Are states' constitutions unconstitutional?

During the recess from Washington, our legislators have an opportunity to reflect a little, and it would not be time lost if they gave thought to a prayer amendment. There are several reasons to do this. One, the restoration of traditional authority for local schools; a second, the elucidation of a constitutional disfigurement done over the last generation by the Supreme Court; a third, to rebuke the Supreme Court for its fanatical misinterpretation of the First Amendment.

But the question suddenly arises, Is a constitutional amendment necessary? When questioned early in the year about what had gone into the Contract with America, Newt Gingrich admitted that thought had been given to the prayer amendment but that since it required a two-thirds majority, this was a challenge better put off until other problems had been coped with. The failure of the Balanced Budget Amendment (although by a single vote in the Senate) reminded us of the difficulty of amassing a two-thirds majority. It is therefore especially bracing to consider alternative means of accomplishing the same end, devised by the constitutional historian Harry Jaffa of the Claremont Institute.

He reasons as follows. Forty-seven of our fifty states explicitly invoke the name of God in their own Constitutions. They vary in phrasing, but they are nowhere sectarian. By this is meant that the 47 states in question nowhere cite God using denominational language. The President's home state of Arkansas, for instance, launches its constitution by saying, 'We the people of the State of Arkansas, grateful to Almighty God for our civil and religious liberty, and desiring to perpetuate its blessings . . .' In Maine, the people acknowledge 'with grateful hearts the goodness of the Sovereign Ruler of the Universe,' while from Colorado we have the relatively Spartan intelligence that the people, 'with profound reverence for the Supreme Ruler of the Universe,' nevertheless authorize the election of Pat Schroeder to Congress.

Suppose that a joint resolution of the Congress, requiring only simple majorities in both houses, were to declare that children in public schools might lawfully recite voluntary prayers employing only such acknowledgment of divine power and goodness as is present in their own state constitution, or in the constitution of any other state? The Supreme Court could go beyond fuming and raging over the ensuing resumption of prayer in the public schools only by pronouncing the constitutions of 47 states to be unconstitutional. It is a reasonable guess that the Court would want to stop short of any such declaration.

And bear in mind that the state constitutions have provisions equivalent to the 'no establishment' and 'free exercise' clauses of the First Amendment. California, for instance, ordains that 'Free exercise and enjoyment of religion without discrimination or preference are guaranteed. . . . The legislature shall make no law respecting an establishment of religion.' And we bear also in mind that every enabling act by the Congress for the admission of a state to the Union since the Civil War has had the following provision: 'The Constitution of [the state being admitted] shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.'

These are freighted words in two senses. As regards the religious-freedom clauses, we are reminded historically that the 13 states admitted to the Union since the Civil War were scrutinized by Congress, which in ratifying their constitutions affirmed that they were admissible under the U.S. Constitution. More, the invocation of the Declaration of Independence, as an instrument to which the constitution of the aspiring state must not be 'repugnant,' strengthens the viability of the Declaration, which of course speaks of the rights with which we have been 'endowed by [our] Creator.' Such rights are 'unalienable' because they are fixed eternally in 'the laws of nature and of nature's God.' It is always reassuring to know that some element more majestic than the God of legal positivism looks after and approves of our liberties.

So then it is up to Speaker Gingrich.