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Federalism and the Ten Commandments Monument

The government of the United States is organized as a federal republic. The federal power is restricted by the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people. [source]

In this context, the Tenth Amendment means that the federal government has only those powers explicitly granted to it by the constitution. Everything else is the jurisdiction of the states. (For example, murder is not a federal crime, because Congress has no power to make it one. Each of the states have individual laws against it.) The federal system has important benefits. It allows states to experiment individually with laws and programs without requiring uniformity across the entire nation. While falling far short of laboratory conditions, the general similarity of the states allows different laws and programs to be evaluated against one another. These evaluations feed back into new legislation.

Another benefit of the federal system is that citizens' freedom of movement puts the states in competition with each other. People may favor certain states over others because of their policies. For example, a state with significant business regulation will tend to lose businesses to states that are more business-friendly. High-tax states will tend to lose people to low-tax states. This operates naturally to protect liberty.


The constitutional restriction on federal power has important implications to the Ten Commandments case involving Alabama Chief Justice Roy Moore. He was suspended for defying a federal order to remove a monument to the Ten Commandments from the Alabama Supreme Court building. The monument was eventually moved. The case was filed by Americans United and the Alabama ACLU, who argued that such a monument violates the separation of church and state, codified in the establishment clause of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [source]

Originally, the First Amendment had no power over the states. (The text reads Congress shall make no law, not there shall be no law.) The power of the First Amendment was expanded in 1868 by Section 1 of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [source]

Personally, I think the Ten Commandments monument was in very poor taste and am glad it was moved. Simultaneously, I find the federal order to remove it offensive. The First and Fourteenth Amendments mandates the federal government prohibit federal and state laws regarding religion; the Constitution is silent about the Executive and Judicial branches on this topic except for the prohibition on religious tests as a qualification for holding public office in Article VI.

A monument is not a law and does not invoke the coercive power of government. It imposes no obligation on anyone and there is no punishment for ignoring or opposing it. Chief Justice Roy Moore challenged the federal order (1, 2) on exactly these grounds, that a monument is not a law. The Supreme Court declined to hear that challenge.

I don't want to be misunderstood — I wish the popular sentiment about the separation of church and state was codified in the Constitution — but I don't see it there, in the text. What is the argument for a broader interpretation of the First and/or Fourteenth Amendments, to give the federal government jurisdiction in this matter? Why not let the principle of federalism prevail, and leave the monument's legality to be decided by Alabama law?

(Interestingly, the monument is illegal under Section 3 of the Alabama Constitution if public funds were used to build, install, or maintain it. The monument is housed in a government building, so this is probably the case.)


UPDATE 2003-09-22 03:41:25 UTC: I renamed this file after discovering my host has a filename length limit, and attempting to use the old filename resulted in an error.

Tiny Island