stevens on religion and van orden v. perry and living constitution and original intent jurisprudence

In Van Orden v. Texas, which held constitutional (5-4) a 6' X 3' monolith of the 10 Commandments on the Texas State Capitol grounds (that is, such a display did not violate the EC of the First Amendment), Justice Stevens dissented, as we have seen, because he felt the display of the Commandments violated the Court's EC jurisprudence on two grounds: (1) it favored one religion over another (by affirming a particular form of the Commandments), and (2) it also favored religion over irreligion or non-theistic religions, in contravention of the Court's precedent since Everson in 1947. The 10 Commandments, following Stone v. Graham, is an inherently religious document, Stevens argued. This essay focuses on two further points: (1) his response to the majority's invocation of the importance of official acknowledgment of God in our nation's history, and (2) and his emphasis on the fact that the constitution is a living document whose interpretation should be shaped by the needs and exigencies of the moment, and not simply frozen in the 1789 meaning, even if that meaning could easily be determined.

A More Complex View of America's Religious Origins

The plurality contended, and it is now a staple of the argument supporting the constitutionality of the Pledge of Allegiance and public displays of religious objects, that there is an unbroken line of affirmation in official and quasi-official documents from the 1780s until today of the importance of God in our nation's history. Rehnquist, for example, never tires of mentioning that George Washington issued the first Thanksgiving Day proclamation in 1789, "to be devoted by the people of these States to the service of that great and glorious Being who is the beneficient author of all that good that was, that is, or that will be..." But this is only the first item in a long litany of examples in which the role of God is important in our nation's heritage.

Yet Stevens and the other dissenters will take a different view of the matter. Of course, they won't deny that Washington issued this proclamation, that "In God we Trust" is on the coins or that many other officials invoked God's blessing and presence in the Nation's history. However, he advances four arguments to blunt Rehnquist's point:

(1) the acknowledgments of God must be balanced by those statements by the Founding Fathers which believed that such an invocation was not proper. Thomas Jefferson's refusal to issue such a proclamation is one such example. Thus, the history of official recognition of the divine is not uniform; the history is much more nuanced [This issue is quite complex, and would require an essay or two to sort out more completely]. Stevens argues, "As the widely divergent views espoused by the leaders of our founding era plainly reveal, the historical record of the preincorporation Establishment Clause is too indeterminate to serve as an interpretive North Star."

(2) Even when a Founding Father mentioned God in an official or semi-official proclamation or private letter, we ought not to lose sight of the fact that it is his opinion that is there represented, and not simply a uniform and unified national consensus affirming God.

(3) There is a qualitative difference between acknowledging God on a coin and posting 10 Commandments on the State House lawn. The former inculcates a belief that not only is sectarian but also favors theism over atheism and polytheism; the latter does not do so.

(4) If history is really considered carefully, there is good reason for affirming that the EC stands for even a narrower proposition than the plurality accepted. That is, the framers intended the word "religion" in the EC to refer only various expressions of Christianity. Thus, any attempt to try to protect Judaism or Islam or other monotheistic religions is doomed to founder on historical evidence alone.

A Living Constitution

But even if it could somehow be shown that the plurality's history was correct, and that there was an air-tight historical argument supporting Governmental invocation of the divine among the Founding Fathers, Stevens would argue that this is still not dispositive. "It is our duty....to interpret the First Amendment...not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clause's text and history the broad principles that remain valid today." It is here that you have a great divide between those who say they are committed to "original intent jurisprudence" and those who favor a "living constitution." The latter, of which Stevens is an example, would argue that the constitution gives us principles that remain eternally valid, but that they must be shaped and applied to the changing realities that the Founding Fathers could not even have conceived. Thus, while historical investigation can help clarify what those principles were, it cannot be dispositive of how the text is to be applied today. To freeze the meaning of the EC in the understanding of people 220 years ago, even if a uniform understanding could be limned (and Stevens thinks that even that is elusive), would be putting the Constitution in a strait-jacket. Indeed, he points out various decisions in the Court's history that seem to confirm not only that broad principles, rather than original intent, were being applied but that these principles were to be interpreted in the light of "evolving standards of decency" that mark a maturing society.

Conclusion

There you have it. The battle lines remain drawn between originalists and living constitutionalists; between those who draw a unitary lesson from history and those who view it as more complex; between those who are more separationist and those who are more accommodationist in religion. I don't suppose that the battle will end any time soon.

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