Five Will Get You Ten

Very amusing colloquy at Balkinization arising from Jack Balkin's prediction that the Supreme Court will "split" on the Decalogue case in a decision per Justice O'Connor that "upholds five, strikes down five."

One interesting bit: A commenter called "Farnsworth" (author of the famous treatise on contracts?!) reports a New York Times article, excerpted to wit:

Justice David H. Souter asked whether a tablet containing only the last five commandments, the injunctions against killing, stealing and so on, might be constitutional because, unlike the first five, they did not necessarily imply religious belief.

That would be a harder case, Mr. Chemerinsky replied, but such a tablet would still be unconstitutional because it would still convey the Ten Commandments' message.

Ultra-depressing. Remember, I'm against the use of the Big Ten as judicial bric-a-brac, but in the process of getting there I see Establishment Clause jurisprudence in utter tatters here.