Alexander's Column

Civics 101 — Getting Religious Liberty Right

Mark Alexander · Aug. 29, 2003

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.

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.

As for the suggestion that the Fourteenth Amendment’s “privileges or immunities” clause dilutes the plain language of the Bill of Rights, the original intent of this Amendment’s provision, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…,” was, and remains, due process and equal enforcement (application) of laws to all persons, particularly those who had been liberated by the Thirteenth Amendment’s declaration: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted….”

In other words, it applies to those privileges or immunities previously enumerated in the Constitution. It does not apply to the extent judicial activists have broadly interpreted the Bill of Rights. If the Fourteenth Amendment was properly interpreted in its original constitutional context, the Ten Commandments would stand, pornography would not constitute “speech,” universities could accept students based on performance rather than skin color, and state and local laws against prohibiting gun ownership would get tossed out!

The First and Tenth Amendments notwithstanding, 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.”

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…

“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