Judicial Activism and the Separation of Church and State

As a doctrine, the separation of church and state represents, not just an assault on Christianity; it also provides a template illustrating just how judicial activism is destroying this country. Lawyers and judges manipulate the English language and pervert the legal system when they decide to become social engineers—the separation of church and state is a perfect example of this. The separation of church and state has betrayed the US Constitution and mutated what was meant to be the protection of religious freedoms from the state, into protection of the state from religion.

If you think I’m being overly dramatic, listen to Justices Scalia and Rehnquist. Rehnquist wrote the dissent in Wallace v. Jaffree. Justice Rehnquist eloquently summarizes all that is wrong with the separation of church and state doctrine:

“It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years…
It seems indisputable from these glimpses of Madison’s thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion Thus the Court’s opinion in Everson…is totally incorrect in suggesting that Madison carried these views onto the floor of the United States House of Representatives when he proposed the language which would ultimately become the Bill of Rights..
The repetition of this error in the Curt’s opinion in Illinois e rel. McCollum v. Boar of Education, and inter alia, Engel v Vitale, does not make it any sounder historically…Stare decisis [that is the legal doctrine of precedent—it literally means “to stand by things decided.”] may bind courts as to matters of law, but it cannot bind them as to matters of history…”

Not surprisingly, Rehnquist is not alone in this opinion. In Lee v. Weisman, Justice Scalia writes the dissent:

“…In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, that Court invents a boundless, and boundlessly manipulable, test of psychological coercion. Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the justices of this Court, but must have deep foundations in the historic practices of our people.”

How could such a travesty have been perpetrated on the American people? There are three steps in judicial activism: 1) find a philosophical zealot who is highly placed in government, 2) usurp the powers of the states in order to have uniform central control, and 3) invent a legal fiction on which to base new doctrine.

Step 1: Find a philosophical zealot who is highly placed in government.
The chief architect, or mechanic, of this disaster is Justice Hugo Black. As one can well imagine, Justice Black was possessed of some serious bias. Once again, don’t take my word for it. Listen to his own son, Hugo Black Jr.:

“The Ku Klux Klan and Daddy, so far as I could tell, had one thing in common. He suspected the Catholic Church. He used to read all of Paul Blanchard’s books exposing the power abuse in the Catholic Church. He thought the Pope and the Bishops had too much power and property. He resented the fact that rental property owned by the Church was not taxed; he felt they got most of their revenue from the poor and did not return enough of it.”

It is quite clear that the architect of the separation of church and state was a bigot and held strong resentment against the church—and this is the man who created legal doctrine that regulates how all Americans deal with religion. Now, how did he do it?

In order to discover how we got where we are now, we have to rediscover where we came from. The free exercise clause was originally understood by what was called the secular regulation rule. The secular regulation rule did not prohibit the free exercise of religion. Not prohibiting the free exercise of religion meant three things: 1) the federal government could not impose religious belief on anyone, 2) the federal government could not compel people to engage in religious practices contrary to their conscientious beliefs, and 3) the federal government could not, on religious grounds, prevent people from acting on their religious beliefs.

Step 2: Usurp the powers of the states in order to have uniform central control.
So, what in heaven’s name has happened since the time of our founders? Simply put, progressive within the federal government have assimilated and usurped the power of the states. Once the states’ distinctive individuality had been absorbed into the federal collective the newly empowered federal government could set about establishing new morals, ethics, and goals and creating new powers. Barton explains that Black succeeded in creating a new definition of “”wall of separation” and then mandated that this new definition would forever more be applied to all cases dealing with religion (via stare decisis). He notes that the court in Everson v. Board of Education interpreted the “separation” phrase as requiring the federal government to remove religious expressions from the public arena. This is obviously the complete opposite of the First Amendment’s meaning. And progressives are not finished usurping power and centralizing control. Daily we see the progressive party on a forced march to collectivism and the centralization of power.

Step 3: Invent a legal fiction on which to base a new doctrine.
Justice Black was not only the political zealot the progressives needed to push the narrative, he also did the hard work of inventing the legal fiction. Justice Hugo Black invented an obscure metaphor from a letter written by Thomas Jefferson. Jefferson wrote to the Baptist community of Danbury, Connecticut, who expressed their fears that because the protection for religion had been written into the laws and Constitution, it would inappropriately suggest that the government viewed freedom of religion as a government-granted right rather than a God-granted right. (How silly could they be?) the Danbury Baptists were apprehensive that the government might someday wrongly believe that it had the power to regulate public religious activities. (Lo and Behold, that is exactly what happened! The overly dramatic Danbury Baptists were right all along.)

Ironically, Jefferson attempted to assuage the fears of the Danbury Baptists by reassuring them that the government would not and could not interfere with their religious freedom. Jefferson wrote:

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only & not opinions, 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 free exercise thereof,” thus building a wall of separation between Church & State. [Emphasis added.]”

This wall of separation of church and state was clearly meant to be a wall of non-interference, and this was clearly stated by Jefferson. As Barton eloquently summarizes, now the First Amendment is no longer a limitation on government interference. It is now a limitation on religious expression and principles. Justice Black manipulated Jefferson’s words. Black’s malfeasance stands as possibly our nation’s most egregious example of an attack on Christianity and misuse of the legal system. And this is how he did it—Barton summarizes the perverse nature of Black’s decision:

“Furthermore, the Court did not give the context of the phrase, or Jefferson’s numerous other statements on the subject; in fact, it did not even mention that previous Supreme Courts had used Jefferson’s letter to preserve religious principles in public society rather than remove them. In short, that 1947 Court was the first to divorce Jefferson’s metaphor from its context and then apply it in a manner exactly opposite to Jefferson’s clearly articulate intent.”

In conclusion, progressives irrationally fear that Christians are militant theocrats who are plotting to initiate a national theocratic coup. But what they don’t comprehend, which is the reality of the situation, is that Christians and those of the “religious right” are merely engaging in a defensive stand to halt the secularization of society and the infringement of their rights.

The world has seen the horror that occurs when God is removed from society. We all can find countless examples, but I think this horror is summarized best by Hilmar Von Campe who grew up in the Hitler Youth, fought against the Red Army in the Yugoslavian theatre as a tank gunner, and escaped from a prisoner of war camp in Communist Yugoslavia:

“Godlessness was the principle reason for the crimes of the Nazi leaders. . .Nothing in this world will last if it is not anchored in truth. The principle of truth is the same for all men and nations, regardless of color, race, class or religion. Everyone and every nation is expected, and has the capacity, to live in truth. Humanity’s critical challenge of the hour is that of reconciling our innermost motives – those of each individual human being – with the charge and mission with which God has endowed our human natures.”


Hugo Black Jr., My Father (New York: Random House, 1975), 104.
Christopher Wolfe, 20. Here Wolfe cites Gerald Bradley of Notre Dame from Church State Relationships in America (Westport:
Greenwood Press, 1987).
David Barton, Separation of Church & State: What the Founders Meant (Aledo: Wallbuilders, 2007). 14
Id., 12.
Mark Levin, Men in Black: How the Supreme Court is Destroying America (Washington: Regnery, 2004), 41.
Barton, 14.
Hilmar Von Campe, How Was It Possible: the Story of a Hitler Youth and a Vital Analysis for Today’s Times (United States:
Hilmar Von Campe, 2006), 220.

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