Supreme Court improperly amended the Missouri Constitution

On July 18, a column by Erwin Chemerinsky, "A troubling free exercise decision," strongly disagreed with the decision by the U.S. Supreme Court and agreeing with the state of Missouri in the Trinity Church case.

Trinity Lutheran Church of Columbia v. Comer, 2017 DJDAR 6222 (June 26), involved a program the state of Missouri conducted to enhance playground safety in Missouri schools. Trinity applied for funds to change its playground surface from gravel to tire rubber. Trinity was denied based upon the Missouri Constitution.

The Missouri Constitution states, in pertinent part, "no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church." That should have been the end of the matter. However, Trinity filed suit and cited the free exercise clause of the First Amendment to the U.S. Constitution. Both the district court and the 8th U.S. Circuit Court of Appeals ruled in favor of Missouri.

OK, this should have been the end of the case.

But, no. Trinity persisted and finally prevailed before the U.S. Supreme Court. Although I agree with the results of the case, and increased playground safety, I resent the Supreme Court's interference with the people of Missouri and their choice regarding this issue as expressed very clearly in the Missouri Constitution. The Supreme Court uprooted and rewrote the Missouri Constitution to suit the current court's agenda. In effect, the Supreme Court amended the Missouri Constitution by means unauthorized by the Missouri Constitution.

Mr. Chemerinsky cites with approval the dissent of Justices Sonia Sotomayor and Ruth Bader Ginsburg to the effect that this decision is contrary to the "framers desire to keep people from being taxed to support the religions of others." However, the "framers" said nothing about limiting Missouri's right to do so.

The Supreme Court cites the free exercise clause of the First Amendment to the U.S. Constitution as their authority to trample the state constitutional rights of the citizens of Missouri. Said clause states, "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." Hence, this clause prohibits Congress, not the states, from its terms. Hence, how is it that the state of Missouri is prohibited as well? Was the First Amendment itself amended? This is clearly not the case.

The Supreme Court, by ignoring the intent of the Founding Fathers, an apparent concern of Justices Sotomayor and Ginsburg, and ignoring the history and text of said amendment, simply willed it so in Hamilton v. Regents of University of California (1934), by declaring that the First Amendment applied to the states via the 14th Amendment due process clause previously enacted in 1868!

In Adamson v. California (1947), Justice Felix Frankfurter, in concurring opinion, referring to whether the 14th Amendment due process clause was intended to apply some or all of the Bill of Rights to the states, said: "It would be extraordinarily strange for a Constitution to convey such specific commands in such a roundabout and inexplicit way ... Those reading the English language with the meaning which it ordinarily conveys ... would hardly recognize the Fourteenth Amendment as a cover for the various explicit provisions of the first eight amendments ... [This] notion ... was rejected by the judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution."

As a result, the Supreme Court struggles with its reasoning as to why the state of Missouri cannot deny these children. Of course the reason for the struggle is that the First Amendment was never intended to apply to the states. The Founding Fathers intended the states to be free to deal with these and most other issues as the citizens of each state so decided.

Perhaps Mr. Chemerinsky would consider the advice of Founding Father No. 1, Thomas Jefferson, found in a letter to Nathaniel Macon in 1821, subsequent to the Marbury and McCulloch decisions. In Marbury v. Madison (1803), the Supreme Court granted power to the Supreme Court which the Constitution neither expressly nor by necessary implication authorized, i.e., the power to void acts of Congress.

In McCulloch v. Maryland (1819), the Supreme Court empowered Congress, beyond all authorized limits, by rewriting the 'necessary and proper" clause of Article I, section 8, to mean "convenient" or "appropriate."

Jefferson wrote: "[How] to check these unconstitutional invasions of ... rights by the Federal judiciary? Not by impeachment in the first instance, but by a strong protestation of both houses of Congress that such and such doctrines advanced by the Supreme Court are contrary to the Constitution; and if afterwards they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others and oppose their usurpations?"

Our Constitution has been properly amended via Article V, 27 times. It has been improperly amended approximately 400 times, i.e., by Supreme Court usurpations. I submit it's time to act on Jefferson's advice and impeach ... I suggest starting with the Obergefell majority.

The Supreme Court improperly amended the Missouri Constitution. The proper method is for the people of Missouri, should they choose to do so, to amend their own constitution by means permitted by their own constitution.