states rights

Great Debates
21

Milum, are you arguing that:

a.) The Establishment Clause does not preclude governments to which it applies–originally Congress, now also the States–from erecting Ten Commandments monuments? Would the language “'Congress shall make no law respecting an establishment of religion” prevent Congress from setting up a Ten Commandments monument?

or

b.) That the Establishment Clause does not (the opinion of the Supreme Court of the United States to the contrary) apply to state governments? In other words, the U.S. Congress couldn’t do what Roy Moore did, but he can, because he’s not the U.S. Congress?

22

MEBuckner: Well, it’s written in the First Amendment’s Establishment Clause, which was made applicable to the states by the Fourteenth Amendment.
For example, see ---->*** Jones v. City of Opelika (1943)***

As you asked** MEBuckner**, I saw. But what I saw was a real
***ssttrreeeeeaaaaaccccccchhh *** of logic.
’
What does a hick town trying to deter a bunch of Jehovah’s Witness pamphleteers from annoying their citizens by requiring a weekly fee of $1.50 for house to house solicitation in 1943 have to do with a piece of granite sitting flat.

Next?

23

Yes.

Glad you feel that way, given that the particular piece of granite in question has a date with a federal bulldozer.

24

Two points:

  1. The “states rights” claim that apparently was argued to the Supreme Court of the United States in the Petition for Writ of Mandamus appears to assert that the federal court judge cannot constitutionally order the Alabama Supreme Court or the Alabama State Legislature to remove the monument, or coerce that action through the threat of fines. I can’t be sure of the legal basis argued, since I haven’t read the petition (which, I am certain, must make for interesting reading). Needless to say, the assertion that the federal courts are precluded from remedying unconstitutional acts by the sovereign states is unlikely to go far before the Supreme Court of the United States. Frankly, it seems more calculated to a) whip up a frenzy among the Chief Judge’s supporters and b) give one or more of the justices on the Supreme Court the chance to signal what legal arguments might actually produce a result in the Judge’s favor on appeal from the federal district court order.

  2. Clearly, there is no valid argument that the state of Alabama is allowed to engage in actions which, if done by the federal government, would constitute a violation of the First Amendment’s religion clauses. Cantwell v. Connecticut, 310 U.S. 296 (1940) incorporated the protections of the free exercise clause into the meaning of “liberty” as used in the Fourteenth Amendment, and Everson v. Board of Education, 330 U.S. 1 (1947) did the same for the protections derived from the “establishment” clause. If the placement of the “monument” in the Alabama Supreme Court’s building is deemed to be an act of government that “establishes” religion under the tests developed to apply the First Amendment to federal government actions, then Alabama has deprived the people of Alabama “liberty” without due process of law. This is a well-settled principle of federal constitutional law, whatever Judge Moore might think.

25

(Sorry Buckner I’m trying to keep up but I think slow.)

MEBuckner…
Milum, are you arguing that:[COLOR]

a.) The Establishment Clause does not preclude governments to which it applies–originally Congress, now also the States–from erecting Ten Commandments monuments? Would the language “'Congress shall make no law respecting an establishment of religion” prevent Congress from setting up a Ten Commandments monument?

Of course not. There are monuments as such there today.
[COLOR=green]_________or

b.) That the Establishment Clause does not (the opinion of the Supreme Court of the United States to the contrary) apply to state governments? In other words, the U.S. Congress couldn’t do what Roy Moore did, but he can, because he’s not the U.S. Congress?

Of course he can. Think a bit. Congress is restricted in its actions and so the unrestricted actions are left to the people and the states.

Of course all of these thoughts are dependent upon a Supreme Court that is composed of reasonable men.

26

I assume by “monuments as such” you mean Ten Commandments monuments, but where is “there”?

Congress is restricted in its actions by the Bill of Rights to protect the liberties of the citizens. The Fourteenth Amendment further restricts state governments, with the same goal of protecting the liberties of the citizens.

27

Would a sign outside the courthous saying “It’s too bad we lost that war, it was nice having those blacks enslaved” make any laws, etc? It’s just a sign.

That’s ridiculous. According to that logic, the third amendment prohibits soldiers from being quartered in a house without the owner’s permission, therefore there’s no problem with quartering civilians.

28

DSYoungEsq opines…*" If the placement of the “monument” in the Alabama Supreme Court’s building is deemed to be an act of government that “establishes” religion under the tests developed to apply the First Amendment to federal government actions, then Alabama has deprived the people of Alabama “liberty” without due process of law." *

Why sure thing** DSYoung**, if ol’ Roy’s silly monument is deemed by some silly federal court judges as the act of an attempt by the State of Alabama to establish a “state” religion, then Roy’s political ploy must then go. Judge Roy probably won’t care but I will.

Such a gross misuse of reasoning by men chosen to judge other men will make me afraid.

Afraid, and, as they say, very afraid.

29

**--------------------------------------------------------------
There are monuments as such there today. - milum

I assume by “monuments as such” you mean Ten Commandments monuments,
but where is “there”? - MEBuckner

“There”, for one, is the Archive Building in Washington DC.
The Ten Commandments are chiseled into the granite blocks
of the entranceway. - milum
---------------------------------------------------------------**

30

Milum, I’m afraid I don’t see your point.

I admit that to a certain extent, whether some Judge has a big ol’ religious plaque mounted somewhere on public property is small potatoes as offenses go – what matters is how he rules on the law.

But consider this: we live in a country founded on the rule of law. The highest court having jurisdiction has ruled that forcing something withj religious content or using taxpayer money to erect something with religious content is a violation of the First Amendment to the U.S. Constitution, as made applicable to the states by the Fourteenth Amendment.

Of all people, it would be incumbent on a judge to give due deference to the rule of law, regardless of what his own personal feelings might be.

This gets evn snarkier when you consider that that same court which ruled as specified above is also the body whose determination of a violation of the same Fourteenth Amendment is responsible for the fact that our current President is in office.

May I go over to The Republican’s attempt to resurrect dead horses for further abuse and suggest that my religious convictions prevent me from accepting the idea of GWB as President, and cite you as my authority?

31

Sure it does – haven’t you seen the hundred and thirty cites to Jones v. City of Opelika? You may indeed think that the case misreads the 14th Amendment, but that ship sailed over half a century ago. You can stand on a street corner railing that everyone but you and Roy Moore have forsaken the Constitution 'til you’re blue in the face, but nobody’s ever going to take you seriously. The question has been settled since before you were born.

–Cliffy, Esq.

32

Odd, I had thought that Islam considered the Ten Commandments to be as much from God as would any Christian or Jew, thus to be worthy of the appropriate respect.

33

I know full well that it is much more fun to argue about broad principles than about the specifics of the issue. However, this thread would feel a lot less like an argument that things would be better if the sun rose in the west if some of the participants would read the 11th Circuit decision that Moore, C.J., Alabama, is so exercised about. Just as you cannot effectively hold forth about the symbolism of Moby Dick without reading the book, you can’t talk about the First Amendment and the Establishment of Religion and state soverignty and Justice Moore’s shrine to the Law of Moses without reading the 11th Circuit decision. Here it is.

No one who has been paying attention to what is going on here can fairly contend that the 11th Circuit is an out-of-control court staffed with wild eyed radicals out to tear down all that is right and decent in the United States. Read the decision! Until the posters claiming that the decision is a misapplication of Constitutional principle affirm that they have read the decision, including the footnotes, it is fair to say that those people are just talking through their hats and are either in mad pursuit of an agenda or just looking to stir up trouble and controversy during the doldrums of August.

Justice Moore, incidentally, pretty clearly has an agenda: the elevation of his person to the Governorship of Alabama, if not something more impressive. Justice Moore has pretty clearly engineered this conflict and telegraphed what he was going to do when he ran for chief justice. Roy Moore has about as much to do with the free exercise of religion as Joe McCarthy had to do with Russian expansionism. Both have found a horse they could ride to power and prominence. Senator McCarthy rode his horse to death. Justice Moore is flogging his horse along at a pretty good clip. Both depend on impressing and frightening the credulous, the uninformed and the simple minded.

34

** Until the posters claiming that the decision is a misapplication of Constitutional principle affirm that they have read the decision, including the footnotes, it is fair to say that those people are just talking through their hats and are either in mad pursuit of an agenda or just looking to stir up trouble and controversy during the doldrums of August.** - Spavined Gelding

Oh really. We who are those people who you say are talking through their hats find your judgement silly and subservient.

What is it with you true believers is name-calling what you do best?

35

I’ll tell you what,Milum, you go read the decision and in the meantime I’ll go look for an adult who can carry on this discussion on a rational level in your absence.

36

Here is a pertinent quote from Spavined Gelding’s link:

This passage is followed by descriptions of two other cases that likewise establish precedent for the decision.

Now I have to ask: Have you read the decision? Care to discuss that instead?

37

Milum I am afraid I don’t quite follow your reasoning. No I follow it but it does not make a lot of sense to me.

You take a very literal interpretation of the First Amendment. According to your own reasoning there must be a law passed and it must be by Congress before there is a violation of the Establishment Clause.

Hence, a necessary inference of this reasoning would be Congress could conduct Christian prayer meetings in the Senate and House chambers, they could inscribe on the walls of the Senate and House Chambers declarations that Jesus is Lord and without him everybody is burning in hell, they could have bible studies in both chambers, and even conduct worship services on Wednesday nights and Sunday mornings in both chambers so long as they do not pass any law authorizing such activities. After all, the First Amendment says “Congress shall pass no law,” and so long as Congress does not pass any law authorizing these Christian functions to occur in both the Senate and House chambers then there isn’t a violation of the First Amendment.

Of course this literal interpretation is most likely one even the Framers themselves would balk at. The better interpretation is a reliance upon the phrase of “state action” rather than focusing solely on whether or not a law was passed. State action encompasses much more than just laws passed by the legislature.

However, a literal interpretation of the First Amendment is very impractical.

Finally the First Amendment is incorporated upon the states via the Due Process clause of the Fourteenth Amendment.

*School Dist. of Abington Tp., Pa. v. Schempp First, this Court has decisively settled that the First Amendment’s mandate that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ has been made wholly applicable to the States by the Fourteenth Amendment. Twenty-three years ago in **1568 Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), this Court, through Mr. Justice Roberts, said: ‘The fundamental concept of liberty embodied in that (Fourteenth) Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment *216 has rendered the legislatures of the states as incompetent as Congress to eanct such laws. * * *’ [FN8] *

**this Court has decisively settled that the First Amendment’s mandate that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ has been made wholly applicable to the States by the Fourteenth Amendment. **
*'The fundamental concept of liberty embodied in that (Fourteenth) Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment 216 has rendered the legislatures of the states as incompetent as Congress to eanct such laws.

Now relying on the legal rules articulated by the U.S. Supreme Court, and depending on which Justice you favor, one should deduce this to be a violation of the Establishment Clause. The Lemon test can be used but there has been over the years additional rules articulated by the Court and relied upon by the Court other than the Lemon factors regarding Establishment Clause issues.

The U.S. Supreme Court will look for a “purpose” or intention on behalf of the state actor. Next they will ask if the purpose or intention is a religious one. In this instance it is most certainly a religious one. The Honorable Chief Justice of Alabama has said: real question is whether or not I will deny the God that created us to preserve our rights as a state and nation to acknowledge God . His purpose or intention is a religious one in that he is using the displaying of the Ten Commandments to acknowledge the existence of God, that God created us, and the nation and state’s reliance upon this God. If this does not signify a religious motive or purpose, then I am clueless as to what will.

Normally this would be sufficient for the five Justices to vote in favor of finding a violation of the Establishment clause but strengthen their argument they may go one step further and assess whether or not the intention is sectarian, i.e. of or belonging to or favoring one religion over and to the exclusion of others.

In this instance the five Justices should not have a very difficult time finding the intention or purpose to be sectarian. Moore is displaying a document revered by two religions, Judaism and Christianity. He is referencing the Almighty God worshipped by Jews and Christians. He is doing so at the exclusion of all other religions and even declaring the Jewish and Christian Almighty God to be the God of all gods, our Creator, and foundation of all law.

Hence, this is a violation of the Establishment clause according to Establishment Clause jurisprudence articulated by the U.S. Supreme Court over the years.

38

Before I even discuss whether or not I think these granite blocks in the entranceway of a federal government building with the Ten Commandments chiseled into them are appropriate or not, I have to ask: What granite blocks?

I’ve heard a lot of these “but the Ten Commandments are inscribed in [some building in Washington, D.C.]!” arguments. Usually, the building cited is the Supreme Court, in which case I can say with confidence that it ain’t so. But maybe I’m wrong about this one.

Which “Archive Building in Washington, D.C.” are you talking about? This description of the National Archives Building at 700 Pennsylvania Avenue goes into a fair amount of detail about the Corinthian columns and the bronze doors and the assorted sculptures and pediments and medallions. I didn’t see any mention of the Ten Commandments, or anything like it–not even anything in that ballpark, actually–but maybe I missed it, or maybe you are talking about a different building.

So, got anything to back up this assertion?

39

Here are a couple of photos:

link

link

link

40

The closest thing I found were the depictions of Moses with the Ten Commandments on the east facade of the Supreme Court building, a depiction of the Commandment Tablets on the SCOTUS chamber doors, a portrait of Moses (sans Commandments) in the US Representatives’ chamber. Photos to be found at http://www.retakingamerica.com/great_america_godly_symbols_001.html
Yes, it’s a very one-sided and partisan site, but you’re free to travel to Washington, DC and check their claims, after all.