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Federalism Gets the Bird for Thanksgiving

In what many consider a Thanksgiving gift for religious liberty, the United States Supreme Court struck down occupancy limits for church gatherings in New York. The restrictions were implemented by Governor Andrew Cuomo as an attempt to thwart the spread of the coronavirus.

The Justices held that restrictions on the size of congregations violated the Free Exercise Clause of the First Amendment. The decision was a 5-4 split. Amy Coney Barrett sided with the majority, while John Roberts joined Breyer, Sotomayor and Kagan in the dissent.

Governor Cuomo issued an executive order in October initiating a three-color risk system as part of his draconian and nonsensical response to the virus. The Roman Catholic Diocese of Brooklyn and the Agudath Israel of America filed complaints as the order severely restricted the size of congregations for religious worship. No more than 10 people are allowed to gather in “red” zones, 25 in “orange” zones; the restrictions are harsher for religious gatherings than for secular purposes, raising concerns of “First Amendment 'Rights'” violations.

Conservatives are hailing this decision as a victory for religious liberty due to the purposeful aim taken at religious gatherings. But should they be? Here I answer in the negative, as there was no federal government action at issue. In the present case, the restrictions came from the State of New York but the Constitutional issue claimed is the Free Exercise Clause of the First Amendment.

The next inquiries which MUST be made by Constitutional Conservatives are, “is this what the Founders intended?” and “is this something to which the States consented?” The answers to both are equivalently “NO!”

As James Madison explained in Federalist 45:

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.”

Throughout the Philadelphia Convention, Madison pushed for a federal “negative” (veto power) over state laws. This idea was rejected on each attempt. When a number of states insisted on adding a Bill of Rights as a condition of ratification, he argued against it saying, along with Alexander Hamilton and James Wilson, among others, that it would be redundant since the “general” government had only the powers specifically enumerated.

The legislative powers of Congress are set forth in Article I, with the enumerated powers listed therein under Section 8. The Tenth Amendment asserts the following:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Accordingly, whether these restrictions are to be upheld is a matter to be resolved within the state of New York.

The Preamble to the Bill of Rights states, in relevant part, the following:

“The Conventions of a number of the States…expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.”

When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provisions to be made applicable against the states. He argued that was where liberty would be most likely threatened. Again, he was defeated.

The Bill of Rights was never understood to be applicable against the states. There is absolutely no historical evidence of the Bill of Rights being made enforceable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”

The Court yesterday acknowledged that the goal of fighting the spread of the virus is a compelling state interest, but that the Governor's decree was more restrictive to places of worship than other places. Justice Gorsuch wrote, "It is time -- past time -- to make plain that while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that re-open liquor stores and bike shops but shutter churches, synagogues and mosques.”

The Court also held that “less restrictive measures could be enforced on the religious services to stop virus transmission, such as limiting services based on available capacity and not a hard cap.”

If it appears that the Supreme Court is issuing a negative on the affairs of the State of New York in contravention to the Constitution as ratified by the states, that is because it is. Even if you agree with the results, the bigger issue is the preservation of decentralized power, the purpose of the Constitution.

Recall the Tenth Amendment quoted above as well as the original intention of the Bill of Rights. How did the Free Exercise clause and other restrictions upon the General Government become enforceable against the States? As I explained here, this came about from the deliberate misinterpretation of the Fourteenth Amendment and the malfeasance of the legal education industry.

What Congress was prohibited from doing at Philadelphia and the Ratification Conventions (the latter being our source for understanding what was agreed, or consented to), the Federal Judiciary now does on a regular basis – effectively veto (overturn) state legislation and state court holdings it finds disagreeable. But this was not always the case, as mentioned above.

It was not until 1925, in Gitlow v. New York 268 U. S. 652 that the Supreme Court magically “found” the authority to apply the Bill of Rights against the states supposedly hidden away in the 14th Amendment.  This interpretation is both problematic and not supported by history. The 39th Congress, which proposed the amendment, did not intend to “incorporate” the Bill of Rights against the states, and no such premise had been adhered to in the preceding years.

By 1925, however, the Progressive Era was in full swing and the Supreme Court was well on its way to  imposing a complete rewrite of the Constitution upon the states and the American people, thus diminishing the separation of powers between the states and the general government. 

Clearly, the outcome of this case is one to be celebrated, but not from a Constitutional perspective. Delegating such authority to 9 politically-connected lawyers is an affront to Republicanism and representative government, principles intended to be safeguarded by the Tenth Amendment, the cornerstone of the Constitution, according to Thomas Jefferson.

Had the Court ruled the other way, religious freedom, as well as freedoms too numerous to list would be subject to judicial approval across the entire “nation,” a principle the Framers would have deemed repugnant.

As I have previously stated, the War for American Independence was fought to secure the natural right to be governed by a system to which the people have consented. Thanks to years of indoctrination, the people and the states continue to defer to a system in which our fundamental, God-given, natural rights (not “Constitutional rights”) are determined, qualified, and restricted by a national government which no longer cares about the consent of the governed. We have come full circle, back to a system of Parliamentary Sovereignty; we have surrendered our revolutionary legacy.

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