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June 27, 2005
SCOTUS: Decalogue For We But Not For Thee

The Supreme Court released its long-awaited decision on the display of the Ten Commandments this morning, deciding on a narrow 5-4 majority to ignore the frieze behind themselves and rule such displays unconstitutional without diluting them with multicultural trappings. The dissent authored by Justice Scalia scorched the "dictatorship of a shifting Supreme Court majority" as a governing principle:

In a narrowly drawn ruling, the Supreme Court struck down Ten Commandments displays in courthouses Monday, holding that two exhibits in Kentucky crossed the line between separation of church and state because they promoted a religious message. ...

The justices voting on the prevailing side Monday left themselves legal wiggle room on this issue, however, saying that some displays like their own courtroom frieze would be permissible if they're portrayed neutrally in order to honor the nation's legal history.

But framed copies in two Kentucky courthouses went too far in endorsing religion, the court held. ...

In his dissent, Scalia blasted the majority for ignoring the rule of law to push their own personal policy preferences.

"What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle," Scalia wrote.

Unfortunately, this continues to demonstrate the problems with the entire notion of the "living Constitution", as each succeeding SCOTUS tries to wring new definitions of law in each generation. Each effort creates precedents which lead to even more radical readings, until the original intent of the text gets completely lost.

In this case, we now have the majority arguing that displays of the same text can either be constitutional or unconstitutional depending on the context of how they're arranged on the wall, one of the dippiest notions of legality that has yet come from the Court. The Ten Commandments do not change their characteristics when placed openly on display by themselves, or with Hammurabai's Code and The Prince by Machiavelli, all of which could have been said to have an effect on American jurisprudence to some degree. They're still the Ten Commandments, the same ones that sit behind SCOTUS justices whenever they hear their cases.

Despite the prevailing mood about faith, the First Amendment did not establish an absolute right for Americans to never have to encounter religion in the public square. Such an argument would have been laughed at by the founders of the Republic. All it meant was that the federal government could not establish an official religion, but instead had to ensure the rights of all to worship freely. That amendment had its basis on the brutal Catholic/Protestant wars fought by England that had torn the country to pieces over the previous two centuries. It never mandated that government could not use religious symbols in displays or even in its language, and such interpretations have numerous examples of their folly in the language of the Declaration of Independence and the Constitution itself.

Nevertheless, the SCOTUS decision to split the baby follows the recent precedents based on personal whim and lazy thought on which previous courts have relied. The only moderately amusing aspect of this decision is the exception the justices apparently have carved out for themselves.

UPDATE: The always-terrific John Podhoretz has this reaction to the 10 Commandments decision at The Corner:

Why didn't the Supremes just say you could display the 10 Cs on Monday, Wed, and alternate Fridays, but not on Tuesdays and Thursdays? Or that they could be viewed inside government buildings, but only on the walls of bathrooms and in janitors' closets? Has anybody ever advanced this radical opinion -- that the five justices in question may be intelligent and thoughtful people individually, but that together they form one blithering idiot?

The also-always-terrific Michelle Malkin has an excellent roundup of reactions. And The Duke has his take on it posted already at Pekin's Prattles.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at June 27, 2005 10:00 AM

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» Supremes: No Commandments at Courthouses. from The Buzz Blog
WASHINGTON - The Supreme Court, struggling with a vexing social issue, held Monday it was constitutionally permissible to display the Ten Commandments on the grounds of the Texas capitol but that it was a violation of separation of church and state to... [Read More]

Tracked on June 27, 2005 10:25 AM

» The Supreme Court Blows It Again from OldController
I'm not an historian, or a religious expert, or even fluent in Constitutional Law. But I do understand that the mere presence of something in a government building associated with a religion is not de facto a government endorsement of that religion. [Read More]

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I was wrong - in one case McCreary County v. ACLU of Kentucky, the court ruled in favor of the ACLU of displays of the Ten Commandments on the wall of courthouses in two Kentucky counties Yet in another decision involving a Ten Commandments statue on... [Read More]

Tracked on June 27, 2005 11:43 AM

» How to get around the SCOTUS ruling on the 10 commandments from Blind Mind's Eye
According to Reuters, it is now perfectly legal and constitutional to display the 10 commandments on a public property so long as they are part of a greater exhibit. All in all, this is a very fair court ruling and it will actually bring a little bit ... [Read More]

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» God Bless This Honorable Court from The Unalienable Right
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» Supreme Court Ten Commandments from Secure Liberty
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  Stephen M. Crampton, Chief Counsel American Family Association's Center for Law and Policy “The Court’s second-guessing of the hidden... [Read More]

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Tracked on July 6, 2005 3:05 AM

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