BLATHER REVIEW

Whose Law is it Anyway?

The Emporer has an excellent post about the Federal District Court's ruling that the granite display of the Ten Commandents must be removed from it's prominent place at the Alabama Judicial Building that includes this:

Let's take it again:

"Congress shall make no law respecting an establishment of religion"

Which law did Chief Justice Moore make? And how is the Fed ordering this monument removed NOT "making law respecting [i.e. 'with regards to' - M.] an establishment of religion"?

A monument to the Ten Commandments at a court house creates no law that establishes a State religeon. What it does, however, is make the point - through symbolic display - that religeon (in particular; Judeo-Christian monotheism) is the basis of our legal code.

And it is... to a degree. The first three Commandments -- having to do with strictly religeous matters (have no G-d before me, observe the sabbath, worship no idols, etc) -- are not codified into Law because they would violate the First Amendment.
Adultery, envy and most of the others, are not crimes either (though adultery was at one time in most states).

Three Commandments that are codified into Law are the one's forbidding murder, theft and perjury; but, these have been crimes in every legal code ever devised in the whole history of civilization. While it was Christianity that provided the Authority for what we consider to be justice, the framers of the Constitution provided the protection against the establishment of a Theocracy.

But, more interestingly, as Misha points out, does the Federal District Court have any jurisdiction in the Alabama State Court's displaying of the monument? There is no law that's been enacted by Congress at issue here. The monument was erected by the judicial branch of Alabama's government, and there is no law that forbids this.
What the Federal Court has done is created Law where there was none. Not only is there a Seperation of Powers issue (the legislature makes the Law, the judiciary applies them to disputes), but it also violates the tenet that the Federal Government has only the authority specifically granted to it by the Constitution.

So, regardless of the appropriateness of the monument, and the way it's so prominently displayed, and how it jibes with our idealism about the "seperation of Church and State", the only question for a Federal Court is; "Does this violate the Law as written by the Legislature, or the Constitution?"
Since the establishment clause addresses only potential Acts of Congress, not the decor of a courthouse, it seems to me that there probably really is no Federal issue involved.

Posted by Tuning Spork at August 24, 2003 05:36 PM