Skip to comments.Civics 101 -- Getting it right...
Posted on 09/01/2003 6:43:03 AM PDT by AZ GRAMMY
Civics 101 -- Getting it right... Mark Alexander (archive)
August 29, 2003 | Print | Send
Alabama Chief Justice Roy Moore's defiance of a federal court's mandate to remove a Ten Commandments display from the rotunda at the Alabama judicial building has been debated vigorously in recent weeks, mostly out of context.
Much of the public debate about this case has taken a wide detour around the substantive constitutional question, instead focusing on the Ten Commandments: Are they the foundation of Western law? Should they be displayed in state and local public places? Are such displays promotions of religion or history? While these are interesting questions, they are not relevant to the substance of this case.
Those content to reduce this case to a colloquy on the merits of the Ten Commandments either do not grasp the serious constitutional issue being contested, or they harbor a disingenuous motive to avoid the relevant. The latter group, well represented in the pop media, has framed this case as an insurrection led by a religious zealot and his gaggle of street preachers, thus depreciating its legal significance in order to avoid substantive and instructive discussion about our Constitution.
As The Federalist reported weeks ago, the federal judges, ACLU plaintiffs and Justice Moore all agree that the issue is not the Ten Commandments but the First and, thus, Tenth Amendments, and how these are to be interpreted. U.S. 11th Circuit Court Appellate Judge Ed Carnes, in his denial of Justice Moore's appeal, wrote, "If Alabama Chief Justice Roy Moore's Ten Commandments monument were allowed to stand, it would mean a massive revision of how the courts have interpreted the First Amendment for years." The ACLU's counsel stated, "This case is not about the Ten Commandments. This case is not about Roy Moore. It is about the First Amendment...." Indeed, Justice Moore wrote, "Have we become so ignorant of our nation's history that we have forgotten the reason for the adoption of the Bill of Rights? It was meant to restrict the federal government's power over the states...."
Notwithstanding the fact that the federal courts, the plaintiffs and defendant all declared this case to be about our Constitution, few media pundits and commentators dared venture into its real substance -- much too cerebral, fear they, for the dumbed-down masses who can't distinguish between the First and Tenth Amendment and first-and-ten to go. But in doing so, they are selling out our Founders' courageous legacy, as well as those Patriots who keep the torch burning today.
Indeed, the substance of this case solely concerns the rule of law as plainly written by our Founders in the U.S. Constitution, the protection of which is entrusted to the federal judiciary, whom it authorizes by oath to defend it, and its Bill of Rights, as adopted by the several states (including Alabama). The core question raised by this case is whether our Constitution should be altered by amendment (as per original intent), or adulterated by adjudication, which our Founders (as explicated in the Federalist Papers) and the states clearly rejected.
The Constitution clearly states that "All legislative Powers herein granted shall be vested in a Congress of the United States...." (Article I, Section 1). Conspicuously absent here is any language that allows federal judicial activists to render interpretive rulings that distort the Constitution such that it comports with their political and social agendas. On the subject of judicial activists, the Constitution declares, "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour" (Article III, Section 1). In other words, they should be impeached. Unfortunately, as Thomas Jefferson noted, impeachment is "a scarecrow," a straw man.
The First Amendment states "Congress shall make no law respecting an establishment of religion...," and the Tenth Amendment ensures "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In the Federalist Papers, the definitive exposition of the Constitution's original intent, James Madison wrote, "Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. ... The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
Madison, our Constitution's author, meant that the Constitution is to be read and ruled upon constructively, not as a matter of interpretive opinion, which circumvents its prescribed method of amendment. Those are the terms under which the states, including Alabama, ratified the Constitution.
As for the suggestion that the Fourteenth Amendment's "Privileges or Immunities" clause applies the Bill of Rights' restrictions on the central government to all levels of government -- it didn't and it doesn't. That notion was settled by the Supreme Court long ago, though the Fourteenth continues to be dredged up by judicial activists -- the same ones who interpret the First Amendment to read "separation of church and state" -- in an effort to eviscerate the Bill of Rights. It only applies in this case -- in the correct application of the amendment -- in support of Justice Moore's position, in that it bars the state of Alabama, and Moore as its chief judicial officer, from acting on the order handed down from the federal court.
Justice Moore, in his defiance of the federal courts, wrote, "Under the 10th Amendment to the U.S. Constitution, federal courts have absolutely no power, authority or jurisdiction [in this case]." He is, correctly in our opinion, arguing that he cannot be in disobedience of a judicial order where there is no jurisdiction. Thus, his actions do not rise even to the level of civil disobedience -- just defiance of an unlawful ruling. Of course, this distinction is predicated on respect for the rule of law under our Constitution, not the rule of judges, or what Thomas Jefferson characterized as "the Despotic branch." Justice Moore is currently suspended for his defiance and faces ethics charges before the seven-member Court of the Judiciary.
On Tuesday, the Ten Commandments display was removed from the judicial rotunda in Montgomery, to the shrieks of a few eccentric street preachers whose tirade (replayed repeatedly by Leftmedia outlets) served only to discredit the thoughtful objections of millions of Christian Patriots across the nation and further obfuscate the constitutional case being made by Justice Moore. In neighboring Mississippi, Gov. Ron Musgrove (D) called on governors around the nation to put the monument on display in their state capitol buildings -- starting with his.
So what's next? A new appeal to the Supreme Court is in the works, while Alabama Gov. Bob Riley, Attorney General Bill Pryor and the eight Associate Justices are busy trying to convince the people of Alabama that they support the Ten Commandments but were bound to obey the rule of law. "Because we are a society of laws, the Alabama Supreme Court has a duty to comply with the federal court order, whether they agree with it or not," said Riley. Indeed, they do -- unless the order is unlawful. Riley did not say how far from the "rule of law" they are willing to let judicial activists stray before adhering to Alabama's state motto, "We Dare Defend our Rights."
Perhaps that will be best left to Governor Roy Moore....
A footnote: While The Federalist would not support a constitutional amendment to elect judges to the federal bench, we have outlined in the New Federalist Platform, on our Reagan2020.com website, a plan for dissolving the inferior federal courts after a four- or six-year term on a rotating district basis, and reconstituting them. This would, in effect, term-limit the courts themselves, and thus term-limit the judges serving on those benches. We believe Congress already possesses this power, as Article III, Section 1 refers to "such inferior Courts as the Congress may from time to time ordain and establish." Of course, resorting to a constitutional amendment might be required....
Quote of the week...
"Alabama Attorney General Bill Pryor and my fellow justices have argued that they must act to remove the monument to preserve the rule of law. But the precise opposite is true: Article VI of the Constitution makes explicitly clear that the Constitution, and the laws made pursuant to it, are 'the supreme Law of the Land.' Judge Thompson and the judges of the 11th U.S. Circuit Court of Appeals have all sworn oaths which bind them to support the Constitution as it is written -- not as they would personally prefer it to be written. ... By subjugating the people of Alabama to the unconstitutional edict by Judge Thompson...the attorney general and my colleagues have made the fiat opinion of a judge supreme over the text of the Constitution. ... The First Amendment says that 'Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.' It does not take a constitutional scholar to recognize that I am not Congress, and no law has been passed." --Alabama Chief Justice Roy Moore
This is your last call to sign our open letter in support of Justice Moore's defense of Constitutional Rule of Law, religious liberty and states' rights in this landmark case.
"To those who cite the First Amendment as reason for excluding God from more and more of our institutions every day, I say: The First Amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny." --Ronald Reagan
Mark Alexander is Executive Editor and Publisher of The Federalist, a Townhall.com member group.
Before I would support election of judges, where the gay lobby would compete with the campaign donations of the individual, I support Alan Keyes solution.
The Congress must pass legislation that, in order to assure proper respect for the first clause of the First Amendment, excepts from the appellate jurisdiction of the federal courts those matters which, by the conjoint effect of the First and 10th Amendments, the Constitution reserves to the states respectively and to the people. (This language avoids a semantic difficulty, since congressional legislation that explicitly mentioned matters pertaining to an establishment of religion would serve the intention but violate the terms of the first clause of the First Amendment.)
"That notion was settled by the Supreme Court long ago,"
I ask the author, if that is the case, how do you explain the jurisdiction and ruling of Gilleo v Ladue (1994) in which Mrs. Gilleo won an Amendment I challenge (freedom of speech) against the constitutionality of a local ordinance in the City of Ladue, Mo prohibiting the erection of political signs on private property except with 60 days of an election?
I would also challenge the author in his declaration that Judge Moore's case is an Amendment X constitutional issue.
I think it is more of an Amendment I issue, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" constitutional issue.
The problem with federal judges overturning sovereign state enacted laws as unconstitutional to the FEDERAL constitution, is not necessarily a problem with jurisdiction of the FEDERAL constitution with in the boundaries of sovereign state (Amendment XIV did close that issue) the problem is for 40 plus years of Democrat control of the Senate, federal judicial appointments have had to pass the "living constitution" interpretation litmus test during the U.S. Senate confirmation hearings.
This litmus test was an egregious error made by past Senate members and the Republicans do not show much resolve in reversing that litmus test.