Proof of Politics on the Court: The Establishment Clause (Part I)

Liberal Justices will always try to find a way to expand the meaning of the Constitution. As the famous progressive Justice Oliver Wendell Holmes noted: “The Constitution is a living document.” In other words, the meaning of the Constitution changes with the times. Liberals employed many techniques over the years to expand the meaning of the Constitution such as “presumption” and “judicial restraint”. These two techniques allow liberal justices to uphold state or federal laws because laws were “presumed” constitutional unless it could be proven otherwise. The burden of proof was not on the government to show the laws they passed were constitutional, but on those opposing the laws. Justices also practiced “judicial restraint”: upholding government laws even if they thought they may be unconstitutional. For example, in Williamson v. Lee Optical (1955), the Court upheld an Oklahoma law that prohibited Lee Optical from practicing what Lens Crafters is doing today. In this case, the Warren Court held: “The law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” This is a very broad way to interpret government laws, considering the “evil” in this case performed by Lee Optical has become the present day business plan for Lens Crafters. Lee Optical is still valid law today.

Liberals have expanded the meaning of nearly every provision in the Constitution. The Necessary and Proper Clause was expanded immediately in our history (McCulloch v. Maryland, 1819) where the Court held a National Bank was constitutional. The Interstate Commerce Clause has gone from regulating trade between the states to controlling anything that is economic (interstate or intrastate) with Wickard v. Filburn (1941) being the absolute edge of federal government regulation. The Court has even used the Commerce Clause to uphold the 1964 Civil Rights Act in Katzenbach v. McClung (1964) and Heart of Atlanta Hotel v. United States (1964).

Consider a couple of examples: The Recess Appointment Clause and Qualifications Clause. In NLRB v. Canning Noel (2014), The Court held recess appointments made by President Obama were unconstitutional. However, in doing so, the entire Recess Appointment Clause was rewritten to construct a more modern interpretation. The new definition of the Recess Appointment Clause provides any President to make recess appointments during any short 10 day adjournments of Congress as well as fill vacancies not opened during the current Congressional recess. By doing so, the Court yielded much more power to the Executive branch at the expense of the Senate and the American people by diluting the separation of powers between the branches of government. In United States Term Limits v. Thornton (1995) the Court held that an Arkansas referendum placing term limits on United States Representatives and Senators was unconstitutional. The Qualification Clauses provide age requirements, state residence, and citizenship requirements for Congressional candidates. This decision, however, made another requirement not found in the Constitution: that States cannot place any requirements on its federal representatives and senators such as term limits or reasonable things such as mental acuity or criminal record. This decision, once again, provided more power to the Federal government at the expense of the States and more importantly the people.

The Liberal sect of the Court has also elevated fundamental rights not found in the Constitution using a technique called Substantive Due Process: abortion (Roe v. Wade, 1973), sodomy (Lawrence v. Texas, 2003), and gay marriage (Obergefell v. Hodges, 2015). All of those fundamental rights were the result of the Courts ambiguous and broad fundamental right to privacy (Griswold v. Connecticut, 1965). True, conservatives did the same thing during the Lochner Era Court: freedom of contract (Lochner v. New York, 1905), various rights including marriage, occupation, acquire knowledge, and raising children (Meyer v. Nebraska, 1923), and the freedom to make decisions in the upbringing of children (Pierce v. Society Sisters, 1925). I will not defend any of these elevated rights, but it is much easier to defend the conservative rights than the liberal rights.

The First Amendment’s religious Establishment Clause is very much different than everything we discussed earlier in this article because it is role reversal. It is the Liberal sect of the Court providing a narrow reading of the Clause whereas the Conservative sect of the Court wants a broader reading of the Clause. This flip flop over positions demonstrates that the Court is highly political and justices are not always neutral. The Establishment Clause states “Congress shall make no law respecting an establishment of religion.”