Foreign nationals who fervently adhere to sharia law have a First Amendment right to trespass on our soil, but county governments have no right to offer a prayer to the God of the Bible, the same one referenced in the Declaration of Independence. That is the rule we get from the Fourth Circuit Court of Appeals when we juxtapose the court’s ruling in the Trump immigration moratorium case with a recent case regarding prayer at county commissioner meetings in Rowan County, North Carolina.
Poor North Carolina just can’t get a break. It appears that the state’s original concerns about joining the federal union in 1788 have been proven correct. Over the past year, the Fourth Circuit has nullified the state’s voter integrity laws; federal, state, and even county-level political maps; and gender sanity laws. Now the court has banished God from county government prayers.
On July 14, the Fourth Circuit Court of Appeals ruled that Rowan County, North Carolina, commissioners can’t begin their session with a public prayer delivered by an elected official. And the vote wasn’t even close. This once conservative panel voted 10-5 to banish God from the public square. The opinion was written by Judge Harvie Wilkinson, a Reagan appointee, demonstrating the imbalance in the judiciary once again — that even the most radical opinions are often penned by GOP appointees.
This case also demonstrates that the judiciary will always be a dead end and a one-way-street for conservatives. While conservative lower court judges always feel bound to “precedent,” liberal lower court judges have no problem violating precedent and established practice. Anyone who watches C-SPAN will see that the Senate begins its session every day with a prayer in the deep voice of Pastor Barry Black. Yet the Fourth Circuit somehow believes that a local government, which has even more leeway in matters of religion than the federal government does, can’t even cite the God referenced in our founding document. Our founding has been deemed unconstitutional.
Just three years ago, an opinion authored by Justice Kennedy (of all people!) clearly stated that sectarian prayers at local government gatherings are permissible so long as nobody is coerced to participate. In Town of Greece v. Galloway, Kennedy wrote for the majority that as long as the prayer “comports with our tradition and does not coerce participation by nonadherents,” there is no room for judicial intervention. “To hold that invocations must be non-sectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech,” Kennedy wrote in the 2014 case.
So how could lower court judges violate sacred precedent? In classic Fourth Circuit fashion, Judge Wilkinson agreed with the ACLU that this prayer is tantamount to coercion because it makes non-religious attendees feel like “outsiders” and “the overall atmosphere was coercive, requiring them to participate so they ‘would not stand out.’” Remember, this same judge signed on to an opinion earlier this year suggesting that almost all Muslim Americans (and non-citizen residents) have standing to bring suit against Trump’s immigration moratorium because the policy cultivates an anti-Islam bias in this country and makes them feel “anxious,” “stigmatized,” “stereotyped,” and “like an outsider.”
Our history, traditions, and founding are unconstitutional
On September 25, 1789, the very same day the House of Representatives voted on the First Amendment of the Bill of Rights — to “make no law respecting an establishment of religion,” — it passed a resolution requesting President Washington to declare a “day of public humiliation and prayer.” This day of prayer and thanksgiving to God, in the words of the great Roger Sherman, was to replicate “the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the Temple,” a “precedent in holy writ” he thought “worthy of Christian imitation on the present occasion.”
President Washington issued the proclamation on October 3 to be observed on November 26 that same year. What was the nature of this public day of prayer? To beseech God “to pardon our national and other transgressions” and “to promote the knowledge and practice of true religion and virtue.”
As Scalia noted in a speech shortly before he passed away, modern justices place their interpretation of abstract principles over “the lived experiences and customs” of the American people. Referring to long-standing American traditions, Scalia admonished his fellow jurists to approach those issues with the mindset that a jurist “does not judge them; he is judged by them.”
States have been crushed … except for the ability nullify federal laws
Amazingly, at the same time the courts crush states and denude them of their most basic powers and traditions, held since their acceptance into the federal union, the unelected judges are allowing states nullify federal law. Judge Watson allowed Hawaii to demand that the federal government admit any cousin or distant relative of even non-citizen residents in the state or anyone who claims ties to a state university, despite the president’s statutory authority to bar their entry. Judges are allowing states to keep sanctuary cities and even blocking federal officials from enforcing immigration law. These are powers manifestly held by the federal government. And even John Roberts agreed with these wacky judges in an order last week. Yet when it comes to election law, the right to invoke God, define marriage, or regulate abortion, well, suddenly the states don’t exist.
One could not possibly conjure up a more perverse worldview than the one espoused today by the courts.
Liberal lower court judges always find ways to move precedent even further to the left, yet conservative judges always abide by precedent, even when the higher court violated the Constitution. This is exhibit number 1,324,987 why the judiciary is irremediably broken and why it needs wholesale reform.
Last time Republicans controlled all of government, when the courts began their war on God, even the Bush-era Republicans pretended to care about the judicial crisis. Yet now that the courts are more radical than anyone even feared back then, we hear nothing but crickets from the “conservative” Congress.
Following the 2002 decision from the Ninth Circuit to remove “under God” from the Pledge of Allegiance, the House of Representatives passed the Pledge Protection Act on two separate occasions. This bill exercised the Art. III Sec. II plenary power of Congress to regulate the jurisdiction of the federal courts and prohibited all federal courts from adjudicating any case over the constitutionality of the Pledge. The bill passed the House with bipartisan support in 2004 (247-173) and in 2006 (260-167). Although the bills never went anywhere in the liberal Senate, at least there was core bipartisan outrage over the social transformation and judicial tyranny. They passed similar bills stripping the courts of jurisdiction over marriage and abortion.
In the same week in September 1789, when Congress called for a day of public prayer, it also passed the Judiciary Act of 1789, which created the entire structure and jurisdiction of the federal judiciary. No less a figure than John Marshall himself said (Durousseau v. United States, 1810) that implicit in this bill was the exercising of Article III, Section 2, which grants the judiciary only the jurisdiction provided to it by Congress and that this bill placed a “negative on the exercise of such appellate power as is not comprehended within it [the bill].”
Look how far we have fallen. Now we can’t even get the most conservative members to address marriage, God, abortion, or judicial reform in a meaningful way. The courts are redefining human sexuality and our national borders, yet Congress won’t lift a finger to even conduct a hearing on judicial reform.
In response to the concern that the courts would usurp power, James Madison wrote to Spencer Roane in 1821, “It is not probable that the Supreme Court would long be indulged in a career of usurpation … Nor do I think that Congress, even seconded by the Judicial Power, can, without some change in the character of the nation, succeed in durable violations of the rights & authorities of the States.”
The operative phrase is “change in the character of the nation.” We have a nation that no longer knows its own heritage, laws, history, and traditions. This is how the judiciary can completely rewrite our legacy without anyone blinking an eye.
This, at its core, is what CR Editor-in-Chief Mark Levin is seeking to restore with his new book, Rediscovering Americanism. A nation that doesn’t even understand the values of the Declaration of Independence is bound to repudiate its most sacred tenets. There is a lot of political “fighting” unfolding in our era, but even most of those who purport to fight for “our side” don’t even know what they are fighting for. Rediscovering Americanism is probably the most effective and concise tutorial in natural rights and natural law that can be understood even by the diminished intellect of the governing class. Until they pick up a copy of the book and understand our heritage, the source of our inalienable rights will continue to be extirpated from our body politic by an unelected lawyerly elite.