The Truest Test for Vetting Supreme Court Nominees

One of the greatest blessings of my career was studying constitutional law under “God’s Lawyer,”* David Llewellyn, then Dean of Simon Greenleaf University which is now Trinity Law School. (*So designated on the cover of the California Bar Association’s magazine, California Lawyer, in the late 1990s.)

In one of my first classes with Dean Llewellyn I learned about the landmark case of Everson v Board of Education, which officially dethroned the God of the Bible in the United States and triggered the slow-motion implosion of our society and culture that continues to this very day. My ministry has ever since been shaped and directed by that knowledge.

Most politically-aware Christians know that the so-called culture war we’ve been steadily losing for over half a century began with the removal of prayer from the public schools in 1963. Very few realize that the legal basis for de-Christianizing our country, including the ban on school prayer, began with the Everson ruling. Our fight can never be won and American returned to its former greatness so long as Everson’s unconstitutional rejection of God’s authority over America is allowed to stand as the law of our land.

Fifty years before Everson, the Biblical foundations of American law were squarely addressed in a unanimous ruling of the U.S. Supreme Court in the case of Church of the Holy Trinity v. United States (1892). The proof of the Biblical roots of America’s legal system was so extensive that it took the court five full pages in the ruling just to summarize them, but can here be represented by the one sentence conclusion of the court: “These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that THIS IS A CHRISTIAN NATION” (Emphasis mine).

The following article makes that case

The Truest Test for Supreme Court Nominees

by Dr Scott Lively

President Elect Donald Trump earned the loyal support of Christian voters because of his promise to appoint only constitutional originalists to the Supreme Court. We stuck with him through one of the nastiest political smear campaigns in modern history and 81% of us turned out on election night to hand him the stunning victory that took the entire world by surprise.

It will soon be time for Mr. Trump to begin to keep his promise to us, and that means he should put forward nominees whose view of “original intent” go back to the actual origins of the republic and the Biblical worldview of the Founding Fathers. In other words, the most important case on which the Trump Administration must vet candidates for nomination to the U.S. Supreme Court is not Roe v Wade (1973), it is Roe’s juridical progenitor Everson v Board of Education (1947).

Everson is the case in which Franklin Roosevelt’s key ally on the court and former Klansman of the KKK, Justice Hugo Black, elevated Jefferson’s “Separation of Church and State” metaphor to the status of constitutional law, contradicting over a century and a half of court precedent recognizing America’s essential Judeo-Christian roots. That earth-shattering ruling, and the court’s failure to quickly rectify it, was the fruit of twenty years of absolute control of the United States government by the Democrat Party (from the election of FDR in 1932 until the election of Dwight D. Eisenhower in 1952). The Dems held the presidency and both houses of Congress that entire period except for two years of Republican congressional control under Democrat President Harry Truman.

All of the nine justices in the Everson decision were nominated by Democrat presidents (four by Roosevelt, three by Truman and one by Wilson), and all were Democrats themselves except Independent Felix Frankfurter (a founder of the ACLU), and the lone Republican, Harold Burton, a personal friend of Harry Truman from their days together in the U.S. Senate. Shamefully, all agreed with Black’s revisionist definition of the “Separation of Church and State” (though four dissented as to its application to the plaintiff’s case at issue).

In 1961, Black weaponized the Everson ruling in Torcaso v Watkins, which declared Atheism to be a religion equal to belief in God, empowering the hard left to expunge Christianity from public life as a violation of the Atheists’ new right to equal religious status under the constitution. In Engle v Vitale (1962), Black again took his axe to our Biblical roots, writing that a mere reference to “Almighty God” in a public school prayer rendered it illegal under his new radical interpretation of the Establishment Clause. Thus armed, the first wave of attack on Christianity by the armies of the political left eliminated all prayer from the public schools in 1963. Their campaign then rolled forward across the American cultural landscape like the Nazi blitzkrieg into Poland, systematically laying waste our marriage and family based social infrastructure and the highly evolved Bible-based moral and ethical consensus that once defined American exceptionalism.

Between 1947 and 1961, a battle to preserve America’s Biblical heritage raged in the other two branches of government. During Republican Dwight D. Eisenhower’s administration (1953-1961), the 84th Congress managed to place the national motto “In God We Trust” on our paper currency, and Eisenhower himself worked to strengthen the Biblical worldview through various initiatives of the Executive Branch. For example, the official 1957 guidelines for the U.S. Navy and Marines defined the Ten Commandments as “the codified moral law” to which every person is bound as the highest form of law (p.7). .

In comments he made in support of the American Legion’s “Back to God” campaign in 1955, which was broadcast nationally over radio, President Eisenhower stated “Without God, there could be no American form of Government, nor an American way of life. Recognition of the Supreme Being is the first–the most basic–expression of Americanism. Thus the Founding Fathers saw it, and thus, with God’s help, it will continue to be.”

In the 1980s, Ronald Reagan led another Christian counter-revolution, backed by the Republican-controlled Senate of the 97th Congress from 1981 to 1983 (the first Republican majority in either house since Eisenhower). Reagan declared the Year of the Bible in 1983, and presided over the largest build-up of Christian political strength in modern history. One of the surviving fruits of that season is the still vibrant pro-life movement with which Mr. Trump strongly allied himself in this election.

However, due to the Supreme Court’s unique role as arbiter of the meaning and legal requirements of the U.S. Constitution, the radical new paradigm of the Everson case, expanded and hardened in Torcaso and Engel, rendered such efforts in support of the Biblical worldview largely moot, while lending the weight of presumed constitutional law to anti-Christian agitators.

For example, Everson’s reasoning served as wind beneath the sails of then Texas Senator Lyndon Johnson’s 1954 amendment to the US Tax Code that forbade churches from advocating or opposing political candidates, the so-called Johnson Amendment that President-Elect Trump has vowed to repeal. It seems significant that just a few years earlier in 1948, Democrat Johnson’s presumptive senatorial victory was clouded by serious allegations of voter fraud until none other than Justice Hugo Black (himself a former Democrat Senator from Alabama), issued an order barring a federal district court in Texas from further investigation of that fraud, effectively sealing LBJ’s victory over former Texas Governor Coke Stevenson, a Republican. (Apparently some things never change.)

Everson’s anti-Christian premise is the foundation for every subsequent Supreme Court ruling contradicting the Biblical values of the Founding Fathers. This includes but is by no means limited to Roe v. Wade and each of sitting Justice Anthony Kennedy’s five cataclysmic opinions establishing “gay” cultural supremacy over Biblical values, the most recent being Obergefell v Hodges (the “Gay Marriage” case).

Pro-Christian Eisenhower may have appreciated the significance of Everson but made four of his five nominations for the court while Democrats controlled both houses of Congress (making it impossible to appoint constitutional originalists). The fifth (the first in order of nomination) was leftist California Governor Earl Warren – who dropped out of the Republican presidential primary against Eisenhower on the promise of a seat on the court. Thus, all five of the Eisenhower nominated justices concurred with Hugo Black in the Atheist-empowering Torcaso case.

President Reagan tried to restore a Biblically-minded court in the 80s, and his champion, Justice Antonin Scalia, quickly became the court’s conservative anchor man and most reliable defender of Biblical Christianity of the 20th Century. However, when Reagan attempted to put a second “Scalia” on the court, in the form of Robert Bork, the Democrat-controlled Senate led by Ted Kennedy launched all-out war against his nomination. The ensuing unprecedented campaign of slander and vitriol inspired the creation of the verb “Bork,” defined in as “to discredit a candidate for some position by savaging his or her career and beliefs.” In other words, Reagan’s heroic effort was thwarted by the Democrats. Greatly weakened, he was then forced into making the greatest mistake of his presidency in nominating Anthony Kennedy.

In contrast to both of these men, Donald Trump is assuming the presidency with the backing of a Republican House and Senate, a Democrat opposition in smoldering ruin, and an unprecedented mantle of authority in having overcome incredible odds against all expectations by following his own unique insights and strategy. He is the first conservative President since the Everson ruling with the actual political capital to restore America to its Biblical foundations.

Donald Trump could very well be the man to restore America’s constitutional heritage. If, as they say, “personnel is policy,” Mr. Trump’s cabinet and staff positions he has filled so far indicate that he intends to keep his campaign promises in whole or in large part, and that’s very encouraging. It therefore falls to the Christians in his circle of influence, and the masses of Christian voters who put him into office to remind our new president that “original intent” is the intent of the Founders, and that means Everson v Board of Education must be reversed.

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