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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 844

## Text

| 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
Se ED 66. 6 wo ncdcvvecaueseseeuedustets ill
DO A GG 6.0 666 0080060 seesevevnsdes l
ee SOD «5 5 oes 00'n-esdddudsewuwennen 2
SE nevtoceteseuesedusmetensideeeteodtena 4

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
EE, viv ccc ccssccesivececovccovess 28
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

iV

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) ............... )

Vv
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

vi

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 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).

2

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).

3

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).

4

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).

5

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

7

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).

8

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).

_~

9

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.

10

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

11

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).

12

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

13

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

14

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

15

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).

16

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).

17

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).

18

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)

19

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).

20

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

21

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

22

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,

23

‘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.

24

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

25

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).

26

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

27

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).

28

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

29

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

30

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,

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
(703) 356-5070

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A22. Public record. Not legal advice.