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August 22, 2003

The Despotic Branch v. The Ten Commandments

Recently, The Patriot noted the remarkable parallel between bishops in the Episcopal Church who “interpret” Scripture to comport with their political and social agendas in violation of their ordinal vows, and judges who “interpret” the Constitution to comport with their political and social agendas, in violation of their oath to uphold our nation’s legal foundation. Neither interpretation honors the original word and intent of those founding texts. Instead, they offer nothing more than a reflection of themselves as if they authored those venerable words.

Regarding the word of law, our Constitution provides a mechanism for its alteration by amendment, not adulteration by judicial decree. That premise is the basis for Alabama Chief Justice Roy Moore’s defense of the First and Tenth Amendments in what is, potentially, the most important and influential case in decades pertaining to religious liberty and states’ rights as defined by our Constitution.

Most media pundits, and the couch potatoes who suckle at their font, never took a civics class and couldn’t distinguish the substance of this case – the constitutional issue – from the superfluous – “Showdown on the 10 Commandments.” Thus, they have cast this case as nothing more than a “right-wing Christian zealot” trying to keep a monument of the Decalogue in a courthouse in the backwoods of lower Alabama.

Demonstrating their nescience, Leftmedia talkingheads adroitly taunt, “Well, can the state of Alabama put a shrine to Mohammed in the judicial rotunda?” The answer is…YES! In accordance with the First and Tenth Amendments, if the people of Alabama choose to do so, that is their prerogative.

Media ignorance notwithstanding, the ACLU knows what this case is really about: “This case is not about the Ten Commandments. This case is not about Roy Moore. It is about the First Amendment ‘separation of church and state’.”

And the judicial activists who ruled in this case know what it is about, too; 11th U.S. Circuit Court Appellate Judge Ed Carnes wrote, “If Alabama’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.” Of course, it is Carnes and his Leftjudiciary minions who are “above the law” by rendering verdicts based on their opinion rather than the Constitution.

The First Amendment’s restriction on the central government reads simply, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” But the law itself has been “interpreted” by Leftjudicial activists beyond recognition – and in violation of both their solemn oaths and the will of the Founders, who expected the judicial branch to rise above contemporaneous political and social agendas and abide by the letter of the Constitution.

This current practice of “constitutional interpretation” by judicial activists is tantamount to incremental tyranny by what Thomas Jefferson rightly feared would become “the Despotic branch.”

In the Federalist Papers, the definitive exposition of the Constitution’s original intent, James Madison, our Constitution’s author, stated, “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.”

In other words, the Constitution strictly limits the central government to its enumerated powers, not the unlimited powers now imposed by an activist judiciary. Every state, then, is individuated by its own Constitution.

Justice Moore was, predictably, denied his appeal by the U.S. Supreme Court to stay the appellate court’s decision. He filed a second appeal questioning the federal court’s jurisdiction in this matter – directly confronting the lower court’s violation of the Tenth Amendment edict, “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 other words, the Constitution is to be read and ruled on 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.

Unfortunately, on Thursday as the deadline set by U.S. District Judge Myron Thompson for removal of the monument passed, Justice Moore’s associates on Alabama’s Supreme Court acquiesced to Thompson’s edict, claiming that they are “bound by solemn oath to follow the law, whether they agree or disagree with it,” and ordered the monument’s removal. In distinct contrast to that state’s motto, “We Dare Defend our Rights,” the associate justices conceded defeat, averting, at least temporarily, a direct confrontation with the federal courts concerning the First and Tenth Amendments.

Alabama Attorney General Bill Pryor, himself a federal appellate-court nominee, said he would comply with the state court’s order to remove the monument, adding, “The rule of law means that when courts resolve disputes, after all appeals and arguments, we all must obey the orders of those courts even when we disagree with those orders.” (Perhaps Pryor’s siding with Leftjudicial activists who issue lawless diktats is sufficient indulgence to get him released from the U.S. Senate’s filibusterial purgatory.)

Taking a page from Pryor, ultra-Leftist Barry Lynn, mouthpiece for Americans United for Separation of Church and State, said, “We either have ‘rule of law’ or a nation where every judge rules on his own personal opinion.”

Inadvertently, Lynn is correct, though it is not, as he implies, Justice Moore who is acting on “personal opinion,” but judicial activists who render diktats that contradict the rule of law. We abide by LAW, not the opinions of politicians, lawyers or judges. In this case, the LAW is clear. (Read the First Amendment on The Federalist’s Historic Documents page –

Memo to President George Bush: When a candidate, you were very clear about the need to appoint “constitutional constructionists” to the federal bench. When elected, you affirmed with your hand on a Bible, in accordance with Article II, Section I of the Constitution: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Now would be a good time!

Quote of the week…

“Freedom prospers when religion is vibrant and the rule of law under God is acknowledged. When our Founding Fathers passed the First Amendment, they sought to protect churches from government interference. They never intended to construct a wall of hostility between government and the concept of religious belief itself.” –Ronald Reagan, 1983

On cross-examination…

“We have three branches of government. And I stand here today in hope that all Americans will stand to call on the President and call on the Congress to take courageous action finally to put the bridle on these unruly courts!” –Constitutional scholar Alan Keyes

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