had any doubts about the constitutionality of school prayer andnrelated matters, he only has to read Mr. Rehnquist’s dissent,nwhich establishes the true intent of the religion clause and thenindifference of the Framers both to religious establishments innthe states and to Christian prayers and practices within thenfederal government. He concluded on a somber note:nIf a constitutional theory has no basis in the history ofnthe amendment it seeks to interpret, is difficult to applynand yields unprincipled results, I see little use in it.. . .nThe true meaning of the Establishment Clause can onlynbe seen in its history. … It would come as much of anshock to those who drafted the Bill of Rights as it will tona .large number of thoughtful Americans today to learnnthat the Constitution, as construed by the majority, prohibitsnthe Alabama legislature from “endorsing” prayer.nGeorge Washington himself, at the request of the verynCongress which passed the Bill of Rights, proclaimed anday of public thanksgiving and prayer, to be observed inn”acknowledging with grateful hearts the many and signalnfavors of Almighty Cod.” History must judge whether itnwas the Father of his Country in 1789, or a majority ofnthe Court today, which has strayed from the meaning ofnthe Establishment Clause.nA prudent Justice would ignore Rehnquist’s challenge andncontinue to make up the law as he went along. Airy platitudesnwere good enough for the likes of Walter—er, William—nBrennan, and that ought to suffice for the current court. Alas,nDavid Souter—or his law clerks—is not bright enough to knownhis limitations, and in a concurring opinion in Lee v. “Weisman,nSouter attempts to refute Rehnquist’s historical analysis. Usingnthe language of deeonstructionism, Souter argues for the distinctionnbetween preferential and nonpreferential establishments,nand goes on—it would be hilarious, if Souter were notnone of the Nine Archons—^to complain that the Rabbi’s prayernused the language of the King James Bible, a “theistic” document,nexplaining that, “Many Americans who consider themselvesnreligious are not Theistic,” and citing as examples thendeists among the framers.nThere are, of course, differences between theism and deism,neven though both might be rendered “godism,” but who is sonfoolish as to think that 18th-century deists did not believe innGod? Jefferson was a religious skeptic, it is true, but he had anhigh regard for the nonmiraculous parts of the Bible and believednin the deists’ benevolent and noninterventive creator.nWhy go on? President Reagan had previously vetted thisn”village Hampden” for a future Court appointment, and PresidentnBush approved him. Mr. Souter’s only qualification wasnthat he had never done anything remarkable. Those who insistnon voting Republican because it will give “us” the power to appointnnew Justices ought to reflect on the fruits of 12 years ofnReagan-Bush: Sandra Day O’Connor, Anthony Kennedy,nClarence Thomas, and Antonin Sealia. Of these, only Sealia isnnot an embarrassment.nUltimately, Justice Rehnquist’s historical discourse is less tonthe point than Justice Scalia’s barely controlled outrage in Leenv. Weisman. After surveying some of the historical ground andndescribing the Court’s approach as “incoherent,” Mr. Sealianwent on to explain what a church establishment really is, observingnthat “The Establishment Clause was adopted to prohibitnsuch an establishment of religion at the federal level (andn10/CHRONICLESnnnto protect state establishments of religion from federal interference).”nIt is in the parenthesis that Mr. Sealia discloses thentruth, that the federal courts now routinely construe the Constitutionnto mean exactly the opposite of what it says.nIf the Court is going to continue to regard the I4th Amendmentnas valid and will continue to apply it to the states, nonamount of learning or logic will avail. The conservatives’ answer,na constitutional amendment, is as wicked as it is vain. Itnis vain because it will be a generic prayer amendment for angeneric religion that no one professes. Indeed, many of thenworst court decisions have been in response to the foolish effortsnof states to impose such nondenominational prayers. Wenhave already seen what Supreme Court Justices can do with thenBill of Rights—making the amendments mean the opposite ofnwhat they say—what hope can we have that they could do anynless with a School Prayer Amendment or a Life Amendment?nBut such amendments are worse than a waste of time; theynwould be positively harmful. In the first place, a School PrayernAmendment would unquestionably violate the First Amendment’snEstablishment Clause. What else would such annamendment be but a law, made by Congress, establishing a nationalnprayer, which, presumably, no state could deny? It wouldnnot be a Christian prayer or even a general Judeo-Christian invocationnlike the Lord’s Prayer. It would be a prayer that anyn”theist” including Taoists, devil-worshipers, and Santeriansncould use. It would be, in a word, Horace Mann’s dream comentrue: Unitarianism as a national religion. Perhaps the “Rev.”nMoon would consent to preside, if he were not too busy keepingnthe stars in their courses.nFinally, such an amendment would be wicked, because itnwould distract us from the only political agenda worth our effort:na campaign to put these judicial devils back into the constitutionalnbox that was opened by the I4th Amendment. Asnseveral leaders of the religious right have acknowledged, schoolnprayer is a minor problem compared with other issues in whichnthe federal courts have usurped authority: abortion, censorship,nlegislative apportionment, and school equity issues, includingnracial integration, forced busing, and the redistribution ofnwealth from “rich” to “poor” districts. If separate remediesnhave to be sought either in congressional legislation or constitutionalnamendments, then the struggle will be uriending andneven success would mean nothing better than a Constitutionnclogged with trivial amendments, each of which could serve asnthe pretext for another round of usurpations.nMany of our political problems have one neck: the power ofnthe Court to make law through its broad construction of then14th Amendment. The solution must be aimed directly at thatnpower, either by declaring the amendment null and void or byna new amendment restricting the federal judiciary to its originalnfunctions. The time is right for such a campaign. The Republicansnhave been, speaking very sensibly about restoring powernand authority to the states. If this new federalism is to be morenthan rhetoric, more than a temporary concession of a few rightsnthat have become inconvenient to Washington, it will have tonbe made of something better than the straw of campaignnpromises or the sticks of congressional bills. Federalism requiresnthe bricks and mortar of constitutional prohibitions againstnmost of what the national government is doing, and that willnmean either the repeal or the curtailment of the 14th Amendment.nNothing less is worth the bribes and blackmail that mustnaccompany any reform measure presented to any Congress.nn