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Debate Club
DEBATE CLUB 6/27/05

Did the court get the establishment clause right?

Paul Finkelman and John C. Eastman debate.

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This March, the Supreme Court considered the question whether the Ten Commandments could be placed in courthouses and on the grounds of the Texas state capitol. On Monday, a divided court banned the commandments in the courthouse, but upheld—in six conflicting opinions—the Texas monument.

Did the court get the Establishment Clause right?


Paul Finkelman is Chapman Distinguished Professor of Law at the University of Tulsa. John C. Eastman is Professor of Law at Chapman University School of Law and the Director of the Center for Constitutional Jurisprudence.

Finkelman: 6/27/05, 03:43 PM
In McCreary the Court offered us a sensible rule: The states may not post a religious text inside a courthouse. In Van Orden the Court not only failed to get the establishment clause "right" but it failed to give the nation clear guidance for how to deal with future cases. The key to the case is Justice Breyer, who understands that the Ten Commandments does not belong on the courthouse lawn or in the courthouse, but then somehow found it ok to put it in front of the legislature. Breyer admits it is a "borderline case." He allows the monument to remain because of the circumstances where it is found—surrounded by other monuments (which it really is not) and not in any way "sacred."

He has set the stage for endless litigation. There are hundreds of these monuments around the country. Some stand alone, on courthouse lawns, isolated. Presumably those must come down under McCreary and because they do not fit the circumstances described by Breyer.

They were funded by Cecil B. DeMille—and put up by the Fraternal Order of the Eagles—to promote DeMille's movie, The Ten Commandments, a fact that Breyer ignores. They have no historical significance—unless they are seen as monuments to Hollywood.

They also contain a Lutheran Ten Commandments, which differs from other Protestant versions of the Ten Commandments, as well as Catholic and Jewish versions of the commandments. The Texas monument contains a King James translation of the original Hebrew, which differs from other Protestant as well as Catholic and Jewish translations of the Commandments. It is hard to imagine why Justice Breyer thinks it is permissible for Texas to decide that a Lutheran ordering of the Commandments, with a King James translation, is now the official Ten Commandments of the state. The irony of this decision is that Justice Breyer allows the monument in Texas because he says it is not sacred and not religious. We will now have hundreds of suits to decide what constitutes the sacred and the religious in this arena.

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Eastman: 6/28/05, 09:04 AM
I agree, Paul, on one point—the court's two decisions yesterday, and particularly Justice Breyer's outcome-determinative opinion in the Texas case, has set the stage for endless litigation. Unfortunately, it will be endless litigation trying to interpret an Establishment Clause that has lost any semblance of original meaning since the Supreme Court's erroneous decision in Everson v. Board of Education nearly 60 years ago.

In that case, the Supreme Court amended the Constitution by judicial fiat in two significant ways. First, rather than interpreting the Establishment Clause in accord with the 150-year-old original understanding, which barred the national government from coercive, sectarian establishments, the court held that the clause also prohibited preference for religion over non-religion.

Second, for the first time, and with absolutely no analysis, the court held that the Establishment Clause applied to the states as well as to Congress, based on its interpretation of the Fourteenth Amendment, enacted 80 years earlier without so much as a word on the subject. Under the court's new interpretation, the federal government, via the federal courts, was permitted to do the very things forbidden to it by the First Amendment, namely, interfere with how the states chose to utilize religion in the exercise of their power to foster the health, safety, welfare, and morals of the people.

These two judicial amendments set the stage for the past 60-year onslaught on all things religious in the public square. Taken to its logical conclusion, the court's current Establishment Clause jurisprudence would require us to excise "under God" from the Pledge of Allegiance, the idea that we are endowed with unalienable rights "by our Creator" from the Declaration of Independence, and the acknowledgements of "Almighty God" from the preambles of nearly every state constitution. Those religious references all stand alone, unadorned by other, secular symbols or phrases. Under the court's decision in McCreary, therefore, these things would all be unconstitutional if the justices applied their "rule" consistently. They won't, of course, and therein lies a big part of the problem with the court's current Establishment Clause jurisprudence. As Justices O'Connor, Kennedy, and Souter wrote in another controversial case, "Liberty finds no refuge in a jurisprudence of doubt." Neither does the law, yet unmitigated and endless doubt about what the court will permit and what it won't permit is what we are left with. Founders like George Washington, who wrote in his farewell address to the nation that "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle," must be turning over in their graves.

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Finkelman: 6/29/05, 09:13 AM
John, you would like to go to an "original understanding" of the First Amendment, but in fact there was none. Furthermore, it is hard to imagine why he would want to freeze the United States in the world of 1789 when the Bill of Rights was written; or in 1791 when adopted. Should we get rid of lethal injection and go back to slow strangulation with a slip knot (the hangman's noose was not invented yet) for executions? Should we have an original understanding of the rights of women? Of citizenship? Dred Scott v. Sandford was the most "originalist" decision in American history. Chief Justice Taney set out how the framers "intended" for the Constitution to protect slavery. Are we going to go back to that understanding?

But if we are going to use the "original intent" we must ask what it is. The nation begins with Declaration of Independence, which is very much a secular document. There are no references to the Bible or religion per se. Jefferson did not mention the Ten Commandments. At most there are vague references to some sort of supreme being that would not be the God of the Ten Commentments. The Commandments begin "I am the Lord your God"—the Declaration refers to "nature's God." Jefferson consciously avoided a reference to the God of the Bible. The Declaration of Independence includes references in the beginning to the "Laws of Nature and of Nature's God," a "Creator," and a reference in the end to "divine Providence," but these are non-biblical references. The primary author of the Declaration, Thomas Jefferson, was a deist, and his references to a supreme being are clearly not references to the God of the Bible. Rather, they are invocations of enlightenment notions of natural rights. As a Deist, Jefferson notes that some basic concepts—equality and the rights to "Life, Liberty, and the pursuit of Happiness"—are "self-evident" and are supported by "the Laws of Nature and of Nature's God." But, these are not references to the God of the Bible, or to a Christian God. Rather, they are to a more generic, non-sectarian, non-theistic, higher authority.

Equally as important, in the Declaration of Independence, Jefferson appeals to notions of popular sovereignty and self-determination. He asserts the right of the colonists to create their own nation through self-government. Jefferson does not invoke God's name, or even "Nature's God" to justify this. Nor does he claim that the new nation is formed on the basis of God's law or any biblical authority. Rather, he asserts, in language that becomes the basis of the American political structure, that "Governments are instituted among Men, deriving their just Powers from the consent of the governed." Jefferson reaffirms that governments are created by people—not by God or by kings with divine rights to rule—and thus "it is the Right of the People to alter or to abolish" a government if they wish. The Declaration is devoid of any references to biblical law or the Ten Commandments.

The declaration is central to the moral foundation of the United States. The assertions that "all men are created equal" and that they are entitled "Life, Liberty, and the Pursuit of Happiness" go to the heart of the moral and ethical foundation of American society and American law. Jefferson does not assert these moral truths based on the Bible, biblical law, or the Ten Commandments. Rather, they are, like the declaration itself, created by the will of the people. In essence, the moral foundation of American law becomes the right of the people to declare themselves independent and to assert their equality and their claim to self-government.

This is just one example. In the debates over the United States Constitution in the Philadelphia Convention of 1787 the Founders mentioned Roman law, European Continental law, British law, and various other legal systems, but no delegate ever mentioned the Ten Commandments or the Bible. Neither the Constitution nor the Bill of Rights include even a perfunctory or formalistic reference to God. Thus, if we look to an originalist understanding of the period, we find overwhelming evidence that the Founders understood that the safety of the Republic depended on the separation of church and state. They opposed state establishments, even though some states still had them. They opposed using state money to support any religion, and the certainly opposed the state prescribing religious texts. So, the Texas monument, which is a Lutheran text of the Ten Commandments, would fall under any serious originalist understanding of the Constitution.

If the founders are turning over in their graves, it is because they see (assuming the dead see) the Supreme Court allowing the states to establish religions just as the nation becomes increasingly religiously diverse.

Eastman: 6/29/05, 02:01 PM
I have to admit, Paul, that I am puzzled by your post. You first tell me that there was no original understanding of the First Amendment, but then you proceed to tell me just what the original understanding was. You state that we shouldn't be bound by the original understanding, but then want me to be bound by your peculiar notion of just what that original understanding was.

Let me address what I believe to be the more serious errors in your post, and then offer additional evidence in support of my position.

First, no one is proposing that we freeze the Constitution in 1787, or the Bill of Rights in 1791. No legislature in its right mind would reinstate hanging by slip knot (or tar and feathering, another popular method of punishment at the time), and if one did, I'm happy to concede that, in light of our better knowledge of human anatomy, such a method of execution would indeed be both cruel and unusual, in violation of the 8th Amendment. But I have not altered the meaning of the 8th Amendment to reach that conclusion.

I am also happy to challenge your contention that Chief Justice Taney's opinion was the most "originalist" decision in American history. The Constitution clearly protected slavery in the original states, but Taney's decision went much further, ignoring the claims of equality in the Declaration of Independence—claims that were codified as principle in two provisions of the Constitution, the Article IV guarantee of a republican form of government and protection of the privileges and immunities of citizens. These principles were incompatible with the slavery compromise, but in choosing whether to extend slavery into the territories, Taney elevated the compromise over the principle, and thereby undermined the original intent and hopes of our Founders.

And I cannot disagree more with your characterization of the Founders' views on religion or of their moral views more generally. You seem to ascribe to them all a 20th-century moral relativism. The notion that Jefferson believed that "moral truths" are "created by the will of the people" is really preposterous, and flatly inconsistent with Jefferson's claim that such truths are "self-evident"—knowable both by human reason (by which we access the "Laws of Nature") and revealed religion ("Nature's God"). You have fallen into the Calhounian fallacy, by which he was able to pervert the self-evident truths of the founding into a claim that the purpose of government was to protect whatever rights some people had managed to create for themselves, including the "right" to the slave labor of others. Jefferson does not "create" unalienable rights ex nihilo, but rather states that we are "endowed" with them "by our Creator." They are a necessary corollary to the self-evident proposition that we are all "created" equal, and from them flows another corollary—that the only legitimate government is one grounded in the consent of the governed, whose purpose is to secure those unalienable rights.

You are also wrong to assert that the Constitution lacks "even a perfunctory or formalistic reference to God." In the Veto Clause of Article I, Section 7, the Constitution specifically accommodates the religious views of the overwhelming majority of Americans at the time, by excluding "Sundays" from the calculation of days the President has to sign or veto a bill from Congress. This is in accord with the proscription in the Ten Commandments to "honor the Sabbath." The Oath Clause of Article II, section 1 requires a new President to "solemnly swear (or affirm)" that he will faithfully execute the Office of President. You know as well as I that the Oath the President swears is to God (and, almost uniformly, Presidents from George Washington on have taken the oath by placing their hand on a Christian bible). Even the "affirmation" option was designed to accommodate religion, for those (such as Quakers) who were "religious scrupulous" of swearing an oath at all. Finally, the authors of the Constitution close the document in Article VII by marking the date of the Constitution according to two historical events: the Independence of the United States in 1776, and "the Year of our Lord" one thousand seven hundred and Eighty seven. They did not mark the day by the founding of Rome, or the Magna Carta of British Law. Yet under your view of the Establishment Clause, these references—sometimes explicitly sectarian references—in the main body of the Constitution were all made unconstitutional just a few years later when the Bill of Rights was adopted. You may wish it to be so, but the Constitution also offers a way to modify the document to make it more to your liking—and it is spelled out in the Article V amendment process, not the Article III power of the courts.

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Finkelman: 7/1/05, 02:12 PM
John, you don't want my "notion of of what original understanding was." Rather, you would have us all accept your narrowly constructed history of the founding period that ignores all of the nuances and inconsistencies of history. You argue that Jefferson's use of "nature's God" in the Declaration somehow equates to the modern Christian use of "God" in the Ten Commandments. This ignores Jefferson's own religious views and the careful language of the Declaration. You would simplify the complex history of the period to reach your originalism. This is why originalism does not get very far. Those of us formally trained in history, who have spent years reading primary sources, immersing ourselves in the documents and letters of the age come away with an understanding that is imperfect and complex. Lawyers want a simplistic certainty about original intent.

Having said that, it is pretty clear that the framers and founding generation, whatever they believed, understood the importance of not establishing a particular sect or religion. But that is what these monuments do. To understand this, we need to look at the texts of the monuments and of the Ten Commandments.

There are at least four separate versions of the ordering of the Ten Commandments: Jewish, Catholic, Lutheran, and general Protestant. Furthermore, these faiths, as well as different denominations within these faiths, use different translations of the Commandments. The monuments that have been at issue in various cases have been distinctly sectarian, usually using either a traditional Protestant text and numbering systems. Furthermore, all of these faiths, and many denominations within these faiths, use different translations of the Bible when presenting the Ten Commandments. Thus, no monument can be "neutral" or "non-sectarian," because any ordering of the Commandments or translation of the original Hebrew text will reflect the position of one or more faiths and exclude that of other faiths.

The Ten Commandments are found in Chapter 20 of the Book of Exodus. They are later repeated (although not word-for-word) in Chapter 5 of Deuteronomy. Both monuments before the court relied on the text from
Exodus 20, but some denominations use the Deuteronomy text. Exodus 20 was, of course, originally written in Hebrew and thus any monument that presents the Ten Commandments in English relies on a translation. Thus, there is no such thing as a "neutral" or "non-sectarian" translation of this Biblical text. Indeed, even the numbering of the verses in the Commandments is subject to religious and theological dispute.

The problem of numbering the Commandments undermines any claim to "neutrality" in a Ten Commandments monument. This is true even if the
monument does not specifically show "numbers." The monument in Texas, for example, does not have numbers in front of each verse. These monuments do not have a numbering system, per se, but they do have ten lines that are set out by not being indented—what is known in word processing as "hanging indentations." The implication is that these are the Ten Commandments, while the lines that are indented are part of the previous "hanging indented" Commandment. The scheme followed by this monument follows exactly the numbering scheme of the Lutheran Catechism. Thus, this presentation of the Commandments is in fact an endorsement of Lutheran doctrine.

The point is that it is quite impossible to put up a Ten Commandments monument that does not endorse and establish one faith and in effect declare it the official faith or the official text of the state. In part the framers banned a religious test for office-holding in the main body of the Constitution—and they were quite explicit about this—because they understood that religious diversity within the nation would make such requirements both impossible and divisive. Ten Commandments monuments do the same thing. They endorse one faith and force others to feel like outsiders. This is especially true in a nation that is not frozen in time in 1791, but is a vibrant, changing nation, with an increasingly diverse population. With the possible exception of Hispanic Catholics (who do not, of course, accept the King James translations or the ordering of the Kentucky and Texas monuments), the fastest growing segment of Americans may be those who do not accept the Ten Commandments at all. Thus, when the government puts up these monuments it "establishes" a particular faith. The legislators in Kentucky intended to do this, as did Chief Justice Moore in Alabama, who at least had the honesty to admit at trial, "I put the Ten Commandments monument—you call it the 'Ten Commandments monument,' it's been called that so much, I refer to it as 'the monument'—reflecting the moral foundation of law. I put the monument in the building for the purpose of restoring the moral foundation of law. And to do that, one must recognize the source of those moral laws, which is God." The courts correctly told him to take the monument down; the Supreme Court correctly reached the same conclusion in the Kentucky case and sadly, failed to do this in the Texas case.

Eastman: 7/1/05, 05:56 PM
Most historians that I know have more faith in their craft than you apparently do (and, by the way, I resent the implication that I have not spent enough time immersed in the primary sources of the founding to weigh in on the subject; I have been studying those primary documents for more than 20 years, initially under the tutelage of some of the best scholars of the era, including Leonard Levy, a renowned historian of the founding period, and Harry Jaffa, the preeminent scholar of the political theory of the founders). There are clearly some questions that, at the margins, will continue to be indeterminate because of our imperfect knowledge of the history, but there are some things that are known with quite a degree of certainty. One example, critical to this debate, is that the First Amendment was deliberately not intended to eliminate state establishments of religion. As you well know, Massachusetts had an official church until the 1830s, and no one thought it unconstitutional. Another is that the proposed Blaine Amendment, which sought to extend the Establishment Clause to the states in the wake of the 14th Amendment, was defeated. Those who proposed that Amendment would undoubtedly not have gone to the trouble if the 14th Amendment had itself already made that clause applicable to the states. That did not happen until 80 years after the 14th Amendment was adopted, not by a subsequent amendment but by judicial fiat.

Another point for which there is little disagreement among historians is that an established church was a much more coercive thing in 1789 than what passes for "establishment" today. The ban on religious tests contained in the Constitution, which you reference, demonstrates just what they understood by "establishment." It was the ability of government to establish a national church, and demand fealty to it as a condition of voting, or holding office, etc. No such test could be imposed by the national government, but significantly, that prohibition does not apply to the states, even though the Oath Clause, immediately preceding it, applies equally to state and federal officers.

Given that clear original understanding of establishment, the fact that the legislatures of Kentucky and Texas displayed one or another sectarian version of the Ten Commandments is beside the point. No one demanded that citizens affirm their belief in the particular version displayed. This notion that we have a constitutional right not to be "offended" or even to look upon something with which we disagree is a judicially-created phenomenon grafted on to the Court's Establishment Clause jurisprudence and not applied in any other area of the law.

Finally, and I think most importantly, your argument about the sectarian nature of these particular monuments begs the larger question. Ever since the Supreme Court's 1947 decision in Everson, "sectarian preference" has included the acknowledgement of religion generally, over non-religion. That means that the references to "Creator" and "Divine Providence" in the Declaration of Independence, to "Almighty God" in most State constitutions, not to mention the reference to "our Lord" in the Constitution itself, are all unconstitutional "establishments" under the current jurisprudence, if faithfully applied. This is therefore more than simply a fight about whether we are going to continue to recognize that "we are a religious people," to use the truncated half of the passage from Zorach v. Clausen quoted by Justice O'Connor in her decision in the Kentucky case. Rather, it is a fight about whether we will continue to recognize that our "institutions presuppose a Supreme Being," to finish the quotation from Zorach. The very idea that we have rights that are unalienable and God-given, rather than rights that exist merely as a gift of government or king, is about as fundamental to our understanding of government, and of the principles on which legitimate
government is based, as we get. Decisions like McCreary crumble away at that foundational cornerstone; the question for us is how much crumbling of our principles can we tolerate before the whole edifice of this experiment in self-government comes tumbling down. Our Founders thought we could not long succeed without a moral citizenry, and the leading among them, President George Washington included, thought that it would be foolish to expect we could continue to foster a moral citizenry without the aid of religion.

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