Cornered: The
Supreme Court's Ten Commandments
Problem
By Susan Shelley
Why won't the U.S. Supreme Court just take one of these
Ten Commandments cases and settle the issue of whether the First Amendment
does or doesn't allow these monuments on state property?
The Court has repeatedly ducked the issue, leaving
a regional hodgepodge of lower court rulings. The First Amendment's ban on
an establishment of religion currently forbids Ten Commandments displays
in Illinois, Wisconsin, Indiana, Alabama, Florida, Georgia, South Carolina
and Kentucky, but allows them in Colorado, Wyoming, Utah, Kansas, Oklahoma
and New Mexico. Last year, nine states joined in a friend-of-the-court brief
asking the Supreme Court to hear an Indiana case and finally clear up the
law. But the Court refused to intervene.
There's a reason the justices are hiding under the
bench. If they take one of these cases, they could be forced to explain to
the country exactly how the First Amendment came to apply to the states in
the first place.
It hasn't always been that way. For instance, in the
1900 case of Maxwell v. Dow, the Supreme Court said the first ten
amendments to the Constitution "were not intended to and did not have any
effect upon the powers of the respective states," adding, "This has been
many times decided."
One of those many times was the 1833 case of Barron
v. Baltimore, when Chief Justice John Marshall wrote that the Fifth Amendment
"is intended solely as a limitation on the exercise of power by the government
of the United States, and is not applicable to the legislation of the states."
If Congress had meant for the provisions of the Bill of Rights to bind the
states, the chief justice said, "they would have declared this purpose in
plain and intelligible language."
In fact, James Madison did tell the First Congress,
as it considered the amendments that would become the Bill of Rights, that
an amendment was needed to prohibit any state from denying "the equal rights
of conscience, or the freedom of the press, or trial by jury in criminal
cases." However, Madison's amendment was defeated in the Senate and never
became part of the Constitution.
Anyone who argues that the First Amendment was always
intended to apply to the states will have to explain this statement from
Thomas Jefferson in an 1804 letter to Abigail Adams: "While we deny that
Congress have a right to controul the freedom of the press, we have ever
asserted the rights of the states, and their exclusive right, to do so."
It's true that after the Civil War, the new Fourteenth
Amendment prohibited any state from denying any person due process of law.
But no one at the time thought that meant the states were subject to the
restrictions of the Bill of Rights. Even as late as 1922, the Supreme Court
said the Constitution "imposes upon the States no obligation to confer...the
right of free speech."
The First Amendment and the rest of the Bill of Rights
apply to state governments today because of something called the Incorporation
Doctrine, an interpretation of the Constitution that the U.S. Supreme Court
invented during the 20th century.
Beginning in 1925, the justices gradually incorporated
the provisions of the Bill of Rights into the Fourteenth Amendment's "due
process" clause by declaring that each of the rights was "fundamental" to
the conception of due process of law. The Court held, in landmark case after
landmark case, that a fundamental right could not be infringed by a state
unless there was a compelling reason--not merely a rational reason--to do
so.
That's how we ended up with Miranda rights, to take
one example. In 1966 the Court decided that the Fifth Amendment right against
self-incrimination was so fundamental that police must explain it to suspects
before questioning them. In other cases, the right of free speech was found
to be so fundamental that state laws against flag-burning, topless dancing
and panhandling could not be justified.
So here is the Supreme Court's Ten Commandments problem
in a nutshell: what fundamental right is at stake? The right to be free from
religious symbols on government property?
Declare that, and it's good-bye to the House and Senate
chaplains, to "In God We Trust" on the currency, to "under God" in the Pledge
of Allegiance, maybe even to White House Christmas trees.
To prevent that from happening, the Court would have
to find that the states have a "compelling reason" to display religious symbols
on public property, perhaps as part of their established power to regulate
matters of public morality. In some places, that might lead to an overwhelming
wave of religious influence on state law.
To prevent that from happening, the Court would
have to invent some complex balancing test to determine exactly how much
religious symbolism is permissible without infringing on the "fundamental
right" to be free from religious symbols.
Maybe the Court would allow just four or five Commandments.
If that sounds silly, see if you can find the language
in the Constitution that divides pregnancies into trimesters.
Whether any of the Supreme Court's rulings on "fundamental
rights" have been a good thing or a bad thing, the fact remains that before
the Court "incorporated" the Bill of Rights into the Fourteenth Amendment,
these were all matters for state voters, state elected officials and state
courts to determine for themselves, in accordance with the provisions of
their state constitutions.
The Tenth Amendment to the U.S. Constitution reads,
"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively,
or to the people." That plain language, approved by two-thirds of the House
and two-thirds of the Senate and ratified by three-quarters of the states,
has never been formally repealed. Yet the Supreme Court has effectively tossed
out the Tenth Amendment in favor of its own judicially-created "incorporation"
doctrine, which has never been publicly debated or approved by the people
of the United States.
No wonder the Supreme Court doesn't want to talk about
it.
September 6, 2003
© Copyright 2003 by Susan
Shelley
Source Notes:
States and current Ten Commandments rulings:
"Thou Shalt Not Rule on Appeal--High court won't hear 10 Commandments case";
Associated Press, February 26, 2002
Maxwell v. Dow, 176 U.S. 581 (1900),
at 586
Barron v. Baltimore,
32 U.S. 243, at 250 (1833).
Madison's amendment: Annals of Congress, vol.
1 (Washington D.C.: Gales & Seaton, 1834) pp.424-49
Jefferson's letter: September 11, 1804;
The letter can be viewed online in the Library of Congress manuscript collection
(the quote appears on page 2 of 3) at this URL:
Prudential Ins. Co. v. Cheek, 259 U.S.
530, at 538 (1922).
For a detailed history of the Incorporation
Doctrine including footnotes and a bibliography, please see "How the
First Amendment Came to Protect Topless Dancing" at this
URL:
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