Concerns about “judicial overreach and activism” are nothing new. Thomas Jefferson warned about this shortly after the founding of our nation. Jefferson said that if the courts were left unchecked, they would ‘twist’ the Constitution like a mere thing of wax in their hands and shape it into any form that they wanted”.
Fast forward from 1800 to 2015 and you can see how prophetic he was. We see how rampant this type of overreach and activism is on the federal and state levels. One only needs to look at the recent decisions at the both federal and state supreme courts with the Affordable Health Care Act, same-sex marriage, and now here in Oklahoma … the Ten Commandments case. Judicial decisions are no longer based on existing law, but on political or personal considerations by the judiciary.
Look at the attempt by the court to remove the Ten Commandments from the Capitol. The court is not only wrong in its ruling but equally wrong in its application of the law to justify its decision. They use Article 2 section 5 of the Oklahoma Constitution in the Prescott case to defend their actions. The problem is they completely ignore any historical or contextual analysis in arriving at their decision. Looking just at “content” as the court did here, is not only inconsistent, but also a “lazy man’s” way of interpreting the law. It presupposes a political view with no consideration of precedent and how we got here.
If you use their reasoning … why not remove the Guardian on the dome of the Capitol or other monuments and artwork on state grounds? Don’t just stop there – why not remove the Statue of Liberty? If you are going to be so antithetical and revisionist in application of our history and laws, does any monument really stand a chance?
That’s why states all across the country are considering striking down these types of laws. Kyle Duncan of the Fordham Law Review writes, ”These so-called ‘State Blaines’ violate the religious nonpersecution spelled out in the First Amendment.”
The local “talking heads” in the media don’t explain the whole story to you – the “discriminating voter” – as to what the Blaine Amendment was meant to do and why it is so inappropriately used by the court.
Here is some historical context they don’t give you. President U.S. Grant, and specifically Speaker of the House James Blaine, pushed this amendment in 1875 to stop direct government aid (public taxpayer money) from going to Catholic parochial schools in immigration centers like New York City. The amendment failed at the time but has been “twisted” today like that piece of wax Jefferson describes into our Oklahoma Constitution to prevent the free exercise of religious liberty.
Is it any wonder legislators are looking to change this law?
To the “talking heads” in the local media, here’s a news flash – “The monument is just a passive display that commemorates and honors the place that the Ten Commandments has in developing our moral and civil law”… period.
And here is another headline for these folks – it was paid for with no public taxpayer dollars but with private funding. That is why the Oklahoma Attorney General has filed a petition with the Oklahoma Supreme Court to reverse its decision. Just like the Obergefell 5-4 decision on traditional marriage at the federal level, the state court is overstepping its constitutional boundaries here and engaging in judicial activism.
Here’s another headline for the local news – Laws are made by the Legislature who are directly responsible to the people of this state, not to a judicial body who are appointed and certainly not to those in the media who are not responsible to anyone for their reckless opinions and reporting of the facts.
It was my sincere hope that the Oklahoma Supreme Court would reverse its decision before the Legislature has to take action but they did not. That same Thomas Jefferson also said, “Sometimes it takes time to persuade men what is even for their own good.”
That’s pretty much the case here.