Edicts of the "Secular Papacy"

In 1791, when our founders adopted the First Amendment, every single state had a law against blasphemy on the books. Ten of the original thirteen states had officially established religions.  They intended the Amendment to protect state and local autonomy in religious matters from federal interference.  That's why it begins, "Congress shall make no law . . ."  It never occurred to our founders that the Supreme Court might gradually usurp Congress's most important law making powers [1].

The fact that the founders intended the First Amendment to restrict only the federal government is beyond dispute.  The Marshall Court admitted it (unanimously) in 1833.  The name of the case was Barron v. Baltimore.  In 1833, the justices knew that the truth about the origins of the Bill-of-Rights was still fresh in our collective memory.  The kind of deceptions our judicial employees get away with now would have been political suicide back then.

Around 1940, about 150 years after we adopted the First Amendment and 70 years after we adopted the 14th, the Supreme Court started using the substantive due process scam to create a bogus new First Amendment out of whole cloth.  The Court asserted that the due process clause of the 14th Amendment made states, cities, towns, villages, and public schools subject to the Bill of Rights.  The justices also claimed that the due process clause empowered the Court to "evolve" the Bill of Rights, from time to time, so it would better conform to the judges' notions about "fundamental law" [2].

That claim was at best preposterous and at worst comical.  When the 14th Amendment was adopted, shortly after the Civil War, the Supreme Court was viewed with great distrust by the public and the congressional majority.  In designing the Amendment, its framers took pains to avoid trusting the Court with power to enforce it; they didn't want to rely on an institution then viewed as "a diseased member of the body politic" that probably deserved "amputation."  So they included Section 5 which explicitely assigned enforcement power to "Congress" [3].

Contemporaneous with the adoption of the 14th Amendment, Congress passed four Enforcement Acts as the Amendment's Section 5 expressly authorized and implicitely promised.  Those four Acts, which in total ran to over 8000 words, described in detail everything that Congress intended the 14th Amendment to include.  There was not a word about religion; there was not a word about separation of church and state; there was not a word about incorporating the First Amendment or any part of the Bill of Rights against the states. There was not even a smidgeon of a hint about authorizing our judicial employees to invent a mountain of new content in our centuries-old right to "due process of law."  So the Supreme Court's claimed power to enforce its own revised version of the First Amendment against the States is, to put it kindly, without foundation [4].

To put it more plainly, the claim is a brazen fraud.  In 1876, a scant eight years after the 14th Amendment was ratified, Congress debated a proposed constitutional amendment to impose the substance of the First Amendment on the states.  The proposed "Blaine Amendment" said,

No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State, for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised, or lands so devoted be divided between religious sects or denominations.
The "Blaine Amendment" had a fair amount of support.  It passed in the House with 180 yeas, 7 nays, and 98 not voting.  It failed narrowly in the Senate with 28 yeas, 16 nays, and 27 not voting.  In roughly the same time frame many of the states placed similar language in their own constitutions.  So it's clear that the idea of inposing First Amendment principles on the states was popular at the time.  It's also clear that the 14th Amendment was not intended to "incorporate" the First Amendment against the states.  Many of the Congressmen who voted to adopt the 14th Amendment were still around in 1876 to debate and vote on the Blaine Amendment.  They would certainly remember what they had done, and intended, eight years earlier [5].
 

SNEAKING LIKE A THIEF, OVER THE FIELD OF JURISDICTION

In the majority opinion in Everson v. Board of Education (1947), Justice Hugo Black, who had spent his formative years in the Ku Klux Klan, wrote,

In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
Thomas Jefferson, and his statement misrepresented by Justice Black, had nothing to do with the Constitution.  The statement was included in a letter to the Danbury Baptist Association, which was written in 1802, more than a decade after the First Amendment was ratified.  In September of 1798, when the First Amendment was proposed by Congress, Jefferson was serving as Minister to France.  When the amendment was ratified in 1791, Jefferson was Secretary of State and a non-participant.  Finally, when the 14th Amendment, which our unfaithful judicial employees claim "incorporated" the First Amendment against the states, was adopted, Jefferson was long dead.  If everything ever written by Thomas Jefferson is to be taken as part of the Constitution, how about the following passage from his 1821 letter to Charles Hammond: [6]
(The) federal judiciary (is) an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction . . .
Our federal judiciary has been "advancing it noiseless step like a thief, over the field of jurisdiction" for two centuries.  It has finally stolen the most important "legislative Powers" our founders assigned to "Congress."  That is a crime against Congress, the Constitution, and "We the People," the Court's masters.  Unfortunately, "We the People" have no good way to prevent or punish this crime.  Throughout our history, Congress has showed itself unwilling, or unable, to defend the Constitution against a renegade Court.
 

OUR SECULAR RELIGION

Now it's time to share another dirty little secret.  Federal courts have not only trashed the First Amendment by restricting our free exercise of religion, they've also trashed it by establishing an official federal government religion.  Legal scholars and historians have been bragging about this for more than a century.  

The substance of their boasts can be summarized more or less as follows. America's dominant religion is now a "secular" religion. The Supreme Court is its papacy.  The bogus constitution that the Court made up over the years is its bible; the real Constitution, the one that begins "We The People," has been degraded to the status of an empty symbol.  It fills the need of the unsophisticated masses to venerate something.  Lawyers and judges are the secular religion's priests and Supreme Court justices are its high priests [7].

Law professor A. S. Miller, for example, refers to the Supreme Court Building as "The Temple on the Hill" and the Court itself as a "theological institution."  He characterizes as "sacred documents" the bogus constitution that the Court made up.  Miller refers to the justices as "High Priests," and points out that the "Court cannot be understood apart from its religious aspects" [8].

Professor Miller also quotes fellow legal scholars who assert that the justices are "brushed with divinity," and refer to lawyers as a "priestly tribe" which defends "this Arc of the Covenant (the bogus constitution)" against the "profane touch" of "open and covert foes" (presumably "We the People") [9].

Constitutional law literature is loaded with such quotes, Miller's book is only one of the richer sources.  In 1880, Oliver Wendell Holmes, a legal deep thinker of the time, wrote an article in which he referred to the Dean of Harvard Law school as "the greatest living legal theologian."  Friends of the Supreme Court have called it the "secular papacy" [10].
 

AN ECCLESIASTICAL PRINCIPALITY

As far as I know, it was first pointed out in The Temple of Karnak that actions of our Supreme Court can usually be understood by studying Niccolo Machiavelli's The Prince.  One lesson it taught stood out from all the others.  That lesson concerned the most reliable way for a "Prince" to secure his power.  He should establish and maintain an "Ecclesiastical Principality."  He should set up a state in which the ruler enjoys the protection of an official religion.  I've copied a translation of a Machiavelli quote, on the subject, into the Notes & Citations Section below [11].

In medieval England, the birth place of America's legal tradition, the rulers understood Machiavelli's lessons even before he did.  English kings ruled by "divine right."  They were the anointed of God.  If you didn't obey them, you were going to hell.  You were going to hell after they cut off your head, of course [11].

English common law judges were agents of the king.  So they also claimed to speak for God.  This was a basic part of their act.  They took on the trappings of priests.  They dressed in robes, practiced rituals, and did business in Latin.  Judges in England's American colonies followed suit.

After America became independent, our Supreme Court still claimed to speak for God's law; it just didn't mention God.  It justified constitutionally unfounded decisions by reference to "natural law" or "fundamental law."  The justices claimed that they spoke for law that was "sacred" or law that existed before the Constitution and even before "society" [12].

The "secular papacy" tries to avoid making its game too obvious.  The justices never say that God comes down to give them instructions at 3:00 every afternoon.  They also never say, "listen up, this is your god speaking."  That would be much too clumsy.  Instead they say that they have "discovered" what "fundamental law" says about the issue in question.

Once in a while the Court slips up and blows its cover.  During the Vietnam war years, it laid down rules for use in deciding what is, or isn't, a religion.  Congress had passed a law which allowed concientious objectors to avoid serving in the military.  The law said that folks who believed that all war was sinful, didn't have to serve.  But the basis of their belief had to be a religion.  The Act in question exempted from

"combatant training and service . . . any person . . . who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.  Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code."
Some men, who admitted that they did not believe in God, demanded to escape the draft under those laws anyway.  The draft boards didn't buy it.  So the men sued in federal court.  They said that a draft exemption based on "religion" violated the First Amendment, an entirely reasonable claim [13].

Several cases got to the Supreme Court which, at that time, was very liberal.  The justices, therefore, wanted to find a way to let the draft dodgers off the hook.  If they just agreed that the law violated the First Amendment nobody would be able to use it to escape military service.  That was not the policy outcome they wanted.  So they declared that the law was constitutional; but they revised it.  They said that a "religion" did not have to include belief in God, or prayer, or any of the usual things.  In 1965, in Seeger v. United States, the Supreme Court ruled that a religion was any "sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the (draft) exemption" [14].

In 1970, in Welsh v. United States, the Court opined that you could have a religion without even calling it a religion.  On that occasion your judicial employees said [13]

In view of the broad scope of the word "religious," a registrant's characterization of his beliefs as "nonreligious" is not a reliable guide to those administering the (draft) exemption.

To be sure, the definition of "religion" given in those two opinions was not the one clearly spelled out in the Act.  So the opinions were fraudulent.  However, that definition is really quite close to the thinking of academic experts on religion.  Experts say, for example, that a religion is any "total commitment to an all-embracing group goal . . . an ultimate concern" [15].

What does a typical Supreme Court justice view as "an ultimate concern"?  What are his most "sincere and meaningful" beliefs?  His most sincere and meaningful beliefs include the sacred status of judicial power.  They include the doctrine of stare decisis.  They include the contents of the bogus constitution that courts have made up over the years.

Those are exactly the kinds of beliefs the Court defined as constituting a religion in United States v. Seeger and Welsh v. United States.  Those are also the kinds of beliefs that academic experts in the field define as religion.  Your judicial employees have long been imposing those religious doctrines on all Americans while restricting our free practice of religions that compete with theirs.

So your judicial employees are condemned by their own words; they're trashing the First Amendment big time.
 

THE TWO GREAT COMMANDMENTS OF ACLUISM

As shown above, our judicial branch of government has been running a religious institution since colonial times.  However, the tenets of that religion don't remain the same, they evolve over time in in keeping with the religious bias of the Court majority.  That's what liberal law professers mean when they tell us that the Constitution "evolves" [16].

For the last half-century or so the Court's primary religious bias has followed the doctrines of the American Civil Liberties Union (ACLU), a religious organization if ever there was one.  Since the Court's supporters could never admit that the justices are fronting for a Godless religion, they can't call their sect by a religious name, i. e. one that ends in "ism."  Fortunately, a thoughtful observer of religious cults made up a proper name for it.  The author of a recent book conferred the name "Acluism" on the "secular religion" currently favored by our judicial employees [17].

Like those of our traditional Christian religions, the central ideas of Acluism can be summarized in two great commandments.  But they're a lot different than the two Great Commandments given in Matthew, Chapter 22.  They're not publicized in any ACLU documents; but they can easily be discovered by a careful study of ACLU policies:

I.  If there is a God, he'd better not show his face around here.
II. Thou shalt punish the innocent and reward the guilty [18].

 

NOTES & CITATIONS

1.   A description of state laws against blasphemy that were in force in 1791 can be found in Saunders, pages 90-98.  See also Lusky (1975) page 168.  The Supreme Court's usurpation of legislative power is described in some length in the book, Grand Larceny: An Unexpurgated History of the Supreme Court.

2.  I'm indebted to David W. New for pointing out that the seminal case for this line of fraudulent Supreme Court jurisprudence was Cantwell v. Connecticut (1940).  Mr. New's analysis of the case can be found at http://www.faithandaction.org/DavidNewOctoberNovember05.htm.  The substantive due process scam is described in the online essays A Scam is Born and Evolution of a Scam.  The claim that out Constitution evolves to conform to Supreme Court policy innovations is critiqued in Our Evolving Constitution

.

3.  See the online essay Unnatural Selection.

4.  A transcription of the four Enforcement Acts can be found on the Internet at http://ttokarnak.home.att.net/14AEActs.html.  It's worth noting that the Supreme Court, during the post-Civil-War years, found various pretexts with which to nullify most of the enforcement legislation embodied in the four Acts. As a result, African American citizens were deprived of the federal protection the 14th Amendment was intended to provide.  The Supreme Court deserves most of the blame for three-quarters-of-a-century of Ku Klux Klan outrages and Jim Crow laws in parts of the South.

See the University of Minnesota Law School web page concerning the proposed Blaine Amendment.

6.  A transcript of the Everson opinion can be found here.  A transcript of Jefferson's letter to the Danbury Baptist association can be found on the Internet, as can a transcript of his 1821 letter to Charles Hammond.  A facsimile of the Hammond letter can be found at a Library of Congress web site.

7.  See, for example, Levinson (1988), who cites many earlier works on the subject.  See also Miller (Arthur S., 1982).

8.  See Miller (A. S. 1982), pages 1, 10, 19, and 20.

9  See Miller (A. S. 1982), pages 20 and 78.

10. The Oliver Wendell Holmes quote is from Glendon, 1994, page 186.  Daniel Boorstin used the term "secular papacy" in the forward to Professor McCloskey's famous book, The American Supreme Court.

11. Machiavelli wrote The Prince about the time of Shakespeare.  The idea that the Supreme Court follows his teachings is introduced in Chapter 3 of The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy.  This theme recurs throughout the book.  The lesson referred to above can be found in Machiavelli's Chapter XI:

" . . .they (ecclesiastical principalities) are gained either by fortune or virtue, but kept without either, being supported by ancient statutes universally received in the Christian Church, which are of such power and authority they do keep their prince in his dignity, let his conversation or conduct be what it will".

12. These quotes were taken from Konefsky, pages 131 and 142.  Konefsky attributes the first ("most sacred" legal principles) to a biography of Marshall by Justice Joseph Story.  He attributes the second (laws that existed before society) to the majority opinion in Sturges v. Crowninshield, (1819).

13. This passage is quoted from the Supreme Court opinion in Welsh v. United States.  See also Seeley, pages 54 and 55 and Schwartz (Bernard, 1983), pages 570-72.

14. The Seeger opinion can be found here.

15. The academic definition of religion is from Noss (1980, page 173).  Noss was quoting Paul Tillich.

16. See the online essay Our Evolving Constitution.

17. See The Temple of Karnak, Chapter 11.

18. See the online essay, Judicial Activism Causes Crime.

 

To review publication data on works cited above, check the Bibliography.

 

This article is a revised version of Chapter 21 in Grand Larceny: An Unexpurgated History of the Supreme Court.

 

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D. J. Connolly