Alabama 10 Commandments

[Lord Kenneth]

What is the legal argument for taking it away?

The constitution only says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Putting the 10 commandments on public property isn't a law.

I understand that it's rather dangerous to keep on walking toward a theocracy like we are now, but I'm just curious as to what the legal argument is.

[corplinx]

Originally posted by Lord Kenneth
What is the legal argument for taking it away?

The constitution only says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Putting the 10 commandments on public property isn't a law.

I understand that it's rather dangerous to keep on walking toward a theocracy like we are now, but I'm just curious as to what the legal argument is.

Its commonly acknowledged that the branch of our government that was most underdefined in the constitution was the federal court. There wasn't even a courthouse to turn into a sectarian controversy for a good while. Not to mention, the original federal judiciary lacked enough power to regulate at that level. It wasn't necessary to state explicitly that the court couldn't impose religion since it was 3 guys in a basement who didn't even have any authority at the time.

Even though the letter of the law says "congress", we try to follow the spirit of the law which means "government" since all 3 branches of government nowadays have some way of setting laws. Nowadays the pres has his executive orders, congress writes laws, and even the judiciary has some form of law setting through rulings.

Basically, without revising the constitution we loosely follow its intent by judging what the law intended.

In the case of the Alabama court, I freely admit to being snookered. When the case first came out, I went into "ACLU trying to get God off currency" mode. However, this case is far from it. The ten commandments are even displayed in our Supreme Court building! However, Mr. Moore's intent (as he admits) and mode of display was definitely sectarian. If Mr. Moore wants to show people the ten commandments, he can feel free to pass out leaflets. However, putting a huge granite memorial on the front steps of the courthouse make the place look more like a church than a place of law. This guy was way over any clear line a reasonable person could draw. He is a jackass and worse a traitor to his role.

[ceo_esq]

Lord Kenneth,

To complement what corplinx wrote, any sort of government action, and even action by an individual purporting to act in an official capacity such as Judge Moore, is considered to be made "under color of law" - an expression meaning that the action has the appearance of being clothed with the authority of the state and its laws. This is considered sufficient to bring such actions within the potential scope of the Establishment Clause.

Another point to remember is that the Alabama matter did not involve federal action, so technically it did not run afoul of the First Amendment (which is directed solely at the federal government). Rather, it ran up against the substantive aspects of the Fourteenth Amendment's Due Process Clause, which has been held to have made the same standards embodied in the First Amendment applicable to state governments (this is the so-called "incorporation doctrine").

ceo_esq

[toddjh]

Originally posted by ceo_esq
Another point to remember is that the Alabama matter did not involve federal action, so technically it did not run afoul of the First Amendment (which is directed solely at the federal government). Rather, it ran up against the substantive aspects of the Fourteenth Amendment's Due Process Clause, which has been held to have made the same standards embodied in the First Amendment applicable to state governments (this is the so-called "incorporation doctrine").

While we're on the topic, I have a question that I have not seen satisfactorily addressed. Why do you think the First Amendment mentions only restrictions on Congress, as opposed to explicitly granting rights?

For example, the Second Amendment says, "the right of the people to keep and bear arms shall not be infringed." The Fourth Amendment says, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

Why do the other amendments speak in the language of rights and privileges, while the First Amendment says simply, "Congress shall make no law?" It seems clear to me that the framers intended the First Amendment to apply only to the federal government, leaving matters of religion up to the states. Obviously, subsequent court rulings have led to a different interpretation, but I'd still like to see a good argument in favor of applying the original language to the states.

Jeremy