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Monday, June 27, 2005
Why It All Matters
Ten Commandments | Posted by Noah Feldman at 10:17 PM
Ann Althouse points out that the actual symbols here are not inherently important--but that is always the case where symbols are concerned, and it was true of the creches in Lynch and Allegheny Cty, too. The reason today's cases are significant is that the Ten Commandments displays are symbols of a far deeper divide over the fundamental question whether religious values should inform public policy choices or rather should remain a private matter, irrelevant to the state's public decisions and the public reason that justifies it. This debate in turn sheds light on the core question of liberal consitutionalism, namely whether the state may or should promote a version of the good life even as it allows people to pursue their own choices. The Ten Commandments displays may be trivial or Cecil B. DeMille-inspired, but the two tablets, precisely because they are law (at least to some) are in fact a perfect metonymy for Law itself and its relation to religion.
The deep disagreement on the Court, reflected in the doctrine (if it can charitably be called that), is therefore not just a local embarrassment for those of us who care about the rule of law even in constitutional cases. The judicial divide reflects the national split.
I have more on this, but will hold it for an article in this Sunday's Times magazine and a book, Divided by God, that will be out next week.
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Professor Volokh writes "But that's what most lawmaking is -- trying to turn one's opinions on moral or pragmatic subjects into law." I think what many fail to understand, or even actively deny, is that an atheistic or othwerwise secular world view is fundamantally the same as a Christian world view in the sense that all world views rest upon unprovable assumptions.
Posted by: Ben Kennedy at June 28, 2005 08:56 AM
The difference between the two rulings is simple. In McCleary the govt acted in a positive fashion to erect the Ten to give respect for OUR Christian Heritage. In the texas case the Ten were volantarily given & erected. However! In my opinion, in both cases the govt had to act or agree. How does this not violate the First?
How does the admonition "Thou shall have no Gods before me" not violate the equal protection clause?Posted by: Chuck Zimmerman at June 28, 2005 09:33 AM
They actually voted for the ten commandments BEFORE they voted against it. They must have taken lessons from a senator of Ted Kennedy's state. The sums of the majority of justices seems to equal that of an idoit.
Posted by: jack willis at June 28, 2005 10:06 AM
I don't think there is really an argument over whether morality and personal religious choices can inform public policy decisions. The question isn't over whether someone makes a policy choice based partially on a moral sentiment, the question occurs when the personal morality that leads that individual to make a decision is espoused, given power, and enforced as the only reason to reach the policy result.
I believe that it is disingenuous to say the argument is whether morality should or should not inform policy decisions. The question is whether one morality is to be given power over other moralities and elevated by virtue of the government as the proper morality.Posted by: Joel at June 28, 2005 11:51 AM
Joel: Of course it can.
Many parts of the world believe in "honor killings" and vendettas. This is illegal in the United States. They believe honor killings are moral... we don't. Our law has elevated one view of morality above another. Many policy decisions stem from "morality." So what?
The "real" question as you put it is whether a law properly enacted by our republican (small R) government conflicts with rights guaranteed to individuals by the Constitution. It doesn't matter WHY our representatives made the law... they could be reading the Bible or pulling scrabble letters out of hat for all the Court should care. What matters is whether the final product is constitutional.
Posted by: Daniel Chapman at June 28, 2005 01:45 PM
Daniel, I said about the same thing. I reiterated that morality and personal choice factor into each individual's choices about what is or is not a proper policy.
While the scrabble letters may lead to a more intersting set of policy, you ask the same question that I do. At the end of the day is the policy that has been enacted constitutional such that it is free of governmental endorsement of a religion or moral view over others.
Posted by: Joel at June 28, 2005 03:10 PM
When is someone going to point out that the posting of the ten commandments is really an example of how every Sunday Christians break the Fourth Commandment (Hebrew/Protestant versions, Third Commandment to Catholics) to keep the Sabbath holy.
Christians don't keep the Sabbath holy. They found a loophole. So much for strict constructionists.
Posted by: David E. Ortman at June 28, 2005 03:27 PM