Posted on 03/22/2005 5:25:14 PM PST by CHARLITE
About 15 years ago I wrote a book about crime, tackling the knotty problem of how "technicalities" based on the Bill of Rights could end up excusing people of ancient crimes like robbery and murder.
The problem, I found, was the tendency of judges and lawyers to elevate the Constitution to Holy Writ. Murder, rape, and other crimes, you see, are only statutory offenses. There's nothing in the Constitution that says you can't kill someone. On the other hand, if a murderer argues that he wasn't read his Miranda warnings three times in the language of his choice, he is defending his "Constitutional Rights." When the Constitution and statute conflict, statute must give way.
How had we evolved, I asked, to the point where such procedural trivia had become more important than rape or murder? The misinterpretation seemed obvious. "When the Founding Fathers wrote the First Ten Amendments," I said, "they didn't intend them to stand in place of the Ten Commandments."
Unfortunately, if the liberal five-member majority of the Supreme Court has its way, the First Ten Amendments may indeed soon be standing in place of the Ten Commandments.
The issue here doesn't just revolve around the Establishment Clause and the Free Exercise of Religion. It concerns the nature of American government.
The Founding Fathers have been rightly praised for the elegance and simplicity of the system they created. The American Constitution is four pages long, a simple blueprint for government. It does not attempt to write laws, it simply explains how they should be adopted. Other Constitutional efforts have been unable to resist the temptation to legislate. The Egyptian constitution is 70 pages long and deals in endless trivia. The European Union's constitution proclaims on the death penalty, the environment, and every other topic that special interest groups managed to cram into its text.
What the Founders are less frequently praised for--although Irving Kristol has been pointing it out for decades--is that they didn't try to remake society.
The contrast here is with the French Revolution, that ignoble failure that tried to rebuild humanity from the ground up and ended killing thousands of human beings because they wouldn't conform.
As Gertrude Himmelfarb recounts in The Roads to Modernity, both the French philosophes and the American Founders were "Men of the Enlightenment," but they were very different Enlightenments. To Voltaire, Rousseau, D'Alembert, and the others, religion was ancient superstition and humanity would be liberated by its eradication. The French Revolution seized churches and turned them into "Temples of Reason." Perhaps because they had not experienced the Protestant Revolution, the French equated their priest-ridden society with religion in general and decided to do away with both.
The English were more circumspect. William Blake, the great mystical poet of the era, was just one English writer who was able to distinguish between doctrine and religion. Blake wrote his own satirical verse about "old Nobodaddy aloft," but only because he thought Christian mythology obscured the divine. "He who sees the infinite in all things, sees God," he wrote. Of the French and their irreligion, he had this to say:
The American Founders were even more practical. They did not concern themselves with religious doctrine. They did not try to remake humanity. They simply set up a government. Their genius was that they were willing to accept humanity as it is and build around it.
That is why there was a lot of initial misgiving about the Bill of Rights. Madison originally opposed it because he sensed the Convention was beginning to legislate rather than frame a government. In the First Congress, many representatives also feared that enumerating certain "rights" would only lead to the disparagement of others that weren't listed. "You had better specify that men can wear hats, go to bed, and get up when they please," argued one Congressman half-facetiously, because if you did not someone was sure to say such a right wasn't "written in the Constitution."
With typical genius, the First Congress solved the problem at one stroke--the Ninth and Tenth Amendments:
IX. The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
X. The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved for the States respectively, or to the people.
In other words, the Constitution isn't the last word on everything. It is simply a logical framework built atop an existing society. This is the common law tradition as well. Everything does not exist by statute. The law is a rational superstructure built atop the customs, habits, traditions--and religion--of the people. It is not necessary to write "Thou Shalt Not Kill" in Article I of the Constitution. The Ten Commandments have already taken care of that.
This is why statues of Moses and the Ten Commandments appear so frequently on the facades of civic buildings and courthouses--including the U.S. Supreme Court. It is not to "establish a religion." It is to acknowledge that other legal systems preceded ours and that the Constitution is indebted to them. As Montesquieu wrote, "Men live by a few laws they have written and many that they never wrote."
The attempt to remove the Ten Commandments from government buildings, then, has nothing to do with any government's attempt to "establish a religion." It is, instead, the late arrival of the old French philosophe effort to abolish religion altogether and put something else--reason, scientism, multiculturalism, whatever--in its place.
Contributing writer William Tucker is the author of "Right Idea," a weekly column for TAEmag.com.
Well said.
The American Government was designed as a tripod balanced on three legs, the Legislative, Executive and Judiciary. Each was to be a check and balance excess of the other.
The judiciary was to judge based on laws passed by the legislature and agreed to by the executive. Only if the law was contrary to the clear word of our Constitution was the law to be unconstitutional.
Today we have a judiciary running wild, unchecked and certainly unbalanced, a judiciary that can read elimination of religion; freedom to deprive human beings of life, in and out of the womb; elimination of the rights of self-defense and freedom of association into the Constitution that clearly does not say these things. A living document, that is what they call it. By that term they mean it says what they say it says, for they are judges, appointed for life.
The time has come for balance in our government. The time has come for judges who can read, not divine meaning with a scale in their hand. We have no need for judges to make laws, they are to judge based on written law, not give law.
Excellent article.
read for later
read later
"He who spits against the wind, spits in his own face." - Ben Franklin to Thomas Paine
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