Tired of ACLU suits against prayer in schools and before government meetings, a number of Republican Senators in North Carolina have put forth a bill that cuts to the chase. From the @NCCapitol blog:
A bill filed by Republican lawmakers would allow North Carolina to declare an official religion, in violation of the Establishment Clause of the U.S. Bill of Rights, and seeks to nullify any federal ruling against Christian prayer by public bodies statewide.
The bill grew out of a federal lawsuit filed last month by the American Civil Liberties Union against the Rowan County Board of Commissioners. In the lawsuit, the ACLU says the board has opened 97 percent of its meetings since 2007 with explicitly Christian prayers.
The full bill is up at Scribd. The heart is in the following two sections:
SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.
Fair enough, the First Amendment applies to the Federal Government and not the states. Many states maintained established churches after the Constitution was ratified. However, the Equal Protection clause of the Fourteenth Amendment has been interpreted as providing the Federal government with the authority to protect individual rights, even against the state governments. Which brings us to section 2 of the bill …
SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion.
The Bill justifies itself with the following:
“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,” the bill states. “Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion.”
This is nullification, the idea that the States can basically veto Federal action over their jurisdiction. It’s a political idea that dates back to the founding and was employed by the slaves states. It has been repeatedly shot down, so this bill is going nowhere, but it’s interesting to see Republicans going back to the classics.
I don’t think you can argue that the fourteenth amendment wasn’t intended to give the Federal government the power to trump the states on the matter of individual rights. I think it’s also true that in extending Federal power, the Amendment finally created the system that James Madison wanted to begin with.
It’s true that the courts flinched back from enforcing the Amendment for decades, and the full power of the Amendment had to wait until the 1940’s to be applied, but that power is now established and accepted. Fighting against it without some fresh arguments is a doomed battle.