In a post yesterday I noted that the shape of the nation seemed more or less the same after the close of the term on Monday, two days ago.
On second thought, this does not give justice to what actually happened, and I may want to switch the metaphor from shape to course, as in the course a ship takes. We play with metaphors a lot in Con Law.
In order to understand the significance of retaining our shape, or staying the course, it would be helpful to know what course we were on and what storms buffeted the ship, left and right, and whether we went up on the rocks to the left or were stranded on the shoals to the right. We seem headed straight down the middle, which is where I want to be in the channel or a fairway headed toward a green. Yup. Another metaphor. We're not all sailors, or good golfers. But we can sling metaphors to try to make a point.
When the City of New London, Connecticut decided it would be a good idea to convert an old neighborhood where some of the homes seemed rundown, a place where the neighborhood wasn't producing a lot of tax revenue to pay for the police and fire protection it may have enjoyed, into an upscale new industrial park featuring the Pfizer Pharmaceutical Company's new research campus, designed to house scientists, technicians, and executives, all driving new SUVs, no doubt, it must've seemed to represent one of the maximum goods in our world, something we call "Progress."
One man's Progress is another's Purloined Property, taken (some would say stolen) using the power called "eminent domain." In Con Law we give names to everything, especially if they're invisible. This way we can see them, we think. We call the Supreme Court's power to amend the Constitution every year, with every Con Law case they decide, without going through the formal Amendment Process, that is the power to nullify acts of Congress, the President, and the States, to declare them null and void as being unconstitutional, the Power of Judicial Review, not to be confused with the right to appeal, which is when the power is exercised usually, on appeal.
The Forces of the Right rallied in defense of property. The Forces of the Left rallied in favor of Progress. The Ship of State was being buffeted in a storm. The trusty pilot was not the president, ordering his men to sail between Scylla and Charybdis, but a big committee, the piloting committee, called, you guessed it, the Supreme Court. This time the justices, by a narrow margin, steered a bit to the left during a storm blowing from the right. My guess is that they probably didn't do all that much damage in real life, on the ground, in the world of real estate deals, despite the worst-fear thinking of the doomsayers.
However I'm not all sure about this conclusion either. I'll bet there are more than a few real estate developers plotting as we speak, in virtually every city in the land, to redevelop (meaning condemn, meaning to use the snatch'n'grab, the takings power of eminent domain) one neighborhood or another to attract the next George Lucas or Bill Gates into building a new campus in some not quite as upscale neighborhood as you and I might like to live in but don't. Our own neighborhood, in other words.
Oh, we might get paid something, but the developers are the ones who will really make out, not us little ones.
I'll leave it up to you to decide whether the ship has made a big lurch to the left or a small one, on this issue.
Regarding the Ten Commandments, the country is faced with an evangelical problem. An important belief of some Christians is that they have found the Answer and have a duty to share it. So they'll ring your doorbell or hand out literature or hold up signs at sporting events that say "John 3:16"). This is supposed to attract followers, or at least let 'em know they're out there pitching for the Lord.
Some of the rest of us think this is the height of arrogance, that since I wouldn't think of shoving my religion, such as it is, down your throat, where do you get off trying to shove yours down mine. Like that. It tick's us off. And we certainly don't want government siding with the religious throat-shover-downers. Hence the battle over monuments featuring the Ten Commandments. Regardless whatever else he was, such as a lawgiver, Moses is a religious figure, just as Jesus and Mohammed are religious figures. Once we decide that government stays out of religion, why start putting monuments to Moses's handiwork (or God's, if you will), on the public lawns? Unless you're prepared to put up a statue to the New Testament or the Koran on the city hall lawn, how about forgetting about it?
This is not the way evangelical christians operate however. Nor, I guess, in a town that is predominantly Jewish. I can see the group getting together for a discussion that goes like this:
You know, Sam, the Christians in the next town over always put up a Christmas tree on the city hall lawn every year. And they decorate it with a manger scene, a little Baby Jesus, etc. Why don't we do something like that on our city hall lawn. Maybe a little scene of Moses being rescued from the basket in the Nile.
And they vote on this and next thing you know we have a Jewish theme in one town and a Christian theme in another.
Can you see how polarizing this can become if allowed to flourish?
Is this country a theocracy hospitable only to Christians and Jews?
We do have many varieties of each, do we not? I won't go into it. We do.
Each considers themselves to have more of the correct Answer than the competing branches.
So we have this problem in this counrty. Wonderful country, but full of people. American people. Americans who'll cut your throat if you don't see things their way.
We depend on our Supreme Court to please keep us from harming one another. We expect the Court to tell the Christians and Jews, and the rest, to mind their own business. Practice your religion with your fellows, but leave the rest of us out of your concerns, please. This, of course, drives some folks nuts.
So when the Court divides over two Ten Commandments cases, allowing a display of one, but not another, you can figure that the ship of state has weathered a storm. If the ship happens to be pointing in the same direction after the storm as it was headed before the storm, that is an accomplishment worthy of noting on a blog here. So noted. Because the Court was buffeted by strong winds coming from across the land.
I'll bet that the next time a religious group decides to put up a Christmas display on city hall grounds, or the Ten Commandments, or some other scene from the bible, the question will be: Is this for a religious reason we're doing this or a secular? And if it turns out that it seems to be a religious reason, guess what, the decision will be struck down the moment someone protests enough to bring a case in federal district court.
That was a pretty good storm we just went through, and the piloting committee kept the ship headed the same way, right down the middle of the channel. Good for them. We owe them a vote of thanks, except if we're evangelicals who apparently think we should all agree with them on spiritual matters.
I'd rather go to hell myself.
At least I'll be with friends...