Jason Rapert: STILL Not A Constitutional Scholar (But We Knew That Already)

Almost any time Sen. Stanley Jason Rapert (R-Hatesville) starts talking about whether something is legal or constitutional, I am instantly reminded that he dropped out of law school after roughly a week.1 Indeed, if you were making a list of things that Stanley is, “constitutional scholar” would fall somewhere near the bottom, between “wearer of well-tailored suits” and “a person you would like to rescue from a burning building.”

Never has his complete ignorance2 of legal nuance and constitutional education been more on display, however, than it was today in the old Supreme Court room when Stanley made a statement about the destruction of the Ten Commandments monument on the Capitol grounds.

In between his saying-but-not-actually-saying that the ACLU’s “rhetoric” was somehow part of the cause of the destruction of the monument, Stanjay opined on the constitutionality of the monument itself. Specifically, he argued that:

-The monument was constitutional because an identical monument had been held constitutional in Texas in Van Orden v. Perry, 545 U.S. 677 (2005);

-While the monument was NOT religious in nature3, the Baphomet statue and other proposals were never going to happen due to Pleasant Grove City v. Summum, 555 U.S. 460 (2009);

-The monument was constitutional because the Ten Commandments are “inscribed right there on the doors of the Supreme Court of the United States” and because “right above where the Chief Justice sits…is Moses;” and

-The statute that approved the monument includes funds for private defense of the constitutionality if and when the monument is challenged in court, so state funds are not at issue4

To call Rapert’s legal arguments incorrect would be an understatement on par with calling Florida-Georgia Line’s “music” unlistenable garbage. Let’s tackle them in order:

Van Orden v. Perry

Stanley must have mentioned Van Orden 10 times today. According to him, Van Orden stands for the proposition that a Ten Commandments monument is always constitutional on capitol grounds, because “that’s what the United States Supreme Court said” about the monument in Texas.

Except, you know…that’s NOT what they said. In Van Orden, the Court noted a bunch of factors, none of which are at play in Stanley’s monument’s defense. For example: the 22 acres around the Texas Capitol have “17 monuments and 21 historical markers commemorating the ‘people, ideals, and events that compose Texan identity;'” the monument had been up for forty years, and the plaintiff had seen it consistently for six years, before he ever brought suit challenging the monument; the monument was donated by the Fraternal Order of Eagles of Texas, “a national social, civic, and patriotic organization;” and that, taken in context, the monument in Texas was “passive.” Thus, the Court held (emphasis added):

The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, Van Orden, the petitioner here, apparently walked by the monument for a number of years before bringing this lawsuit. The monument is therefore also quite different from the prayers involved in Schempp and Lee v. Weisman. Texas has treated her Capitol grounds monuments as representing the several strands in the State’s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas’ display of this monument violates the Establishment Clause of the First Amendment.

But here’s the rub (and here, not coincidentally, is where Rapert’s argument dies upon a cross of idiocy): The very same day that the U.S. Supreme Court handed down Van Orden, they also handed down a little case called McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).

“So what,” you ask? Well, McCreary County also dealt with the placement of Ten Commandments monuments at two county courthouses in Kentucky. In that case, the Court ruled that the monuments were unconstitutional violations of the Establishment Clause.5

In reaching this decision, the McCreary County Court held that the stated secular purpose of the monuments was “a sham,” that the Court was allowed to delve into the real intent behind the monuments, that merely putting other displays around the monuments and putting a sign up regarding the “The Foundations of American Law and Government Display” did not render the monuments secular in nature, and (most germane here) the fact that the monuments were originally displayed alone belied any claim that they were part of a larger historical display of legal history. In a passage that will almost certainly be referenced when Stanley’s monument is struck down as unconstitutional, the McCreary County Court wrote (emphasis added):

No reasonable observer, therefore, could accept the claim that the Counties had cast off the objective so unmistakable in the earlier displays. Nor did the selection of posted material suggest a clear theme that might prevail over evidence of the continuing religious object. For example, it is at least odd in a collection of documents said to be “foundational” to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original framing. An observer would probably suspect the Counties of reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.

So why would Stanley hang his goatee so squarely on Van Orden and neglect to even differentiate his monument from that in McCreary County? Good question! I suspect it is either because he is incapable of understanding legal nuance or (perhaps more likely) because he hopes that his mouth-breathing constituents will believe his inane explanation and will join him in a chorus of “activist judges!” when the monument is ultimately deemed unconstitutional.

Pleasant Grove City v. Sunnum

Almost as an aside, Stanley referenced Sunnum by name as a way to “explain” why his TOTALLY NOT RELIGIOUS, YOU GUYS, I SWEAR! monument was allowable, while a monument from the Satanists or other groups would “never” be allowed at the Capitol EVEN THOUGH, REALLY, HE SWEARS THIS ISN’T A RELIGIOUS THING!

To his credit, this was as close as he got to a valid legal point today. Unfortunately for him, Sunnum was not an Establishment Clause case — it was a Free Speech case — so the rationale there is inapposite to a challenge to Stanley’s monument.

Moreover, Stanley’s reading of Sunnum, and his blanket assertion of what the decision stood for, is incorrect. Sunnum specifically noted that the denial of Sunnum’s monument was acceptable governmental speech because the stated, longstanding practice of the City of Pleasant Grove was to only accept monuments that “either (1) directly relate to the history of Pleasant Grove, or (2) were donated by groups with longstanding ties to the Pleasant Grove community,” both prongs of which Sunnum failed to satisfy. Given that the Arkansas State Capitol has no such long-standing policy, reliance on this governmental-speech case in Stanley’s context is even more misplaced.6

So, no, Sunnum does not mean much here, at least not as Stanley attempts to spin it. Shocking, I know.

Ten Commandments as Shown at the U.S. Supreme Court

More than once today, Stanley referenced a “picture of Moses” over the U.S. Supreme Court bench, and he also claimed that the commandments were “carved right there” in the doors of the Court. These claims are (a) not proof of the constitutionality of the monument at issue and (b) misleading at best.

Of course, it should come as no surprise that Stanley does not appear to have actually done research before he started spouting these lines; instead, he appears to have bastardized a paragraph from Van Orden (emphases added):

Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.

Yeah…about that, Stan. First, you seem to be conflating the east wall (the wall above the Justices in the Courtroom) with the east facade (the outside rear of the building). I say this because Moses is on the east (rear) facade, but this is what is above the Justices:

That is a frieze by sculptor Adolph A. Weinman, which features two male figures–the Majesty of Law and the Power of Government. They are flanked on the left by allegorical figures representing wisdom and on the right by figures representing Justice. Most importantly, the artist himself specifically explained that the tablets in that frieze do NOT represent the Ten Commandments, but, rather, the Bill of Rights.

On the north and south walls of the Courtroom are friezes (also by Weinman) which show eighteen great, historical lawgivers: the south wall has Menes, Hammurabi, Moses, Solomon, Lycurgus, Solon, Draco, Confucius and Octavian; the north wall has Justinian, Mohammed, Charlemagne, King John, Louis IX, Hugo Grotius, Sir William Blackstone, John Marshall and Napoleon. So, for Stanley to state that Moses is right above the Chief Justice is both a lie and a gross misrepresentation of the reality of the artwork; Moses is included as a secular lawgiver, among seventeen other lawgivers.7

Secondly, Stanley’s claim that the Ten Commandments are “carved in the doors” of the Court is false. What is carved in the doors is this:

That’s it. Tablets with Roman numerals. There is nothing inherently religious about that — recall, two similar tablets in the east-wall frieze were symbols of the Bill of Rights. More importantly, at least for those of us who like to be pedantic for the sake of humor, Moses (and the Ten Commandments) date to around 1300 BCE; Roman numerals didn’t even exist until 800 to 900 BCE. So these numerals technically CANNOT be a reference to the Ten Commandments.

Pedantry aside, for Stanley to pretend like this is similar to the unconstitutional monument he put on the Arkansas Capitol grounds is, like so many of his statements, a maddening lie designed to fool the same type of idiot who would vote for him anyway.

No State Funds

Stanley made it a point to mention that there was a legal-defense fund built into the bill that approved the monument, as if the fact that it might not cost the state anything to defend the inevitable lawsuit made the monument constitutional.

Simply put, it doesn’t. Whether the monument is constitutional as placed on the grounds8 is a distinct question from whether it would be constitutional for state funds to be involved in a defense of the monument’s constitutionality. This distinction should be obvious to pretty much anyone who gives it more than two seconds of thought, but, then again, I have no proof that Stanley actually did think about it before he spouted off today.

***

So, what do we make of Stanley Jason Rapert’s legal-reasoning performance today?

I suppose we chalk it up to more of the same as we try to figure out why this guy continues to get elected. Then, maybe, we assume that applying precedent to facts was not something that was taught in Rapert’s very, very brief stay in law school.

Which is to say, at the end of the day, we take a step back and just make fun of him. Oh, sure, he’ll claim that he’s being persecuted, but whatever. He’d do that regardless of our response.

Oooh, I know! Let’s contact him and ask him to explain why he thinks Van Orden applies, but McCreary County does not! Or just contact him to ask him why he can pretend to speak with authority about something that he clearly doesn’t understand.

Either way, here’s his contact info:

374 Breezewood Rd., Bigelow, AR 72016

[email protected] (In case you don’t get a response from [email protected].)

(501) 472-2794 (Personal cell phone)

(501) 472-3744 (Alternative personal cell phone)

(501) 336-0918 (This one is Holy Ghost Ministries AND his main contact number for Senate work; make of that what you will.)

 

 


  1. That’s true whether he is inveighing against the Supreme Court, despite not understanding how it functions, or simply demonstrating a preference for unconstitutional legislative ideas in the Senate.

  2. I chalk this up to ignorance because the alternative explanation — that he’s the most disingenuous human being to ever haunt the halls of the Arkansas Capitol — is even more unsettling.

  3. We’ll come back to this.

  4. Though Stanley did specifically leave the door open to the idea that noted legal genius Leslie Rutledge might want to get involved in defending the monument, so….

  5. I should note that both McCreary County and Van Orden were 5-4 decisions, with Stephen Breyer as the swing vote, though — if we want to get really technical — Van Orden was a plurality decision, while McCreary County was a true 5-4 decision as to all issues.

  6. It goes without saying that Rapert’s monument does not directly relate to the history of Arkansas, nor does Rapert’s group have longstanding ties to Arkansas, unless we allow the overlap between the group’s PO Box and Rapert’s campaign PO Box to somehow count as “longstanding ties.”

  7. Worth noting: The writing Moses’s tablet carried in the frieze includes only Hebrew-language portions of commandments 6 through 10, which were specifically chosen because they are not inherently religious. (murder, adultery, theft, perjury, and covetousness.)

  8. It isn’t.