Winners of the 2004 Tribune Special Education Edition Each year The Tribune Papers produces its Special Education Edition

by Bill Fishburne

The War Between the Branches

When the Honorables of the Supreme Court begin to legislate from the bench, the average man has little recourse but to scratch his head and wonder how it ever became this way. The answer, unfortunately, is that the nation's federal judges are appointed for life and don't have to answer to anyone.
Especially not to the voters.

Thus it was no surprise when the court recently ruled that it was unconstitutional to invoke the death penalty for crimes committed before a person is 18 years old. The arguments were that sub-18 teens were still immature, and current international law frowns upon killing them.

All well and good, except there is no real basis for the conclusion in law or in precedent. Issues of moral relevance and international politics are
not in the court's venue. And in any case, 18-year olds are not being hung, drawn or quartered. They sit in their cells filing appeals until they're
middle-aged and quite capable of understanding the end they will receive for the crimes they committed. Some of them, thanks be to God, will even get religion.

Which brings us to the issue of the public display of the Ten Commandments. The Supreme Court recently accepted two cases for consideration. One involves a granite monument on the grounds of the capital building in Austin, Texas. It displays the Ten Commandments and nothing else.

The second is the Kentucky case where a courthouse first had a paper display of the Commandments, then reacted to objections by adding a variety of other documents ranging from the Magna Carta to the preamble to the Kentucky state constitution which states, "We, the people of the Commonwealth of grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution."

Government officials in both states say the Commandments aren't there for religious reasons. They say they form the foundation of Western law and thus are historical documents. This is the specific Kentucky argument.

The argument is both the truth and a sham. The truth in that there is no arguing against the idea that our laws are based on the Commandments as well as on other documents. You may hear that most of our laws are actually based on the Code of Hammurabi, a Babylonian king who reigned from 1795 to 1750 BC, but you might be hard-pressed to find a proper context for Hammurabian dictums such as "If a slave say to his master: "You are not my master," if they convict him his master shall cut off his ear."

The argument is a sham because there is a very specific religious message being communicated, that of sin. And this message was wholeheartedly
endorsed by our forefathers.

The Texas case is fairly straightforward: These are the Ten Commandments, carved in granite. They were donated by the Fraternal Order of Eagles in 1961 and they undoubtedly are on public property.

This was offensive to Thomas Van Orden, a homeless man living in Austin, claiming it was a state endorsement of Judeo-Christian beliefs.

Van Orden lived in Austin for six years prior to filing his lawsuit. He said he in not a religious person and the monument offended him on his way to and from the Texas Law Library. He lost in Federal District Court when U.S. District Senior Judge Harry Lee Hudspeth ruled that no reasonable person would consider the display a religious endorsement.

Although not involved in the case, Will Harrell, director of the Texas American Civil Liberties Union, supported the decision.

"An order to remove the monument would have bucked recent case law.

"The law has developed as such that there can be religious symbols associated with non-religious ones if they have historical values." Harrell
said. "We don't go about fighting lost battles."

The wisdom of the ACLU's initial decision not to become involved in the case was borne out in November, 2003, when the U.S. Fifth Circuit Court of Appeals also ruled against Van Orden and his multitude of attorneys.

The Court began its decision by noting that "The Ten Commandments have both a religious and secular message." Given that message, the Court held that the State of Texas had a secular purpose for displaying the monument.

The Court also noted that, "Even those who would see the Decalogue as wise counsel born of man's experience rather than as divinely inspired religious teaching cannot deny its influence upon the civil and criminal laws of this country. That extraordinary influence has been repeatedly acknowledged by the Supreme Court and detailed by scholars. Equally so is its influence upon ethics and the ideal of a just society."
The Court concluded by stating, "There is no constitutional right to be free of government endorsement of its own laws."

The Supreme Court's courtroom boasts many marble carvings in the walls. Above the Chief Justice's head there is a depiction of something with Roman Numerals I through X. It may be a representation of the Decalogue.

To the justices right there is something that is very specific. It is a frieze of many figures, including Moses holding stone tablets that carry
Hebrew inscriptions. Not the complete Commandments, but enough phrases so that it is clear what the tablets contain. Also shown are Menes, Hammurabi, Solomon, Lycurgus, Solon, and Confucius. On the opposite wall is a frieze with other well-known folks including Justinian, Muhammad, King John, Louis IX and Napoleon.

If the public display of religious icons is unconstitutional it would be incumbent upon the justices to remove the religious references from their
own chambers lest this most intimidating judicial chamber be made even more intimidating to the non-believer.

Which sets the stage for the complete eradication of religion from all public life. And this is where we have come.

America's courthouses, statehouses and federal chambers altogether contain more than 30,000 engravings, statues, monuments, obelisks and friezes
representing religious figures. The overwhelming majority, of course, are in the Judeo-Christian tradition. By whose sudden grant of divine wisdom should they be removed?

The men who conceived, planned, approved and executed these monuments were not all uniquely stupid. (Some undoubtedly were, but many were judges and politicians so that should be expected.) If you look at the bulk of case law and judicial decisions for the past 200 years, you have to ask if it is possible that the politically correct legal arguments of 21st Century America were not what the founding fathers had in mind? Is it possible that
the Constitution means what it says quite literally, "Congress shall make no law regarding the establishment of religion, or prohibiting the free
practice thereof."

The founding fathers, one should note, were deeply religious men. They often called in ministers to pray for them and they were generally Christian. In 1777, while the colonies were struggling in the Revolutionary War, the First Continental Congress called the Bible "the great political textbook of the patriots" and appropriated funds to import 20,000 Bibles for the people.

And yet atheists and others say our founding fathers weren't Christian? That we're not a Christian nation? And if Congress shall make no law, by what right does the Court make up its own?

Thomas Jefferson expressed his concerns in this matter many times. On Sept. 6, 1819 he penned the following to Judge Spencer Rome:

"Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another,
it has given-according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is
unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they
may twist and shape into any form they please."

He was even more adamant one year later in a letter to William Jarvis. Writing on Sept. 28, 1820, Jefferson said, "You seem . . . to consider the
judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism
of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life
and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that
to whatever hands confided, with corruptions of time and party, its members would become despots."

Which is exactly what has happened today, with the advise and consent of the Senate's Democrats. Their insistence that the President cannot get a
conservative, constructionist justice approved without the ability to generate a super-majority of Senate votes has made a mockery of the approval
process. For more than 206 years, federal judges were approved with a simple majority of Senate votes, thus fulfilling the Constitutional requirement for the "advise and consent" of the Senate. Today the President and his party must muster 60 votes out of 100 to approve any contested appointment.

The only valid outcome in the Texas case will be for the Court to agree with the 5th Circuit and allow the Decalogue to remain on display. Any other
action would not only be a violation of the Courts authority, it would invite Congressional action to limit what types of law the Court may even
consider.

That would amount to a war between the branches of government. But in reality, aren't we already there?