How Democracies Perish was the subject, as well as the title, of an important book by Jean-Francois Revel. M. Revel is a hardheaded journalist who takes little interest in political theory, but he is a keen observer of the corruption into which the states of the West have fallen.
When I had drinks with him a few years ago, much of talk was about the corruption of the Mitterrand regime. Ruling classes almost always turn out to be venal and corrupt, and I regret not asking him to delineate the common characteristics that stamp Mitterrand’s socialists, as well as Democrats and Republicans in the United States, with the same mark of the beast that was so visible on the foreheads of the Soviet nomenclatura. Ossified in their mediocrity, stupid in the conviction of their God-given right to rule, for sale, like the friends of Henry Kissinger, not to the highest bidder, for that would take intelligence, but to any bidder, the latter-day Communists of the East and the Social Democrats of the West understood each other all too well. No wonder George Bush protested, when conservatives were wary of a Soviet leader who had formerly headed the KGB. At the time, we thought Mr. Bush was simply being obtuse, when he compared his own position, as former CIA director, with that of Mr. Andropov. It took someone as paranoid as Andrei Navrozov to realize the truth. The principal difference between their side and ours is that while Mr. Bush is a Yale man, Mr. Gorbachev has gone to Harvard.
If the Soviet Empire rested on force—the army, the KGB—here in America, the regime has only occasionally based its power on the army, and since that one episode in military rule, the ruling class has preferred to use the federal courts to thwart reform and suppress the state and local jurisdictions that stood in the way of establishing a power monopoly in Washington, One hundred years ago it was the federal courts that prevented the states from cleaning up the corruption caused by the railroad monopolies that owned state legislatures outright. It is all the too easy to deprecate the progressives and populists who wanted state ownership of railroads and utilities, until one actually studies the machine that Bob LaFollette was up against in Wisconsin, a machine kept in place by the federal courts. Closer to our own time, the federal courts have seized control of our school systems, gerrymandered the election process, and, slowly but surely, worked to establish a national religion, supported by compulsory tithes and preaching doctrines that would have embarrassed any honest atheist of a hundred years ago.
I occasionally meet people, even educated people, who pretend to believe that something called the Constitution has prevented the establishment of a national church. After all, the First Amendment states clearly that “Congress shall make no law respecting the establishment of religion nor prohibiting the exercise thereof.” What the Framers of that amendment were trying to prevent was a system like the Church of England, which collected taxes to support the church, imposed religious tests upon office-holders, and even had its doctrines promulgated in-state-supported universities and schools.
Obviously there were differences between the state churches of France, England, and Massachusetts, but the main points are compulsory tithing, in one form or another, and the promulgation of official doctrine through schools and other media of in formation and indoctrination. How are things different in the United States, where taxes are collected at the local, state, and national level, to support government schools where the religious and ethical views of most citizens cannot be taught and where the “philosophy” of the ruling class is spooned out as truth, science, and the American way? For want of a better name, this religion can be called Liberalism, a Protean creed that used to emphasize individualism and the glories of New England and now prefers to speak of group oppression and cultural diversity. Some of the differences may be more apparent than real. Emerson and his sycophants used to insist upon American culture as something distinct from Europe while at the same time drooling after Oriental cultures they knew mostly from their imperfect readings of German translation. In America, if you scratch any cultural blister, the pus will turn out to be Unitarian.
The details of the national creed are unimportant; any schoolboy of the 18th century would be able to refute them. What is important is the fact that we are saddled with a vast and expensive church establishment that gives no instruction to the young, no relief to the sick, no comfort to the distressed.
How we got to this point would make an interesting story in two chapters. Chapter one would tell the tale of the New England Unitarians who used the public schools to establish their own anti-Christian doctrines, arguing (as Horace Mann did) that everyone believed in one God, but not everyone believed in the Trinity. Later on, a similar ploy was used against the Catholic minority, whose theology had a great deal more in common with the American majority of Anglicans, Lutherans, Methodists, and Presbyterians, than any of the Protestants had with the Unitarians.
This lowest common denominator game is still being played. Since not everyone in a school or district is a Christian, it is wrong to set up a creche or sing “Good Christian men, rejoice.” On the other hand, it is not wrong to teach moral, political, and religious views that positively offend the 95 percent of the families that are Christian.
By the 1940’s, when I was born, the public schools of the United States might be described in military language as “General Protestant.” In most of the Midwest this meant that carolsinging, manger scenes, and Christmas pageants were part of the “holiday season” (the government holiday that has supplanted Christmas). In general, though, I do not think that school days began with either prayer or Scripture readings in most Midwestern schools, although I do remember my first grade teacher asking us, one Monday, where we had gone to church.
In the more Christian South, there was never any doubt where one stood. Every day began with the Lord’s Prayer and a Bible reading. The duties were allotted to the students in alphabetical order, which meant that roughly once a month I had to ask my Christian friends to help me find an appropriate passage. I was a little embarrassed, of course, but since my family made no secret of its indifference to religion—our holiday appearances at the Episcopal Church hardly constituted a religious practice—it would have been rank hypocrisy to complain.
The gradual elimination of religious symbols and songs, prayers and ceremonies, from schools and public places was accomplished in less than 50 years by the Supreme Court. The course of this judicial oil spill has been made very easy to trace by Terry Eastland in his recent book. Religious Liberty in the Supreme Court. Anyone with the slightest interest in constitutional issues—anyone, in other words, who is a citizen—should spend a few hours with this book, reading decision after Supreme Court decision whittling away the religious liberties of American citizens and the rights of their once sovereign states. From Cantwell v. Connecticut (1940), in which the Court upheld the rights of Jehovah’s Witnesses (a non-Christian cult) to violate the laws of Connecticut by disturbing the peace with their anti-Catholic diatribes, to Lee v. Weisman (1992), in which a five to four majority ruled against a school in Rhode Island that had invited a Rabbi to say a nondenominational prayer at a graduation ceremony, the Court has inexorably worked to establish its own prejudices as the law and religion of the United States.
Even in 1940, the mechanism was the 14th Amendment. In Cantwell, Justice Owen J. Roberts declared: “The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. . . . The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.” Now, Raoul Berger has shown that the Framers of that amendment had no such intention. Their only goal was to make sure that former slaves, as such, were not formally deprived of very basic citizenship rights. In the congressional debate over the amendment, the question of a broader construction was raised and explicitly rejected. Perhaps even more to the point, Forrest McDonald has demonstrated convincingly that there are several grounds on which the passage of the 14th Amendment must be regarded as unconstitutional.
So, on the basis of an unconstitutional amendment construed against the expressed intent of its Framers, the Supreme Court has made itself supreme arbiter in all matters of religion. There have been dissenters, of course. In McCollum v. Board of Education (1948), Hugo Black, writing for the majority, declared against release-time for religion classes. Justice Stanley Reed, injecting a little reality into the case, pointed out that those who cite Mr. Jefferson’s “wall of separation” failed to note that Jefferson had not kept religion out of the state university he established and that American military academies had chaplains, just like the Congress of the United States.
The use of history to refute ideology is a characteristic of the dissenters, and, after plowing through the lies and ignorance of Justices Black, Douglas, and Brennan, the learned and forceful dissents of then Justice Rehnquist in Wallace v. Jaffree and Justice Scalia in Lee v. Weisman come like a cleansing thunderstorm on a muggy August afternoon. If a reasonable man had any doubts about the constitutionality of school prayer and related matters, he only has to read Mr. Rehnquist’s dissent, which establishes the true intent of the religion clause and the indifference of the Framers both to religious establishments in the states and to Christian prayers and practices within the federal government. He concluded on a somber note:
If a constitutional theory has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results, I see little use in it. . . . The true meaning of the Establishment Clause can only be seen in its history. . . . It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama legislature from “endorsing” prayer. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of public thanksgiving and prayer, to be observed in “acknowledging with grateful hearts the many and signal favors of Almighty God.” History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.
A prudent Justice would ignore Rehnquist’s challenge and continue to make up the law as he went along. Airy platitudes were good enough for the likes of Walter—er, William—Brennan, and that ought to suffice for the current court. Alas, David Souter—or his law clerks—is not bright enough to know his limitations, and in a concurring opinion in Lee v. “Weisman, Souter attempts to refute Rehnquist’s historical analysis. Using the language of deconstructionism, Souter argues for the distinction between preferential and nonpreferential establishments, and goes on—it would be hilarious, if Souter were not one of the Nine Archons—to complain that the Rabbi’s prayer used the language of the King James Bible, a “theistic” document, explaining that, “Many Americans who consider themselves religious are not Theistic,” and citing as examples the deists among the framers.
There are, of course, differences between theism and deism, even though both might be rendered “godism,” but who is so foolish as to think that 18th-century deists did not believe in God? Jefferson was a religious skeptic, it is true, but he had a high regard for the nonmiraculous parts of the Bible and believed in the deists’ benevolent and noninterventive creator.
Why go on? President Reagan had previously vetted this “village Hampden” for a future Court appointment, and President Bush approved him. Mr. Souter’s only qualification was that he had never done anything remarkable. Those who insist on voting Republican because it will give “us” the power to appoint new Justices ought to reflect on the fruits of 12 years of Reagan-Bush: Sandra Day O’Connor, Anthony Kennedy, Clarence Thomas, and Antonin Scalia. Of these, only Scalia is not an embarrassment.
Ultimately, Justice Rehnquist’s historical discourse is less to the point than Justice Scalia’s barely controlled outrage in Lee v. Weisman. After surveying some of the historical ground and describing the Court’s approach as “incoherent,” Mr. Scalia went on to explain what a church establishment really is, observing that “The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference).” It is in the parenthesis that Mr. Scalia discloses the truth, that the federal courts now routinely construe the Constitution to mean exactly the opposite of what it says.
If the Court is going to continue to regard the 14th Amendment as valid and will continue to apply it to the states, no amount of learning or logic will avail. The conservatives’ answer, a constitutional amendment, is as wicked as it is vain. It is vain because it will be a generic prayer amendment for a generic religion that no one professes. Indeed, many of the worst court decisions have been in response to the foolish efforts of states to impose such nondenominational prayers. We have already seen what Supreme Court Justices can do with the Bill of Rights—making the amendments mean the opposite of what they say—what hope can we have that they could do any less with a School Prayer Amendment or a Life Amendment?
But such amendments are worse than a waste of time; they would be positively harmful. In the first place, a School Prayer Amendment would unquestionably violate the First Amendment’s Establishment Clause. What else would such an amendment be but a law, made by Congress, establishing a national prayer, which, presumably, no state could deny? It would not be a Christian prayer or even a general Judeo-Christian invocation like the Lord’s Prayer. It would be a prayer that any “theist” including Taoists, devil-worshipers, and Santerians could use. It would be, in a word, Horace Mann’s dream come true: Unitarianism as a national religion. Perhaps the “Rev.” Moon would consent to preside, if he were not too busy keeping the stars in their courses.
Finally, such an amendment would be wicked, because it would distract us from the only political agenda worth our effort: a campaign to put these judicial devils back into the constitutional box that was opened by the I4th Amendment. As several leaders of the religious right have acknowledged, school prayer is a minor problem compared with other issues in which the federal courts have usurped authority: abortion, censorship, legislative apportionment, and school equity issues, including racial integration, forced busing, and the redistribution of wealth from “rich” to “poor” districts. If separate remedies have to be sought either in congressional legislation or constitutional amendments, then the struggle will be unending and even success would mean nothing better than a Constitution clogged with trivial amendments, each of which could serve as the pretext for another round of usurpations.
Many of our political problems have one neck: the power of the Court to make law through its broad construction of the 14th Amendment. The solution must be aimed directly at that power, either by declaring the amendment null and void or by a new amendment restricting the federal judiciary to its original functions. The time is right for such a campaign. The Republicans have been, speaking very sensibly about restoring power and authority to the states. If this new federalism is to be more than rhetoric, more than a temporary concession of a few rights that have become inconvenient to Washington, it will have to be made of something better than the straw of campaign promises or the sticks of congressional bills. Federalism requires the bricks and mortar of constitutional prohibitions against most of what the national government is doing, and that will mean either the repeal or the curtailment of the 14th Amendment. Nothing less is worth the bribes and blackmail that must accompany any reform measure presented to any Congress.