DeLay Speaks: More Red Meat For The Nation’s Court-Haters

April 14th, 2005
By Jeremy Leaming
Religion in Public Life

Whose interpretation of the First Amendment do you believe – Tom DeLay or Tom Jefferson?

Yesterday, on the 262nd anniversary of Jefferson’s birthday, U.S. House Majority Leader DeLay, in an interview with The Washington Times, maintained that the separation of church and state is “nowhere in the Constitution….”

According to DeLay, the federal courts created the First Amendment principle of church-state separation out of thin air, and Congress didn’t do a thing to stop them. As is the wont of many of the nation’s rightists, DeLay also maintained that the federal courts created judicial review and privacy rights.

But DeLay and company are wrong. The First Amendment does indeed include a church-state separation mandate; that’s what the Establishment Clause is all about.

Jefferson said so in an 1802 letter to Baptists in Connecticut. The Baptists, a minority in a state with a Congregationalist religious establishment, were concerned about their treatment. In a missive to the president, they congratulated Jefferson on his election and expressed the hope that his views on religious liberty might ultimately extend throughout the country.

Jefferson, who had already worked years to disestablish religion in Virginia, was happy to reply. He wrote, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

Throughout the decades, the U.S. Supreme Court has often cited Jefferson’s wall. In 1879, the high court in Reynolds v. United States, cited Jefferson’s metaphor, writing, “Coming as this does from an acknowledged leader of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment thus secured.” Then, in its landmark 1947 Everson v. Board of Education decision, the Court again invoked Jefferson’s wall metaphor when it declared: “The ‘establishment of religion’ clause of the First Amendment means at least this. Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

DeLay is obsessed, as many right-wing activists are, with the federal courts. They can’t stand a long line of rulings that have upheld and strengthened fundamental rights. But it is deeper than that. Many among our nation’s rabid right simply can’t stand the Bill of Rights. It is an obstacle to their fervent desire to create a fundamentalist theocracy.

The federal courts, however, as was made clear in the Supreme Court’s 1801 Marbury v. Madison ruling, have the sole power to determine when government actions or laws violate constitutional precepts. Indeed, as noted in the Court’s 1958 Cooper v. Aaron ruling, Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our Constitutional system.”

But DeLay, who recommended to the Washington newspaper interviewer that he read the latest right-wing judge-bashing book “Men in Black,” by Mark Levin, wants to trash Marbury. He told the Times “there’s all kinds of ways” Congress can limit the federal courts’ jurisdiction. Among the court-stripping bills is one passed by the House last year that would prevent the federal courts from ruling on certain religious liberty cases and a second dealing with marriage. DeLay also noted that the House passed a law last year to break up the 9th U.S. Circuit Court of Appeals, a circuit the nation’s rightists love to hate.

In an interview with The New York Times, published this morning, DeLay concluded that, “We set up the courts. We can unset the courts.”

The rhetoric is combative, over-the-top and wholly inaccurate, but red meat for the nation’s Religious Right activists who are bent on destroying an independent judiciary and a free country.

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