Unalienable Rights, Equality and the Free Exercise of Religion
by Kerry L. Morgan
Part 6 – Unalienable Rights Cannot be Coerced in Education
V. The Supreme Court, con’t
A. Unalienable Rights Cannot be Compelled or Coerced in Education
Before we can jump into the subject of unalienable rights and education, a little exposure to Constitutional law and federalism is required. First of all, a Congressional statute implicating education and religion is not properly framed for litigation under the religion clauses of the first amendment unless the statute is first sustained under the Constitution’s enumerated powers doctrine. This doctrine is elementary to testing the Constitutionality of Congressional power. The doctrine of enumerated powers indicates that the Constitution extends Congress authority to exercise only those important, well-defined but few powers actually enumerated in the Constitution, mostly in article I, section 8. If the power at issue is not given to Congress, the statute exercising same, is unconstitutional as beyond the scope of delegated Congressional power.
We live in an age where neither the Congress, the President or the Courts believe their power is limited in any but the most extreme sense by the Constitution’s express terms. The enumerated powers doctrine has been judicially anesthetized and no court appears interested in its revival. Nevertheless, the doctrine must be revived. Congress must be confined to its enumerated powers if for no other reason than the fact “that power which is not given by the Constitution, which the Convention refused to give, and which has been taken or recommended to be taken in contempt of it, is the offspring of rank usurpation.”76
In response to this usurpation, attorneys have tended to turn to the Bill of Rights and invoke it as a check on Congressional or other governmental abuse, as if the Constitution’s first three articles provided no real limitations on federal power whatsoever. This pattern is often repeated and expanded upon as a defense against Congressional excess through an invocation of rights which simply do not appear in the Bill of Rights itself. The Court has shown itself willing to let Congress do just about whatever it will as far as the doctrine of enumerated powers is concerned, imposing restraint on Congress chiefly by adjusting its construction of the Bill of Rights, as primate pleading and thinking may periodically, psychologically or politically dictate.
In fact, however, the first line of defense against a Congress that will not restrain or control itself, is to demand that the exercise of such power be based on a specific Constitutional delegation. This approach keeps the exercise of Congressional power within its constituted limits and does not encourage attorneys, judges or Justices to deface the Constitution’s Bill of Rights with their own version of a politically correct or socially desirable result. The remedy for a party, religious or not, with some complaint about education and a Congressional statute, is to first demand that Congress justify the exercise of its power by proving that it was granted a general power over education. This is a burden Congress cannot possibly meet, at least under the Constitution as it drafted by the framers, established by the people and interpreted by the early Presidents and Congress itself.77
But Congressional statutes that affect education are not the usual sum and substance of litigation that comes under the first amendment religion clauses. The overwhelming number of religious liberty and establishment clause litigation is not tied up with a Congressional statute very often, but rather with various state or local laws relating to public education. This process is the result of the Court applying the scope and meaning of the first amendment to the states as well as the federal government. The Court reached this result by claiming that the fourteenth amendment’s prohibitions on the exercise of state power also legitimately incorporated the first amendment’s restraints on Congress against the states. The Court’s approach is know as the incorporation doctrine and it found effect in Palko v. Connecticut and in Cantwell v. Connecticut since it is not found in the Constitution.78
In other words, the Supreme Court decided in 1940 that the First Amendment, which up until that time had not been recognized as a limitation on the power of a state government, was then and thereafter a limit on the states by virtue of the due process clause in the fourteenth amendment. A review for the Court’s source of authority in Cantwell for this groundless assertion is that “The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.”79 What is this “concept of liberty?” Is it the liberty which all persons enjoy in the form of unalienable rights? No, the Court does not discuss the matter with this view in mind. It states:
Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.80
If a right is unalienable, however, it cannot be duly infringed, balanced or reduced to mere toleration. No, the Court is not talking about freedom of religion as an unalienable right. It is discussing the right as something which may be regulated under certain conditions. This is not religious freedom, but rather toleration.
Does the Fourteenth Amendment due process clause refer to “the fundamental concept of liberty?” Is this concept “embodied in that Amendment?” Does the Amendment specifically embrace “the liberties guaranteed by the First Amendment?” Of course not. None of this is specifically written or fairly implied.
Cantwell is an unconstitutional effort by the Court to amend and also distort the meaning of the First Amendment Religion clause from one which recognized that the Creator granted unalienable rights and that civil government ought to protect them from infringement, to one which protected only Constitutionally granted fundamental rights of action or conduct which could then be legislatively infringed..
Application of the first amendment, rather than state constitutional provisions, against state education laws that offend religious parents concerned about the education of their children is a common occurrence. The Court’s pseudo-constitution policy directives of Palko and Cantwell are not consistent with the Constitution. These directives are in the manner of an illegal amendment. Article V, however, defines the amendment process, not Article III. Accordingly, Cantwell is an unconstitutional judicial decision. To continue litigating and judging, therefore, as if these decisions are part and parcel of the original or properly amended Constitutional arrangement when they are really un-ratified judicial policy or political directives, cannot be helpful to the conscientious litigant who makes an appeal to law (as opposed to judicial policy or politics) in his or her case.81
To the extent that a legitimate concern exists that states would run roughshod over the rights of the people if not protected by judicial incorporation of federal Constitutional provisions against the states, then a legal remedy is appropriate. Incorporation by judicial usurpation, however, is not that remedy. The incorporation by usurpation approach must be rejected because the amending power lies with the people and not the courts. Moreover, the unalienable right of the people to be governed by their own written consent through their elective representatives is a right of the people, not of the government or the courts. When the Court signals that usurpation is a legitimate way of doing Constitutional business, however, then it encourages litigants to follow suit. Consequently, litigants in turn plead the first amendment every which way they can in order to be freed from legislative suppression of their rights at the state level.
When it comes to a remedy for state legislative abuse of rights, the remedy does not lie with altering the arrangement of powers by judicial shifting of more power to itself. The remedy lies with recognizing that the state constitutions themselves, by and large, already contain express protection of unalienable rights. The remedy lies in the Court and courts recognizing that those state constitutional provisions provide far more protection of rights that the incorporation doctrine and present first amendment balancing jurisprudence ever can or will.
The way out of the Constitutional thicket is to recognize that state legislative suppression of rights exists because the courts (both state and federal) have refused to enforce, and have, therefore, rejected the idea that, 1) God gives certain unalienable rights to every man and woman because they are human beings, 2) that the purpose of state governments is to secure these rights on an equal basis (rather than balance or alienate those rights) and, 3) that state constitutions are far more amenable to amendment to protect the specific right at issue, than taking a case to the Supreme Court and winning ever will be.
The religious litigant’s faith and fear when combined with the tempting of their primate worldview trained legal counsel, has brought them to an un-elected Court for legal salvation–the same Court that has despoiled the legal scope and effect of most state Constitutional guarantees pertaining to unalienable rights (as articulated and defined by the people’s elected representatives) through incorporation of the first amendment against the states. Does it make sense to ask the fox to enter the hen house for protection after it has sealed off all the exits?
Given the previous admonishments, a full understanding the Court’s education/religion cases begins with the recognition that a parent’s right to direct the education of his or her own children is an unalienable right. It is axiomatic from all which has been observed thus far that unalienable rights are not subject to alienation. This unalienability feature means that such rights are not subject to restriction, compulsion or deprivation by the civil government. The prohibition against civil restriction, compulsion or deprivation applies whether the unalienable right involved is life, or is a liberty such as speech, press, association, or intellectual freedom.82
In the context of education by parents irrespective of their religious beliefs or lack thereof, unalienable rights also include the right of parents to direct the education and upbringing of their children. The crucial element in education/religion cases, should be that the right at issue is the unalienable right of a parent to direct the education and upbringing of their children free from state interference, regulation or control. This right, however, does not receive the slightest attention because the usual strategy or litigation approach is to defend the right of religious parents because of their religious beliefs.83 Thus, the universal unalienable right argument derived from the laws of nature and of nature’s God lies dormant, while the special privileges argument based on religious belief gets its day in court (and then usually loses). The “special privileges based on belief” argument, however, deserves to lose since religious belief should not be used to expand or diminish either civil or unalienable rights. Such an approach is contrary to the equality principle as discussed shortly.
While it is beyond the scope of this Article to fully analyze the right of parents to direct the education of their children,84 it is nevertheless appropriate to recognize that parents have an unalienable right to direct the education and upbringing of their own children. This is the historical and universal rule and it is based on the laws of nature and of nature’s God. James Kent, for example, in his famous Commentaries on American Law, observed this universal precept, stating that:
The duties of parents to their children, as being their natural guardians, consist in maintaining and educating them during the season of infancy and youth, and in making reasonable provision for their future usefulness and happiness in life, by a situation suited to their habits, and a competent provision for the exigencies of that situation.85
It was later observed that “every standard writer on the subject of either laws or morals proclaims with one voice that parents are bound by the natural law to feed, clothe, and educate their children.”86 It was understood that the laws of God established an absolute standard of freedom for parents with respect to the education and upbringing of their children. This rule recognized:
The law of nature and nature’s God, which ordains that it is both the right and duty of parents to educate their children ‘in such manner as they believe will be most for their future happiness’ is utterly disregarded and set at naught by the State, which ordains that it is neither the right nor the duty of parents, but of the State, to say when, where, by whom, and in what manner our children shall be educated.87
The Supreme Court has recognized that: “Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.”88 The Court, however, “modified” this “natural” right in order to reconcile it with compulsion by the state. Even though, if the truth be admitted, it is impossible for a man-made institution to modify God given rights, the Court nevertheless took the proposition that, “Corresponding to the [parent’s] right of control, it is the natural duty of the parent to give his children education suitable to their station in life” and added on its own that “and nearly all the States, including Nebraska, enforce this obligation by compulsory laws.”89
The Court submitted that the legal object of state compulsory attendance laws is to enforce the natural right of parents as they discharge their parental duty to educate their own children. Every parent instinctively recognizes this rationale to be ridiculous. The real purpose of compulsory attendance/education laws is to empower the state to filter, regulate or exterminate the unalienable right of parents to discharge their parental duty to educate their own children. Its theoretical purpose may at one time have been to enforce the natural or unalienable right of parents as they educated their own children, but it never worked that way in practice.
Far from actually securing the unalienable right of a parent to direct the education of his or her child, compulsory attendance and education laws actually secure the will of the minority or majority group that controls the community instruction mechanism. In actual practice, compulsory attendance and education laws have alienated from parents their unalienable right to say “when, where, by whom, and in what manner” their own children shall be educated. The parent’s unalienable right is on an inevitable and on-going legal collision course with those of the state as it adopts and implements laws that require compulsory attendance, compulsory exposure to pre-approved state sanctioned ideas, compulsory suppression of non-approved ideas, and compulsory extraction of tax funds to compel propagation of those state-controlled ideas.
The steady direction of education in the last 150 years has been away from parental rights and decentralized familial education, and toward secularized, humanistic and centralized education. The present approach to education employs the power of the state to enforce on students the will of the community, or more precisely, those who claim to speak for the community. A predominantly secular community can prescribe through their legislative representatives, the curriculum, funding arrangements and services which public schools will authorize or enforce. In some instances, however, the community may adopt a subtly religious practice. Either way, the community defines who must attend schools and for how long. The community defines who may teach and determines teacher qualifications.
Generally, when an education/religion case comes before the Supreme Court, one of these prescriptions or regulations has come under attack. The Court usually responds with an establishment clause analysis and finds the decision, action, or statute sometimes valid but more often unconstitutional.
From the point of view of parental rights, however, it is quite irrelevant whether the state’s citizens (religious or secular) enforce their will as it pertains to curriculum, funding, taxation, teacher qualifications and school services. The issue of which faction controls these matters is irrelevant. To the extent that a secular cadre implements its coercive educational mandates, then to that extent an individual parent is divested of his or her God-given unalienable right to say when, where, by whom, and in what manner their own child shall be educated. To the extent that a religiously minded group makes the decision about the education of a parent’s child, that parent is also deprived of their unalienable right to say when, where, by whom, and in what manner their child shall be educated.
Today, however, education/religion establishment clause cases are not decided on the grounds of state constitutions or where declared therein, on the basis of the unalienable rights of parents to control the education of their own children. That right is more often than not, generally ignored and rarely argued as a legal right.90
For instance, in Committee for Public Education & Religious Liberty v. Regan,91 the state of New York had enacted a law mandating a variety of student testing including pupil evaluation, achievement and college qualification tests. Church operated schools were also required to administer the state mandated tests. All schools were entitled to reimbursement from the state of the costs incurred in complying with the state’s testing mandate. This reimbursement scheme was challenged as an unconstitutional establishment of religion. The Court, however, rejected the challenge, holding that church operated schools were entitled to reimbursement for the costs of state mandated testing. The Court held that this type of aid did not violate the first amendment’s92 three part test for establishment decided in the 1971 case of Lemon v. Kurtzman.93 In Lemon the Court held that a legislative enactment does not contravene the establishment clause if it has a secular legislative purpose, if its principle or primary effect neither advances or inhibits religion, and if it does not foster an excessive entanglement with religion.
A word should be said about the Court’s temporary rebuff to Lemon by use of a historical test as reflected in Marsh v. Chambers.94 The dissenters presently rely on this test, i.e., (if I may paraphrase) ‘if we can only find some historical example of the framers doing this or that public or civil religious practice, then it can’t be unconstitutional under the establishment clause.’ The problem here is the same as Lemon. No present Justice either yet takes the principles of the Declaration or unalienable rights seriously. None has yet brought their legal perspective to the point of seeing that God has given the right to the free exercise of religion to human beings, or that the civil government has an appropriate civil relationship with the Creator of nations, or a duty to secure unalienable rights. The dissenters neither talk or write like this (and neither do the religious litigators who brief them). True, some members of the Court are less intolerant than the majority, and are therefore willing to let some historical religious practices through the Lemon net. But this difference is one of degree, not principle.
Justice Scalia, to his credit, however, has noted the Court’s dirty little secret about the Lemon test. He writes in Lamb’s Chapel v. Center Moriches Union Free School:
The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Fenton, 473 U.S. 402 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.95
In other words, the high and lofty process of Constitutional interpretation is a sham. The Court simply makes up the test as its goes along and when it does not suit its purpose, it simply ignores the test until it is more useful. This candid admission is also helpful in understanding and explaining how the Cantwell Court found in the due process clause the incorporation doctrine. Yet despite this admission, still noticeably lacking from Committee for Public Education & Religious Liberty v. Regan was any discussion that no Congressional statute was present and that consequently the first amendment was simply not implicated. New York’s constitution, not the federal Constitution was dispositive. With respect to the unalienable right of parents, the issue of whether New York could compel students to be tested, and whether a state could compel its taxpayers to fund that testing was entirely ignored. The proper argument to be made was that these types of compulsion contravened the unalienable rights of parents. It is for parents and not the state to say when, where, and how their children are to be educated including if, when and how often they will be tested as well as the test criteria.
Of course, the parties would have to base this argument on a state statutory or constitutional provision that recognized the unalienable right of parents. Such a provision, however, is non-existent under New York law.96 So, in this case the unalienable rights of parents could not be vindicated through the judiciary. The correct remedy is with the New York legislature. It would be wrong for the Supreme Court to simply invoke a legislative power to find parental rights. The Court is a judicial body and must accept the law as laid down in constitutions and conforming statutes.
More of the same disorientation about what law applies reigned in Grand Rapids School District v. Ball.97 In this case the Court was presented with a challenge to the use of tax funds to pay Grand Rapids, Michigan, public school teachers to teach non-public school students at church operated schools leased by the city during the time of instruction. The students were taught secular remedial subjects. The Court ruled that the use of public tax funds to pay public school teachers to teach at leased church schools was an unconstitutional establishment of religion in that the program unduly entangled and promoted religion. Likewise in Aguilar v. Felton,98 the use of federal funds under Title I,99 to pay New York public school teachers to visit church operated schools in order to teach remedial secular subjects was also held unconstitutional.
In both Grand Rapids School District and Aguilar, public funds made their way to church schools contrary to the test in Lemon. Since the Michigan case involved no Congressional statute, the first amendment was inapplicable. The analysis in Grand Rapids School District should have rather focused on a discussion of whether the constitution of Michigan permitted or prohibited such a funding arrangement. Grand Rapids School District is not a first amendment case. It is a state constitution case.
With respect to the unalienable right of parents, no state can force individual parents through taxation, to underwrite the compulsory propagation of state-controlled ideas, i.e., the public school curriculum. The unalienable rights argument is that financial compulsion for the object of underwriting government approved ideas contravenes the unalienable rights of parents to contribute money only to those teachers who will most closely reflect the point of view that they believe should be taught to their child. It is for parents and not the state to say who will teach their children. It is for parents and not the state to freely negotiate compensation for instruction.
In Grand Rapids School District the law compelled parents and residents to “contribute” sums of money for the propagation of ideas and opinion over which they have no control. Unfortunately, the unalienable rights argument would have been very difficult to make in the state of Michigan because the people had not then articulated that right in Michigan law. In 1995, however, the legislature enacted a law that recognized both the fundamental and the inalienable right of parents to direct the education of their children. It observed in MCL 380.10 that:
It is the natural, fundamental right of parents and legal guardians to direct the care, teaching, and education of their children. The public schools of this state serve the needs of the pupils by cooperating with the pupil’s parents and legal guardians to develop the pupil’s intellectual capabilities and vocational skills in a safe and positive manner.
Though the legislature did not go so far as to observe that the right of parents included the right to contribute money to support only those teaches whom they preferred, it nevertheless affirmed the right in some degree. The point, however, is that identification of the unalienable rights of parents ought to be vindicated through the legislature itself.
In Aguilar, which did involve a federal law, the Court never considered the first question that attaches to the exercise of Congressional power: Does the Constitution extend to Congress the power to legislate in this area? The Court never questioned that Congress simply lacked power under the enumerated powers doctrine to enact a law providing financial assistance to local educational agencies which serve children of low-income families as provided for in Title I. Only if the Court first found such a power, then it would be entitled to examine the first amendment to determine if any unalienable right to the free exercise of religion was abridged, or Congress in establishing Title I passed a law respecting an establishment of religion. Such an analysis, however, would have found that Congress is without power to provide financial assistance to local educational agencies and that Title I is unconstitutional. Aguilar is not a religion or first amendment case. It is an enumerated powers case.
In addition to cases involving forced financial “contributions,” several cases completely ignored the issue of whether forced exposure of a child to any state approved idea is consistent with the unalienable right of their parents to direct the education of their children, or is consistent with the unalienable right of intellectual freedom which is possessed by a child who is of age or legally emancipated, yet still in attendance at a public school.
For instance, in Wallace v. Jaffree,100 the Court struck down an Alabama statute that attempted to designate a one-minute period of silence in all public schools “for meditation or voluntary prayer.” The Court sanctioned voluntary student-initiated prayer but found the statute’s one-minute designation an unconstitutional attempt to return prayer to the public schools. The law, therefore, did not advance a secular purpose and consequently failed the establishment clause test announced in Lemon.
And in Edwards v. Aguillard,101 an establishment clause challenge to a Louisiana law which required equal time for teaching creation science and evolution also fell before the Court’s Lemon test. Creation science holds that God created the earth including mankind and that evidence of a creation scheme is supported by the scientific method. Creation science differs from the theory of evolution which emphasizes gradual development of mankind from lower forms of life. The Court struck down the equal time provision because it lacked a clear secular purpose. The Court, however, did not preclude the state from requiring the teaching of alternate theories of origins other than evolution under certain circumstances.
In Stone v. Graham,102 the Court struck down a Kentucky state law requiring the posting of the Ten Commandments on the wall of every public school classroom. The Court held that the law had an insufficient secular legislative purpose and thus violated the establishment clause. The Court, however, did not bar the use of the Ten Commandments as well as the Bible where their inclusion constituted the appropriate study of history, civilization, ethics, or comparative religions.
In reviewing the specific issues of Wallace v. Jaffree, Edwards v. Aguillard and Stone v. Graham, each has at least one point in common: the state has wrongfully suppressed, by compelling mandatory exposure to government selected and approved ideas, the unalienable right of parents to select the ideas to which their children shall be exposed. In Wallace v. Jaffree for instance, the unalienable right of parents to define the ideas to which their child shall be exposed was trampled under foot when the state of Alabama declared all children shall be forcibly exposed to a minute of silence.
But lest the law be unequally applied in principle, if a minute of forced exposure to silence was too dangerous to permit, then how much more an entire day of instruction? Would not the damage be incalculable? Forcible exposure of any type to select pre-approved and state sanctioned silence or ideas, contravenes the right of parents to direct their child’s mind to those ideas and those ideas alone which parents alone deem appropriate.
The unalienable right of a parent is transgressed by the fact that the state of Alabama decided what the child will learn, how long the child will learn it, and has compelled others to pay for it irrespective of individual parental desires. Intellectual freedom was violated when the state engaged in compulsion in the realm of ideas. It makes no difference in principle that the state coerces a student to be quiet for one minute or coerces the student to be exposed to its state-approved curriculum each day and every day of the school year. It makes no difference in principle that the state coerces a student into one minute of state approved religious ideas or coerces the student to be exposed to its state-approved non-religious humanistic curriculum.
From the point of view of parental rights (and intellectual freedom for emancipated students), the content of the coercion is irrelevant. Neither agreeable or abhorrent content can be redeemed from the unlawful taint of state compulsion. When the state compels or coerces students to be exposed to its selected ideas, the unalienable right of a parent and the intellectual freedom of a student is trampled.
In Aguillard the state of Louisiana declared that students may be exposed to evolution but generally not to creation science. It made no difference to Louisiana that a parent may have approved or dissented from this exposure. The unalienable right of a parent to select that curriculum which is best in keeping with each parent’s educational objectives for his own child is by such a law, wrongfully yielded to the collective will of the government of Louisiana. The state recognized a right in itself, not individual parents to define the content to which a child shall be forcibly exposed. The unalienable right of a parent to choose the curriculum for his or her child was crushed by the legislature in the name of balanced treatment.
The Stone decision is of the same legal pedigree–it permits the state of Kentucky to continue engaging in the forcible exposure of students to its own pagan ideas and the exclusion of all others such as the ten commandments. The decision is faulty, however, not because all points of view were not allowed, but because the right of all parents to select and exclude those idea to which their children shall be exposed, was preempted.
Objections will no doubt arise that a minute of silence for prayer, the teaching of creation science and posting the Ten Commandments involve good and true ideas. This cannot and is not disputed. But the first issue is jurisdiction, not content. The first issue is not whether the ideas are good or bad, but rather, does the civil government have jurisdiction to force exposure to ideas. State governments are instituted, inter alia, to secure the unalienable rights of parents. The state tramples this right when it takes from the parent the very power to define the ideas to which parents desire their child to be exposed. Legislators, lobbyists, litigators and judges ought not be willing to concede unalienable rights in order to legitimate the power of the state to force children to be exposed now and then to some good ideas. Such a concession strikes at the very heart of unalienable rights.
Wallace v. Jaffree, Edwards v. Aguillard and Stone v. Graham do not involve any Congressional statute. They are not first amendment cases. They are unalienable rights cases and should have been disposed of under relevant state constitutional provisions. The court in incorporating the first amendment against the states suggested that anything other than a uniform standard would not sufficiently protect the rights of the people. This approach, however, erroneously assumes that the people of the states cannot quite bring themselves to constitutionally secure their most obvious unalienable rights. While New York may not have the picture clear, many of the states have some constitutional reference to unalienable rights.
In fact, state constitutional and statutory protection of unalienable rights is more common than is recognized.103 The problem is that the Court refuses to take those state unalienable rights provisions seriously when it has jurisdiction to do so.104 The effect of this flaw is to provide less protection nationally through nationwide application of the first amendment which according to the Court does not guarantee any unalienable right, than would otherwise be available if state unalienable rights provisions were construed as written. Not even Justice Scalia appears willing to hold the Court’s feet to the fire regarding the incorporation doctrine. He seems content to warm his judicial hands over the flame of stare decisis as it burns the Constitution’s text from his fingers.
Wallace v. Jaffree should have been considered under the Alabama constitution which provides that “all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.”105 The unalienable right of parents and of intellectual freedom should have been linked to this substantive constitutional provision as a basis for striking down Alabama laws that employed coercion in attendance, ideas, and financing of public education.
Edwards v. Aguillard should have been considered under the constitution of Louisiana which provides that:
All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people. The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.106
To the extent that the rights enumerated in Article 1 of the Louisiana constitution support the unalienable right of a parent or of intellectual freedom, then to that extent those rights should have been considered.107
Stone v. Graham should have considered Kentucky’s constitutional provision on inherent and inalienable rights which declares that:
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties. Second: The right of worshiping Almighty God according to the dictates of their consciences. Third: The right of seeking and pursuing their safety and happiness. Fourth: The right of freely communicating their thoughts and opinions. Fifth: The right of acquiring and protecting property . . . .108
The fourth enumeration is especially significant in advancing the unalienable right of parents to direct the education of their own children and should have been argued vigorously.
The preceding cases focused on the relationship between religion and the government as they battled each other over money, power and curriculum. The natural conflict between parental rights and the state to compel attendance and support is absent. The absence of this element has resulted in the use of public schools to carry out the will of the community irrespective of individual parental rights.
When faced with this will the litigation community’s response has not been to examine state constitutions for declarations of unalienable rights. Quite the contrary. Their remedy is to build on the illegitimate foundation of judicial incorporation, ignore to a large degree state constitutional provisions and utilize the state to compel its citizens to be exposed to their brand of atheistic, moral or religious curriculum. This conspiracy with the modern usurpers is often rationalized in the mind of the religious litigant on the basis that morality is preferable to the present immorality. While this analysis is correct, the pursued remedy is wrong.
Indeed, when religious parents sense that their child’s public school education is too secular (or insufficiently religious) they respond by pressuring the school board or state legislature to accommodate their desire to infuse some measure of religion into the curriculum, or through a variety of arrangements they infuse some type of state aid into religious or church run schools. This reaction to secularization, however, uses the public schools to carry out the will of the broader community irrespective of specific individual God-given parental rights.109
More recently the case of Lee v. Weisman,110 brought the conflict between the right of parents into conflict with that of other parents and the community. Mr. Weisman sought to enjoin the state of Rhode Island from permitting prayers to be offered at his daughter’s public school graduation. The Court agreed with Mr. Weisman that the prayers offended the establishment clause of the first amendment and enjoined their subsequent use.
As usual, the first amendment is not germane since no Congressional statute is present. Lee is not a first amendment case. Lee is an unalienable rights case. The parties should have looked at Rhode Island’s constitution to find if every parent present had an unalienable right to direct the education of their children and that by their voluntary attendance at this ceremony they elected to expose their children to the program that was offered including a prayer.
And had the ceremony been compulsory, then the real issue would have been that parents and not the state have the power to expose their children to those ideas which parents determine are suitable to their own child’s education. If a non-sectarian prayer is appropriate, then parents may select or organize a ceremony in which such a prayer is offered. If a sectarian prayer is appropriate, then parents may select or organize a ceremony in which such a prayer is offered. If no prayer is appropriate, then parents may select or organize a ceremony in which no prayer is offered. What all this assumes is not that this prayer or no prayer should be offered, but that government compulsion should not attach itself to the realm of ideas whether those ideas are expressed in the form of a prayer or the state mandated curriculum. The unalienable rights of each parent, not just the nonconformist choices of Mr. Weisman must be defended.111
The case should have actually turned on the state constitution of Rhode Island in the Rhode Island Supreme Court. That court would have found that the state constitution declares that God made the mind of mankind free and warns against all attempts by the legislature to influence the mind of its citizens and their children by “temporal punishments or burdens, or by civil incapacitations.”112 A court would have to consider whether the constitution’s recognition that God made the mind free has an application beyond its implications for a state established church to a state established school.
If it was the state constitution’s objective to protect the mind from state coercion then the state’s educational system of compulsory exposure and financing would be unconstitutional.113 If this construction, however, is beyond the state constitution’s meaning, then the remedy for parents who object to prayers or who want prayers said for their children in Rhode Island is in adding a state constitutional amendment, not in a judicial case.114 A state constitutional solution would return the choice over education and funding to each parent for their own child.
To the extent that the preceding cases looked to state constitutional provisions protecting unalienable rights, a state court could have construed the relevant provision. But what about federal courts? What is the actual federal jurisdictional basis to construe unalienable right?
Article IV, section 4 of the United States Constitution may provide a basis for original federal jurisdiction. It states; “The United States shall guarantee to every state in this union a Republican form of government . . . .” The reference to republican government guarantees limits not only on the form of government but also upon the power of state governments to deprive their citizens of state constitutionally enumerated unalienable rights. This understanding was embodied in state enabling legislation which provided that state constitutions shall be republican in form and “not repugnant to the principles of the Declaration of Independence.”115
It could be argued that the reference to republican government embodies both the form and the object of state government, i.e., the security of state constitutionally enumerated unalienable rights. But this is a streach and not especially persuasive. Nevertheless the argument goes as follows: As every state is admitted “on equal footing with the original States,” in all respects whatsoever, their presence in the Union ensures the guarantee of republican government both with respect to its form and its object. Thus, when any state enters the Union, it is forever precluded from legislatively repudiating either the notion that its government should be republican in form or the principle that it was admitted to secure unalienable rights through its respective constitution, statutes, administrative regulations and executive orders. In Constitutional law, this means every state is bound to protect state constitutionally enumerated unalienable rights including those pertaining to unalienable rights.
When the people of a state have not chosen to protect unalienable rights, however, through a constitutional or legal mechanism, a federal court does not have jurisdiction under article IV, section 4 to determine if a state statute contravenes any unenumerated God-given unalienable right. Article IV’s guarantee does not extend the United States a power to federalize unalienable rights.116
So where the people or their legislative representatives have identified and embodied unalienable rights in their state constitutions, do federal courts have jurisdiction via article IV under that state’s Congressional admission statute (the enabling Act), to decide whether state legislation alleged to deny or disparage an enumerated unalienable right, contravenes the relevant state constitutional provision pertaining to unalienable rights? Probably not.117
Federal courts are simply not free to roam among the archives of history or law in order to enforce their own notions of unalienable or natural rights. Moreover, republican principles pertain to adoption of a form of government suitable to secure unalienable rights, but do not define the unalienable rights themselves. Identification and articulation of unalienable rights is the business of the people and the states in our federal system. Whether or not the enumeration of rights therein are bona fide unalienable rights in that they are given by God to all human beings is a political question not open to judicial review. But whether or not the rights so enumerated as unalienable are contravened by a state statute is not a political question.118
Finally, nothing within the police power of the state can legitimately serve to justify alienation of that which is unalienable. As the police power when rightly exercised must always serve the object of securing unalienable rights and thereunto adopt and enforce measures to protect the public health, safety, morals, and general welfare of the community, such power can never be rational or compelling for the state to abridge, deny, disparage or alienate such rights. Nor is the police power a mechanism for balancing unalienable rights against governmental interests in degrees of alienation.
The preponderance of cases involving the intersection of religion and education are not first amendment cases at all. Most do not involve any Congressional statute and therefore do not trigger the first amendment. In the rare instance where a Congressional statute is present, the case should be argued according to the enumerated powers doctrine, and if sustained on that ground, then examined under the first amendment to determine if it is a law “respecting an establishment of religion, or prohibiting the free exercise thereof” or a permissible civil acknowledgment of God in his Creator capacity.
Litigators should recognize that the Constitution is the Supreme law of the land and not Court decisions such as Lemon v. Kurtzman which reject the principles upon which the Constitution and the first amendment are established: namely, that the laws of nature and of nature’s God establish the basis upon which the United States was founded, that God gives all persons the unalienable right to the free exercise of religion, and that civil government may acknowledge these “self-evident truths” in its official proceedings without alienating the otherwise religious rights of individuals.
Of course litigators and high profile advocacy organizations which handle these types of cases may continue to ignore the Constitution’s enumerated powers doctrine and its non-incorporation design in order to make the cases come out the way they want, but this is no basis for the general public’s admiration. Why should the people approve of, or contribute to those who knowingly participate with Congress and the courts in rank usurpation of the Constitution’s actual text and meaning? And who will tell the people that the advertised “victory” is premised on conscientious derogation of the unalienable right of government by consent? For the people consented only to a Constitution that kept Congressional power limited through the doctrine of enumerated powers and through the its first amendment limitations. Moreover, the people consented to state governments whose power would be used to secure their enumerated unalienable rights. With liabilities like these attached to court “victories” it is no wonder that so many advocacy group’s mass mailings emphasize the expense of litigation rather than its actual cost.
Rather than seeking these tragic victories, litigators should closely scrutinize state constitutional provisions for references to unalienable rights. They should also focus attention on obtaining the security of unalienable rights for parents in the context of education through state legislation or state constitutional amendments to that effect.
* Copyright © 2004, 2006 Kerry L. Morgan. Used with permission.
76. Thomas Cooper, Two Essays: On the Foundation of Civil Government and On the Constitution of the United States (Columbia: D & J. M. Faust, 1826; reprint ed., New York: Da Capo Press, 1970) 32.
77. See Kerry L. Morgan, The Constitution and Federal Jurisdiction Over Education (Masters Thesis, Regent Univ., 1985) (hereinafter Federal Jurisdiction). Congressional statutes such as those pertaining to Indian education, education of the children of military personnel or education in the District of Columbia fall within various powers expressly given to the federal government, while Congressional statutes that reach the education of children beyond these enumerations exceed the Constitutional power of Congress and violate the enumerated powers doctrine. Provided the Congressional statute passes this hurdle, it may then be examined under the first amendment to determine if it is a law “respecting an establishment of religion, or prohibiting the free exercise thereof.”
It could also be argued that the first amendment which serves to check Congressional abuse of religious liberty, includes the unalienable right of religious parents to educate their children free from Congressional control, even though the unalienable right of a parent is not enumerated in the first amendment. It is arguable that parental rights are implied within the scope of the religion clauses and this implication would permit a non-activist federal judiciary acting within its own article III limitations, to guarantee that religious parents could be free from Congressional interference with their unalienable right to educate their children.
The principled and therefore stronger argument, however, is that unalienable parental rights are not implied within the scope of the religion clauses since the non-religious parent is equally endowed with the unalienable right to direct the education of their own children as is the religious parent. The former argument would reduce the unalienable right to a privilege enjoyed only by the religious parent thereby destroying the universal characteristic of the right itself. See also K. L. Morgan, Real Choice, Real Freedom in American Education (1997).
78. In Palko v. Connecticut, 302 U.S. 319 (1937), the Court bound the legislative power of the states to those restrictions in the Bill of Rights which a majority of the justices believed in their own minds, were meant to protect a fundamental aspect of liberty. Subsequently, in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) the Court, without any Constitutional basis and in excess of its article III power decided to apply the first amendment’s restrictions to the exercise of state power.
79. 310 U.S. at 303.
80. 310 U.S. at 303-304.
81. Modern legal pleading and practice generally fails to interject state constitutional provisions and their reliance on unalienable rights into the education/religion litigation equation. When the United States was established in 1776, however, the state protection of unalienable rights was common, while a system of public education as it functions today, did not then exist. In Abington School District v. Schempp, 374 U.S. 203 (1963), the Supreme Court observed that “[i]n the North American Colonies, education was almost without exception under private sponsorship and supervision. . . . This condition prevailed after the revolution and into the first quarter of the nineteenth century.” The Court noted that “[i]t was not until the 1820’s and 1830’s . . . that a system of public education really took root in the United States.” Id. at 237 n. 6. The key word here is “system.” Education was not neglected in either the north or the south. The difference between the two regions, however, pertained to the existence of a system of government education.
82. Thomas Jefferson maintained the unalienable nature of intellectual freedom when he observed that “Almighty God hath created the mind free.” From this he concluded that “all attempts to influence it [the mind] by temporal punishments, or bur[d]ens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion . . . .” R. Cord, supra note 1 at 249.
83. See Wisconsin v. Yoder, 406 U.S. 205 (1972).
84. These ideas are more fully developed in A. Herbert, The Right and Wrong of Compulsion by the State, Essays 2 and 4 (1978). See also, J. Whitehead, Parents Rights (1986). See generally, Theories of Education in Early America 1655-1819 (W. Smith ed. 1973); C. Johnson, Old-Time Schools and School-Books (1963); K. L. Morgan, Real Choice, Real Freedom in American Education (1997).
85. 2 J. Kent, Commentaries on American Law 159 (Da Capo Press, reprint ed., 1971) (New York 1826).
The next domestic relation which we are to consider, is that of parent and child. The duties that reciprocally result from this connection, are prescribed, as well as those feelings of parental, home and fetal reverence which Providence has implanted in the human breast, as by the positive precepts of religion and of our municipal law . . . . The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of Universal law.
Id. This domestic relationship was by definition, an essential ingredient of education. In Noah Webster’s 1828 dictionary education is defined as:
The bringing up, as of a child; instruction; formation of manners. Education comprehends all that series of instruction and discipline which is intended to enlighten the understanding, correct the temper, and form the manners and habits of youth, and fit them for usefulness in their future station. To give children a good education in manners, arts and science, is important; to give them a religious education is indispensable; and an immense responsibility rests on parents and guardians who neglect these duties.
86. Z. Montgomery, The School Question from a Parental and Non-Sectarian Stand Point 50 (Arno reprint ed., 1972) (4th ed. Washington 1889).
87. Id. at 52.
88. Meyer v. Nebraska, 262 U.S. 390 (1922). Meyer is an example of the Court finding rights not enumerated in the Constitution. As long as litigators continue to rely on an un-elected Court creating un-enumerated rights, they will have to be satisfied with its expansion or contraction by subsequent Justices. The Court created the right. It can make of it what it will. The correct approach, however, is to revive constitutions of the states and secure the right there.
89. Id. at 400. The natural right of parents was raised in oral argument on February 23, 1923 by Arthur F. Mullen, Attorney in Behalf of Plaintiffs-In-Error, The District of Evangelical Lutheran Synod of Missouri, Ohio and other States, et al. Mr. Mullen argued; “I deny that a State can, by a majority of the legislature, require me to send my child to the public school.” 21 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 769 (P. Kurland & G. Caspers ed. 1975). Also see the brief of William A. Williams as Amicus Curiae in Pierce v. The Society of Sisters, Id. 25 Landmark Briefs 417, 423.
90. An exception to this trend was Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied 484 U.S. 1066 (1989).
91. 444 U.S. 646 (1980).
92. It has been observed that the first amendment was enacted as a limitation on Congressional power and not the power of state governments such as Michigan or New York. The Supreme Court, however, has judicially extended the religious prohibitions of the first amendment to the states through it’s the incorporation doctrine. Under the original federal scenario, however, state constitutions would control where state law and religion intersected, not the federal Constitution. Though the Supreme Court has not yet retraced its steps in this area, some district court judges have shown a willingness to reconsider the constitutionality of incorporation. See Jaffree v. Board of School Comm’rs of Mobile County, 554 F. Supp. 1104, 1128 (S.D. Ala. 1983) rev’d, 705 F.2d 1526 (11th Cir. 1983) aff’d, 466 U.S. 924 (1984). See also Brief of Amicus Curiae of Conservative Legal Defense Fund, et. al.,in Support of Petitioners in McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, No. 03-1693, filed December 8, 2004.
93. 403 U.S. 602 (1971). Each component of the test was intended to secure the purpose of the no-establishment clause–to maintain a jurisdictional separation between the legitimate objects of religion and those of the civil government. The test, however, falls well short of this goal. As applied, it is not well informed by the laws of nature and of nature’s God or the principles of the Declaration of Independence.
The central problem is an old one–the Court is of the mistaken legal view that God is confined to religion, and that apart from religion he has no legitimate function in the civil realm. This is a mistake the framers did not make. The Court has rejected the fact that the Declaration itself, which created the legal entity known as the “united States,” asserts that God gives the law by which nations are established, that God defines the purpose of governments instituted under that law and that God gives all human beings certain rights which civil government is established to secure. The Lemon test, however, demands that courts and litigants turn a blind pair of eyes to these elementary propositions.
This is not to say that religion has a legitimate function enforced by the civil realm. It does not. But in deciding whether or not religion is advanced, inhibited or entangled under the Lemon test, the Court has not limited its analysis of religion to religion alone. It has expanded establishment jurisprudence to also envelop God’s claim of jurisdiction over nations as recognized by the Declaration’s reliance on the laws of nature and of nature’s God. The no-establishment clause reaches religious objects alone. It swallows no more.
If tested under the Lemon test, the Declaration itself would fail as would Virginia’s religious disestablishment statute. Both would offend the federal establishment clause, the latter especially since its very “unsecular purpose” was to secure that freedom of the mind which “Almighty God hath created” and which the “Holy Author of our religion, who, being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.” Va. Code Ann. § 57-1 (1950). The absurdity of America’s first disestablishment statute being found to violate the Court’s Lemon test of establishment under the first amendment should not be missed. Arrive early for that oral argument.
What is needed is not a simple rearrangement of the Lemon test with a scaled down view of religion, but rather a reorientation about the nature of law, the principles of unalienable rights, the equal security of those rights by the civil government and an understanding of the distinctions between the Constitutionally permissible inter-relationship between God the Creator and civil government, and the jurisdictionally separate and therefore constitutionally impermissible interrelationship between religion and civil government. Congress ought to hold hearings on the alternatives to lemon from an historical point of view and of original meaning.
94. 463 U.S. 783 (1983).
95. 508 U.S. 384, 399 (1993)(Scalia, J. concurring).
96. New York courts have recognized that the state legislature may not impair any inalienable right provided that it is constitutionally enumerated. “The legislature may not declare that to be a crime which in its nature is and must be under all circumstances innocent, nor can it in defining crimes, or in declaring their punishment, take away or impair any inalienable right secured by the Constitution.” Lawton v Steele, 23 N.E. 878, reh. den. 23 N.E. 1151 and aff’d, 152 U.S. 133 (1893). See N.Y. Const., Art. III, § 1 (1992).
97. 473 U.S. 373 (1985).
98. 473 U.S. 402 (1985).
99. 20 U.S.C. § 2701 (1988).
100. 472 U.S. 38 (1985).
101. 482 U.S. 578 (1987).
102. 449 U.S. 39 (1980).
103. See supra note 15.
104. The Court may entertain pendant jurisdiction to construe state constitutional provisions protecting unalienable rights provided otherwise has federal jurisdiction.
105. Ala. Const., Art. I, § 1 (1991). Sections 1, 6 and 22 of the constitution, taken together, guarantee the equal protection of the laws, protect persons as to their inalienable rights, prohibit one from being deprived of his inalienable rights without due process and prohibit irrevocable or exclusive grants of special privileges or immunities. See Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939).
106. La. Const., Art. I, § 1 (1992).
107. Article 1, section 5 [security of household communication], section 7 [freedom of expression], and section 24 [unenumerated rights may not be infringed] of the Louisiana constitution could aid in supporting the assertion that parents have an unalienable right and that state education laws may not impair that right. Section 24 [unenumerated rights may not be infringed] in particular could be employed to permit a state court to identify that right if the people of Louisiana have elsewhere extended their judges the power to make that determination.
108. Ky. Const., § 1 (1992).
109. In the context of disestablishing state control over religious education and compulsory financial support, the Commonwealth of Virginia rightly observed that it is an;
impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time.
R. Cord, supra note 1 at 249. See also An Act for Religious Freedom, adopted by the Virginia General Assembly on January 16, 1786, Va. Code Ann. § 57-1 (1950).
110. 505 U.S. 577 (1992).
111. For additional discussion and analysis of this case see infra notes 221-232 and accompanying text.
112. R.I. Const., Art. 1 § 3 (1987). Note that “temporal punishments or burdens, or by civil incapacitations” are a far (and embarrassing) cry from the Court’s “social pressure” and “psycho-coercion” test to determine establishment. 120 L.Ed 2d at 485, 518.
113. Virginia was also concerned about the proper use of taxes to fund state propagation of ideas. It observed “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” And “that even the forcing [of] him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose power he feels [is] most persuasive to righteousness.” R. Cord, supra note 1 at 249-50. See also An Act for Religious Freedom, Va. Code Ann. § 57-1.
114. Those who argue that a state constitutional provision is too difficult to plead or ratify, ought to reconsider their improbable chance of success under the first amendment after rereading the Court’s holding in Lee.
115. See supra note 39.
116. This approach parallels the United States’s obligation with respect to the form of government. When a state enters the Union, it must adopt a republican form of government. The United States then guarantees that form. Likewise as the states participate in the Union and embody unalienable rights in their constitutions, the United States could thereafter be obliged to guarantee the security of those unalienable rights. In both instances under article IV, the power of initiation lies with the people of the states. And in both instances under that same article, the power of enforcement of an enumerated unalienable right within the jurisdiction of the enumerating state may lie with the United States.
117. Article IV is not a Constitutional mechanism empowering the United States to append state constitutional provisions to the federal Bill of Rights.
118. The political question and non-justiciable doctrines, precluding judicial review discussed in Luther v. Borden, 7 How. (48 U.S.) 1, 49 (1849) (but see Baker v. Carr, 369 U.S. 186, 218-232 (1962)), are based on the proposition that Congress (the legislative branch)–had jurisdiction to declare whether a specific form of government did or did not meet the requirements of a republican government. The evil to be avoided was to prevent an un-elected judiciary from usurping a legislative function.
Luther and its progeny prevent the judiciary under article IV from declaring which rights are unalienable and which are not. But where the state legislature has acted to declare those rights which it deems unalienable, then Luther does not preclude judicial review under article IV. Where state constitutional provisions involving unalienable rights have been adopted either by the people or through convention, and state statutes are being tested in their light, then the federal judiciary may enjoy jurisdiction in a challenge to a state admission statute to determine whether the latter conflicts with the former, provided that jurisdiction is limited to enumerated unalienable rights.