Monday, August 16, 2010

Constitutionality of Legislation by David Barton

The Court’s decision in this case not only struck down a passive, non-coercive display, it also reflected the hostility which has become characteristic of the Court’s decisions on these issues. Wallace v. Jaffree, 1985

This case was the challenge of an Alabama law which authorized a one minute period of silence for students. When the case reached the federal court of appeals, although the court found that a one-minute period of silence for meditation was constitutional, it nevertheless struck down the law. The Supreme Court upheld that decision. Why? As the court of appeals had explained – and as the Supreme Court had repeated: It is not the activity itself that concerns us; it is the purpose of the activity that we shall scrutinize.

In seeking “the purpose of the activity,” the court had “discovered”: The “prime sponsor” of the bill explained that the bill was an “effort to return voluntary prayer to our public schools.” He intended to provide children the opportunity of sharing in their spiritual heritage of Alabama and of this country. Consequently, based on this “discovery,” the court struck down the voluntary silent activity and declared the statute invalid because the sole purpose was “an effort on the part of the State of Alabama to encourage a religious activity”. It is a law respecting the establishment of religion within the meaning of the First Amendment.

Chief Justice Warren Burger was much disturbed by the Supreme Court’s affirmation of this decision. For example, he was troubled by the judicial “discovery” which had resulted in the ruling:

Curiously, the opinions do not mention that all of the sponsor’s statements relied upon including the statement “inserted” into the Senate Journal were made after the legislature had passed the statute; indeed, the testimony that the Court finds critical was given well over a year after the statute was enacted. As even the Apelles concedes there is not a shred of evidence that the legislature as a whole shared the sponsor’s motive or that a majority in either house was even aware of the sponsor’s view of the bill when it was passed. The sole relevance of the sponsor’s statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that post enactment statements by individual legislators are relevant in determining the constitutionality of legislation.

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