People For the American Way

Shredding the Constitution in North Carolina

Earlier today, PFAW's president Michael Keegan condemned North Carolina state legislators who have introduced a resolution to empower the state to declare an official state religion. As he noted, our nation was founded on the premise that church and state both benefit from a clear "wall of separation," a phrase coined by none other than Thomas Jefferson. That is why the nation's founders wisely put the Establishment Clause in the First Amendment.

The far right has long been hostile to this bedrock American value, which prevents them from imposing their sectarian beliefs on everyone else. That has been the common thread running through much of their policy agenda ever since the Supreme Court ruled that public schools cannot require that prayers be recited during the school day. The right's hostility extends to our system of fair and just federal courts, which so often in our history have protected Americans from laws that violate the Establishment Clause, as well as other constitutional provisions.

The North Carolina resolution is truly frightening in its scope. It starts off by ignoring the law as it exists and replacing it with the law as these legislators want it to be:

Whereas, the Establishment Clause of the First Amendment of the Constitution of the United States … does not apply to states, municipalities, or schools; and

Whereas, in recent times, the federal judiciary has incorporated states, municipalities, and schools into the Establishment Clause prohibitions on Congress;

It then proceeds to sabotage the court system altogether:

Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and

This is a direct challenge to Marbury v. Madison, the seminal 1803 Supreme Court case that recognized a federal court's ability – and responsibility – to strike down laws that violate the Constitution. If our federal courts were stripped of this ability and thereby made subservient to the other two branches of government, it would be open season on our constitutional rights.

Without judicial review, the Supreme Court would never have been able to strike down school segregation such as that long practiced in North Carolina. It is judicial review by federal courts that has ended school segregation, sodomy laws targeting gays and lesbians, complete abortion bans, criminalization of contraception use, and a host of other ills.

Even if the North Carolina resolution is never passed, it tells us a great deal that its sponsors remain members in good standing of the Republican party. A party that respected fundamental rights and the values of the entire U.S. Constitution would never want to be associated with an effort like this.


Courts, Establishment Clause, First Amendment, School Prayer