ONE NATION, NOT UNDER A GOD AND DIVISIBLE

June 23, 2011

Imagine high school administrators being threatened with jail if their students said any of the following words? “Prayer,” “stand,” “bow your heads,” or “amen”

Now  imagine a graduation ceremony in which the word “invocation” was replaced with “opening remarks” and “benediction” was replaced with “closing remarks”—by order of a federal judge? Or a judge declaring that such an order would be “enforced by incarceration or other sanctions for contempt of Court if not obeyed?”

This sounds like a scenario that might occur under a dictatorship, but it happened earlier this month in the Medina Valley Independent School District near San Antonio, Texas. It is just one recent example of how anti-religious many on the Left have become.

It is bad enough that NBC revealed its anti-religious bias by editing out “under God” from the Pledge of Allegiance last weekend.

It is bad enough that President Obama has skipped the phrase “our Creator” at least four times when citing the Declaration of Independence, even when the teleprompter read that we are “endowed by our Creator.”

At least neither NBC nor President Obama threatened to put anyone in jail. 

Federal District Judge Fred Biery issued the order to stop the school’s valedictorian from saying a prayer as part of her graduation speech. He did so in the name of the First Amendment, which is supposed to prevent government prohibitions of the free exercise of religion and protect the freedom of speech.

Judge Biery’s decision clearly is not about defending the Constitution. It is the anti-religious judicial thought police at work here in America. 

It is time for Americans who are fed up with this kind of repression by an anti-religious judiciary to act decisively.  Judge Biery’s decision is so outrageous that the American people should not accept his continued employment on the federal bench.

The Founders never intended for judges to have free reign to interpret the Constitution according to their own ideological purposes. In fact, Alexander Hamilton is quite clear in the Federalist No. 78 that judges who conduct themselves like Biery will have short tenures. 

“The judiciary,” Hamilton writes, “…will always be the least dangerous to the political rights of the Constitution, because it will be least in capacity to annoy or injure them.” Among the three co-equal branches of government (each of which is charged with interpreting and upholding the Constitution), he writes that the judiciary “can never attack with success either of the other two.”

Hamilton’s description of a judiciary subordinate in power to the president and the Congress is a long way from the modern doctrine of judicial supremacy, by which the judiciary has asserted itself as the supreme authority for Constitutional interpretation. 

By Hamilton’s standard, at least, Judge Biery has clearly failed to avoid the kind of offenses that should rightly provoke attacks by the legislative and executive branches.

In the Hamiltonian spirit, then, I would like to offer a simple solution to the problem.

President Thomas Jefferson—who, together with his Secretary of State James Madison, knew more than a little about the Constitution—had a solution for dealing with out-of-control federal judges: he abolished the judgeships of 18 out of 35 of them.

That’s right. In the Judiciary Act of 1802, Jefferson eliminated more than half the sitting federal judges.

As a first step toward reining in an out-of-control, anti-religious bigotry on the bench, let’s start with this modest suggestion: Judge Biery’s office should be abolished by Congress. He should go home.

The American people would be better off without a judge whose anti-religious extremism leads him to ban a high school valedictorian from saying even the word “prayer.”


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.