by Matt Barr

Make no law

Dahlia Lithwick has a terrific piece in Slate about the oral arguments in the Ten Commandments cases yesterday and the Court's efforts to "pick through the rubble of its Ten Commandments jurisprudence" (I'm pretty sure the subhead should have referred to Establishment Clause jurisprudence).

Is there anything at all secular about the Ten Commandments? Evidently, Mr. Justice Scalia doesn't think so, and good for him. I do recall arguments that inevitably and disinterestingly would bring up Hammurabi or Napoleon or somesuch, asserting that they were just as important to our heritage; to me, that would be like putting a statue of Yogi Berra (or Joe Pepitone, as the case may be) but not Babe Ruth outside Yankee Stadium, but I could be wrong.

Lemon tests and Endorsement tests and this test and that test: Why did we ever depart from the very obvious meaning of the First Amendment, which prohibits "mak[ing a] law respecting an establishment of religion"? A law has the force of, well, law behind it; the President could declare a national religion, but "all legislative powers [granted by the constitution are] vested in a Congress of the United States," so we could ignore him if we wanted to. Likewise, when you head-shakingly decide to apply the Establishment Clause to the states, you can decorate your courthouses provided there's been no law mandating the pattern, and provided, as would be the case, a law could be passed making you redecorate in a more secular manner, if that's what the People want you to do. Amendments II through VIII prohibit things across the board; the First Amendment prohibits laws against things. Why? No reason?

The always-humorous Edwin Chemerinsky argued, Lithwick recounts, that "government can't make some people feel like insiders and some like outsiders." Bingo. That's the key. Now, the First Amendment, as applied to the states, prohibits blows to non-Christians' self esteem. Our constitution is more like the European Union's constitution (random quote: "Everyone has the right to respect for his or her physical and mental integrity") than we thought. That ought to cheer Mr. Justice Kennedy.

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