Tuesday, July 01, 2025

Originalism vs Living Constitution: My Lecture

 

In case you are interested, here is a video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

 I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link

 

 Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:

     So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.



It seems clear that he duty of a court is to follow the written law (as opposed to amending the written law).

Louisiana Law Requires Display of Ten Commandments in Public Schoola

 Here is a short article explaining the law: 

And here is a quotation from the article:

"The legislation requires that by January 1, 2025, all K-12 public schools, charter schools, and state post-secondary institutions place in their classrooms a poster-size copy of the Ten Commandments (“10Cs”). The 10Cs are to be displayed along with a three-paragraph “context statement” situating the commandments as part of the American educational experience for almost three centuries."

 Is this new law constitutional under the current Supreme Court test for the Establishment Clause?

 

From AP:

New Texas law will require Ten Commandments to be posted in every public school classroom

AUSTIN, Texas (AP) — Texas will require all public school classrooms to display the Ten Commandments under a new law that will make the state the nation’s largest to attempt to impose such a mandate.

Gov. Greg Abbott announced Saturday that he signed the bill, which is expected to draw a legal challenge from critics who consider it an unconstitutional violation of the separation of church and state.

A similar law in Louisiana was blocked when a federal appeals court ruled Friday that it was unconstitutional. Arkansas also has a similar law that has been challenged in federal court.

The Texas measure easily passed in the Republican-controlled state House and Senate in the legislative session that ended June 2.

“The focus of this bill is to look at what is historically important to our nation educationally and judicially,” Republican state representative Candy Noble, a co-sponsor of the bill, said when it passed the House.

 

From Religion Clause blog

 Suit Challenges Texas Requirement for 10 Commandments in Classrooms 

Suit was filed last week in a Texas federal district court challenging the constitutionality of a recently enacted Texas law that requires the display of the Ten Commandments in every public-school classroom. The complaint (full text) in Alexander v. Morath, (ND TX, filed 6/24/2025) alleges in part:

Senate Bill 10 ... is not religiously neutral, as it mandates the display of a specific version of the Ten Commandments in every public-school classroom. This requirement inherently takes a theological stance on the correct content and meaning of the scripture....

The version mandated by S.B. 10 mostly aligns with a Protestant rendition but does not match any version found in the Jewish tradition, notably omitting key language and context from the Torah. Furthermore, it does not match the version followed by most Catholics, as it includes a prohibition against "graven images" which could be offensive given the role of iconography in the Catholic faith....

84. As a result of the Ten Commandments displays mandated by S.B. 10, Texas students—including minor-child Plaintiffs—will be unconstitutionally coerced into religious observance, veneration, and adoption of the state’s favored religious scripture, and they will be pressured to suppress their personal religious beliefs and practices, especially in school, to avoid the potential disfavor, reproach, and/or disapproval of school officials and/or their peers. ...

85. In addition, by mandating that one version of the Ten Commandments be displayed in public educational institutions and prescribing an official religious text for school children to venerate, S.B. 10 adopts an official position on religious matters, violating the Establishment Clause’s prohibition against taking sides in questions over theological doctrine and violating the “clearest command” of the Establishment Clause that “one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

86. There is no longstanding historical practice or tradition of prominently and permanently displaying any version of the Ten Commandments in American public-school classrooms. On the contrary, the Supreme Court unambiguously held in Stone that such a practice is proscribed by the Constitution.

Texas Tribune reports on the lawsuit.