Eugene Volokh, at Volokh.com,

September 02, 2003


Eugene Volokh, at Volokh.com, has been hosting some interesting discussions of original intent and the Alabama 10 Commandments case.

At the risk of spilling one of my best sound bites from the dissertation, I would suggest
that the original intent of the ratifiers was that the federal
government should do nothing that appeared to replicate the Church of
England. This was expressed in a number of different formulations and
the formulations evolved over time. In modern jurisprudence this would
lead to decisions that are remarkably similar to those reached by
Justice O'Connor's endorsement test.

The best expression of the Protestant majority in the 1830s is Joseph
Story's paragraph or two in his _Commentaries_ - the interesting thing
there is that as I read the descriptions of Roy's Rock is that it
appears to violate even Story's formulation.

Story believed that Christianity was the basis of the Common Law,
arguing against Jefferson several times on this question. Story
further argued that the state and indeed the nation can support
Christianity in general, but that it can not support or privilege any
sectarian variant of Christianity. Roy's Rock, with its KJV Bible
texts and its position as a shrine, is a sectarian statement and not
just a statement in favor of Christianity in general. The best
contrast to it would be the Bucks County Plaque which was also recently
litigated - there the plaque remained on the courthouse because it 1,
had no text and 2, had no record of the intent of the people who put it
there.

The more interesting thing, and the key point in my argument, is
that no one was ever able to come up with a working definition for
"Christianity in General" - including Story. The concept worked well
as a fuzzy abstraction, but it collapsed any time it was subjected to
scrutiny or definition.

I believe that the nation has tried Judge Moore's interpretation,
decided that it was unstable, and moved back to the enlightenment
religious establishment as the most stable ground for a polity.
Furthermore, it seems to have done so with either a statute of
limitations or a grandfather clause - old and general expressions of
religious endorsement are generally acceptable, new and sectarian
statements are right out.

Posted by Red Ted at September 2, 2003 05:14 AM | TrackBack