Monday, June 27, 2005
The Ten Commandments: I've taken the time to sit down and read the some of the dissents and opinions in the two split decisions on the Ten Commandments cases today affecting displays in Kentucky and Texas.
Like the Kelo decision last week, these two cases demonstrate how the Supreme Court makes decisions based not on the Constitution, but on their own personal whims.
The Court let stand a monument in Texas that had been placed there decades ago as part of one of Hollywood's first viral marketing schemes to promote Cecil B. DeMille's "The Ten Commandments." Because the monument in that case was of a historical/commercial origin, instead of a proselytizing/religious origin, the monument can stay. (All of which makes one wonder what Mel Gibson could do with promoting the placement of crosses on public land in connection with "The Passion of the Christ.")
The more I read Justice Antonin Scalia's opinions and Justice Clarence Thomas' opinions, the more I come to two conclusions: First, Sen. Harry Reid is a bigoted idiot; Second, that Thomas is much more willing than his conservative colleague to toss out flawed precedent.
There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.
Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court's current approach to such challenges. This Court's precedent elevates the trivial to the proverbial "federal case," by making benign signs and postings subject to challenge. Yet even as it does so, the Court's precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court's cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent's or the nonadherent's beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court's decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court's jurisprudence leaves courts, governments, and believers and nonbelievers alike confused--an observation that is hardly new.
This is the Basic Reading Comprehension theory of Constitutional interpretation. The First Amendment (if you don't have it memorized) reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
To twist just about any religious display on public land into an "establishment" of religion takes some skilled legal contortionists -- and the Supreme Court is by all means talented. I encourage you to read Scalia's dissent in the Kentucky case too, because he gives an excellent history lesson -- one the majority could surely use. Also take note of section IB of his dissent. Scalia does a skillful job of ripping Justice John Paul Stevens a new one.
Justice Stevens says that if one is serious about following the original understanding of the Establishment Clause, he must repudiate its incorporation into the Fourteenth Amendment, and hold that it does not apply against the States. See Van Orden, ante, at 24-26 (dissenting opinion). This is more smoke. Justice Stevens did not feel that way last Term, when he joined an opinion insisting upon the original meaning of the Confrontation Clause, but nonetheless applying it against the State of Washington. See Crawford v. Washington, 541 U. S. 36 (2004). The notion that incorporation empties the incorporated provisions of their original meaning has no support in either reason or precedent.
This I found amusing, because the Fourteenth Amendment was enacted decades after the First Amendment. Arguing that one must ignore the effect of a newer amendment on an older amendment in order to follow the "original understanding" is outrageous.
I find that I must concur with columnist John Podhoretz's succinct and thoughtful analysis of the majority in the Kentucky decision.
Has anybody ever advanced this radical opinion -- that the five justices in question may be intelligent and thoughtful people individually, but that together they form one blithering idiot?
I find that that opinion may find more traction after the Court's latest term.