The Monument and the Message: Pragmatism and Principle in Establishment Clause Ten Commandments Litigation

This Comment's objective is not primarily to say why the Commandments are desirable to display, nor to frame a detailed legal case as to how they can be defended. The inquiry is limited to the interplay of theology and law in the historical argument for the Commandments- are public displays of the Commandments trapped between theological indifference on the one hand, or legal failure on the other? With the modest belief that the legal practitioners should take note of the theological implications of their arguments,8 and that the arguments should be informed by both the principle and the practical, we shall proceed: first, to examine the state of the court precedent; second, to consider the theological problems with the "historical" defense of the Commandments; and third, to suggest some routes which would avoid the theological problem.