One of the cases arose in Kentucky, where framed copies
of the Commandments hang in a courthouse hallway, and the other
in Texas, where a stone monument six-feet high, carved with
the Commandments’ text, adorns a walkway linking the
state’s capitol and highest court. In both cases, plaintiffs
contend that the First Amendment’s ban on the establishment
of religion forbids such displays on government property.
If the Supreme Court were to order the displays
removed, would it be overriding the will of the majority? Most
polls show that 70 percent of Americans approve of displaying
the Ten Commandments on public property. (Editor’s Note:
About the same number as find abhorrent the burning of the U.S.
Is it therefore true that the Supreme Court
would be improperly writing its subjective beliefs into law?
Not at all. The Court
would merely be doing its constitutional job.
This nation was founded on the principle
that government exists solely to protect individual rights
to life, liberty, property,
and the pursuit of happiness. The Constitution conforms itself
to this principle when it places individual rights off-limits,
beyond the reach of even the most lopsided democratic vote.
This overriding purpose is reflected in
the structure of American government, whose three distinct
branches are subject to “checks
and balances” that permit and encourage each branch to
restrain the others’ powers. To offset the ever-present
temptation in all three branches to curry favor with majorities
by infringing upon individual rights, courts are endowed with
a counterbalancing power to declare such infringements unconstitutional.
This power is known as judicial review.
Judicial review, properly conceived, is
merely one method among many by which judges resolve legal
conflicts. In the courtroom,
for example, judges resolve conflicts between witnesses: Did
Smith run the red light, or not? They also resolve conflicts
between laws: Was Smith’s violation of the red-light law
justified because he was obeying another law giving right-of-way
to an ambulance?
Ultimately, judges must also resolve conflicts
between the Constitution and the actions of Congress, the President,
or the states—especially
when those actions purportedly violate individual rights. Constitutional
rights furnish an objective standard by which judges can evaluate
governmental actions and, when necessary, halt them.
In case after case, the Supreme Court has
courageously exercised judicial review. Faced with mandatory
prayer sessions in public
classrooms, the Court responded, in Engel v. Vitale in 1962,
that such prayers violate the First Amendment. Faced with state
laws forbidding abortions, the Court responded with Roe v. Wade
in 1973, holding that such bans violate a woman’s right
to privacy. And faced with state laws imprisoning homosexuals
for pursuing sexual pleasure, the Court responded with Lawrence
v. Texas in 2003, holding that such laws violate an individual’s
right to liberty.
Conservatives decry such decisions because
no rights to prayer-free public education, or abortion, or
homosexuality, are expressly
listed in the Constitution. But the Constitution cannot be interpreted
biblically as an exhaustive catalog of rules revealed by a superior
authority, like a secular Book of Leviticus.
Instead, the Constitution must be interpreted
objectively. Although the document contains some simple rules
minimum age of 35) presenting no interpretive challenge, it also
contains carefully formulated principles requiring future generations
to identify particular applications that were unknown or unknowable
in the 1780s. For example, First Amendment “freedom of
the press” protects not only newspapers with printing presses
but also television, the Internet, and other media not yet invented.
Similarly, the Constitutional principle of individual rights
embraces blacks, women, and others whose rights as individuals
the Founders did not fully understand.
For these reasons, conservatives’ demands
for so-called “judicial
restraint”—voluntary refusal by judges to exercise
their review powers—must be rejected. Because courts provide
a last line of defense against the tyranny of the majority, any
such judicial self-emasculation would pose a deadly threat to
our liberties. Just as Congress would be wrong to renounce its
lawmaking power in the name of “legislative restraint,” so
the judiciary would be wrong to surrender its precious review
power in the name of “judicial restraint.”
If the Supreme Court finds that state-sponsored
displays of the Ten Commandments violate the First Amendment’s
guarantee of freedom from the establishment of religion, the
unapologetically exercise its power of judicial review and order
their immediate removal.
Thomas A. Bowden is an attorney
and a writer for Ayn Rand Institute (www.AynRand.org) in
Irvine, Calif. The Institute promotes the
ideas of Ayn Rand—best-selling author of Atlas Shrugged
and The Fountainhead and originator of the philosophy she called “Objectivism.”