rogerdr (rogerdr) wrote,

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Separation of Powers

Congress has recently added to its repertoire of "mostly symbolic" faux pas with this incendiary Act. Because this seeks to infringe upon the rights of citizens in two different ways, I will try to address both more or less separately.

First, this legislation seeks to prevent the Supreme Court from being allowed to rule on the Constitutionality of a law that has already been passed, namely, this one. The new legislation, therefore, places the first bill in a position equal to the Constitution itself, circumventing the process of Amendment, in order to keep it from being struck down by any federal court. This is a violation of Sections 1&2 of Article III of the Constitution which define the Supreme Court as the body in which "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." The right to consider laws Constitutional, called judicial review, lies with this Court "and in such inferior courts as the Congress may from time to time ordain and establish," not with Congress.

This kind of prohibition of the Court is dangerous. It would allow Congress to enact laws arbitrarily, an unpardonable activity which is the very reason the framers of the Constitution separated the Judiciary and Legislative branches. It would also limit the ability of citizens to challenge through the courts unjust laws. It was the guiding opinion of the framers of the Constitution and their saving grace that no laws are sacrosanct, not even the Constitution itself; that is why they placed within it the Amendment process and, if needed, provisions for a new Constitutional Convention. If this legislation is allowed to be passed in the Senate, it will set a precedent that the Supreme Court is no longer the highest arbiter of Constitutionality and that Congress can make Acts that are immune to Constitutional checks.

Second, the former Act, which this one seeks to protect, is itself a protection of previous laws that are in opposition to the spirit, if not the rule, of the Constitution. Those laws create or amend the Pledge of Allegiance and the prescribed national Motto "In God we trust." In the first Amendment to the Constitution are the words "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", which have been the cornerstone of what is called the separation of church and state in this country; yet it has been the tradition of all three branches of government to allow prayer and symbolism, almost exclusively of Christianity, in their speeches, functions, and architecture. This tradition has rarely been institutionalized by law and has slowly lessened until now there are but few instances as obvious as the salutatory prayers in the Supreme court and Congress and the Motto placed on our currency, but it is a defining truth in the history of our nation that neither the longevity of traditions nor the veracity of their adherents make them right. If this were true, we would not have seen the abolition of slavery, nor the suffrage of women, nor the destruction of poll taxes and other encumberances to voting rights. It is time for us to look at these traditions and question whether they further the cause of liberty and religious freedom or constitute an establishment of religion as mentioned in that first Amendment.

Much of the arguments upholding religious tradition in government are based upon the idea that even government officials should not be prohibited from the free exercise of religion, but it is the usage of their offices for indoctrination and the institutionalization of their beliefs in legislation that is prohibited, not their private exercise. Religious content within a Member's speech on the floor of Congress is not official doctrine, and so cannot be considered an official establishment; religious content within a Bill passed by Congress would become official doctrine, and so must be considered such.
Furthermore, "establishment" has been interpreted within law and by judicial ruling as not only the statutory institutionalization of religion, but also the appearance of institutionalization by allowance of religious symbols or activity in official circumstances when no specific law exists prohibiting it. This means that even in places and situations where no laws have been written against the unofficial sanctioning of religion it is still unconstitutional for such to be allowed, as the appearance it gives is the same as if it were officially sanctioned. The national Motto placed upon currency clearly uses "God", a term universally considered to refer to a supernatural entity, in a nonreligious context; yet that term, not being dogmatically acceptable to all religions or creeds, is a defacto institutionalization of religion itself. That the Pledge of Allegiance is not a statutory requirement for public schoolchildren or soldiers does not lessen the fact that its administration by teachers or company commanders gives it the appearance of authority and causes those who refuse it to appear outsiders opposed to that authority. Regardless of how our Founding Fathers believed or how long these practices have been allowed, these traditions have never been in accordance with the spirit of the Constitution; and in a modern nation where diversity of religious belief and nonbelief far surpasses that of the United States at the time of its founding, we have a duty to see that that diversity is preserved by ridding ourselves of such attempts at narrowing it and our ability to fight for it by this Act and its predecessors.

Alright, all those opposed? Let me have it!
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