In an irony of providential proportions, Alabama Supreme Court Chief Justice Roy Moore was removed from office on the same day the United States Court of Appeals for the Fifth Circuit upheld a granite display of the Ten Commandments on the grounds of the Texas Capitol. This ruling doesn’t help Justice Moore, however, because Fifth Circuit opinions are only binding in Texas, Louisiana, and Mississippi.
However, Americans are left to ask which court is correct: the Fifth Circuit or the Eleventh Circuit, the Atlanta-based federal appeals court that struck down Justice Moore’s display. In truth, both courts are splitting hairs and relying on the Supreme Court’s Establishment Clause jurisprudence that is fundamentally inconsistent with the original intent of the framers of the U.S. Constitution.
The differences between the cases are largely superficial. The Eleventh Circuit remarkably said size matters and, indeed, former Justice Moore’s 5,300 pound behemoth considerably outweighs the Texas tablet. Also, although there are secular historical displays throughout the Alabama state government complex, the Texas monument is more cozily ensconced with other non-religious, historical displays.
Additionally, the Texas monument is 42 years old, making it nominally more historical. Indeed, the Fifth Circuit suggested that it is only the age of the Texas monument and its proximity to secular historical symbols that save it from judicial desecration. Yet, the age of the two monuments ought to be an insignificant distinction because the test of whether the Ten Commandments is deeply ingrained in the fabric of our society should not be a particular display’s vintage, but the role that the Commandments in general have played in our history.
Moreover, if the federal courts were truly faithful to original language and intent of the Constitution, they would not be ruling on state Ten Commandments displays. The First Amendment declares, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The text is clear that only Congress, not state legislatures, is prohibited from making laws that relate to the establishment of a religion.
The historical record confirms that this was the intent of the framers and the state legislatures that ratified the Constitution in 1788. At the time, at least five states had state churches and 49 of the 50 states had religious tests for office.
William Gray, an Alabama attorney who served as legal adviser to former Alabama Governor Fob James, argued in a 1998 law review article that, if the understanding in 1788 was that the Establishment Clause applied to the states, there would have been much discussion during the ratification process about the effect of the Clause on these laws. However, there was no such debate because it was universally understood that the Establishment Clause constrained only Congress, thereby preventing the creation of a federal church.
In the 1925 case of Gitlow v. New York, the Supreme Court held for the first time that the First Amendment was “incorporated” against the states as a result of the post-Civil War constitutional amendments. While the 15th Amendment was properly construed as simply outlawing slavery, the Court used the broader language of the 14th Amendment to seize jurisdiction over state and local matters through the “incorporation doctrine.”
Since 1925, the Court has applied the majority of the Bill of Rights to the states through the 14th Amendment’s Due Process Clause, which prohibits states from “depriving any person of life, liberty, or property, without due process of law.” Interestingly, the Second Amendment, long the bane of liberal legal elites, has yet to be incorporated against the states.
The plain meaning of the phrase “due process” concerns procedure. Rather than imposing new substantive restrictions on the states, the purpose of the Due Process Clause was to guarantee that states uniformly followed their own procedures, such as trial by jury. Congress’ intent was to ensure that emancipated slaves would not be singled out for arbitrary treatment following the Civil War.
When the 14th Amendment was ratified, many states did not always use grand juries for felony indictments, a violation of the Bill of Rights. New Hampshire’s constitution at the time provided for public funding of Protestant teachers while North Carolina and Tennessee required public officeholders to take an oath of belief in God. If the Fourteenth Amendment had been thought to apply the Bill of Rights against the states, the conflict with these laws surely would have been debated.
Tragically, while federal courts today are parsing the history of individual Ten Commandments displays to divine hollow distinctions, they have lost sight of the bedrock history of the very Constitution they purport to be interpreting.
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