As Bruce Hetrick correctly points out in his [March 22] essay, “No Martha, the majority does not always rule,”
the majority doesn’t always get its way. The United States is a republic and not a “democracy” per se, which
is the reason for such seemingly arcane institutions as the Electoral College. However, he is incorrect in applying Ken Falk’s
logic that you can’t vote to violate someone’s Constitutional rights. Quite the contrary, it happens all of the
Liberal jurists since World War II have stopped interpreting the founders’ original intent and instead use the Constitution to justify “progressive” legal interpretations. There are numerous examples of this, including Roe vs. Wade. It is up to Congress to pass laws, not the courts to issue laws by fiat.
In the case of First Amendment rights, liberal jurists have built an impenetrable “wall of separation” through use of the “Establishment Clause.” It takes liberal interpretation of the text contained within the Constitution to conclude that this wall even exists. This has been done to the exclusion of the other, equally important part of the same First Amendment, which says that Congress can’t pass any laws which prohibit the free exercise of religion. It doesn’t say what religion, just that there can be no prohibition.
Liberal jurists and extreme left-wing judicial activist groups like the American Civil Liberties Union conveniently overlook the other side of the First Amendment religious argument. To my knowledge, Congress hasn’t passed any laws with respect to free exercise or the establishment of a state religion, which renders any argument about the constitutionality of a school prayer moot.
Hetrick and Falk are both wrong on this one.