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On Tuesday, the full, 17-judge U.S. Court of Appeals for the Fifth Circuit heard consolidated oral arguments in a crucial case that is all but guaranteed to make it to the U.S. Supreme Court. The predictable controversy surrounding the litigation, which involves similar but distinct mandatory Ten Commandments display laws arising out of Texas and Louisiana, is revealing as to just how far America has fallen from its Founders' vision.
In 2024, Louisiana Gov. Jeff Landry signed into law a bill requiring that the Ten Commandments be displayed in every public school classroom -- from kindergarten through the university level -- throughout the state. As Landry explained at the time, "If you want to respect the rule of law, you gotta start from the original lawgiver, which was Moses." Last year, the Lone Star State followed by passing a nearly identical statute. Texas Gov. Greg Abbott, who as Texas attorney general in 2005 successfully defended a Ten Commandments monument on the Texas State Capitol grounds before the Supreme Court, echoed Landry in signing Texas's bill: "Faith and freedom are the foundation of our nation."
Aggrieved liberals and secularists immediately filed First Amendment lawsuits, and district court judges promptly enjoined enforcement in both states. The question now pending before the New Orleans-based Fifth Circuit, where I once served as a law clerk, is whether the Ten Commandments laws may once again be enforced so that the Decalogue can hang on all classroom walls throughout Texas and Louisiana.
Let's start with first principles. The first clause of the First Amendment, widely known as the Establishment Clause, reads, "Congress shall make no law respecting an establishment of religion." The two relevant words in the Establishment Clause are "Congress" and "establishment."
The word "Congress" is relevant because the Establishment Clause was unambiguously intended only to apply to Congress -- and, by extension, the federal government at large. As Justice Clarence Thomas and others have persuasively argued, the original understanding of the clause was to prohibit Congress from establishing a national religion so that the states may do so themselves -- consistent, of course, with prevailing free exercise protections and the No Religious Test Clause of Article VI of the Constitution. From the Founders' perspective, the Establishment Clause was a necessary federalism provision for a fledgling, religiously pluralistic republic.
The word "establishment" is relevant because it can only mean what the Founders meant: a literal national established church, such as the Church of England. Generations of Americans have been taught that the First Amendment secures the "separation of church and state," but that pernicious phrase is nowhere to be found in the amendment's actual text. Instead, the notion of a "wall of separation between Church & State" has its origins in a pithy 1802 letter Thomas Jefferson sent to the Danbury Baptist Association in Connecticut. As Justice William Rehnquist explained in his dissent in Wallace v. Jaffree (1985), "Thomas Jefferson was … in France at the time … the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment."
In reality, Jefferson's "separation" language didn't take hold until a terrible 1947 Supreme Court decision called Everson v. Board of Education, which for the first time undermined both "Congress" and "establishment" by adopting Jefferson's insidious language and then "incorporating" it to the states as well. The result has been nearly eight decades of destructive constitutional inversion and a prolonged moral assault on America's biblical inheritance throughout our public squares.
None of this is even necessary to decide the Fifth Circuit case. The United States was founded on ecumenical biblical principles, and the Ten Commandments -- the wellspring of so much of Western morality -- embody that ecumenicism.