In defense of Roy Moore
Today's Free Press publishes a "local comment" piece by Paul F. Delespinasse, former professor of political science at Adrian College, making a point that will surprise many who do not know much about the history of the First Amendment's establishment clause. He defends Alabama Chief Justice Roy Moore's position on the Ten Commandments display by asserting that he "has the Constitution on his side". After noting the line of cases that incorporated the First Amendment into the 14th Amendment to cover state action in the context of its other protections, he points out that the incorporation theory makes no sense when it comes to the Establishment Clause:
But we get perverse results if we expand the establishment clause. The clause had two purposes: first, to prohibit Congress from establishing a national religion; second, to prohibit Congress from interfering if a state government were to establish a religion at the state level. This dual purpose explains the somewhat awkward language "no law respecting an establishment of religion." That is to say, no law having to do with such an establishment can be enacted by Congress.
The right of states to establish a church was not just theoretical. Indeed, several states had established churches at the time the First Amendment was written.
If it weren't for that second purpose of the clause, expanding it would pose no more problems than would expanding protections for free speech or jury trials. But expanding the first protection provided by the establishment clause comes into sharp conflict with the second protection. Expanding the first protection (which is what our courts have actually done) tells the states they cannot do what the second protection says they have a right to do. It turns around the meaning of the establishment clause 180 degrees on this point and makes it mean the opposite of what it meant when added.
I don't know whether I agree with Delespinasse's analysis in full, since Justice Moore's actions do not equate to action by the Alabama Legislature. But it is interesting to note that the history of the Establishment Clause would suggest that the Alabama Legislature could, if it wanted, pass a law making Protestant Christianity the official religion of the state. Such an enactment might be politically unwise but arguably within its authority under the Constitution.
For more information, see Note - Rethinking The Incorporation Of The Establishment Clause: A Federalist View, 105 Harv. L. Rev. 1700 (May 1992).
It's too bad that Michael McConnell is no longer available to argue this issue to the U. S. Supreme Court on behalf of Chief Justice Moore's position. This would have been a natural for him.
7:48:20 AM 
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