Alexander's Column

States' Rights — United States v. Roy Moore

Mark Alexander · Aug. 15, 2003

(For Constitutional context, read Alexander’s essays on the endowment of Liberty, on Essential Liberty, on The Bill of Rights, Tenth Amendment Federalism on the so-called “Living Constitution.” For additional resources, see our Historic Documents page.)

There is serious threat facing our nation, the resolution of which will have far-reaching implications for the survival of our republic.

For the last decade, The Federalist has followed the judicial tenure of Roy Moore, the Alabama judge who was sued by the ACLU in 1995 – to no avail – because he displayed the Ten Commandments in his courtroom and opened his court with prayer. Two years ago, when this outstanding Patriot was sworn in as Alabama’s Chief Justice, he declared, “God’s law will be publicly acknowledged in our court. [It is my duty] not only to maintain the honor and integrity of the court system and the judicial branch, but to restore and preserve the moral foundation of our law.”

Chief Justice Moore not only keeps the Decalogue in his courtroom, but in 2001 he installed a monument in the rotunda of the Alabama Justice Building featuring a relief of the Ten Commandments, engraved with quotes from our Founders. At the dedication of that monument, Justice Moore declared, “To restore morality we must first recognize the source from which all morality springs. From our earliest history in 1776 when we were declared to be the United States of America, our forefathers recognized the sovereignty of God.”

That, of course, prompted a federal lawsuit by the ACLU claiming violation of the First Amendment’s so-called “separation clause” (based on the erroneous assertion that Thomas Jefferson’s 1802 letter to the Danbury Baptists proclaimed that the Constitution ensured all manner of “separation of church and state”).

Despite the fact this case has received only marginal media attention, we believe it is the most important test of Federalism in decades, not only of Federalism as detailed in the Ninth and Tenth Amendments, but also of the First Amendment’s restriction that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” which has been stretched by Leftjudicial activists beyond recognition. This case should be of utmost interest to any American who is a Christian and/or a constitutional constructionist.

Our Constitution established a Republic intended to reflect the consent of the governed, a nation of laws, not men. Article IV, Section 4 state unambiguously, “The United States shall guarantee to every state in this union a republican form of government…”

Defending the protection of the state from federal jurisdiction in this case, Justice Moore testified, “The basic issue is whether we will still be able to acknowledge God under the First Amendment, or whether we will not be able to acknowledge God.” But U.S. District Judge Myron Thompson would have none of that and ordered the monument removed.

Justice Moore took his case to the 11th U.S. Circuit Court of Appeals, protesting that “…Federal district courts have no jurisdiction or authority to prohibit the acknowledgment of God that is specifically recognized in the Constitution of Alabama,” but Judge Ed Carnes upheld Thompson’s ruling. Carnes wrote: “Any notion of high government officials’ being above the law did not save [states’ rights proponents] from having to obey federal court orders, and it will not save [Alabama Chief Justice Roy S. Moore] from having to comply with the court order in this case. … If necessary, the court order will be enforced. The rule of law will prevail.”

Apparently, Judge Carnes relied on the same adulterated version of our Constitution used by Thompson. Our copy still says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” which applies to, well, Congress, not Chief Justice Moore, who was elected to state office by the people of the state of Alabama. The only parties in this case involved in “prohibiting the free exercise” of religion are the ACLU and their Leftjudiciary minions.

Chief Justice Moore has appealed the 11th Circuit Court ruling to the Supreme Court, declaring: “We must defend our rights and preserve our Constitution. … To prohibit the acknowledgment of God upon Whom our justice system is established is to undermine our entire judicial system. We will defend this display in the judicial building vigorously. It is an acknowledgment of a sovereign, holy God Whose laws superintend those of man. We will not retreat from that position, because it is true.”

Supreme Court Chief Justice William Rehnquist has noted previously, “The wall of separation between church and state is a metaphor based upon bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. … The greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intention of the drafters of the Bill of Rights.”

Ironically, in the Supreme Court, the Ten Commandments are etched in a marble relief above the Justices’ bench, for indeed they are the moral foundation of American law.

Thompson, meanwhile, renewed his demand that Chief Justice Moore remove the monument by August 20 and threatened “substantial fines against Chief Justice Moore in his official capacity, and thus against the state of Alabama itself, until the monument is removed.”

Stepping into the fight in late July, Congress voted 260-161 for an amendment to defund any effort by U.S. Marshals to remove the monument. “None of the funds appropriated in this [bill] may be used to enforce the judgment of the U.S. Court of Appeals for the 11th Circuit,” said Rep. John Hostettler.

The foundational question all constitutional constructionists should be asking: On what legitimate constitutional grounds can a federal judge lodge demands, punishments and fines against chief judicial officers in the several states – or does the federal bench now assume that the states are nothing more than administrative agencies of the central government – rather than federally separated governments subject to their own constitutional sovereignty?

To assess the importance of this case, consider this evaluation from 11th Circuit Judge Carnes in his ruling against Chief Justice Moore: “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.”

Footnote: Last week, The Federalist noted the parallel between bishops in the Episcopal church who “interpret” Scripture to comport with their culturally relativist agendas in violation of their ordinal vows and politicians who “interpret” the Constitution to comport with their political and social agendas despite their oath to uphold the Constitution. Of course, federal judges take the same oath to uphold the Constitution. As the venerable Senator Sam Ervin said a generation ago when judicial activism reared its head, “A judicial activist is a judge who interprets the Constitution to mean what it would have said if he, instead of the Founding Fathers, had written it.”

Quote of the week

“The battle is not to the strong alone, it is to the vigilant and the active and the brave. So said Patrick Henry in 1775. It was true then, and it’s true today.” –Alabama Chief Justice Roy Moore