Deep Decalogue Doo Doo
In one of the cases, the Ten Commandments monument was being given to a courthouse, put in the courthouse by people who had primarily religious motives. It was tension building. It led to dispute about religion -- religious-related dispute. And I thought given the purposes, that falls on the forbidden side.
The other had been a monument on the Texas state capital for about 40 years with about sixteen, seventeen other monuments that had nothing to do with religion. It was labeled the ideals of Texans. It never disturbed anybody. And I thought, well, if that's forbidden is what I wrote, if that's forbidden, people might go around and try to chip Ten Commandments off of public buildings all over the United States. And that, too, would cause a lot of religious dispute.
So, I thought, well, the one falls on the permitted side, the second. And the first falls on the forbidden side because I refer back looking at the consequences in terms of the basic purpose of the religion clauses.
This venerated principle of Establishment Clause jurisprudence was summarized years earlier by my Grandmother as “the squeaky wheel gets the grease....” Or perhaps the Breyer principle should be known by its more modern analogue: “If liberals hate you, well then, you must be bad….”
To my mind, what Justice Breyer describes is mob rule -- or at least the purposeful incitement of the mob -- much more than it is the rule of law. Who you are, or who likes you, or how much folks protest should (if Justice is blind) be beside the point. Also, I don’t recall the Framers attaching either a decibel meter or a weather vane to the Establishment Clause....
Justice Breyer's responses are maddening precisely because we should not have to rely upon his daily readings and measurements to know what the U.S. Constitution means.