the United

States ... as further limitations upon the power

of the Federal Government, it is found in the

fifth, in connection with other guaranties of

personal rights of the same character. [/d., 96

U.S. at 101 (emphasis added). }

Without reciting the rule of constitutional construction in

Holmes v. Jennison, the Davidson Court nevertheless applied

it, refusing to construe the two Due Process Clauses differently,

lest it render the other express guarantees in the federal Bill of

Rights “superfluous or unmeaning.” See Holmes, 39 U.S. at

571.

Nine years later, however, the Court inexplicably departed

from this rule of construction, attributing to the Fourteenth

Amendment’s Due Process Clause the same protection that was

secured by the Fifth Amendment’s Takings Clause. See

Chicago, Burlington and Quincy Railroad Co. v. Chicago, 166

U.S. 226, 236 (1897). The Court did net explain how the

Fourteenth Amendment’s Due Process Clause could possibly

contain a just compensation requirement limiting a city’s taking

for public use, when the previously-ratified Fifth Amendment’s

Due Process Clause appeared alongside a separate and

independent Takings Clause in the very same amendment.

Instead, it simply jettisoned its rule of constitutional

construction that “every word must have its due force, and

appropriate meaning; for it is evident from the whole

instrument, that no word was unnecessarily used, or needlessly

added.” See Holmes v. Jennison, 39 U.S. at 570-571.

Moreover, the Court departed from the original meaning of

“due process of law” which did not embrace the just

compensation rule of the Takings Clause. See T. Cooley, A

Treatise on Constitutional Limitations 430-511, 653-54 (Sthed.

Little, Brown: 1883).

After the Chicago B. & Q. Railroad case, the Court appeared

to halt efforts to further expand the protection of the Fourteenth

Amendment’s Due Process Clause. See, e.g., Brown v. New

Jersey, 175 U.S. 172 (1899). Indeed, 11 years after the Chicago

case, the Court apparently believed that it had never departed

from its position that the term “due process” in the two Due

Process Clauses meant the same thing. Twining v. New Jersey,

211 U.S. 78, 101 (1908). Thus, in Twining, the Court refused

to find the Fifth Amendment’s privilege against self-

incrimination in the Fourteenth Amendment’s Due Process

Clause (id., 211 U.S. at 99-114). Further, in 1922, the Court

concluded that “neither the Fourteenth Amendment nor any

other provision of the Constitution of the United States imposes

upon the States any restrictions about the ‘freedom of speech’

” Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1922).

Nevertheless, just three years after Prudential, the Court

ruled that “we may and do assume that freedom of speech

and of the press — which are protected by the First

Amendment from abridgment by Congress — are among the

fundamental personal rights and ‘liberties’ protected by the

due process clause of the Fourteenth Amendment from

impairment by the states,” perfunctorily dismissing its

Statement to the contrary in Prudential as completely

“incidental.” Gitlow v. New York, 268 U.S. 652, 666 (1925)

(emphasis added). Like the Chicago B. & QO. Railroad Court,

the Gitlow Court utterly disregarded the fact that its reading of

the Fourteenth Amendment’s Due Process Clause was

rnprecedented. Never before had the phrase “due process of

law” been understood to include the freedoms of speech and of

the press. See T. Cooley, A_Treatise on Constitutional

Limitations at 430-541 and 512-575. Moreover, if the Gitlow

Court’s construction of the Fourteenth Amendment’s Due

Process Clause were applied to the same clause in the Fifth

Amendment, it would render the First Amendment’s explicit

protection of the freedoms of speech and of the press

“superfluous and unmeaning,” in violation of the rule of

construction in Holmes v. Jennison. But neither textual

restraint hindered the Court after Gitlow from routinely

imposing the First Amendment’s speech, press, and assembly

restrictions upon the States. See, e.g., Near v. Minnesota, 283

U.S. 697 (1931) and DeJonge v. Oregon, 299 U.S. 353 (1937).

In none of these cases did the Court attempt a textual

analysis to show how these First Amendment rights came to be

incorporated into the Fourteenth Amendment’s Due Process

Clause. Instead, the Court simply stated its incorporationist

doctrine as a judici2’ fait accompli: That such First

Amendment “immunities ... have been found to be implicit in

the concept of ordered liberty, and thus, through the

Fourteenth Amendment, become valid as against the states.”

Palko v. Connecticut, 302 U.S. 319, 324-25 (1937) (emphasis

added). The Court made no effort to reconcile its view that the

Fourteenth Amendment’s Due Process Clause embraced a

substantive “concept of ordered liberty,” whereas it had

previously ruled that the Fifth Amendment’s Due Process

Clause contained only the procedural principle embodied in

the “law of the land” phrase found in the Magna Charta. See

Murray v. Hoboken Land Improvement Co., 59 U.S. (18 How.)

272 (1856). Nor did the Court explain then — nor has it ever

explained — how the Fourteenth Amendment’s Due Process

Clause evolved in such a way as to have embraced the

freedoms of speech, assembly and the press, when all of these

guarantees werc the product of legal and political developments

after the 1215 Magna Charta, and were recognized separately

and independently from the “law of the land” clauses in several

of the original thirteen state constitutions. See, e.g., Articles

IX, XIL, and XVI, Constitution of Pennsylvania (Aug. 16,

1776), reprinted in es of 330-31 (Perry, ed.,

ABA Found: 1972). See generally Sources of Our Liberties 5-

6, 233-35, 242-44, 312, 339-40, 348-350, 355-56, 366, 376-77,

384-85, and 422-46.

In a case in which a criminal defendant in a state trial was

seeking the benefit of the federally-guaranteed privilege against

self-incrimination, however, the Court finally addressed the

impact of its revolutionary interpretation of “due process of

law” on the federal Bill of Rights. In a biting concurring

opinion, Justice Frankfurter ridiculed the argument that “*due

process of law’ [was] merely a shorthand statement of other

specific clauses” that appeared in the Fifth Amendment

alongside its Due Process Clause. Suc a claim, he argued,

would attribute to the “authors and proponents” of the federal

Bill of Rights either (a) “ignorance of, or indifference to,” the

historic meaning of “due process of law,” or (b) foolishness in

placing the privilege against self-incrimination as a

“meaningless clause” in the Bill of Rights. Adamson v.

California, 332 U.S. 46, 66 (1947).

Justice Black countered that his study of the “historical

events that culminated in the Fourteenth Amendment, and the

expressions of those “ho sponsored and favored ... its

submission and passage” hac persuaded him that “one of the

chief objects [of] the provisions of the Amendment’s first

section, separately, and as a whole ... was to make the Bill of

Rights[] applicable to the states.” /d., 332 U.S. at 71-72

(emphasis added). Significantly, however, Justice Black made

no attempt to demonstrate how the language of the first section

of the Fourteenth Amendment embraced the expressions the

Fourteenth Amendment’s supporters and opponents made

during a congressional debate. Instead, Justice Black

amorphously argued: “In my judgment that history

conclusively demonstrates that the language ..., taken as a

whole, was thought by those responsible for its submission to

the people, and by those who opposed its submission,

sufficiently explicit to guarantee that thereafter no state could

deprive its citizens of the privileges and protections of the Bill

of Rights.” See id., 332 U.S. at 74-75 (emphasis added).*

Twenty-one years after Adamson, Justice Black’s nontextual

approach to the Fourteenth Amendment prevailed. In Duncan

v. Louisiana, 391 U.S. 145 (1968), the Court simply stated that

the “spacious language” of the Fourteenth Amendment’s Due

Process Clause had led the Court to “look increasingly to the

Bill of Rights for guidance,” and hence, “many of the rights

guaranteed by the first eight Amendments to the Constitution

have been held to be protected against state action.” /d., 391

U.S. 147-48 (emphasis added). To be sure, the Court recited

three of the “tests” that it had applied in this selective

* In his monumental study of the historical record, Professor Charles

Fairman found “Justice Black’s position fatally weak.” “Does the

Fourteenth Amendment Incorporate the Bill of Rights?,” 2 Stan. L. Rev. 5,

171 (1949).

incorporationist venture, but all three were self-devised and

totally disconnected from any meaning of “due process of law”

ever contemplated by the People who ratified the original

Constitution. In short, having discarded the Holmes v. Jennison

rule of constitutional construction that no word in the

Constitution was “superfluous or unmeaning,” the Duncan

Court simply announced a judicial coup d'etat, utilizing “due

process of law” not as a legal term of meaning fixed in time,

but a kind of judicial chameleon, changing in meaning with the

changing political preferences of a majority of the justices

sitting on this Court.'® See generally G. Carey, In Defense of

the Constitution 141-42 (Liberty Fund: 1995).

By adopting and applying an ever-changing definition of

“due process of law,” this Court’s incorporationist approach to

the Fourteenth Amendment’s Due Process Clause has enabled

a shifting majority of five justices of this Court to impose its

political will upon the States in direct contradiction of the

fundamental principle undergirding the rule of law that the

Marshall Court described in Marbury v. Madison: Only “the

people have an original right to establish, for their future

government, such [permanent] principles as, in their opinion,

shall most conduce to their own happiness.” /d., 5 U.S. at 176

(emphasis added). Additionally, this incorporationist approach

has trumped the amendment process prescribed in Article V of

the Constitution, heedless of the warning of President George

Washington in his 1799 Farewell Address:

If in the opinion of the People, the distribution

* The Court did so, even though it had acknowledged as late as 1946 that

it was governed by this rule of construction. See Richfield Oil Corp. v. State

Board of Equalization, 329 U.S. 69, 77-78 (1946).

10 See, e.g., Lawrence v. Texas, 539 U.S. 558, 588 (2003).

or modification of the Constitutional powers be

in any particular wrong, let it be corrected by an

amendment in the way in_ which the

Constitution designates. But let there be no

change by usurpation; for though this, in one

instance, may be the instrument of good, it is

the customary weapon by which free

governments are destroyed. [G. Washington,

Farewell Address, excerpted in R. Berger,

Government by Judiciary at 299 (emphasis

added). }

In sum, incorporationism has evolved into a pernicious

doctrine that “subvert[s] the very foundation of all written

constitutions,” enabling this court in ordinary litigation to by-

pass at its “pleasure” the written limits laid down in the

document. See Marbury, 5 U.S. at 178. See generally R.

Berger, Government by Judiciary (Harvard Press: 1977).

Nowhere has this judicial usurpation of the rule of

constitutional law been more clearly revealed than in this

Court’s decisions applying the First Amendment’s

Establishment Clause to state and local governments.

B. The Fourteenth Amendment’s Due Process Clause

Does Not Incorporate the Establishment Clause.

In an “unreflective” opinion, and “without offering reasons

and justification”'’, this Court first applied the Establishment

Clause to the States in 1947, in Everson v. Board of Education,

330 U.S. 1 (1947). Acknowledging that historically the

relationship between religion and the States had not been

ve M. Glendon and R. Yanes, “Structural Free Exercise,” 90 Mich. L. Rev.

477, 481, 482 (1991)

governed by a uniform constitutional principle, Justice Black

asserted that, as the Court had applied the “free exercise”

guarantee of the First Amendment and “the broad meaning

given” to it to the States, the same was true of the

Establishment Clause. /d., 330 U.S. at 13-15. Placing primary

reliance upon Cantwell v. Connecticut, 310 U.S. 296 (1940), all

nine justices on the Everson Court agreed. See Everson, 330

U.S. at 15, n.22; 22; and 29, n.2. But, relying solely on

Schneider v. Irvington, 308 U.S. 147 (1939), the Cantwell

Court had concluded that the First Amendment religion clauses

had been incorporated by the Fourteenth Amendment’s Due

Process Clause solely because the other First Amendment

freedoms had been found by the Court to be “fundamental,”

“reflect[ing] the belief of the framers of the Constitution” that

the two religious freedom nghts in the First Amendment, like

the freedoms of speech and press, “lie[] at the foundation of

free government by free men.” See Schneider, 308 U.S. at 161.

Given Justice Black’s view that the Fourteenth Amendment,

taken as a whole, had incorporated every guarantee of the first

eight amendments and applied them to the States, the citation

to Schneider to him. It also would have satisfied three of his

colleagues — Justices Douglas, Rutledge, and Murphy — all

of whom would go on record, within one year, as having

subscribed to the total incorporationist view.'* But, within that

same year, all of the other five Everson justices rejected

Black’s view. In Adamson v. California, 332 U.S. 46 (1947),

Chief Justice Vinson and Associate Justices Frankfurter,

Jackson, and Burton joined Justice Reed’s opinion ruling that

the Fourteenth Amendment’s Due Process Clause did not

incorporate the Fifth Amendment privilege against self-

incrimination. Indeed, in his concurring opinion in Adamson,

” See, e.g., Adamson v. California, 322 U.S. at 59-92 (Justices Black and

Douglas), and at 123-24 (Justices Murphy and Rutledge).

Justice Frankfurter dismissed the claim that the Fourteenth

Amendment’s Due Process Clause “comprehends the specific

provisions by which the founders deemed it appropriate to

restrict the federal government,” in part, on the ground that “{i]t

would be extraordinarily strange for a Constitution to convey

such specific commands in such a roundabout and inexplicit

way.” /d., 332 U.S. at 66, 63 (ante). Thus, Justice Frankfurter

rejected not only the total incorporationist views of Justice

Black, but even a “selective incorporation of the first eight

Amendments” on the further ground that the only “basis of

[such a] selection is merely that those provisions of the first

eight Amendments are incorporated which commend

themselves to individual justices as indispensable to the

dignity and happiness of a free man,” which is a “merely

subjective test.” /d., 332 U.S. at 65 (emphasis added).

Yet Justice Frankfurter had voiced none of these concems in

Everson. Instead, he had joined Justice Jackson’s and Justice

Rutledge’s opinions that applied Justice Black’s strict

separationist view of the Establishment Clause to the States.

Compare Everson, 330 U.S. 15-16 with 330 U.S. 22 and 29.

Thus, in the very first case in which this Court applied the

Establishment Clause to the States, not one justice questioned

whether the Establishment Clause should be applied to the

States. Indeed, not one justice made any effort to demonstrate

that the no establishment guarantee met the Court’s test that

freedom_from the establishment of religion, like the freedoms

of speech and the press, “reflects the belief of the framers of the

Constitution that [it] lies at the foundation of free government

by free men.” Schneider, 308 U.S. at 161. Nor could anyone

have sustained such a claim, in view of the history of state

religious establishments, and other religious preferences, which

existed side-by-side with the free speech and free press

provisions in the state constitutions existing at the time of the

adoption of the federal Bill of Rights. See, e.g., Articles II and

XII, Constitution of Pennsylvania (Aug. 16, 1776), reprinted in

Sources of Our Liberties at 329 and Articles VIII, XX XIII, and

XXX VIII, Constitution of Maryland (Nov. 3, 1776), reprinted

in Sources of Our Liberties at 349-50. See generally Sources

of Our Liberties at 309-310, 338-40, 353-56, 365-66, and 374-

377; M. McConnell, “Establishment and Disestablishment at

the Founding, Part I: Establishment of Religion,” 44 Wm. and

Mary L. Rev. 2105 (2003).

To accomplish its revolutionary goal of imposing a uniform

national rule separating church and state, the Everson Court

misappropriated its own precedents, citing two cases — Terrett

v. Taylor, 13 U.S. (9 Cranch) 43 (1815) and Watson v. Jones,

80 U.S. 679 (1872) — which did not even mention the First

Amendment and two others — Reynolds v. United States, 98

U.S. 145 (1879) and Davis v. Beason, 133 U.S. 333 (1890) —

which gave no indication of the scope and extent of the

Establishment Clause. See Everson, 330 U.S. at 14-15 n.21.

Although the fifth case, Reuben Quick Bear v. Leupp, 210 U.S.

50 (1908), did refer to the Establishment Clause, it gave no

support to the Everson Court’s claim that the Court previously

had given the Establishment Clause a “broad interpretation,”

calling for a wall of separation of church and state. See id., 330

at 14-15, 43 n.35. Instead, Quick Bear supported the moderate

view of Justice Story, as subsequently articulated by then-

Associate Justice Rehnquist in his concurring opinion in

Wallace v. Jaffree, 472 U.S. 38 (1985), that the Establishment

Clause “was ... designed to stop the Federal Government from

asserting a preference for one religious denomination or sect

over others.” /d., 472 U.S. at 113.

Because the Everson Court’s misappropriations of its prior

precedents are so obvious, and because their misapplication

went unchallenged, one can only conclude that all nine justices

simply ignored Justice Frankfurter’s warning, issued just three

years previously in the West Virginia flag salute case, to

exercise “judicial self-restraint ... lest we unwarrantably enter

social and political domains wholly outside our concern.” West

Virginia v. Barnette, 319 U.S. 624, 666 (1943) (Frankfurter, J.,

dissenting). Yet, in Everson, even Justice Frankfurter did not

heed his own words. Only recently has careful scholarship

uncovered the apparent hidden political agendas that motivated

the two leading Everson justices — Justices Black and

Frankfurter — to manufacture a strict separationist view of the

Establishment Clause and impose it upon the States. In his

book, Separation of Church and State, University of Chicago

law professor Philip Hamburger has documented that Justice

Black, a former Klansman, brought to the Everson case an

“anti-Catholic” prejudice that was the moving force behind the

effort to defund New Jersey’s school busing program, which

benefited Catholic parochial schools, the subject matter of the

Everson case. See P. Hamburger, Separation, at 422-34, 454-

63. Whatever other differences Justice Frankfurter may have

had with Justice Black, they reportedly melted away in the heat

of Justice Frankfurter’s “distinct distaste for Catholicism.”

Id. at 474. Indeed, Justice Frankfurter’s “‘insistent’ attitude

about a secular separation” of church and state was so strong

that it reportedly led him to adopt Justice Black’s approach to

the Fourteenth Amendment in religion cases, notwithstanding

his almost concurrent warning in Adamson that (a) the total

incorporationist view was contradicted by the constitutional

text, and (b) the selective incorporationist view wrongfully

opened the door to “subjective selection” of those guarantees

that might “have primacy for one [justice]” while another

guarantee “might appear to another [justice] as an ultimate need

'> Such anti-Catholic character did not end with Everson, but reportedly

seeped into the Court which fashioned the Lemon test in 1971. See W. B.

Ball, Mere Creatures of the State? Education, Religion and the Courts 31-

32, 35-39 (Crisis Books: 1994).

;

Ne ne NN ie te,

‘in a free society.” See Adamson, 332 U.S. at 65.

As Justice Thomas has recently pointed out, both the

| _ particular history of the Establishment Clause and the text of

_ the Fourteenth Amendment’s Due Process Clause cry out for

’ careful, principled analysis, not a subjective test. See Zelman

v. Simmons-Harris, 536 U.S. 639, 680, 697 (2002). For too

long this Court has unreservedly followed Everson and its

progeny on the assumption that its Establishment Clause and

Due Process premises had been carefully assessed and

objectively adopted. But, as shown above, there are strong

reasons to believe that the Everson Court rushed headlong into

the no-establishment arena, seeking to achieve a strict-

separationist political objective.

C. No Fourteenth Amendment Privilege or Immunity

Has Been Abridged in this Case.

At the heart of the Lemon test is the claim that violations of

the Establishment Clause by state and local governments injure

plaintiffs’ “standing in the political community.” See County

of Allegheny v. ACLU, 492 U.S. 573, 593-94 (1989) (majority

opinion) and 625 (O’Connor, J., concurring); Lynch v.

Donnelly, 465 U.S. 668, 687-88 (1984); Wallace v. Jaffree, 472

U.S. at 69 (O’Connor, J., concurring). Thus, if the action at

issue ha” been taken by the State, then the Lemon endorsement

test is tailored to assess the impact on a statewide “political

community.” See, e.g., itol Sq. Revi v. Pinette, 515

U.S. 753, 780 (1995) (O’Connor, J., concurring). If the action

is taken by a city or county, then the impact is evaluated

accordingly. See, e.g., County of Allegheny, 492 U.S. at 587,

599-600, 620.

The Lemon test, then, is designed to redress a political

grievance, not a Due Process life, liberty, or property right.

Accordingly, in order to establish “standing” in Establishment

Clause cases, plaintiffs must show that the action complained

of interferes with their full political participation as citizens of

the government entity engaged in the allegedly unconstitutional

activity. See, e.g., Books v. City of Elkhart, 235 F.3d 292, 297,

300-01 (7th Cir, 2000), cert. denied, 532 U.S. 1058 (2001);

Suhre v. Hayguvod County, 131 F.3d 1083, 1090 (4th Cir.

1997); Doe v. County of Montgomery, IIL, 41 F.3d 1156, 1158,

1159 (7th Cir. 1994); Saladin v. City of Milledgeville, Ga., 812

F.2d 687, 692-93 (llth Cir. 1987); Freethought Society v.

Chester County, 191 F. Supp. 2d 589, 593-94 (E.D. Pa. 2002);

Arizona Civil Liberti nion v. Dunham, | 12 F. Supp. 2d 927,

929, 932-933 (D. Az. 2000). As the U.S. Court of Appeals for

the Seventh Circuit observed in Books v. Elkhart:

The Supreme Court has cautioned that government

“sponsorship of a religious message is impermissible

because it sends the ancillary message to members of the

audience who are nonadherents ‘that they are outsiders,

not full members of the political community, and the

accompanying message to adherents that they are insiders,

favored members of the political community.’” [235 F.3d

at 306-07].

As in Elkhart, the district court below found that the

plaintiffs had standing because “they must enter the courthouse

to conduct civic business.” See ACLU of Ky. v. McCreary

County, Ky., 96 F. Supp. 2d 679, 682-83 (E.D. Ky. 2000);

ACLU of Ky. v. Pulaski County, Ky., 96 F. Supp. 2d 691 (E.D.

Ky. 2000). Further, the court of appeals below found, in its

application of the Lemon test, that:

The citizenry exhibits a_ similar

impressionability [of endorsement] it the

setting of a county courthouse, where the

government carries out one of its quintessential

functions — the enforcement of the civil and

criminal laws. Typically, citizens are at the

courthouse out of necessity — whether they are

on trial for a crime, have been subpoenaed as

witnesses, are seeking to vindicate their civil

rights, have been called to jury duty or are

simply contesting parking tickets, registering to

vote, or renewing their driver’s licenses.

[ACLU of Ky. v. McCreary County, Ky., 354 F.

3d 438, 461 (6th Cir. 2003).]

By design and in effect, then, this Court’s Lemon test —

which the lower courts rightfully understood was designed to

vindicate the plaintiffs’ claims that the display of the Ten

Commandments at issue adversely impacts on their “standing

in the political communit[ies]” of three Kentucky counties (id.,

354 F.3d at 445) — impermissibly collapses the

constitutionally guaranteed dual citizenship into one unitary

national citizenship, the privileges and immunities of which are

defined by this Court’s interpretation of the Establishment

Clause. Such a homogenization of citizenship rights was never

authorized, nor even contemplated, by the Fourteenth

Amendment.

From the beginning, the people of the United States have

enjoyed dual citizenship. As citizens of “Free and Independent

States,”'* the people of the original thirteen colonies — acting

before the people of the United States formed a government for

the nation — formed their respective state governments by

ratification of distinct and different state constitutions.

Subsequently, as citizens of the United States, the people

4 See THE DECLARATION OF INDEPENDENCE, para. 24 (1776).

ratified the United States Constitution, creating a new

government for the nation, while preserving the independence

and sovereignty of the several states. See U.S. Term Limits

Inc. v. Thornton, 514 U.S. 779, 801 (1995). Thus, the original

Constitution recognized in the people both a citizenship of the

United States and a citizenship of an individual State.

Compare Article 1, Section 2, Paragraph 2; Article I, Section 3,

Paragraph 3; and Article II, Section 1, Paragraph 5 with Article

IV, Section 2, Paragraph 1. See also U.S. Term Limits, 514

U.S. at 840 (Kennedy, J., concurring).

One of the purposes of the Fourteenth Amendment was to

harmonize these two citizenships. By its first sentence, the

Amendment proclaimed that a person’s national citizenship

was acquired either by birth or naturalization, and one’s state

citizenship was acquired by residence. See Slaughter-House

Cases, 83 U.S. at 74. Having initially established United States

citizenship independent from State citizenship, the Fourteenth

Amendment’s very next provision was designed to protect that

national citizenship from any state law which would “abridge

the privileges and immunities” arising out of that citizenship

status. In limiting the scope of its protection to such privileges

and immunities, the Fourteenth Amendment preserved the

preexisting structure of the Constitution, leaving the States as

the exclusive protectors of those privileges and immunities that

arise out of state citizenship status. As Justice Kennedy has put

it most recently, American “citizens ... have two political

capacities, one state and one federal, each protected from

incursion by the other.” U.S. Term Limits, 514 U.S. at 921

(emphasis added). Thus, as Justice Kennedy has also observed,

this Court, since it decided the Slaughter-House Cases in 1873,

has limited the reach of the Fourteenth Amendment’s

protection of the Privileges and Immunities Clause to only

those rights enjoyed by the American people in their relation

to the national government, not to those rights enjoyed by

them as citizens of the states, counties and cities in relation to

of the communities wherein they reside. See U.S. Term

Limits, 514 U.S. at 842-44. Indeed, as the Slaughter-House

Court stated, any other construction of the Fourteenth

Amendment’s Privileges and Immunities Clause would destroy

the dual citizenship of the American political system, because

it would subject the “entire domain” of privileges and

immunities of citizenship to national enforcement and control.

See Slaughter-House, 83 U.S. at 77-78. See also R. Berger,

Government by Judiciary at 20-68, 193-220, 249-82.

This distinction between the privileges and immunities of

two American citizenships, so carefully drawn by the

Fourteenth Amendment, and affirmed by this Court in

Slaughter-House, has never been overruled. Instead, it has

been “eclipsed”'’ by this Court’s unconstitutional

incorporationist approach to the Due Process Clause. And

nowhere has this “eclipse” been more pronounced than in this

Court’s misuse of the Establishment Clause to homogenize

those two citizenships, thereby depriving the nation of diverse

state accommodations of religion which are so vital in the

cultivation of civic virtue. Note, “Rethinking Incorporation of

the Establishment Clause: A Federalist View,” 105 Harv. L.

Rev. at 1714-17.

lil. BY OATH BEFORE GOD, THIS COURT IS

OBLIGED TO CONFORM ITS WILL TO THE

CONSTITUTIONAL TEXT.

The principal question before this Court is whether it will

honor its oath before God to decide this case according to the

written law of the Constitution, as promised in Marbury v.

'S See I L. Tribe, American Constitutional Law 1315-18 (3d ed. 2000).

Madison, or ignore that duty by grounding its decision on its

own Establishment Clause “jurisprudence,” as it did in Wallace

v. Jaffree. See id. at 48.

By law, each justice of this Court is required to take an oath

to “administer justice without respect to persons, and do equal

right to the poor and to the rich, and ... faithfully and

impartially discharge and perform all the duties incumbent

upon me ... under the Constitution and laws of the United

States. So help me God.” 28 U.S.C. section 453 (emphasis

added). This judicial oath of impartiality with regard to

persons and faithfulness concerning the rule of law originated

in the Bible. See Leviticus 19:15 (“You shall do no injustice in

court. You shall not be partial to the poor or defer to the great,

but in righteousness shall you judge your neighbor.”) and

Deuteronomy 1:16-17. It, therefore, carries with it the rewards

of obedience (Deuteronomy 16:20; Psalms 106:3) and the

punishments of disobedience (see 2 Chronicles 19:8-10).

Indeed, from the beginning, America’s founders understood the

civil oath of office to have “impose[d] a sacred obligation,” the

“practical force and value [being] derived from faith in God

and the sanctions of Divine law.” D. Dreisbach, “In Search of

a Christian Commonwealth: An Examination of Selected

Nineteenth-Century Commentaries on References to God and

the Christian Religion in the United States Constitution,” 48

Baylor L. Rev. 927, 979-80 (1996). The judicial oath of office,

then, is not recited as a mere formality, but as a solemn

acknowledgment that the authority of the judicial office comes

from God, to whom all judges are ultimately accountable for

their stewardship of that office. See Romans 13:1-4.

Furthermore, this Court opens each of its sessions with the

prayer, “God save this honorable court.” This, too, is not a

mere formal ceremony, but an appropriate recognition of this

Court’s trust to God’s merciful protection. See, e.g., 1 Samuel

10:24-25; Isaiah 33:22.

This prayer to God, and the oath before Him, are especially

important for Article III judges, including members of this

Court, because, once appointed, they are not periodically

accountable to the people, or even to the President who

appointed them, or to the Senate that confirmed them. Rather,

they enjoy the perquisites of office so long as they measure up

to the standard of “good behavior.” Article III, Section 1,

United States Constitution. Surely, good behavior obligates

each justice to submit to “this Constitution [as] the Supreme

Law of the Land,” and not to demand that others submit to this

Court’s opinions as if they were the law of the land. Cf R.

Berger, Impeachment 160-65 (Harvard Press: 1973). In recent

years, however, this Court has insisted that the lower federal

courts follow its precedents “no matter how misguided the

judges of those courts may think it to be.” See Hutto v. Davis,

454 U.S. 370, 375 (1982). Indeed, when United States District

Court Judge Brevard Hand honored his oath, refusing to

subscribe to what he considered to be an erroneous opinion that

the Due Process Clause of the Fourteenth Amendment

incorporated the First Amendment’s Establishment Ciause, this

Court considered it “unnecessary” to justify its decisions, but

only “to recall” its previous opinions. See Wallace v. Jaffree,

472 U.S. at 48-55. Such treatment of lower federal court

judges would transform their oath before God, to be faithful to

“this Constitution,” into an oath of abject fealty to this Court.

See R. Berger, Government by Judiciary at 288-299.

While it may appear uncommonly difficult for this Court to

relinquish the power that it has exercised over the several

States and their peoples, by its incorporationist doctrine it could

do the nation, and itself, no greater service than candidly to

abandon the power that it has incrementally usurped over the

States and to return to the “‘narrow ... function which the

constitution[ ] ha[s] conferred on”” it, lest it continue “‘to dwarf

the political capacity of the people, and to deaden its sense of

moral responsibility.’” See West Virginia v. Barnette, 319 U.S.

at 669 (Frankfurter, J., dissenting). See also P. Carrington,

“Restoring Vitality to State and Local Politics by Correcting the

Excessive Independence of the Supreme Court,” 50 A/a. L. Rev.

397, 399, 400-01, 404, 413 (1999).

CONCLUSION

For the reasons stated, the Lemon test should be overruled,

and this case reversed and remanded with instructions to

dismiss for lack of jurisdiction, thereby restoring the people of

Kentucky to their constitutionally guaranteed choice of state

citizenship, unfettered by this Court’s previously asserted

uniformitarian views of the relation between religion and state

and local govemments.

Respectfully Submitted,