The federal judge’s last sentence of the article linked above ["We don't put the Constitution to a vote,"] illustrates an important distinction between pure democracy and the rule of law under a constitutional republic. But it neglects the crucial point that, as ACLU co-founder Justice Felix Frankfurter once acknowledged,

“The ultimate touchstone of constitutionality is the Constitution and not what we [the justices] have said about it.” -Felix Frankfurter, concurring in Graves v. New York, 306 US 466, 491-2 (1939)

We may take comfort from the assurance of Thomas Jefferson, the author of the “separation of church and state” metaphor that has so clouded First Amendment jurisprudence:  “Though written constitutions may be violated in moments of passion or delusion, they furnish a text to which those who are watchful may again rally.”

It was Justice Byron White who recently noted that “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law [sic] having little or no recognizable roots in the language or design of the Constitution.”

Small wonder that recent polling suggests that 77% of Americans believe our courts have gone too far in restricting free exercise of religion; 76% support public displays of Ten Commandments; and 90% support keeping “one nation under God” in our Pledge.

Founder and Patriot John Adams once remarked to Governor Dickinson that “We Americans are not to be conjured out of our senses by the words ‘British Empire’ as we know that Britain is a constitutional monarchy.”

Similarly, we Americans today are not to be “conjured out of our senses” by the words “separation of church and state.” Let’s continue to defend our Constitution’s text and heritage as we stand for “separation of atheism and state.”

As George Orwell once observed, “We have now sunk to a depth at which restatement of the obvious is the first duty of intelligent men.” AJA’s point in calling attention to America’s “Organic Laws” is to espouse the obvious reality contained in our Declaration of Independence – that is, that law comes from God and the self-evident reality of objective truth. In other words, the inscription on America’s coins is the “National Motto” and not the “National Anachronism” [i.e., "out-of-date application or wrong-period attribution of an event"]

And let’s remember that it was judges’ “perversion of judgment” rather than “walking in God’s ways” that was the catalyst directly resulting in the leaders of Israel abandonment of self-government under God to ask for a king (i.e. authoritarianism) in 1 Samuel 8:3+.

Otherwise, we abandon our children to an “Orwellian” future:

“You are a slow learner, Winston,” said O’Brien gently. “How can I help it?” he blubbered. “How can I help seeing what is in front of my eyes? Two and two are four.” “Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane.” -George Orwell, 1984

Justice Clarence Thomas deserves commendation for suggesting that “a more fundamental rethinking of…Establishment Clause jurisprudence remains in order.”  My expectation is that those prayer-wishful students in Indiana would say, “Amen to that!”

You can read the full article, “Historical Significance of a Kentucky Colonel Named Harlan,” as published in the Baton Rouge Bar Journal by clicking here.

Here are a few of these interesting letters:

Click to read Ruth Bader Ginsburg’s Letter

Ruth Bader Ginsburg

Click to read Clarence Thomas Letter

Clarence Thomas Letter

Click to read Samuel Alito’s Letter 

Samuel Alito Letter

Now working fulltime at AJA, Jason is developing new approaches to our communications presence and helping to develop donor relations. His wise leadership and increased involvement will multiply our effectiveness as an organization as we engage courts throughout the nation. In addition, new interns, including a few young attorneys, are joining us as our team continues to expand.

It is thrilling to watch God equipping American Judicial Alliance for an active year!

“To the security of a free constitution, [knowledge] contributes in various ways – by convincing those who are intrusted with the public administration that every valuable end of government is best answered by the enlightened confidence of the people, and by teaching the people themselves to know and to value their own rights; to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burdens proceeding from a disregard to their convenience and those resulting from the inevitable exigencies of society; to discriminate the spirit of liberty from that of licentiousness – cherishing the first, avoiding the last – and uniting a speedy but temperate vigilance against encroachments, with an inviolable respect to the laws.” – George Washington, First State of the Union Address, January 8, 1790

- “When we consider that this Government is charged with the external and mutual relations only of these States; that the States themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices and officers have not been multiplied unnecessarily and sometimes injuriously to the service they were meant to promote.” – Thomas Jefferson, First State of the Union Address, December 8, 1801 

The organization successfully argued on behalf of the legality of a display in a public building in Kentucky that included the Ten Commandments among other historical references.

The 6th U.S. Circuit Court of Appeals handed down a ruling in the case brought by the ACLU that reversed a lower court’s opinion that said the Ten Commandments were impermissible.

“The Ten Commandments are as much at home in a display about the foundation of law as stars and stripes are to the American flag,” said Mathew Staver, Liberty Counsel’s founder and chairman. “The Ten Commandments are part of the fabric of our country and helped shape the law. It defies common sense to remove a recognized symbol of law from a court of law.

Read More here.

“Strange to say, the American judges, ever since the organization of the Government, have been the least criticised and least arraigned public officers. On the contrary they have been the most respected and most honored among all the dignitaries of America.  We may attribute this strange phenomenon to the fact that the only thing which the American will obey is law and the only thing in which he will know the meaning of obedience is his relation to law.  The judges of the United States and of the several States are thoroughly conscious of their exceptional privileges and immunities; also of their correspondingly great responsibilities as the only interpreters of the law, to whom alone the final construction of the law of the land is unreservedly entrusted.

All the American judges realize this. The American people know that the strictest obedience to law is the foundation stone of the strength and permanence of the republic.  This has been understood by the American people ever since they founded their country.  Departure from this common understanding tends to involve national ruin by creating anarchy.  Superficial observers who see but the so called material side of American progress, or those who are devotees of the game of profit, do wrong when they do not appreciate the fundamental proposition that the people are the backbone of progress.

Such superficiality not only fails to grasp the true situation, but also fails to appreciate the true meaning of the beneficent opportunity upon which the Americans build their higher and nobler civilization.  The statements recently made that the American people have changed their allegiance from the great principles which they embodied in the Declaration of Independence to the worship of the almighty dollar, and that the American people have changed from their appreciation of the Bible to the worship of the sword are evidence of the fact that their authors are but shallow students of the America of to day.  

To illustrate the fallacy of such statements:  A few years ago, in Washington, D.C., we happened to enter one of the local churches.  We saw among the younger Sunday school scholars a man holding a Bible in his hand, teaching the tidings from God, a man whose duty it was to settle the disputes of men in the business world, a man whose thirty years judgeship in the Supreme Court has just been celebrated as the pride of Kentucky: Mr. Justice Harlan.  Some time later in Chicago, we happened to come across a local newspaper that reproduced a speech containing this wonderful remark, “Our country of liberty is not a country only for the white race.  Ours is and must be the country of all races,” a speech which was uttered by an American whose legal knowledge it is not necessary for us here to emphasize: Mr. Justice Brewer.  

We are impelled by the force of the facts to recall the tradition about the Pilgrim Fathers who claimed the promise of God to Abraham as the sanction of their voyage. Obedient to the divine command they forsook their country. On the morning they were to set sail from the harbor of Delft Haven, the Pilgrim Fathers formed a solemn procession. Reverend Robinson, having a Bible in his hand, then told them that more truth and light were yet to break out of God’s word.  “Get thee out of thy country and from thy kindred and from thy father’s house into a land that I will show thee and I will make thee a great nation and in thee shall all families and nations of the earth be blessed.”  These are but a few examples, and these men are but a few Americans among innumerable others who constitute the America of to day, and who are taking the command of God to Abraham and His promise to the father of the faithful as a pledge vouchsafed unto them and to their children after them.

The Americans do not have to ask God for material treasures.  He has already granted them that in abundance. It is theirs to thank Him for the strength to perpetuate their institutions firm as heaven and earth and to bless all peoples and nations with an example of peace, happiness, and prosperity.  The quickest way to the brotherhood of man demands, as a necessary organization, therefore, not kings or nobles, but wise magistrates whom the people have elected, and who administer equal laws, which the people have framed.

Realization of that brotherhood is in sight for the Palladium of the Republic is in the courts of law.  The statues of the dead and the figures of the living judges on the bench are the ceaseless sources of our gratitude and veneration.  To them we owe the vitalization of the Constitutional provisions.  It is they by whom the Congressional and Executive acts have been made to breathe and the unformed and immaterial phenomena transformed into the living forces comprising the written and material wealth, progress and prosperity of the United States and the various States.

There is not a blot on our body politic to day that the better element of the people could not remove if they resolved to do so.  They will so resolve in good time as they have always done in the past.  There is not a defect or deformity in our political administration that they cannot and will not correct by the peaceful expression of their sober convictions and in the legitimate way pointed out by their free institutions.  

It would be well always to keep in mind this reserved power of the people so immediately connected with the preservation of their Government.  It has been the source of safety in all times past, in peace and in war, and it is to day, and will ever continue to be, the omnipotent power that forbids us to doubt the complete success of free government.  The virtue and intelligence of the people are the sure bulwark of safety for a republic.”

There is only one word for Tueday night’s keynote Speaker.  That would be “Wow.”  His Honor Retired Judge White was both a delight and enlightening at the same time.  His portion of the evening lasted about 1 and 1/2 hours but seemed like 20 minutes.  Sit back with a great cup of coffee and watch the entire video here.  Judge Darrell White is an asset that needs to be exploited and duplicated. 

Justice Alito

“The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership. The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole. It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.”   - Justice Samuel Alito

Sandra Day O’Connor, now a retired Supreme Court justice, has rendered another decision illustrative of the contempt she shows for the Constitution, particularly the text of our First Amendment.  Her opinion, while sitting as a  “fill-in” judge on a panel of the 4th Circuit Court of Appeals, held that excluding persons who pray “in Jesus’ name” (from a rotational roster of officials who open city business meetings) is a fair and reasonable way “not to exclude or disparage a particular faith.” 

I’d like to know where O’Connor found Reverend Turner’s name in the First Amendment.  He clearly is not “Congress” – the focal point of our First Amendment’s prohibition against making a “law respecting an establishment of religion.” 

To set the stage, picture yourself seated in the U.S. Supreme Court chambers back on Friday, September 25, 1981.  It’s been several months now since Ronald Reagan speculated in his diary that he thought Sandra Day O’Connor would “make a good justice.”  She had been confirmed by the Senate 99-0 several days before.  All eyes are now on Chief Justice Warren Burger who, in a packed Supreme Court chambers and surrounded by his colleagues is administering the oath required by 28 U.S. Code 453 to Sandra Day O’Connor, the first woman to serve on the Supreme Court. 

All is going according to the prescribed script as Burger concludes emphatically, “So Help Me, God.” The crowd awaits O’Connor’s dutiful repetition of the phrase that has officially concluded every federal judge’s oath since 1789.

Instead, O’Connor removes her left hand from the two Bibles on which they had rested, drops her right hand and announces with an ease that suggests deliberate forethought – “Mr. Chief Justice, nothing personal, but under today’s living Constitution and as an example of judicial independence for future federal judges, I hereby respectfully decline to recite that optional last sentence of the judicial oath.”  As hushed muttering and some gasps fill the Chamber, a clearly startled Burger, slowly lowers his own right hand in bewilderment, and says softly, “I see.”

Mrs. O’Connor fills the uncomfortable void by smoothly transitioning to her acceptance remarks, explaining coolly, “I thank you for being here to witness this historic exercise of conscience as I have chosen not to end my oath with “So Help Me, God.”  You see, this is 1981, and it’s time we acknowledge the pluralistic society in which we live.  No longer are we bound by acknowledgment of the God of the Bible.  After all, I believe that “endorsement [of God]  … sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”  “Given the dizzying religious heterogeneity of our Nation and my belief that the establishment clause prohibits against allowing government speech to offend, I want to make clear my intention is to keep God “optional” for Americans of all faith traditions.

Polite applause follows as a frowning Chief Justice Burger gavels for quiet and abruptly adjourns court.  The several reporters who were privileged to attend the ceremony quickly finish making notes and leave with a sense of urgency to report this trend-setting development.

Meanwhile, back at the White House, President Reagan is advised of O’Connor’s historic declaration and sends word summoning her to meet with him at the Oval Office immediately.  When she appears, Reagan interrupts his regular schedule to speak with her. 

When asked for an explanation, O’Connor declares, “Mr. President, I believe that endorsement of God sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.  And given the dizzying religious heterogeneity of our Nation, it’s clear to me that the ‘So Help Me, God’ ending of the judicial oath is mere “surplussage,” as we call it in judicial circles.  Trust me, Mr. President, it is not at all necessary. Any questions?”

President Reagan – “Yes, Mrs. O’Connor, just one.  I hope you haven’t moved in yet, have you?  Thank you for giving me this candid glimpse of how you view the Constitution’s First Amendment and just how you might have conducted yourself had you been sworn in as a justice of the Supreme Court.”