Uncle Psalm and the First Amendment

The US Supreme Court has been asked to judge whether a granite edition of the 10 Commandments should not be removed from public display on the grounds that the state is thereby discriminating against Muslims, Hindus and others. Meanwhile George W. Bush has said that he would like to nominate high court judges who share his own religious beliefs. Mister Thorne examines the issue

Last Wednesday, the U.S. Supreme Court heard the arguments in the case of Van Orden v. Perry. The plaintiff in the case is Thomas Van Orden, a down and out lawyer who has time on his hands. The defendant is Rick Perry, the very busy governor of Texas.

The dispute is about a large, granite edition of the Ten Commandments located on a walkway between the Texas State Capitol and the Texas Supreme Court. Van Orden says the monument should go; Perry says it should stay. Their arguments have been heard, and now it’s up to the court to decide if the monument violates the Establishment Clause of the First Amendment.

Van Orden claims the Ten Commandments are religious, both in origin and content. Displaying them on public property, and in such close proximity to where the state legislature and the state’s highest court do their business, violates the Establishment Clause. Why? Because it shows that the state prefers some religions (i.e., Judaism and Christianity) over others (e.g. Islam and Hinduism). Any reasonable person seeing this monument would come to that conclusion.

Perry doesn’t see it that way at all. Sure, the monument bears what is unquestionably a religious text, but that text has had an indisputable impact on our laws and our government, our history and our culture. The monument simply serves to acknowledge the “substantial contribution of the Ten Commandments to the development of Western civilization and legal codes.” It does not show a preference for some religions over others, and no reasonable person would come to that conclusion.

This begs the question: can reasonable people disagree? If one person says that the Ten Commandments are the very foundation of our laws and our system of government, and another says they’re not, is one of them being unreasonable? If the court’s decision in this case is less than unanimous, does that mean a Supreme Court justice is being unreasonable?

The author of The Declaration of Independence of the Thirteen Colonies wouldn’t agree that the Ten Commandments are at the foundation of our laws and our government. In fact, Thomas Jefferson criticized the notion that Christianity had any part in the foundations of our laws. In a letter he wrote to a friend in 1814, Jefferson made the argument that the common law of England – the basis of the laws of the colonies – could not possibly have been influenced by Christianity, much less the Ten Commandments. His argument? The common law existed in England for 200 years before Christianity arrived there. His conclusion? “Christianity neither is, nor ever was a part of the common law.”

Ten years later, in another letter to another friend concerning the same subject, Jefferson blamed activist judges for promoting the mistaken idea that there was a connection between Christianity and the law. In that letter, he wrote, “the common law existed while the Anglo-Saxons were yet Pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed.”

Joseph Story, a contemporary of Jefferson’s, and an associate justice of the Supreme Court, disagreed. When he learned of Jefferson’s letters, he criticized them. He wrote, “It appears to me inconceivable how any man can doubt that Christianity is part of the Common Law of England.” Years later, in a speech at Harvard University, he said, “There never has been a period in which the Common Law did not recognize Christianity as lying at its foundations.”

Was Jefferson being unreasonable, or was Story? Or does it even matter? The plain fact of the matter is this: so many of our judges agree with Story, and they believe it’s a fact that our laws are based on the Ten Commandments. Consider what some of those activist judges that Jefferson complained about have said in recent years:

In 1995, a federal appeals court ruled it was an “historical fact that the Ten Commandments served over time as the basis of our national law.”

In 2000, a federal appeals court ruled that the Ten Commandments have had an “indisputable influence on the development of secular law.”

In 2002, a federal appeals court ruled described “what any sober student of history knows:  for good or bad, right or wrong, the Ten Commandments did have an influence upon the development of United States law.”

Consider what Justice Rehnquist had to say about it in 1980 in a case about a Kentucky law that required the Ten Commandments to be posted in each and every public school classroom. The court ruled that the law violated the Establishment Clause, and Rehnquist dissented. He wrote that it can’t be denied: “the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World.” And in 2001, when the court decided not to hear a case about a granite edition of the Ten Commandments posted in front of a city’s municipal building, Justices Scalia and Thomas joined Chief Justice Rehnquist in an opinion which said it could not be denied: the Ten Commandments have contributed significantly to our laws.

What leads people to the conclusion that the Ten Commandments are the very foundation of our laws? Don’t they realize that the First Commandment is in direct conflict with the First Amendment?

What they claim is this: we have laws against murder; we have laws against theft; we used to have laws against blasphemy, against working on Sunday, and against adultery; we take an oath to God in court, and if we lie, we’re guilty. And so the correlation between our laws and God’s are undeniable.

In the next few years, President Bush may be able to nominate as many as three justices to the Supreme Court. The president’s made it clear that – Article VI of the Constitution not withstanding – he intends to nominate to the high court only those justices who share his religious beliefs; i.e., they must believe in God and that our rights come, not from some old scrap of paper, but from God. And that could have a profound impact on the court for many years.

The president is likely to nominate justices who tend to agree with the two Supreme Court justices he says he admires most: Clarence Thomas and Antonin Scalia.

In the Declaration of Independence, Jefferson wrote that government derives its authority from the consent of the governed. Scalia doesn’t see it that way. In a speech in 2002, he reminded his audience what it says in the Bible: the government is ordained by God. During arguments in Van Orden v. Perry, Scalia said that Jefferson was wrong. Our government doesn’t derive its authority from the consent of the governed. It “derives its authority from God.” And, he insisted, it’s a fact that “the foundation of our laws is God.”

Justice Scalia describes himself as an originalist; he doesn’t believe that the Constitution should be interpreted according to ‘evolving standards of decency’ or any other such nonsense. The Constitution means what it meant when it was adopted. Period. If it was constitutional to execute someone for stealing horses 200 years ago, then it’s constitutional now; and the age and mental capacity of the thief are irrelevant.

Justice Thomas is of like mind, and he’s quite clear about this when it comes to the Establishment Clause, which says “Congress shall make no law respecting an establishment of religion.” That clause doesn’t say anything about states not being able to make such laws. In fact, claims Thomas, applying the Establishment Clause against the states prohibits “precisely what the Establishment Clause was intended to protect.” And what, according to Justice Thomas, was the clause meant to protect? It was meant to protect state-established religions from federal interference.

That must come as welcome news to Christian Exodus, an organization whose goal is to take over South Carolina and, if necessary, start a 21^st Century civil war. The idea is to get conservative Christians to move to the state in waves. In the first wave, to be completed by September, 2006, the group hopes to take control of two counties. After that, subsequent waves will take control of other counties. If all goes according to plan, the organization will be able to make “constitutional reforms returning proper autonomy to the State by 2016 regardless of illegal edicts from Washington, D.C.” One of those reforms is to rewrite the state’s constitution to recognize “the Ten Commandments as the foundation of law.”

The group takes seriously the Tenth Amendment to the U.S. Constitution which it sees as allowing the states, and not the U.S. Supreme Court, to decide whether abortion is legal, whether homosexuals can be executed, and whether public school students can be required to recite the Lord’s Prayer or attend Bible study classes. And it dismisses the Fourteenth Amendment – the one that’s used to make states respect the Establishment Clause – as a fraud that was forced upon the southern states after the first civil war. According to the organization’s position statement, South Carolina has a right “to nullify this Amendment and all laws and court rulings arising from it.” And if the tyrannical federal government should interfere with that right, then the state will have no choice but to secede.

President Bush can do his part to make sure it doesn’t come to that. All he needs to do is appoint Supreme Court justices who share the views of Clarence Thomas and Antonin Scalia. South Carolina will be free to exercise the will of the people.

Note: This article was first published by JUST Response on March 7 2005. Mister Thorne is a mathematics editor in San Francisco.

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