Culture: Stupid Judge Tricks

The Justices of the Supreme Court of the United States must believe they are paid by the nuance. How else can we explain the silly and contradictory recent rulings concerning the display of the Ten Commandments on government property?

The First Amendment to the Constitution is neither complex nor difficult to understand. The so-called “Establishment Clause” consists of 16 words, only seven with two or more syllables: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. The Fourteenth Amendment, ratified in 1868, extended these restrictions to the states. We might safely read these words as “Neither Congress nor any State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof”. The provision is still simple enough that even a federal judge or an ACLU lawyer should be able to understand it.

Accommodation is not establishment

George Will has briefly explained the history and original context of this clause. Will cites numerous examples of the facilities and institutions of the national government accommodating the free exercise of religion.

The [House of Representatives] Speaker’s chair served as a pulpit for Anglican, Presbyterian, Methodist and Quaker clergy. In 1813, a Massachusetts congressman reported that “two very Christian discourses” were “preached in the hall introductory to a contribution for the purpose of spreading a knowledge of the gospel in Asia.” Services were conducted in the old House, now Statuary Hall, until 1857.

Will notes that “The generation that wrote and ratified the First Amendment obviously thought that none of these practices … violated the Establishment Clause.” He then describes the increasingly foolish rulings that led the Court into the morass from which it failed to escape with these two rulings. But there is a tragic irony in this trail of bad decisions consistently made worse.

A self-imposed limit on the Supreme Court’s power

The Supreme Court is a massive contradiction. It has taken unto itself power that its creators never imagined. Through its own decisions and the lower-court rulings it has let stand, the Supreme Court has usurped the legislative power of both the national and the states’ governments. It has declared itself free to create new “rights” and to use them in overriding the clearly expressed will of the people and their legislatures. It has made itself the supreme law of the land, negating by its own arrogation of power the provisions of Article IV: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”

Yet this court, which has freed itself from the fetters of the Constitution, nonetheless often declares itself to be enslaved to a doctrine not found anywhere in the Constitution, the doctrine of stare decisis. This doctrine of blind obedience to previous decisions has produced a Court that usually considers itself helplessly entangled in decisions – good or bad – made by Justices long retired or dead. The Court found its way to these silly and contradictory rulings via the trail of stare decisis, of tinkering, replacing the Constitutional word “establishment” with its own word “endorsement”, and wandering, as they did in these cases, into the murky waters of “intent”.

Of course, self-imposed limits are no limits at all. The Court occasionally reverses itself. It seems that in these cases, at least five Justices found stare decisis a more appealing master than the Constitution.

Which religion is established?

Along the way, the Court (in Lemon v. Kurtzman – summary here) created the “Lemon test”. According to this “test”, three simple questions would lead the Court to a correct assessment of legislation under review. (1) The law must have a “a secular legislative purpose”; (2) its “primary effect must be one that neither advances or inhibits religion”; and (3) it must not “foster and excessive government entanglement with religion.” According to Chief Justice Burger’s opinion, the Lemon test is the product of “consideration of the cumulative criteria developed by the Court over many years” – stare decisis.

Unfortunately, it seems that over those many years, the Court never thought to ask “what religion is being established?” If it had, Burger might have added a fourth provision to the Lemon test: Does the law in question endorse, promote, or establish any particular religious sect, denomination, belief, or organization? We might ask, how can a law possibly encroach on the First Amendment if it doesn’t?

For example, the slogan “In God we trust” is far too generic to “establish” a religion. It is that generic “God” that the republic is “under” in the Pledge of Allegiance. Which religion do those two uses “establish”? Which religion does a display of the Ten Commandments “establish”? Judaism? Christianity? Islam? The Ten Commandments are foundational to all three, yet their beliefs – even about the God in whom we trust – are widely divergent. How could any act of government have the effect of simultaneously “establishing” both Judaism and Islam?

The answer, of course, is simple. It is only the bigots who wish to drive religion out of public life altogether – and the activist judges who find their misreading of the Constitution personally agreeable – who can believe such a thing possible.

This entry was posted on Friday, July 1st, 2005 at 9:00 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.