[Congressional Record (Bound Edition), Volume 151 (2005), Part 5]
[Extensions of Remarks]
[Pages 6977-6978]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          ``MODERN DAY MOSES''

                                 ______
                                 

                          HON. LAMAR S. SMITH

                                of texas

                    in the house of representatives

                        Tuesday, April 19, 2005

  Mr. SMITH of Texas. Mr. Speaker, I would like to commend Congressman 
Steve King for his excellent speech, included here for the Record, 
addressing courts' attacks on religion in the United States. Our 
Constitution never intended for religion to be eliminated from the 
public square, but that is what judges are forcing upon us. I 
appreciate Congressman King's eloquent statement on the judicial 
assault on religion.

[From the desk of Congressman Steve King, Iowa, Fifth District, Mar. 6, 
                                 2005]

                            Modern Day Moses

       I turned my eyes away from ``In God We Trust,'' engraved 
     deeply in the stone above the Speaker's chair, and walked 
     under the direct stone gaze of Moses, as I left the chambers 
     of the United States House of Representatives. I walked 
     through statuary hall in the U.S. Capitol where Thomas 
     Jefferson and James Madison were among the first presidents 
     to attend regular church services. The House Chaplain had 
     given the opening prayer to start the legislative day and our 
     member's chapel in the capitol was open for morning 
     meditation as I walked briskly across the capitol grounds to 
     the Supreme Court. The cases of Van Orden v. Perry and 
     McCreary County, Kentucky. v. ACLU, were to be heard this 
     day. I went expecting to hear profound Constitutional 
     arguments before the only court created by the Constitution, 
     the Supreme Court.
       I walked up the steps of the high courthouse. From the top 
     of the pediment, looming, larger than life, Moses gazes down, 
     holding the Ten Commandments. All who pause here and all who 
     enter here are on notice, this is a nation built upon a moral 
     foundation, a nation of laws, not of men, a nation founded 
     upon the belief in ``the laws of Nature and Nature's God.'' I 
     climbed the long steps, walked past the huge columns, stepped 
     out of the sunlight and into the presence of a security 
     guard. I introduced myself to the guard who replied, ``I'm 
     Moses and I'll escort you to your seat.'' ``Moses! Moses?'' I 
     responded. The guard smiled and nodded his head. ``There 
     couldn't be a better person to lead me to hear the Ten 
     Commandments cases,'' I said.
       Modern day Moses led me to the chambers, through the huge 
     oak double doors, engraved with the Ten Commandments, and to 
     my seat in the chambers. The courtroom was soon full when we 
     all stood to the Supreme Court Marshal's announcement, ``The 
     Honorable Associate Justices of the Supreme Court of the 
     United States. Oyez! Oyez! Oyez! . . . God save the United 
     States and this Honorable Court!'' The justices filed in and 
     were seated. On the frieze above them and to their left, 
     sculpted in stone, stands Moses with the Ten Commandments.
       It is a rare privilege to be in the presence of the most 
     powerful and unaccountable shapers of American society that 
     our nation has ever seen. The oral arguments before the 
     Supreme Court in the two cases before it will likely 
     determine if there will be changes in whether and under what 
     circumstances religious displays can be placed on public 
     property. As I listened to the questions and remarks from the 
     justices, I considered the implications of what had become of 
     our Constitutional right to religious freedom and the 
     Constitution itself. A growing uneasiness slowly turned into 
     a sinking feeling in my stomach.
       Before I get to the cases at hand, I remind you that the 
     Constitution is written to protect the rights of the minority 
     against the will of the majority and the rights of the 
     majority against the whim of the court. Without the 
     Constitution and the Bill of Rights, the will of the majority 
     would be imposed on the minority. Put simply, a pure 
     democracy is two coyotes and a sheep taking a vote on what's 
     for dinner. The Founders understood this and rejected 
     democracy in favor of their new invention, a Constitutional 
     Republic. Our Republic is a unique design of the carefully 
     balanced executive, legislative, and judicial branches. The 
     three branches of government were not designed to be 
     ``separate but equal'' branches but three carefully balanced 
     branches, the weakest of which is the judicial branch. They 
     were to function together so that the will of the majority 
     could not overturn Constitutional guarantees. The Founders 
     were concerned about the power of an unchecked court so they 
     put limits on its power. The Supreme Court's Constitutional 
     charge is to rule on the letter and the intent of the 
     Constitution, ``with such Exceptions, and under such 
     Regulations as the Congress shall make.'' (Article III, 
     Section 2. United States Constitution)
       The question before the court was, ``do the displays of the 
     Ten Commandments violate the ``establishment clause?'' ``Do 
     the displays violate the separation of church and state 
     implied in the Constitution?'' Those of us who came to the 
     Supreme Court expecting to hear profound Constitutional 
     arguments were sadly disappointed. To my ear, no justice 
     referenced the Constitution or quoted from it or asked a 
     question directed to the text of our foundational document. 
     The questions were, ``What is the context of the display?'' 
     ``Was it a religious display, secular, or historical?'' 
     ``What was the intent of those who displayed them? Religious? 
     Secular? Historical?'' ``How would the display be perceived 
     by a reasonable person? Religious? Secular? Historical?'' 
     ``Is anyone offended by the Ten Commandments?'' All pro-
     religious freedom arguments were carefully and narrowly 
     designed to preserve the two displays in question before the 
     court. One in Texas and one in Kentucky. There was no effort 
     made in oral argument that might have expanded religious 
     freedom by establishing a precedent that would provide for 
     true Constitutional religious freedom. The entirety of the 
     oral arguments before the court and the interest of the 
     justices were focused on issues that cannot be found in the 
     text of the Constitution.
       The First Amendment to the Constitution of the United 
     States states, ``Congress shall make no law respecting an 
     establishment of religion, or prohibiting the free exercise 
     thereof; . . .'' There are initially only two qualifying 
     questions to be asked of a religious display. One, did 
     Congress. or any of the states (14th amendment), make a law 
     that established a religion? The obvious answer is no. The 
     Constitution has not been violated if Congress has made no 
     law to establish a religion. There is no need to deliberate 
     further. Case closed. For the sake of argument, the second 
     question is, did Congress or any of the states prohibit the 
     free exercise of religion? Again the answer is no. Again the 
     case is closed because no Congressional or state action 
     prohibited the free exercise of religion although the court 
     has done so many times and may well be poised to do so again. 
     Sadly, these two elemental and operative questions were not 
     asked or answered, yet they are the qualifiers that must be 
     met before any religious freedom case can be Constitutionally 
     argued beyond these two points.
       Since 1963, in the case of Murray v. Curlett when the 
     Supreme Court ordered prayer out of the public schools, there 
     have been a series of decisions that have diminished 
     religious liberty, one creative, convoluted, extra-
     constitutional case at a time, until the basis of a 
     ``Constitutional'' decision is distorted beyond the 
     recognition of even those of us who have lived through and 
     with the changes. Imagine how astonished and irate our 
     Founding Fathers would be if they were alive to see the 
     magnitude to which unelected judges have warped our sacred 
     constitutional covenant with their original intent. James 
     Madison, the father of our Constitution, attended church 
     services in the capitol rotunda where regular Sunday church 
     services were held for 60 years. I can hear Madison now, ``We 
     gave you an amendment process! Why didn't you use it? Why 
     would you honor the opinions of appointed judges who dishonor 
     the Constitution?''
       In case after case, the courts have ruled against the 
     letter and the intent of the Constitution to the effect of 
     diminishing religious freedom until they have now painted 
     themselves into a legal corner. If their case precedents are 
     to be the path, there is no way out of the room to the door 
     marked

[[Page 6978]]

     ``Constitutional Guarantees'' because of the principle called 
     stare decisis, Latin for: to stand by things that have been 
     settled. Because of their activist arrogance, for the 
     justices, the wet paint of case law precedent never dries, 
     therefore we can't walk back across the paint through the 
     doorway to our guaranteed Constitutional freedoms. 
     Consequently our freedoms are reduced with each stroke of the 
     activist's pen until they are no longer recognizable and the 
     Constitution becomes meaningless.
       Last fall, in a small and private meeting, I asked Chief 
     Justice Rehnquist, whom I admire, this question, ``If the 
     Constitution doesn't mean what it says, and as the courts 
     move us further and further from original intent (of the 
     Constitution), what protects the rights of the minority from 
     the will of the majority and what protects the will of the 
     people from the whim of the courts? And, considering the 
     prevalent ``living breathing Constitution'' decisions, hasn't 
     the Constitution just become a transitional document that has 
     guided our nation from 1789 into this `enlightened' era where 
     judges direct our civilization from the bench? Is the 
     Constitution now an artifact of history?'' The core of Chief 
     Justice Rehnquist's answer was, ``I acknowledge your point.''
       To acknowledge my point concedes that the Constitution has 
     become meaningless, become an artifact of history, as far as 
     the courts are concerned. Constitutional law is taught in law 
     schools across the land without teaching the Constitution 
     itself. Constitutional law is too often a course study about 
     how to amend the Constitution through litigation. In fact, we 
     had a law professor before the House Committee on the 
     Judiciary who testified, ``You give me a favorable judge and 
     I will write law for the entire United States of America, in 
     a single courtroom on a single case.''
       Our Nation has suffered through more than forty years of 
     activist judges wandering in their anti-religion desert, a 
     desert hostile to Christians and Jews and devoid of 
     Constitutional boundaries. Let my people go! It will take 
     another Moses to lead us out of the desert and back to the 
     Promised Land of our Founding Fathers, a land wisely provided 
     for and abundantly blessed by God.

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