Several readers wrote in response to the post below about Chief Justice Moore’s monumental display of the Ten Commandments. I recently had occasion to read the history of the establishment clause and the Supreme Court’s case law on the subject and have two comments.
First, modern establishment clause jurisprudence is entirely derivative of a 1947 Supreme Court decision that is so wide of the mark that it is painful. The reductio ad absurdum of this jurisprudence is the Ninth Circuit’s Newdow decision holding that recital of the pledge of allegiance in school constitutes the establishment of religion. Chief Justice Rehnquist’s dissent in the 1985 case of Wallace v. Jaffree sets out the true history and meaning of the establishment clause. The Supreme Court has simply gone off the rails on this issue, as on several others.
Second, one visible sign of the fact that the Supreme Court’s jurisprudence has gone off the rails on this subject is the fact (pointed out by a reader) that the Court itself has the Ten Commandments on display. Attorney General Pryor alludes to this in the Los Angeles Times story on the current situation in Alabama: “Defiance over the ten commandments.”
The story quotes Pryor as stating, “Although I believe the Ten Commandments are the cornerstone of our legal heritage and they can be displayed constitutionally as they are in the U.S. Supreme Court building, I will not violate or assist any person in the violation of this injunction.”
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
“Proclaim Liberty throughout All the land unto All the Inhabitants Thereof.” Inscription on the Liberty Bell