This past March I wrote about the argument in the two Ten Commandments cases that the Supreme Court decided yesterday. Here is what I wrote:
Today the Supreme Court heard oral argument in the Kentucky and Texas Ten Commandments cases: “High court debates commandments displays.” I think you can probably guess for which side the protestors pictured outside the Court today in the photo below are rooting.
The issue involved in the resolution of these cases is not unlike the issue involved in last year’s Newdow case. That case raised the question of the constitutionality of the recitation of the pledge in the public school setting. The Ninth Circuit’s Newdow decison held the recitation of the pledge unconstitutional. Last June the Supreme Court dodged a decision on the merits of the case by ruling that Mr. Newdow lacked standing to bring it.
As I read the Ninth Circuit’s decision, it fairly describes the Supreme Court’s modern (post-1947) establishment clause jurisprudence and reasonably concludes that, under that jurisprudence, the public recitation of the pledge is unconstitutional under the circumstances of that case. The Ninth Circuit’s decision is the reductio ad absurdum of the jurisprudence, but the absurdity resides in the jurisprudence rather than in the Ninth Circuit’s application of it.
It is difficult to highlight the absurdity of the modern Supreme Court case law interpreting the establishment clause. Unlike every other country in the history of the world, the United States is founded on the basis of a creed rather than on tribal or blood lines. The creed is expressed with inspired concision in the words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happines. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”
But does the Declaration have any legal status such that these words can truly be deemed to state the American creed? It does, although virtually no one seems to know it. In 1878 Congress enacted a revised version of the United States Code that included a new first section entitled “The Organic Laws of the United States.” The story behind the 1878 revision of the Code is told in the introduction to political scientist Richard Cox’s valuable book Four Pillars of Constitutionalism: The Organic Laws of the United States. (Cox credits the idea for the book to Professor Harry Jaffa, Distinguished Fellow of the Claremont Institute.)
The Code is Congress’s official compilation of federal law; the organic laws of the United States are the country’s foundational laws. First and foremost of the four organic laws of the United States is the Declaration of Independence. Following the Declaration among the organic laws are the Articles of Confederation, the Constitution, and the Northwest Ordinance of 1787. Why was the Northwest Ordinance included among the organic laws of the United State? That, gentle readers, is the subject for another day.
The Declaration is therefore the first of the founding laws of the United States and those immortal words quoted earlier indeed legally constitute our country’s creed, the creed that recognizes the source (Nature and Nature’s God) of our rights. The pledge concisely restates the American creed, whose avowal in school the courts now hold to be unconstitutional.
Would it be constitutional to substitute a daily recitation of the quoted language from the Declaration in place of the pledge? (See Ben Boychuk’s “Declaration recitation?”) Perhaps the Ninth Circuit decision holding the recitation of the pledge unconstitutional is not the terminal absurdity of the Supreme Court’s establishment clause jurisprudence. We may have new depths of absurdity yet to be plumbed.