Special Report

Holy Moses

If the states at the Constitutional Convention in 1787 had seen David Souter's opinion of the First Amendment, they wouldn't have ratified it.

By 6.28.05

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Perhaps nothing illustrates this era of judicial lawlessness better than the Supreme Court's ruling yesterday that the Ten Commandments, unless they are somehow aesthetically muted and secularized, be chiseled off courthouses across the country. Lawless judges cannot abide the sight of fixed laws adorning courts.

Imagine if the representatives of the states at the Constitutional Convention in 1787 had a chance to review David Souter's secularized understanding of the First Amendment before deciding whether or not to ratify the Constitution. Would any of the states have ratified it? Would they have agreed to a constitution that gave federal judges the power to confiscate their public displays of the Ten Commandments?

No, not a single state would have ratified a constitution that gave the federal government the power to establish a de facto secular, lowest-common-denominator national religion that could swoop down and squash their local religious expressions. The whole purpose of the First Amendment was to create a wall not between the state and religion but between the federal government and state religious activity.

A historical fact almost no one ever mentions, which exposes Souter's understanding of the First Amendment as baldly unconstitutional, is that several states -- Massachusetts, Connecticut and New Hampshire -- still had their own religions after the U.S. Constitution was ratified.

And "in most of the other states," as author M. Stanton Evans wrote in the Washington Times in 1995, "there remained a network of religious requirements for public office -- typically, that one be a professing Christian of orthodox persuasion. Such requirements existed in New Jersey, Delaware, Pennsylvania, Maryland, Georgia and the Carolinas. For example, the state of Vermont, one of the more liberal states of the era (admitted to the Union in 1791) required the following oath of office: 'I do believe in one God, the Creator and Governor of the Universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testaments to be given by divine inspiration and own and profess the Protestant religion.'"

So let's add this up: in the 18th century, the states enjoying the protections of the First Amendment could have their own state religions if they wanted, could institute religious tests for public office, and could pass laws against blasphemy and Sabbath-avoidance, among other offenses; in 2005, the states can't even put up the Ten Commandments in courthouses without aesthetic permission from the Supreme Court. (If states make sure to secularize their Moses and signal to viewers that they don't really believe in the Ten Commandments, then, maybe, you can hang them, the Supreme Court told the states.)

Monday's ruling is yet another dismal reminder that the Supreme Court has written a new constitution for America without bothering to hold a Constitutional Convention. In fact, the Supreme Court should be renamed the "Ongoing Constitutional Convention." That's what it is at this point: nine judges determining from day to day the form of government under which over 280 million people will live. Liberals prefer this de facto Constitutional Convention to a real one since calling together the states to ratify a new secularist constitution would be a real hassle. They wouldn't dare be that direct and honest, for if they said to the American people, "The Founding Fathers' constitution is an outmoded theistic relic. Join us in forming a new constitution on secularist foundations," the people would never ratify it. So what do they do? They write a new constitution in David Souter's office and call it jurisprudence.

Souter, who held that the Ten Commandments in Kentucky courthouses could hurt someone's feelings (it is a constitutional no-no to make atheists feel like "outsiders," he says), made much of "neutrality" as a handy new principle. This is one of the grand-sounding conceits of secularism, and it is completely bogus. Just as the middle distance between truth and error is still error, so too the supposedly neutral and middle distance between religion and irreligion is still irreligion.

There are plenty of irreligious displays in courthouses -- depictions of this or that feel-good figure from mythology. Has the "neutral" Supreme Court ever asked that those displays be dismantled? Has it ever said to flaky judges in California, "We find your exhibitions to be dangerous endorsements of paganism that could make Christians feel like outsiders"?

Under the sham principle of neutrality, the lowest common denominator of the culture gets to define the public square while the very theism that informed the country's founding is declared criminal. The lawless judges of the Supreme Court can't bear any laws above them, whether they come from Madison or Moses.

George Neumayr is executive editor of The American Spectator.

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About the Author
George Neumayr, a contributing editor to The American Spectator, is co-author, with Phyllis Schlafly, of the new book, No Higher Power: Obama's War on Religious Freedom.