Justices of the Supreme Court of the United States are committed by oath or affirmation to uphold the written words of the Constitution, the supreme law of the land. They are not authorized to change the words of the Constitution.
Because I have already addressed the constitutional revisionist position of Justice William Rehnquist (whose 1985 dissenting opinion in Wallace v. Jaffree generally speaks also for the same unscholarly and unhistorical positions of revisionist Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy), the following essay relates to the equally incompetent concurring opinion of Justice Stephen Breyer in Van Orden v. Perry.
Instead of beginning his concurrence with the wording of the Constitution as the basis of his concurrence, in the first sentence of his concurring opinion, Justice Breyer asserts reliance upon the 1963 words of Justices Arthur Goldberg and John Harlen in their concurring opinion in Abington v. Schempp (374 U.S. 203) which constitutionally ruled against government required reading of Bible verses in public schools, regardless of how many students actually voluntarily listened to or read those government required words of the Bible (a religion text). In Abington v. Schempp it was obvious government (the essence of coercion) required "religion" which was unconstitutional. Abington v. Schempp properly ruled it unconstitutional for government to establish a policy requiring specific reading of words from the Bible (a religion book) as a part of a religious exercise: "Religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality. ... The concept of neutrality does not permit a state to require a religious exercise even with the consent of the majority of those affected" (374 U.S. 203, 225-226).
Abington v. Schempp was not a case relating to personal and voluntary reading of the Bible, which any public school student may do, or to an educational teaching class in respect to the various religions of the world, which is allowed in any system of public education. As a matter of history education, every American should be taught about religion in the world and in America. Every American public school student should especially be taught the constitutional principle of separation between religion and government.
In 1962, one year prior to Abington v. Schempp, the Supreme Court constitutionally ruled, in Engel v. Vitale (370 U.S. 421, 425): "it is no part of the business of government to compose official prayers for any group of the American people." It is, therefore, just as unconstitutional for government to establish for public view a religion monument on government property, using words from the same Bible as was required by government in Abington v. Schempp, as it is for government to establish Bible reading or prayer for any group of the American people. Likewise, it is no part of the business of government to officially authorize religion monuments for any group of the American people and establish those monuments on government property, regardless of the presence of other monuments or whether citizens read them or not. Religion is not the business of government, except in enforcing laws of the land which apply equally to every citizen, regardless of religion.
Government by its very essence is coercion and is not compatible with the principle of voluntarism (the absence of government) established, in America, by the constitutional commandments "no religious test shall ever be required" and "make no law respecting an establishment of religion."
The erroneous opinion expressed by Justices Goldberg and Harlen in Abington v. Schempp declares that there is "no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible" (374 U.S. 203, 306). Nonsense! To the contrary, there is a very simple and clear measure which by precise application can be readily and invariably used to determine the permissible from the impermissible. The Constitutionıs religion commandments are obviously specific. The constitutional measure is the specific constitutional words "religious" (Art. 6., Sec. 3.) or "religion" (First Amendment). DUH!
The Constitution's religion commandments could not be more clearly or precisely worded: "religion" is not to be required or established by law, by Congress, or (thanks to the Fourteenth Amendment) by government at any level, whether state, county, township, city, or school board. What part of "religion" does Justice Breyer not understand?
The Jewish Ten Commandments express a religion concept which declares there is a supernatural God and that that God spoke directly to Moses, a Jew. The Jewish Ten Commandments monument, as authorized by the state of Texas, established upon government property which, in this case, includes the Texas state capitol building, is a religion monument. The wording on the monument is extracted directly from the Jewish Pentateuch. Even radical revisionist Justice Rehnquist admitted the obvious in Van Orden: "Of course, the Ten Commandments are religious" (545 U.S. ). Just as "of course," Justice Rehnquist rejects the wording of the Constitution's religion commandments as written. In his mind he conveniently and fraudulently rewrites the Establishment Clause word "religion" into "a national religion" (Wallace v. Jaffree, 472 U.S. 38, 98) and thereby ignores the actual original and intentional "religion" wording of the Constitution. See my rebuttal of Justice Rehnquistıs incompetence and revisionism in Liberty magazine at the following link: http://www.libertymagazine.org/article/articleview/162/1/41
Justice Breyer is dishonest when he denies the constitutional word "religion" does not include the Jewish Ten Commandments within the Establishment Clause prohibition, as any honest Jew, Christian, Muslim, Buddhist, Hindu, or person of common sense would confirm. The Texas monument is clearly within the realm and meaning of the word "religion," regardless of inclusion of laws relating to social conduct rules common to many major religions or civil governments in the world. The Constitution makes no exception to the word "religion," not even if the monument has been on government property for 40 years without a complaint being filed or if similar stone engravings appear on the walls of the Supreme Court's current courtroom in a building which was constructed in 1935, not by or during the time of the Founding Fathers--what a ridiculous argument for a Justice of the Supreme Court to make.
The Jewish Ten Commandments monument is within the definition of "religion," and is related to a specific religion (Judaism). In America, the Constitution says "religion," which includes all kinds, shall not be established by law or government. The Constitution of the United States established a nation wherein citizens of all religions and of none are welcome, and Texas established religion through government authority, via a religion monument, in direct violation of the plainly stated wording of the Constitution. In direct contrast to the common sense of the Texas plaintiff, Thomas Van Orden, the flaming liberal revisionists, who composed the majority of Justices in Van Orden, were not strict constructionist enough to accept the Constitution's wording as written and refused to recognize the viewable violation.
Justice Breyer established his concurrence upon the false proposition that "there is no simple and clear measure" by which to determine exactly what is permissible or not permissible under the Establishment Clause. He also explained his personal understanding of the First Amendment's religion commandments by another quote from the concurring opinion of Justices Goldberg and Harlan, that is, the First Amendmentıs religion clauses "seek to 'assure the fullest possible scope of religious liberty and tolerance for all'" (Abington v. Schempp, 374 U.S. 203, 305). These two erroneous understandings provide the foundation for Justice Breyerıs concurring opinion.
The religion commandments of the Constitution do not "assure the fullest possible scope of religious liberty and tolerance for all." Such wording does not exist in the Constitution. Such words are the revisionist creation of two 1963 have-not-got-a-clue Justices on the Supreme Court. Justices of the Supreme Court have no authority to revise the words of the Constitution and then base a ruling upon words which do not exist in the Constitution. Only the words of the Constitution are the supreme law of the land, and its words are the only source upon which Supreme Court rulings are to stand. All rulings contrary to the wording of the Constitution should be overturned.
Justice Breyer's concurring opinion is a molestation of constitutional supremacy and provides, in his own words, the kind of revisionist "divisiveness that promotes social conflict, sapping the strength of government and religion alike." In typical 1984ish thinking and wording, Justice Breyer directly rules in opposition to the social harmony and peaceful dominion provided by the Constitution's religion commandments. The Constitution is a social contract, and, in respect to religion and government, its obvious basic principle is "separation between Religion and Government" (James Madison, "Detached Memoranda," William and Mary Quarterly, 3:555), which principle provides peace and harmony in the United States of America.
The Jewish Ten Commandments monument, established on state government property in Texas, is not a "mere shadow," as Justice Breyer asserts. The monument is made of enduring stone and specifically promotes Old Testament Jewish law, which identifies, by no stretch of the imagination, the monument as nothing less than a "religion" monument, as any reasonable citizen, whether passing by or not, would recognize and understand. Thomas Van Orden obviously recognized a "religion" monument when he saw it.
It is impressive that Justice Breyer has read the record of Frenchman Alexis de Tocqueville in his 1835 book Democracy in America, but has Justice Breyer read James Madison, "Father of the Constitution," who personally helped write both Article 6., Section 3., of the Constitution, and who was also co-chair of the six member joint Senate-House committee which produced the final draft of the religion commandments of the First Amendment? Justice Breyerıs concurring opinion never mentions James Madison, a primary source, and, instead, uses secondary sources for his inadequate research which relies heavily upon words from 1963 Supreme Court justices, rather than upon words of the Constitution or even of James Madison. Secondary sources are not primary sources. Moreover, Justice Breyer uses other wording which does not exist in the Constitution when he uses De Tocqueville's inaccurate "church and state" terminology. The word in the First Amendment is "religion," not church. Obviously, Justice Breyer quotes very selectively, for example, he ignores the statement in Abington v. Schempp which declares, "What is directly prohibited cannot be indirectly permitted, lest the Establishment Clause become a mockery" (Abington v. Schempp, 374 U.S. 203, 230).
The Establishment Clause is not about tolerance and/or accommodation. Neither word is in the Constitution. The constitutional commandments of "no religious test" and "no law" respecting an establishment of "religion," are about separation, and they clearly separate religion and government. The Establishment Clause provides freedom, freedom from "religion" established by law and government. Texas is government. The Jewish Ten Commandments monument, established by coercive government upon the property of coercive government, is a monument respecting an establishment of religion, in this case, a specific religion, and should be removed.
There is absolutely no need to proceed with any further direct review of all the various other propositions of Justice Breyer's concurring opinion in Van Orden v. Perry. The review above establishes Justice Breyer's reliance upon the precedence of recent Supreme Court mutilations of the plain wording of the Constitution. Justice Breyer also ignores an additional proposition expressed in the earlier 1947 Everson v. Board of Education and 1948 McCollum v. Board of Education Supreme Court discussions in which the following is stated in both: "We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion" (Everson, 330 U.S. 1, 59 and McCollum, 333 U.S. 203, 232).
In regard to Free Exercise Clause commentary, Justice Breyer's opinion is merely a continuing distortion and further source for illustrating the Supreme Court's recent endorsements of "ecclesiastical encroachments," as illustrated best in Marsh v. Chambers (463 U.S. 783) where, in 1983, the Supreme Court of the United States ruled legislative chaplains constitutional because of their long standing existence and tradition in the Nebraska legislature. In the Constitution, right along with "tolerance" and "accommodation," the word "tradition" also does not exist and, therefore, such words cannot and do not establish an exception to the Establishment Clause prohibition of an establishment of "religion."
The following is what James Madison wrote (c.1817): "Strongly guarded as is the separation between Religion and Government in the Constitution of the United States, the danger of encroachment by Ecclesiastical Bodies may be illustrated by precedents already furnished in their short history" ("Detached Memoranda," William and Mary Quarterly, 3:555). ... Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. ... The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principles" ("Detached Memoranda," William and Mary Quarterly, 3:358).
In plain English, James Madison wrote that historical "precedents" do not negate the constitutional principle of "separation between Religion and Government." The 1983 Supreme Court ruled otherwise in Marsh v. Chambers. In other words, Justices of the 1983 Supreme Court effectively ignored James Madison and revised the intent of the Constitution in regard to religion and government by establishing a legal precedent (a law respecting an establishment of religion) which allowed legislative chaplains to remain a part of government, based on historical tradition rather than the words of the Constitution. In no part of the Constitution is historical tradition given authority over the supreme law of the land. Neither Marsh nor Justice Breyer's concurring opinion has constitutional foundation. Both Marsh v. Chambers and Van Orden v. Perry should be overturned as unconstitutional.
Supreme Court opinions are not to be based upon an erroneous reading of the Establishment Clause or the Free Exercise Clause. The Free Exercise Clause merely prohibits prohibition of religion exercises, which means totally. Prohibit means to totally forbid. In America religion exercises cannot be totally forbidden, which is distinctly different from saying that religion exercises are above the law. Religion is not above the law, except in matters of opinion. In America all actions are subject to laws of the land, which apply to all citizens equally, regardless of religion. Proper understanding of the Free Exercise Clause is determined by its words. The Free Exercise Clause is not a license for anarchy. In America, including Texas, the Constitution is supreme, not the laws of Moses or gifts from patriotic organizations--what silly arguments some Justices use to support violations of and encroachments upon the Constitution for the United States of America.
In America religion and government are to be kept separate. The government of Texas has no constitutional right by which to establish a religion monument on government property owned by citizens of all religions and of none. The placing of a religion monument on government property is an encroachment of the Constitutionıs principle of separation between religion and government, that is, no establishment of "religion." The average citizen can easily see the constitutional violation. Otherwise, it is now appropriate for Texas citizens of all religions to donate religion monuments to the state of Texas for placement upon property surrounding the state capitol building. For instance, because Mexico once owned Texas, it would certainly now be permissible, as a matter of history, for Texas descendants of the Aztecs to request placement for the Eight Commandments of the Aztec religion.
Justice Breyer's unconstitutional opinion is a mockery of the Constitution. Not one word in the Constitution gives the Supreme Court authority to rewrite or overrule the words of the Constitution as written. The religion commandments of the Constitution do not use the words accommodation, toleration, tradition, or exception. When Justices incorporate exceptions into application of the religion commandments, they violate their sworn oath or affirmation to support the Constitution as written.
In 1811 President James Madison vetoed two bills passed by Congress because they violated the Constitution's religion commandments and made an exception (1) by making a law accommodating an Episcopal Church in matters of incorporation and education of children and (2) by accommodating a Baptist church which by mistake erected a building on government property. President Madison was not being intolerant or hostile. He was upholding the constitutional principle of "separation between Religion and Government" which principle he helped establish in Art. 6., Sec. 3., of the Constitution and in the First Amendment.
The greater authority, as to the meaning of the Constitution's religion commandments, is James Madison, not the 1963 Justices Goldberg and Harlan or the 1983 Justices, who, in Marsh v. Chambers, unconstitutionally ruled legislative chaplains constitutional. James Madison, personally helped write the original Constitution and the First Amendment, as a Founding Father and as co-chair of Senate-House conference committee which drafted the final version of the First Amendment. Justice Breyer completely ignored the "Father of the Constitution."
In fact, the only mention of "Madison" in the commentary of the other four revisionist judges was reference to a statement "Madison" made in 1785 prior to existence of the Constitution, which statement has absolutely no relationship or relevance to the constitutional issue raised by Thomas Van Orden. Talk about incompetence! Talk about abuse of the historical record!
The Constitution makes no exceptions to its religion commandments. However, the Supreme Court of the United States in Marsh v. Chambers (1983) and Van Orden v. Perry (2005) made an exception out of the air and based that exception on "history," "tradition," or "practices," and extremely recent and erroneous judicial precedents, ignoring the words of the Constitution and of James Madison after adoption of the Constitution.
Justice Breyer's concurring opinion makes not one mention of President James Madisonıs clearly stated precedents in his February 21 and February 28, 1811, veto messages, which were not overturned by Congress. Not one word about James Madison's "Detached Memoranda" wherein he wrote: "Strongly guarded ... is the separation between Religion and Government in the Constitution of the United States" ("Detached Memoranda," William and Mary Quarterly, 3:555). Has Justice Breyer never read these documents?
The Supreme Court of the United States has no more authority to establish religion by law than does Congress or any state. The Congress and the state have no such authority, and the Constitution gives no such authority to the Supreme Court of the United States. Neither the Supreme Court of the United States nor the Congress, for example, has authority to authorize placements of the Jewish Ten Commandments upon government property or to authorize the words "In God We Trust" upon currency owned by the United States of America. In America government and religion are to be separate, and the real national motto as established from the beginning of our nation is, appropriately, "e pluribus unum," which means: of many one.
As in Marsh, the majority decision in Van Orden mocks the clearly stated "religion" commandments of the Constitution. To assert the monument established on government property in Texas has nothing to do with "religion" is, not only an obvious violation of the no establishment clause, it is a lie in violation of Moses' law against bearing false witness (number 8 in the Catholic version or number 9 in the Jewish and Protestant versions).
To further illustrate the incompetence of Justice Breyer, he twice injected the words "church and state" as if those words are in the Constitution (they are not), which again means he bases his argument upon words which are not in the Constitution. Justice Breyer is a flaming liberal revisionist, just like Justices Rehnquist, Scalia, Thomas, and Kennedy, who in their minds change the word "religion" to a national religion or to a state church.
The wording and intent of the religion commandments is as clearly stated as any wording in the Constitution: "religion" shall not be established by law or government. No accommodation exceptions are made for "religion" or for the "exercise thereof." If it is "religious" or in respect to "religion," government shall not establish it, because government is the essence of coercion, and in America religion is to be voluntary. Nothing about government is voluntary. Therefore, "religion" shall not be established by government, and it is absurd to assert religion established by government is an exception to the no establishment of religion commandment.
If the Jewish Ten Commandments have anything to do with religion, it is unconstitutional for Texas to establish them on government property. Thus, Thomas Van Orden, as any reasonable person could understand, has more common sense and a better understanding of the Constitution's religion commandments than does Texas' Governor Perry and Justices Rehnquist, Scalia, Thomas, Kennedy, and Breyer put together. As a Texan, Thomas Van Orden knows that religion flourishes in Texas, without government involvement, just as it does throughout the United States of America. A history wise nation will keep religion and government separate.