NOTE FROM THE PUBLISHER: High and Outside
Regnery, Alfred S.
NOTE FROM THE PUBLISHER High and Outside BY ALFRED S. REGNERY HOW ABOUT THIS FOR IRONY? The Supreme Court decides two cases, both involving whether the Constitution permits...
...If Mr...
...And many more...
...Justice Black's language and reinterpreted it, and then again reinterpreted the new language, until the Court can conclude, as it first did in 1968 and again in the Kentucky case, that "the First Amendment mandates governmental neutrality between...
...Of course, that has little bearing to what the First Amendment actually says, or was intended to mean, but it does allow Justice Stephen Breyer, the decidingvote in each case, to take two separate but quite similar situations and arrive at two different conclusions...
...and convolute it so that it can justify issuing these two contradictory opinions...
...But the Supremes have been very good, over the years, at finding wiggle room in the framers' language to justify what they want to do—which is exactly the reason "strict constructionists" have become such a desired commodity...
...So the court issues two 5-4 opinions on the same day which, for all intents and purposes, disagree with each other...
...religion and nonreligion...
...All are, apparently, constitutional...
...Establishment of Religion" was a term regularly used in England and the colonies...
...The granite monument of the Decalogue on the Texas State House grounds is fine, but the framed copy on the wall of a Kentucky courthouse has to go...
...It was Hugo Black who originally 4 THE AMERICAN SPECTATOR OCTOBER 2005 broke down the door of the establishment clause in 1947 when he wrote: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church...
...So over the years one opinion after another has taken Mr...
...As Justice Scalia says, in his blistering dissent in the Kentucky case, "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...
...It meant simply an official church that occupied a privileged position with the state, was vested with certain powers denied to others, and was supported from the public treasury...
...Moses and the Ten Commandments...
...All the framers said is that Congress could not pass laws concerning such churches...
...Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion...
...The framers took great pains to write a concise and clear constitution which would not cause confusion in its interpretation...
...What could be a better indicator of the crisis that exists in our courts...
...A few hundreds yards away, in the Library of Congress, stands another...
...Four Justices think dis playing the Ten Commandments passes constitu tional muster, four think it does not, and one says it's OK outside, on the grounds of a state capitol, but not inside a courthouse...
...NOTE FROM THE PUBLISHER High and Outside BY ALFRED S. REGNERY OW ABOUT THIS FOR IRONY...
...Steve Presser wisely concludes that this case demonstrates that deciding cases based on the original intent of the framers would remove the machinations that the Justices must go through to get to the result that they want, and in the process make honest men and women out of them...
...Yet just yards away from where these decisions are announced, inside the United States Supreme Court, stands a monument of...
...The Supreme Court decides two cases, both involving whether the Constitution permits public facilities to exhibit the Ten Commandments...
...Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another...
...And there is a solution...
...And there is yet another in the National Archives...
...He very clearly explains how it came to be that the Supreme Court has been able to take a clause from the First Amendment to the Constitution that is so straightforward that it is difficult to see how it could generate argument ("Congress shall make no law respecting an establishment of religion...
...Alfred S. Regnery is publisher of The American Spectator...
...Steve Presser, a law professor from Northwestern with solid Federalist Society credentials, graces our pages for the first time this month, and rips into these decisions, providing a particularly valuable history lesson concerning the separation of church and state...
...Wouldn't that be a relief...
...Justice Breyer, who is otherwise quite a reasonable fellow, can put two cases through such mental gymnastics as to come up with the correct result in one case, and the wrong result in the other, imagine the damage that could be done—and is being done—in every other area before the Supreme Court...
...No great mystery there...
...Both liberals and conservatives have their judicial activists, and each can do as much harm to the Constitution and to judicial stability as the other—all of it done with the best of intentions and with very plausible explanations...
...For them or against them...
Vol. 38 • October 2005 • No. 8
