Friday, February 18, 2005

Fundamental revisionism

Wish I'd been in Buffalo today to hear Paul Finkelman, a legal scholar I'm more used to hearing from on the slavery law listserv, on the Ten Commandments cases. He was an expert witness in case against Judge Roy Moore.

The case against Moore's massive monument was easy. As a lower court judge he kept a wooden plaque of the Ten Commandments at his bench and routinely invited prayer sessions. He ran for Alabama Supreme Court on a platform "to restore the moral foundation of law." Once elected, he installed in the rotunda of the court building, under cover of darkness, a 5,280 pound granite Decalogue. The installation was filmed by an evangelical group in anticipation of using funds from the film to underwrite Moore's legal bills. At the public unveiling, the judge made a grand speech about the moral foundation of law. "In closing, he told the audience that they would 'find no documents surrounding the Ten Commandments because they stand alone as an acknowledgment of that God that's contained in our pledge, contained in our motto, and contained in our oath.'" (Glassroth v. Moore, 11th Cir. 2003.) And it's precisely there that his case came apart--as if it hadn't already.

In what must have been someone's attempt to lend him a semblance of legality, he was asked if he'd allow two companion displays: one Dr. King's "I Have a Dream" speech and the other an atheist group's display of a symbol of atheism. He said no to both. He eventually did concede to a line from Dr. King's "Letter from a Birmingham Jail" regarding God's moral laws and a God-approving quote from Frederick Douglass. But he still lost, and the Supreme Court refused to hear the appeal.

The two cases coming before the Court in a couple of weeks are not quite so blatant. McCreary County v. ACLU of Kentucky is an appeal of a 6th Cir. decision finding that displays of the Ten Commandments in two county courthouses and a public school were unconstitutional. Van Orden v. Texas is an appeal from a 5th Cir. opinion declaring it constitutional for a stone Decalogue to stand, with various other monuments, on the grounds of the Texas Capitol.

The Commandment-backers in these cases try to say that the display is simply a part of a secular historical context (a claim that drives Baptists into the arms of atheists). No matter how hard they try, though, they can't construct an accurate history that puts their document at the center of the American story. In the Kentucky case, they tried very hard--even reminding the court that Ronald Reagan declared 1983 "The Year of the Bible." But "[t]he fact that the Ten Commandments appear in a historical governmental publication, such as the Congressional Record," the 6th Circuit Court said, "does not 'secularize' the Ten Commandments."

To be sure, "the fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself." . . . There is by no means a consensus, however, that the source of Thomas Jefferson's belief in divinely-bestowed, unalienable rights, to the extent this belief inspired the writing of the Declaration, was the Ten Commandments or even the Bible. . . .

Although this Court has neither the ability nor the authority to determine the "correct" view of American history, it is our role to recognize that (a) Defendants' displays provided the viewer with no analytical or historical connection between the Ten Commandments and the other historical documents; and (b) Defendants have made no attempt in this litigation to support the displays' historical assertions with relevant and credible evidence.

Finkelman and other legal historians make these points in an amicus brief (.pdf). "[T]here is no historical basis for singling out the Ten Commandments as seminal in the foundation of American law," they write.

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