The Assault upon the Constitution
TimeWatch Editorial
October 07, 2016
According to the back cover of his book entitled: “The Conservative Assault on the Constitution” Erwin Chemerinsky is the founding Dean and distinguished Professor of law at the University of California, Irvine School of Law. He has also taught at the laws schools at Duke, the University of Southern California and DePaul. He is the author of the leading textbook on Constitutional Law, and is a graduate of Harvard Law School. He has argued numerous cases before the U.S. Supreme Court and various Appellate Courts. His book, “The Conservative Assault on the Constitution” was published October 11, 2011. The back cover of the book is rather informative and detailed. Here is some of what is found there.
“Over the last few decades, the Supreme Court and the Appellate courts have undergone a dramatic shift to the right, the result of a determined effort by right wing lawmakers and Presidents to reinterpret the constitution by reshaping the judiciary. Conservative activist justices have narrowed the scope of the Constitution, denying its protections to millions of Americans, exactly as the lawmakers who appointed and confirmed these justices intended. Basic long standing principles of constitutional law have been overturned by the Rehnquist and Roberts courts. As distinguished law professor and constitutional expert Erwin Chemerinsky demonstrates in the invaluable book these changes affect the lives of every American.” Erwin Chemerinsky, “The Conservative Assault on the Constitution,” book cover.
As I have said, the cover delivers a synopsis of the detail contained in the book. The author, because of his professional orientation, is fully aware of the shift that to the ordinary citizen would not have been as obvious. Much of what today is somewhat clearer, had its beginnings some time ago. Notice how the cover continues.
“As a result of political pressure from conservatives and a series of Supreme Court decisions, our public schools are increasingly separate and unequal, to the great disadvantage of poor and minority students. Right wing politicians and justices are dismantling the wall separating church and state, allowing even greater government support for religion. Rightwing politicians complain that government is too big and intrusive, while at the same time they are only too happy to inset the government into the most intimate aspects of citizens when doing so conforms to conservative morality.” Erwin Chemerinsky, “The Conservative Assault on the Constitution,” book cover
This powerful change has continued for a while. At present we are seeing the final steps being put in place. On May 6th, 2014, Chemerinsky published an article on the Scotusblog.com website entitled: “Symposium: Dismantling the wall that should separate church and state.” He continues the opinion that he began to express in his book in the year 2011 by saying the following:
“Incrementally rather than dramatically, the Roberts Court is eroding the notion of a wall separating church and state and allowing much more religious involvement in government and government support for religion. During the years of the Rehnquist Court, there were four Justices – Rehnquist, Scalia, Kennedy, and Thomas – who took an accommodationist approach to the Establishment Clause and said that the government acted unconstitutionally only if it literally established a church or coerced religious participation or gave assistance that favored some religions over others. Under this view, little ever violates the Establishment Clause.” Erwin Chemerinsky, “Symposium: Dismantling the wall that should separate church and state.” Scotusblog.com, May 6th, 2014
In other words, Chemerinsky is saying that these justices believe that the only way the Establishment cause of the first amendment can be violated, which says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” is if the government literally established a church, or if it forced religious participation or gave assistance that favored some religions over others. Even though Erwin Chemerinsky expresses himself in legal terms, it is by no means difficult to grasp the fact that he is making the point that there is a definite preference on the part of the Supreme Court Justices. Who do they support? Erwin Chemerinsky continues.
“In Arizona School Tuition Organization v. Winn, the Supreme Court held that taxpayers lacked standing to challenge a state law that provided tax credits for donations to school tuition organizations, which in turn overwhelmingly sent the funds to Catholic and evangelical Christian Schools. This pattern repeated itself in Town of Greece. Justice Kennedy wrote a plurality opinion, joined by Chief Justice Roberts and Justice Alito, upholding the prayers before the monthly meetings of the Town of Greece despite the fact that they were almost always delivered by Christian clergy and were usually explicitly Christian in their content. Erwin Chemerinsky, “Symposium: Dismantling the wall that should separate church and state.” Scotusblog.com, May 6th, 2014
But it gets even worse. Notice how Erwin Chemerinsky continues his description of the situation. He takes a look at the attitude of the court and determines that their actions reveal their apparent goal.
“As in the earlier cases, Justices Scalia and Thomas would have gone much further in allowing religious involvement in government. In an opinion concurring in part and concurring in the judgment, Justice Thomas, writing only for himself, reiterated his view that the Establishment Clause should not apply to state and local government at all. There is thus a striking pattern to the Roberts Court’s Establishment Clause cases. The Court has rejected all of the Establishment Clause challenges, allowing much more religious involvement in government and government support for religion. Justice Kennedy always writes the lead opinion, joined by Chief Justice Roberts and Justice Alito. Justices Scalia and Thomas always want to go even further in lessening the protections of the Establishment Clause.” Erwin Chemerinsky, “Symposium: Dismantling the wall that should separate church and state.” Scotusblog.com, May 6th, 2014
The current promise of the Republican Party candidate for president as quoted in Time.com on August 15, 2016 entitled “Donald Trump Vowed to Close the Gap between Church and State” is certainly not an empty promise. There are many who are already committed to the plan. The progression of the plan is methodical. Listen to Chemerinsky.
“Rather than obliterating the wall separating church and state all at once, the Roberts Court’s opinions are dismantling it brick by brick. The clear message from Town of Greece v. Galloway is that prayers before legislative sessions are allowed, no matter how much they are sectarian and from a particular religion. In fact, the practice in the Town of Greece was exactly what Justice Kennedy said could still violate the Establishment Clause: a “pattern of prayers over time” that “proselytized” and “betrayed an impermissible government purpose.” Erwin Chemerinsky, “Symposium: Dismantling the wall that should separate church and state.” Scotusblog.com, May 6th, 2014
So here we are! Will this be the final movement in the agenda to remove the wall of separation between church and state? We shall see.
Cameron A. Bowen
