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What Laws and Rulings Mean
08/28/2003

I didn't mean for this Ten Commandments controversy to become my issue of the week, but the more arguments that I come across — particularly because many of them come from conservatives — the more I'm convinced that certain components of "common knowledge" are just plain wrong.

As a disclaimer, I want to mention that I am not really addressing Judge Moore's intransigence. I don't know enough about him to judge, but based on the little that I do know in relation to current events, I'd say that he would behave somewhat differently were his stance even equal parts principle and publicity-seeking. I also want to state for the record that I think approaching the Ten Commandments monument and its removal with more zeal than is appropriate for a representation is inappropriate. What I mean by this is that this specific monument ought not be seen as the crux of the battle, but merely as a symbol of religious expression based on which Christians (and other religious folks) can fight the ever-increasing infringement of the courts into our religious freedom.

What's introduced something new for me is that, today, Rush Limbaugh quoted the following from a column by Gregg Easterbrook:

Moore further said that the First Amendment precept, "Congress shall make no law respecting the establishment of religion," does not apply to him because "I am not Congress." Drag this incompetent lunatic out of the court quickly, please. Anyone with entry-level knowledge of Constitutional law knows that the 14th Amendment, ratified in 1868, was intended to extend the Bill of Rights to state governments; that a 1937 Supreme Court decision specifically declared that the First Amendment binds state officials like Judge Moore.

Of course, included in this is evidence that Moore is perhaps not the best person to be taking up his side of the argument, or else Easterbrook has been selective in his quoting. Ignoring that aspect, however, I find those facts that "anyone with entry-level knowledge of Constitutional law" knows to be questionable at best. The relevant clauses of the 14th Amendment are:

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 the law; nor deny to any person within its jurisdiction the equal protection of the laws.

In a limited sense, this extends the Bill of Rights to the states, but even so, in the case at hand, Easterbrook's assertion presumes that the monument somehow abridges, deprives, or denies something to a citizen of Alabama. I don't see that as the case. If anything, the federal government is abridging the right of the people of Alabama to place religious monuments on state-owned land. Furthermore, the Alan Keyes piece that I mentioned yesterday argues that Moore's complying with the federal court order to remove the monument would have essentially violated his obligation, derived from this very amendment, not to "enforce any law" that restricts the religious freedom of Alabamans.

As for the 1937 Supreme Court decision that Easterbrook suggests "binds" Judge Moore, I presume he means De Jonge v. Oregon. Not surprisingly, that court case deals with a different clause of the First Amendment: freedom of speech and assembly. Nonetheless, the following aspect of the decision applies more broadly:

The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions, -- principles which the Fourteenth Amendment embodies in the general terms of its due process clause.

In other words, the fact that the language of the amendment is "Congress shall" does not automatically mean that a law somewhere else that says "Judge Moore shall" is invalid. However, this case involved a wrongly denied right to free assembly — "wrongly" because there was no due process, which is the specific clause of the 14th amendment that this ruling cites as the "elsewhere." The judiciary of Alabama did not "deprive any person of life, liberty, or property" by the placement of the monument, so there is no process that is due. Indeed, De Jonge v. Oregon leaves open the possibility of a legislature answering the "due process" requirement by enacting laws, and the Alabama legislature amended its constitution (#622) in 1901 to include the statement, "Federal and state laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise."

Now, if only I could get one of these professional pundits to argue the point with me! (Rush would be good enough.)

Posted by Justin Katz @ 09:41 PM EST