Tuesday, July 05, 2005

Let's not be ridiculous
I agree with former Alabama Supreme Court judge Roy Moore when he says:

As Justice Thomas so appropriately noted, one may, and indeed must, question why the court cautiously avoids the words of the First Amendment. We need to restore the original definitions of "law," "establishment" and "religion" in the First Amendment. A monument or display could never be a "law," the mere posting or installation of it is not an "establishment," and the recognition of God by the public display of the Ten Commandments is not "religion." After all, the original definition of the word "religion"—the duties we owe to our Creator and the manner of discharging those duties—which was recognized by the Supreme Court years ago, acknowledged God and a higher law.

With these cases, it should be clear that, as Justice Antonin Scalia opined in his McCreary County dissent, "nothing stands behind the court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the court's own say-so."
I follow that. I agree with the idea that words should mean what they mean—and more than that, words should mean what they meant when they were written. I have problems with the idea that a "posting or installation of it is not an 'establishment,'" and I'm not entirely sure that recognition of a particular God by a public (government authorized) display of the Ten Commandments counts as anything less than religion. That being said, the text of the First Amendment reads, quite clearly, "Congress shall make no law respecting an establishment of religion..." Let's read that again: "Congress shall make no law respecting an establishment of religion..."

In other words, it doesn't matter if a display of the Ten Commandments is an establishment, or if the public display of them is "religion"—as long as Congress (and I'll even let you extend that to other legislative bodies) didn't pass a law respecting that display. So what does Moore suggest? Take a breath and read:
A remedy is available in the Constitution Restoration Act of 2005—pending in both houses of Congress as H.R.1070 and S.520—which would enjoin the federal courts and the Supreme Court, under Article III, Section 2 of the Constitution, from interfering with the right of public officials to acknowledge God, and prevent those courts from ruling by foreign law rather than the United States Constitution they are sworn to uphold.
That's right, Moore has decided that the First Amendment trumps the separation of powers, and wants Congress to direct the Supreme Court in its interpretation of the Constitution.

I am very bothered by the decisions the Court has handed down regarding the First Amendment—I am even more disturbed by the idea that people want to leave Constitutional interpretation up to the whims of an elected body. The reason Court appointments are for life is pretty simple: judicial decisions, particularly on Constitutional matters, should be divested from the changing moods of the public. These decisions are supposed to be sustainable, and if we allow Congress to make these decisions they never will be. There have been relatively few reversals of precedent in the history of the Court—a good thing—and passing these bills into law would change all of that. Every time the majority of Congress changes, there will be a rush to reverse every interpretation one side didn't like. Imagine the fight we're about to see over one court seat occurring every time a new Congress takes a seat—not a pretty thought.

One last place Moore goes off the rails as far as I'm concerned:
In McCreary County, the court ruled 5-4 that the display of the Ten Commandments was unconstitutional under the Lemon test because they found a "predominantly religious purpose," i.e., to acknowledge the one true God.
Moore is just as bad as the liberals who want to banish religion from the public sphere. I agreed with him that, when put in charge of the decorations in the Alabama courthouse, he had every right to put up a monument of the Ten Commandments. I don't care one way or another if they're there, but I think he was acting within his authority. On this issue, however, it's quite clear that he believes the (Judeo)Christian God is the only one out there, and that it is his right to display that monument because of that "fact."

It happens that, in my opinion, the original intent of the Constitution backs up his behavior, but that's not his logic. And that's an insult to all of the good jurists out there who are truly working to uphold that wonderful document rather than bend it to their own designs.

I hope you all had a happy Fourth of July. May God continue to bless America.

UPDATE [7/4/2005 - 0:26]: So much for an independent court

1 comment:

chris said...

I'm happy to have found a real originalist instead of just a party hack.

My question has nothing to do with Church/state. I'd really like to know what a reasonable originalist thinks of the 9th Amendment.

If the intent of the Framers was not to limit the rights to those enumerated in the Constitution, how is limiting individual rights to those listed in the Constitution consistent with the original intent of the Framers?