The ‘Judges in Alabama Shall Hurt No One’s Feelings’ amendment

It’s times like these you wish the Supreme Court would use its super-secret decoder ring to discover a “right to privacy” in the Constitution that would keep the federal government from sticking its nose into how they decorate courthouses in Alabama, instead of a right to homosexual sex.

The federal court order requiring the removal of a monument dedicated to the Ten Commandments from the state courthouse in Alabama finds its authority in the Separation of Church and State Clause of the Constitution. Well, no, it doesn’t, because there is no such thing. Actually, it finds its authority in the Fourteenth Amendment, which Supreme Courts gone by decided applied parts of the Bill of Rights to the states (the parts necessary to achieve desired results in cases before Supreme Courts gone by).

A reading of the Fourteenth Amendment might seem to support this: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Bill of Rights (or parts of them) would seem to be among the privileges and immunities of American citizens. But, about five days after the Fourteenth Amendment was ratified, the Supreme Court found the Privileges and Immunities Clause to be essentially ineffective. (The desired result in that case did not require the clause’s application, and the Court got carried away.)

Instead, construing parts of the Bill of Rights as applicable to the states has been effected through the Due Process Clause: “nor shall any State deprive any person of life, liberty or property, without due process of law.” English-speakers among us might read that to say that states must apply uniform processes to everyone; if you provide a hearing to people who may lose their driver’s license, for example, you can’t arbitrarily take some individual’s driver’s license away without a hearing.

Instead, the Court decided that the Due Process Clause meant that states were bound by parts of the Bill of Rights in the same way the federal government is. So, that bit in the First Amendment, for instance, that references “Congress” applies also to the states as well. Hard to argue against that, even if, like me, you think that self-interested Americans can take care of such things in their state constitutions without the Supreme Court being such a busybody. The First Amendment is something of a bedrock principle of our Republic, and reasonable people don’t argue that its application to governments across the board is a bad thing.

The problem arises, as it so often does in evaluating Supreme Court jurisprudence, when English is your first language. “Congress shall make no law respecting an establishment of religion” enjoins Congress from (stay with me) making a law respecting an establishment of religion.

That’s right: The First Amendment does not prevent action on the part of the executive or judicial branches, by its plain meaning. You object (I hope) that it is not reasonable to expect that the President could declare a national religion on a technicality. He couldn’t. The legislative power of the United States is vested in a Congress. (It’s right there in the Constitution, somewhere between “We the People” and “Separation of Church and State” – specifically, Article I, Section 1.) The President can’t establish a religion by operation of law; he can say he’s doing it, but you can ignore him if you’d like.

So what would happen if, blasphemy of blasphemies, the United States Supreme Court decorated its courtroom with images of the Ten Commandments? Well, for one thing, it does, and so far as I know no one appearing before it has vaporized and been cast into godless limbo.

To hear the National Park Service describe the horrific scene: “Directly above the Bench are two central figures, depicting Majesty of the Law and Power of Government. Between them is a tableau of the Ten Commandments…. To the right of visitors is a procession of historical lawgivers of the pre-Christian era: Menes, Hammurabi, Moses, Solomon, Lycurgus, Solon, Draco, Confucius and Augustus…. To the left are historical lawyers of the Christian era: Napoleon, John Marshall, William Blackstone, Hugo Grotius, Saint Louis, King John, Charlemagne, Mohammed and Justinian.” (Can the National Park Service say “Christian era”?)

But ok, say Chief Justice Rehnquist went over the deep end and hung a great big crucifix behind the Justices in the Supreme Court courtroom. What recourse would hysterical atheists have? They get Congress to pass a law requiring its removal. No one ever said the world’s most ingenious system of checks and balances was a cakewalk.

Which brings us, the First Amendment applying as it does now to the states, to Alabama. The state of Alabama shall make no law respecting an establishment of religion. Great! I think we’re all set, because no such law has been made.

Of course, nothing is ever that simple. The Chief Justice of Alabama, who has made no law, has to right this very second remove his Ten Commandments monument, because the First Amendment doesn’t really mean “make no law,” it only says that.

We are reminded of the Ninth Circuit’s decision last year that the Pledge of Allegiance is unconstitutional, in that by allowing students to choose not to say it, it might make somebody who so chooses feel uncomfortable and conspicuous. We live in a time when the federal courts run around and make sure nobody’s feelings are hurt, in the name of the First Amendment. That’s precisely what’s going on in Alabama.