Bench Memos

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Supreme Silliness, Part One


In one respect the world is right-side-up today: the Washington Post editorial incoherently praises the incoherence in yesterday’s Ten Commandments rulings, while George Will has the goods on what went wrong in the Supreme Court’s religion-clause jurisprudence. (Last week I experienced the strange disorientation of disagreeing with Will while agreeing with the Post editorial on the eminent-domain ruling.) John Podhoretz too is rightly scathing about the Court’s rulings today, in the New York Post.

The lunacy of the Court’s behavior yesterday–anchored by Stephen “it depends on whether I’m in the mood” Breyer–is obvious to the meanest understanding. But it might be amusing to catalogue some of the more asinine things said by some of the justices yesterday.

Let’s start with David Souter, a lifelong bachelor who had the temerity to venture into the thicket of interior design in the McCreary County case from Kentucky (all of us married men know better than to offer opinions on this subject). The county had put the Ten Commandments on display in its courthouse, in the midst of other documents collectively making up an exhibit titled “Foundations of American Law and Government.” One of the other documents was the text of the Star-Spangled Banner, which prompted this snort of aesthetic disapproval from Souter: “it is at least odd to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original Framing.”

This is a very strange bit of obiter dictum (Latin for “I have professional typesetters in the basement and can say what I damned well please”). Some might nominate other amendments (any bids for the 16th? 17th? 19th? 22nd?) as the most significant additions to the Constitution “since the original Framing.” And if we’re going to be strict about what was in the “original Framing,” how about the Bill of Rights, which was literally an afterthought? (The county had already included the Bill of Rights in its exhibit, but that didn’t give Souter pause.)

But Souter’s comment here was really an unintended revelation of the extent to which the Court relies on the Fourteenth Amendment as the purported basis of its constitutional rulings–probably for more than half of them. Of course that amendment is “the most significant” to Souter: it keeps him in business. For one thing, its due process clause is the vehicle for the fraudulent “incorporation” doctrine that made it possible for the Court to interfere yesterday in the internal affairs of Texas and Kentucky.

But McCreary County was not posting a law-school curriculum on its courthouse walls. It was reminding citizens of milestone documents of historic and symbolic importance in the American story of law and politics, patriotism and morality, whether they embodied judicially enforceable texts or not. In that light the Star Spangled Banner is a perfectly natural choice–and only a lawyerly nerd would instead choose the Fourteenth Amendment. The national anthem is hard enough to sing at ball games. Anyone care to try putting section 4 of the amendment to music? “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned . . .”

But Souter wasn’t finished yet with his lecture in the higher criticism. He went on to profess himself “puzzled” by the county’s statement that the influence of the Ten Commandments may be “clearly seen” in the Declaration of Independence (also a part of the exhibit). What? What? There’s no God in that there Declaration, he opined: “the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives ‘from the consent of the governed.’”

Who sabotaged Justice Souter’s copy of the Declaration? In my copy, the first paragraph justifies the independence of America under “the Laws of Nature and of Nature’s God.” Three other references to God appear in the Declaration: as “Creator,” as “Supreme Judge of the World” (take that, you robed ninnies), and as “divine Providence.”

From what source does Souter think the people derive their authority over their government, via that “consent of the governed” of which he makes so much? They get it from the fact that they were created equal, as bearers of natural rights antecedent to all human laws and government. In other words, in the view of the signers of the Declaration, all political authority is grounded in principles for which God is responsible as our Creator.

Perhaps we can schedule a tutorial in American political principles for Justice Souter, conducted by the folks responsible for decorating the courthouse in McCreary County, Kentucky.


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