The Display of the Ten Commandments and the Incorporation Doctrine

There are times when important ideas and issues find flawed vehicles for their examination. The question about the display of the Ten Commandments in the marble rotunda at the state Supreme Court Building in Montgomery Alabama represents one such situation.

It did not begin auspiciously. Last summer Alabama Chief Justice Roy Moore had a 5200 pound granite monument displaying the Ten Commandments brought in after his fellow judges had left for the evening. Displaying the monument was not the collective decision of the Alabama legislature or even the Alabama State Supreme Court. Roy Moore acted on his own authority. Moore acted arbitrarily because he knew he could not persuade his fellow jurists or the Alabama legislature to install the monument.

Now it is very possible to make the case that from an historical and cultural perspective the Ten Commandments are an important root of our legal system and as such their display at a court house is appropriate. Judge Moore, however, has made clear that his intention in bringing in the monument was to create a religious symbol not an historical one. Indeed, Moore implied that the removal of the monument would somehow be a denial of God. Moore would not yield to court orders to remove the monument, saying, “I will never deny the God upon whom our laws and country depend.” Moore is destroying the claim that this particular display of the Ten Commandments is religiously neutral. He is really trying to give the imprimatur of the state to a particular religious belief.

Judge Moore is trying to enhance his political fortunes, by attracting enemies who are justifiably unpopular in Alabama, like the American Civil Liberties Union and the People for the American Way. Moore’s placement of the Ten Commandments monument in the State Supreme Court Building is just of way of pulling the predictable chains of groups who get the vapors when a temporary Christmas tree or creche finds it way on to a publicly owned lawn. He wants to embarrass the government by forcing the removal of the monument. The church across the street from the State Supreme Court Building has offered to provide a public place for the monument. Moore has not taken up the church’s offer, since it might attenuate the political conflict Moore is cultivating.

Moore’s political use of the Ten Commandments would be roughly analogous to a pagan Earth-worshiping Supreme Court Justice planting a tree on the lawn of the Supreme Court. There are plenty of aesthetic reasons for planting trees. However, if the planter tried to make deliberate use of the tree as a religious symbol to make a religious statement, it would violate the Constitutional proscription against establishing a religion. Nonetheless, removing a tree would tend to enflame those who would hate the see the removable of any tree.

What is most disappointing are people like Alan Keyes, people who should know better, suggesting that the First Amendment applies only to federal action. Keyes is arguing against the concept of incorporation; the notion that the Bill of Rights also limits state action. Indeed, Keyes has averred that “There might be states in which they have established churches where subventions are given to schools and so forth to teach the Bible.”

In Barron v. Baltimore in 1833, the US Supreme Court ruled against businessman John Barron who was suing the city of Baltimore. Barron accused Baltimore of taking land for public use without just compensation in violation of the Fifth Amendment. The Court ruled that the Bill of Rights only applied to actions of the federal government. That jurisprudence survived until the early part of the last century.

In the wake of the Civil War and the emancipation of the slaves, the 14th Amendment to the Constitution provided that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In 1925 in Gitlow v. New York, Socialist Benjamin Gitlow sought relief from New York’s Criminal Anarchy Law under which he was convicted of penning revolutionary pamphlets. The US Supreme Court, using the 14th Amendment, extended the protections of the Bill of Rights to state actions, under the doctrine of incorporation. Subsequent decisions applied this doctrine to other protections of the Bill of Rights.

The doctrine of incorporation may, in retrospect, been an extension of the Constitution and its Amendments beyond original understanding and as such subtly undermines the long term authority of the document. Nonetheless, it has on balance had a salutary effect. Surely Keyes himself and other Conservatives have embraced the incorporation doctrine when used to keep the state from taking property without appropriate compensation.

Some state governments that are dominated by Liberals have been too willing to impose restrictions on property owners that come very close to expropriating property for public use without just compensation. Unless protected by a state constitution and a reasonable State Supreme Court, it is possible that state action could also make more difficult the “free exercise” of religion or honor the rights of free association. Throw away the incorporation doctrine and you allow states far too much discretion to institute intrusive government.

The Ten Commandments are important, but Judge Roy Moore is acting like a buffoon. Thoughtful Conservatives should not allow their reverence, respect, and honor for the Ten Commandments and their distaste for anti-religious zealots to blind them to important protections of individual liberties.

One Response to “The Display of the Ten Commandments and the Incorporation Doctrine”

  1. Vardenafil says:


    The Display of the Ten Commandments and the Incorporation Doctrine « Frank’s Case Book…

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