Good Thing It Wasn't A Burning Bush

New at Reason: Cathy Young's smashes Judge Roy Moore's Tables of the Law.

Comments

[Neb Okla]

I keep thinking about how entertaining it would have been if they allowed David Copperfield to remove the monument by way of magic (witchcraft!).

Pen and Teller proably would have done a good job also.

[Matt]

Good article, but one quip. Somewhere in there Ms. Young mentions a state ban on the establishment of religion. There is no such ban. The Constitution calls for a ban on a congressional establishment of religion. It doesn't say anything about Justices or even the President.

[joe]

Matt, does that mean the government can quarter troops in my commercial property? It is not, strictly speaking, my home.

Point: anal retentive textualism is growing increasingly silly.

[Steven]

It's time that we stopped taking everything the Constitution says at complete face value and look at the Founder's intent. Would the Founders guarantee rights through the Bill of Rights, only to unguarantee them by saying that "the state can do what it wants"? Of course not. The Bill of Rights is individualistic, and while it didn't explicitly reign in the states, the Fourteenth Amendment certainly does.

[joe]

Actually, Steven, the 14th doesn't "explicitly" reign in the states, either. In order to conclude that it does, you have to 1) think, and 2) believe the Constitution is a collection of principles, not a cook book.

[tim]

Neb Okla, that's the first thing that's made me laugh this week.

[matt]

I don't think the founders were all that concerned with the states (the first amendment says "congress" not "state legislatures"), since in a republic people can always vote with their feet if a state becomes too restrictive of liberty. Thus, there would be an incentive for states not to abuse their citizens. What they were concerned with was limiting federal power since it is much harder to escape much less control. The feds may giveth in this case, but once you give them that power they can just as easily taketh away.

[Jean Bart]

joe,

If it doesn't explictly reign in the states, how do you explain this?

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." - 14th Amendment, ? 1

"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." - 14th Amendment, ? 5

Sounds fairly explicit to me.

Furthermore the 13th Amendment also implictly reigns in the states, with the following language.

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." - 13th Amendment, ? 1

[thoreau]

OK, here's what it comes down to:

Whether or not the First Amendment now applies to the states depends on how you interpret the 14th. That's a huge issue that we could (and do) debate ad nauseum in a wide range of topics. The only thing I'll observe is that it's strange how many libertarians ardently resist forcing the states to abide by the Bill of Rights.

If, for the sake of argument, the 1st applies to the states because of the 14th, there's a question of whether or not Moore's actions would constitute an establishment of religion. Cathy Young makes a pretty good argument there.

Here's another way of thinking:

So, Moore puts his version of the 10 Commandments in a courthouse (apply the caveat that the issue would be completely different if the Commandments were displayed in the context of an exhibit of famous legal codes, including Magna Carta, Hammurabi, etc.). Then the Catholics want their version (different Biblical translation). To avoid favoring one religion (i.e. an establishment of religion) it gets put in. Then the Jews want the Talmud in the courthouse rotunda. Then the Muslims want a display of the Koran in the rotunda. Then the Buddhists want something in the rotunda. Ditto the Hindus. Soon the Wiccans jump on board, the Jedi join up (yep, there's a bunch of people who have declared Jedi to be their religion), the Satanists want to display "Thou Shalt Kill", and every other religion imaginable is demanding space in the courthouse rotunda.

There's only two possible ways to proceed: Either we let every imaginable group put something in there (to avoid any favoritism or "establishment"), or we say "Um, this is a courthouse, not a church. Put your Commandments and Talmuds and Korans and lightsabers in your own churches."

[David2]

Well said.

[martin]

"Until a recent Supreme Court ruling, a college could refuse to fund student publications with religious themes."

Ms. Young,
While denying funds can indeed serve as a vehicle for silencing a religious viewpoint, it also allows schools to deny financial support to activist proselytizers. It no more pleases me to see some of my money used to spread any religion as I like it to be used to fund partisan politics.
As always, if every side were reasonable and tolerant, there would be no need for nitpicking rules and the courts could spend their time on other matters.

[jeff]

The establishment clause is clearly targeted at restricting "congress" and leaves those powers not granted to congress to the individual states. Therefore - there's nothing in the U.S. Constitution stopping a State from establishing a religion - in fact - the Constitution forbids the Feds from stopping a state on such matters. Remember folks - the constitution is about limiting Federal powers - not expanding them.

All this notwithstanding - The real question that has not been asked - nor aswered by anyone - Why should government be in the god business at all?

[Jean Bart]

jeff,

You are forgetting the 14th Amendment. It quite clearly limits the powers of the states.

[Jean Bart]

"Almost as bewildering is the argument that the Ten Commandments are the foundation of American law. In fact, only three of the commandments prohibit actual criminal behavior (murder, theft, and bearing false witness); four if you include adultery, which is still technically a criminal offense in some states. "Honor thy father and thy mother" is a fine principle, but is not written into law; nor do we throw people in jail for making graven images or for taking the Lord's name in vain, though who knows what would happen if Moore had his way. If we really want to honor a historical document from which our laws are to some extent derived, try the Magna Carta."

Well, Cathy Young is wrong here. Nearly every colony/state had in the 18th century had laws which mirrored the ten commandments; these only slowly started coming off the books in the 19th century. Certainly the influence of the Enlightenment, etc. on American law shouldn't be de-emphasized, but the ten commandments were an important inspiration for American law. That much of them are now no longer imbedded in the law codes of the American states is about as useful a criticism as saying that much of the rights in Magna Carta aren't in the same codes.

BTW, people should read the Magna Carta sometime, its full of all sorts of interesting rights, such as the right to refuse to pay interest on loans made by Jews if the person who takes out the loan dies. I find people tend to talk about the document without having a clue as to what is written in it.

[Anonymous]

Talk about people that don't have a clue as to what is written in a document. That is precisely the case with bible freaks. If they do know, then they ignore and simply pick and choose. Sure Roy Moore is a godly man. The OT is replete with godly utterances and commands to his flock. But when it suits his fancy, he is either unable or unwilling to keep those commands himself and with that people still praise and worship him. Good enough reason to never allow a state established religion.

[Marty]

Good point, Thoreau! Now that you put it that way, it's clear to see the "establishment" issue.

You oughta be on TV. (Seriously.) Or at least in a courtroom or a classroom.

[yoke carrier]

THE 14th AMENDMENT (in part)

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States."

Well, well! The IRS sure didn't waste any time jumping on that one, did they. (Except that the only "crime" we seem to be guilty of is the "crime" of earning an income.)

[joe]

You're right, JB. What I wrote was wrong. In my defense, it was also not what I intended to write, which as "The 14th Amendment does not explicity APPLY THE BILL OF RIGHTS TO THE STATES."

Sorry 'bout that.