Last month, by a large majority, the House passed an amendment that would allow states to display the Ten Commandments in public places. The "Rights to Religious Liberty" amendment now goes with the entire juvenile justice bill to a House-Senate conference. Because the Senate has yet to debate the provision, its fate is uncertain.
Opponents immediately attacked the amendment as unconstitutional. The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State and a United Church of Christ minister, recently stated this objection precisely: "The Supreme Court has already made clear that the posting of religious texts such as the Ten Commandments in public schools is unconstitutional. . . . If these amendments were to ultimately become law, they would be challenged in court immediately. This effort is patently unconstitutional." President Clinton has hinted at a veto because, he says, the court has spoken.
As an early supporter of this legislative concept (I proposed such a measure two years ago in an article in the Weekly Standard), I disagree with Lynn and others about the amendment's constitutionality. But apart from the legal questions, the debate has given rise to a different and troubling issue: the eagerness of many elected leaders, commentators and citizens to derail legislation by objecting that judges will find it unconstitutional. How many times have we heard it said that some law or presidential act is "unconstitutional" when all that can be said is that the Supreme Court has ruled that way on a similar issue before and may do so again?
The Rights to Religious Liberty provision does not mandate or even encourage Ten Commandments displays. Consistent with recent decisions strengthening federalism, the bill reverses the ordinary flow of power toward Washington by returning this power to state and local governments and by requiring federal judges to enforce it. Ever since the Constitution was ratified, states had inherent power to display the Ten Commandments on government property. It was not until 1980 that the Supreme Court, in Stone v. Graham, held that a state (Kentucky) could not constitutionally do so. Four justices disagreed--Harry Blackmun, Potter Stewart, then-Chief Justice Warren Burger and William Rehnquist (the current chief justice).
To say the least, Stone leaves plenty of room for discussion. Indeed, how can the court's holdings be final when it has reversed itself some 220 times?
The high court has opined that its constitutional interpretations are "the supreme law of the land" as far as states are concerned. But it has never held that Congress must accept them as the last word. On the contrary, the justices have often acknowledged it must give "great weight" to Congress's constitutional role.
For example, in a 1980 case, Chief Justice Burger recalled a memorable phrase from Justice Oliver Wendell Holmes in explaining the court's reluctance to overrule Congress's interpretation of the Constitution. "When we are required to pass on the constitutionality of an Act of Congress," Burger wrote, "we assume 'the gravest and most delicate duty that this Court is called on to perform.' " Burger's opinion went on to say: "We are bound to approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to 'provide for the. . . general Welfare of the United States. . . .' "
Past presidents have not held the Supreme Court's opinions as conclusive. As Abraham Lincoln put it in rebuking Sen. Stephen A. Douglas during their famous debates, a decision of the court is not "a 'Thus saith the Lord.' " In fact, chief executives have often contested the judicial claim to "the final word" on the Constitution's meaning. Using a broad array of executive powers, including vetoes, pardons, legislative initiative and public criticism, they have ignored the courts or forced the justices to reverse earlier holdings, and made their own interpretations stick.
Here are four historical examples:
* Federal judges by 1800 had convicted some two dozen people for violating the sedition law enacted during John Adams's administration. Thomas Jefferson, disregarding the courts, believed the measure violated civil liberties. On his inauguration, he took action by pardoning them all. Jefferson later explained: "My position [is] that each of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves under a similar question."
* In 1819, the Supreme Court had ruled that Congress had constitutional power to incorporate a national bank. Andrew Jackson disagreed, and when a new bank was established, he vetoed it on constitutional grounds in 1832. He wrote to Congress that the Supreme Court cannot be allowed to control Congress's and the president's lawmaking capacities. "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others."
* In his 1858 Senate campaign against Douglas, Lincoln fiercely attacked the Supreme Court's Dred Scott holding that Congress had no power to liberate black slaves in U.S. territories and that the Missouri Compromise was unconstitutional. Douglas, eyeing the Democratic presidential nomination two years ahead, wanted to make himself acceptable to the South and North alike. He called for the nation to live by the decision, but refused to say whether he thought slavery was right or wrong.
Chief Justice Roger B. Taney hoped the Supreme Court could end the slavery debate with his Dred Scott decision, and Douglas agreed. The senator was one of the first politicians to assert that Supreme Court interpretations are final and must be accepted by Congress: "[U]nder the constitution, a senator has no right to interfere with the decision of judicial tribunals--The Dred Scott decision was pronounced by the highest tribunal on Earth. From that decision there is no appeal this side of Heaven."
Douglas and others created the theory of the judicial "final word" on constitutional interpretation in order to defend the most racist opinion ever handed down. Lincoln rejected the notion that Congress could not challenge mistaken court holdings. In a Chicago speech, Lincoln said: "If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should."
Lincoln lost the Senate race. But in his 1861 inaugural address as president, Lincoln again reproved the court: "I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. . . . At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. . . ."
Like Jefferson and Jackson, Lincoln backed his rhetorical disagreement with direct action. In 1862, he supported and signed a Territorial Freedom Act banning slavery throughout the territories, overturning Dred Scott years before the Thirteenth Amendment abolished it everywhere.
* President Franklin Roosevelt's entire agenda was challenged by the Supreme Court despite enormous popular support. Twelve times the court overruled New Deal programs, sometimes unanimously. After four years of struggle, Roosevelt attacked the court itself. To tip the balance away from the right, he asked Congress to let him name six additional justices, explaining: "We have . . . reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution--not over it. In our Courts we want a government of laws and not of men."
Roosevelt's court-packing plan was never enacted, but his long effort to curb the court succeeded brilliantly. Enough justices rethought their views to move the court more in line with FDR's constitutional principles.
Our nation's lawmakers and chief executives cannot really surrender their independent power to interpret the Constitution. Their duties and oath of office make each responsible for the right or wrong of their actions. When elected officials blame their inaction on the Supreme Court's "final word" in some past decision, often they are merely rationalizing their refusal to correct judicial errors.
Some in Congress believe constitutional self-government has been demoralized by the theory and practice of judicial finality. By enacting the Ten Commandments amendment, Congress is fulfilling its constitutional responsibility--and returning "Thus saith the Lord" to its original meaning.
Dennis Teti is professor-in-residence at the Washington campus of Regent University's Robertson School of Government.
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