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Friday, June 21, 2024

Judicial departmentalism and the Ten Commandments

A quick word on the new Louisiana law allowing a sect-specific version of the Ten Commandments in all public-school classrooms.

The governor and legislature acted in a legitimate way. They believe the law constitutionally valid and acted on that view, even if that view runs contrary to binding SCOTUS precedent. And they acted in something other than a purely performative, wasting-taxpayer-dollars way, to the extent they believe (not unreasonably) that the current Court might overrule Stone.

Critics must wrestle with this problem: If Louisiana did not or cannot do this, a court could never reconsider or revisit precedent. It takes a new law or enforcement of an old law to create new litigation allowing the court to resolve the constitutional question and to change the law if it sees fit. If a state cannot do this, decisions declaring that government cannot do something are set in stone (no pun intended) and never can be changed. Whatever one thinks of the constitutional validity and/or wisdom of these displays and whatever one thinks about whether the Court should reconsider Stone, it cannot be that any judicial precedent lies procedurally beyond reconsideration.

Posted by Howard Wasserman on June 21, 2024 at 12:32 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink


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