How can people who clamor the loudest about upholding the U.S. Constitution — know so little about it?
Not long ago, Sarah Palin was sitting on a panel discussion at a law school. One participant mentioned “the wall of separation between church and state.” Former Governor Palin instantly spoke up, “Where does it say THAT?”
A GASP issued from the students. They couldn’t believe that somebody on that panel would know so little about the Constitution (not to mention a former governor and candidate for Vice President).
More recently, jumping on the bandwagon of true believers in the functions of a county clerk, former Arkansas Governor Mike Huckabee opined about the official in Kentucky refusing to issue marriage licenses for same-sex couples after the Supreme Court ruled that same-gender marriages are constitutional. Huckabee remarked that the Supreme Court has no role in making law. (Yes — a former governor running for President really said that.) Laws, he clarified, are made only by Congress.
Both of these statements — about the “wall of separation between church and state” not being in the Constitution, and the Supreme Court having no role in making laws — are now being repeated by those in the general public who are the most up in arms about protecting the Constitution (including being able to be up in arms with automatic weapons & unlimited ammo).
These are tactics — of seemingly defending the Constitution by crying out every time a word can’t be found in the document on an issue they oppose, and of reducing the Supreme Court’s role merely to issuing “opinions.” Opinions (they assert) are just opinions — they’re not laws.
These tactics are being employed by the right-wing religious. They have failed so many times to inject their biblical literalism into public schools or town councils. Now they attempt yet another approach to push their religious beliefs into public life — they “defend” the Constitution. They maintain they’re just standing up for their rights like freedom of religion. Sadly, they show by their statements how little they know about the workings of the Constitution in our republic.
It is true that nowhere in the Constitution can be found the phrase “a wall of separation between church and state.” That phrase was coined by Thomas Jefferson during the second year of his presidency (in 1802). He was writing a letter to a group of Baptists, explaining the purpose of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”). The First Amendment was passed in 1791 (four years following the ratification of the Constitution itself). That is, President Jefferson’s remark that the First Amendment created a “wall of separation between church and state” occurred 11 years after the amendment. The phrase is not IN the Constitution. But the phrase is used as the most concise, faithful summation of the Establishment Clause regarding the Founders’ desire for government not to favor any religion or tenet.
So — the religious literalists are right — only in narrowness: The phrase “wall of separation of church and state” does not appear in the Constitution. But the phrase is so well-established as belonging to the spirit and understanding of the Constitution, anybody demanding, “Where does it say THAT?” is making a public display of one’s ignorance about the history of the document.
This other statement — that the Supreme Court does not make laws — likewise displays so much ignorance about our republic not only in its earliest decades but in events occurring in these people’s own lifetimes.
True — Congress writes laws. But what’s also true is that the Supreme Court determines if the laws are in sync with the Constitution. What the Supreme Court issues as a clarification or a denunciation BECOMES law. Anybody who doesn’t know this not only shows they are unaware of the concept of “judicial review;” they show they are unaware of what’s been going on in this country in their own lifetime!
During the civil-rights movement of the 1950s – 1970s, the concept of “judicial review” is what declared segregation to be illegal. Judicial review is what has stopped born-again lawmakers in state houses and on school boards in Tennessee and Arkansas and Louisiana and Pennsylvania from injecting creationism into public-school science classes over the past half-century.
Judicial review was formally established as a doctrine in our republic In 1803 (again during the presidency of Thomas Jefferson). The case is called Marbury v. Madison. Chief Justice John Marshall wrote the majority opinion. (Marshall was held in such esteem that upon his death, it was the last time that the Liberty Bell was rung.) The case was about this: President john Adams had lost re-election in 1800. In the new year, among his final acts of office, he filled several judgeships. One appointment went to a man named Marbury, whom the President assigned as a Justice of the Peace in Washington, D.C.
Adams exited the capital. But Marbury had not yet taken office as Justice of the Peace. Now arrived the incoming President, Thomas Jefferson. Jefferson had appointed James Madison as Secretary of State. As Secretary of State, Madison was — to offer an image — sort of like the county clerk for the nation. Madison refused to issue the certificate authenticating Marbury as a judge.
Gosh — doesn’t that ring a bell?
The Supreme Court ruled that Madison’s act was unconstitutional in denying the judgeship to Marbury. In other words, what the justices declared as wrong was no longer law — what they declared to be right BECAME the law of the land.
This was THE case that established the doctrine of “judicial review” in the workings of our republic under the Constitution.
The Supreme Court does not MAKE law. Rather, it clarifies the purpose of a law. In doing so, the court extends coverage to those being denied protection of law (as in same-sex couples). But whatever opinion it offers BECOMES the new way that the law is meant to be carried out.
Those who understand this principle of our republic understand why this county official in Kentucky is so wrong, and why her supporters are so clueless all the while they claim to be versed in the Constitution.