Patriot Interview: Alabama Supreme Court Chief Justice Roy Moore on the First Amendment
22 December 2003
The Federalist: Chief Justice Roy Moore, concerning the Ten Commandments monument formerly located in the rotunda of the Alabama State Judicial building, two essential questions seem to present themselves: First, why did you do it; and second, why were you justified in doing it, constitutionally speaking?
Chief Justice Moore: Well first why did I do it, because it was my pledge during my campaign to restore the moral foundation of law; to restore the moral foundation of our law we must recognize the God who gave us the Ten Commandments, which is the God upon which this nation is founded. Indeed the District Judge in this case stated in his opinion that it was not he was not saying it was wrong to display the Ten Commandments opinion that the Ten Commandments were an important part of our American law, if not one of the most important parts of American law. However, he said to acknowledge the Judeo-Christian God crossed the line between the permissible and the impermissible, and therein lies the issue. In his own words he stated, "The issue is can the state acknowledge God?" He said "No." That is a very important perception, since the Constitution of Alabama recognizes that our justice system is established and I quote, "invoking the favor and guidance of Almighty God." Indeed, we must recognize God in Alabama for the sake of out justice system. Secondly, the whole First Amendment itself regarding religion is predicated upon the belief in that Almighty God upon which this nation was founded. So why did I do it? Because it was my duty, because I was sworn to uphold the constitution so help me God, without acknowledgment of the bases of those, how can those have any meaning? ...[W]hy was I justified, because both the Constitution of Alabama and the Constitution of United States acknowledge God.
FED: On that note, you have commented on numerous occasions, and quite fittingly, that this is a First Amendment issue. Specifically, how are your opponents reading the First Amendment differently; and also, how is the Tenth Amendment relevant to this issue both in terms of the jurisdiction or the lack thereof of the federal courts, as well as the prerogative of the State of Alabama?
C.J.M.: First, this is a...First Amendment issue and how my opponents are reading it differently is very easy: they're reading it differently but not defining the words. Judge Myron Thompson said that the court did not have the expertise to define the word "religion," and indeed thought it dangerous and unwise to define the word. When a judge can't explain or define the words in the statute, he rules by his feelings and his own predilections; when he does so he enters unlawful orders. You see, they're not reading the words of the statute, the First Amendment, their ruling by tests which have no relevance to the First Amendment. Indeed, this judge did exactly that. I gave him the meaning of the word religion out of thee United States Supreme Court opinions. It was the duties we owe the Creator and the manor of discharging which recognizes a high authority and a higher law. They don't like the definitions, that is their own precedents -- they violate their own precedents and call it law when they have no basis for that. As far as the Tenth Amendment goes, it is very clear that the Federal Courts have no jurisdiction to tell Alabama they cannot acknowledge God. Indeed, nearly every State in the Union acknowledges God in its Constitution. For the Federal Government to step in and say a state cannot acknowledge God is a violation of both the First and the Tenth Amendments. The Tenth Amendment plainly states that the powers not delegated to the United States, nor by the Constitution, nor prohibited by it are reserved to the states respectively, or to the people. ... Our State Government our State Constitution says that the justice system of Alabama is established invoking the favor and guidance of Almighty God. For a Federal Court to come in and tell us we can't acknowledge God undermines the entire justice system of Alabama and is a violation of the Tenth Amendment as well as the First Amendment.
FED: Chief Justice Moore, would you agree that the only way the Federal Court's ruling could be construed as valid and binding is if the monument first of all violates Constitutional Law, and secondly that the only way the issue could be construed as contrary to Constitutional Law would be on the basis of the prevalent and dangerously flawed ah interpretation of the so-called Separation Clause?
C.J.M.: Certainly. And there is no in Separation Clause per se, and...the separation of Church and State are not in the Constitution or the Declaration as we well know, but there is a separation of the jurisdictions which they're violating; the separation of the jurisdiction between Church and State. The State was never to interfere with the operation of the Church or the ability of people to worship God according to the dictates of their conscious, and that is exactly what is happening. The whole First Amendment was a prohibition on Federal Government and, indeed, the Federal Government is now taking that prohibition and distorted it to allow it to do exactly that which the First Amendment prohibits.
FED: Mr. Chief Justice, in a related question, is this primarily a First Amendment issue or a Tenth Amendment issue, or would you choose to couch it in other terms? For instance, many passionate advocates, both liberal and conservative, have approached this issue from a exclusively religious perspective. What is your opinion of that, what is the central issue here?
C.J.M.: Well the central issue here is whether or not we can acknowledge God and a lot of people call it a religious perspective, but I see it as a legal...position that we can and most acknowledge God. The organic law of our Country, the Declaration of Independence, states that, "we hold these truths to be self evident that all men are created equal and endowed by their Creator with certain unalienable rights among these are life, liberty, and the pursuit of happiness" and that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed. Now what that simply says is that God gave us our rights and the government's role is to secure them for us. Now when the government intrudes and says you can't acknowledge God, then it must pretend to give you your rights and if it gives you something it can take it away. It is a very fundamental concept with which we are dealing. Yes, many people have approached it from a exclusively religious perspective, and yet they can't define the word religion and that's the problem. It is a Constitutional issue and a matter of law whether or not we can acknowledge God; certainly that's permissible under the law.
FED: Eleventh U.S. Circuit Court of Appeals Judge Ed Carnes, who ruled against you, said that, "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." How do you respond to that?
C.J.M.: You're probably right, because the First Amendment has been misinterpreted for the last forty years to exclude that which is explicitly authorized, i.e. the worship of God. And what Judge Carnes said was that it would overturn precedent. That's not what only what Judge Carnes said, it's what Myron Thompson, on the District Court said, and they simply chose to follow the line of wrongful rulings by the Supreme Court which have completely avoided the word religion. ...[James Madison] explicitly recognized the definition of religion out of thee Virginia Bill of Rights that definition itself recognizes God in higher law. They don't want to recognize the original meaning of the words, they want to change the Constitution according to their predilections and feelings. In1858, in Dread Scott, the dissenting Justice Benjamin Curtis said that 'when a strict interpretation of the constitution according to the fixed rules which govern the interpretation of laws is abandoned, then theoretical opinions of individuals are allowed to control its meaning. We have no longer a constitution where under a government of individual men who for the time being have the power to declare what the constitution is according to their own views of what they think it ought to mean.' That is exactly what is happening today. Judges are interpreting the Constitution not according to the strict interpretation of laws, but according to their own views what they think it ought to mean, because they think we ought not to have a higher authority and higher law....
FED: So in a sense, for proponents of Federalism the issue of Constitution authority is ultimately a question of epistemology: If the Constitution is not an unchanging and knowable standard of law, then what is the standard?
C.J.M.: That's right. It is either a standard of man or a standard of God; a standard of God wouldn't change. A standard of man varies from judge to judge, from person to person, from court to court. That's what we're finding all over this Country. They're not ruling by law, they're ruling by feeling, and we have to go back to the principle of Federalism. ...[W]hat is Federalism but to restrict the power of the Federal Government over the States? The present interpretation is that States have no power in themselves, that it is all Federal Government. Indeed when you take a portion of the Bill of Rights and apply it against the States when it was meant to protect the States, then you have distorted the Federalism principle and that is what we are seeing here.... They called the ruling of a Federal District judge a law. Indeed, judges are not above the law, the law is above judges, and that law is the Constitution of the United States, not what a judge says he thinks it ought to be. That's what Judge Myron Thompson said when he said he couldn't define the words, but he felt it should be like this.
FED: Some claim that the 14th Amendment takes precedence here over the 1st and 10th, meaning that this is an essentially federal issue, addressable by federal courts. Specifically, the 14th Amendment's language in Section 1 is said to have bearing upon this situation, which (for the benefit of our readers) says, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." How do you respond to that, and what is the appropriate role of the 14th Amendment in this case? Is it relevant?
C.J.M.: It is a mystery to me how the Fourteenth Amendment would apply, and certainly it didn't apply when they wrote the Fourteenth Amendment. It's simply distorted since 1947 in the case of Everson v. the Board of Education, when they started applying the First Amendment to the States combined to the Fourteenth. But if you look at the words of the Fourteenth and look at the words life, liberty, and property you've got to realize how they were originally defined under the law. They were defined as given by God--everyone of them. Life was the immediate gift of God, the right inherent in nature in every individual and it begins in contemplation of law as soon as the infant stirs in its mother's womb. Naturally, liberty consists of the power of acting as one thinks fit without being restrained or controlled unless by the law of nature and so forth with property. But the point is how can you deprive something by recognizing the giver of those rights if that was recognized in the Declaration of Independence which was organic law? To say that you must now dis-acknowledge God or not acknowledge God and say it is in conformity with the Fourteenth Amendment is a completely illogical position. No State is abridging anybody of life, liberty, and property when those States recognize that life, liberty, and property, as does Alabama, comes from God. In the Alabama Constitution it says that we acknowledge the Creator and are endowed by our Creator with certain inalienable rights; that among these life, liberty, and the pursuit of happiness--directly from the Declaration of Independence. How can it say that we're abridging those rights when we recognize God who gave them to us? Indeed, that the position of the Government. Indeed, that is a dangerous position...for a Federalist, or a person that believes in the restriction on Federal Government
FED: In terms of your case, what are the implications for this sort of action on the part of the federal courts? Why is this case so important to the future of our constitutional republic? What kind of precedent does this set? Is your case unique, or do you see it as a part of a larger pattern of judicial rulings?
C.J.M.: Well, it is part of judicial rulings excluding the very author of our liberty, God, the very fundamental bases from which this country was founded. In the United States Code, annotated under Organic law, the first document you find is the Declaration of Independence--the Declaration of Independence is a part of the formation of our organic law that formed this Country. It recognizes God to be the giver of these rights. When you dis-acknowledge God you destroy the organic law and the fundamental principles upon which the Nation was founded, and you destroy the country itself. Without God the United States of America becomes a different country and the Federal Courts are taking that knowledge away.
FED: Chief Justice Moore, we often hear of the activist judiciary in this country--a judiciary that oversteps its constitutional role and legislates rather than delineates. While we generally associate this sort of thing with liberals in the judiciary, some have accused you of being a judicial activist. Constitutionally, how do you respond to that accusation? What are your thoughts on the state of the federal judiciary and judicial activism?
C.J.M.: I think we've got a lot of conservative judges who are federal activists or judicial activists, such as United States Supreme Court, who urge going on foreign law as the basis on domestic issues. It completely undermines their oath to the Constitution of the United States and they are activist judges because they are failing to interpret the words, like religion in the First Amendment. A judge becomes an activist when he does not follow the law--when he makes it up as he goes. Judge Myron Thompson made it up as he went. He said this and I quote, I don't know if you've received his order, have you ever looked at his order?
FED: Yes sir.
C.J.M.: Did you read where he said that the court did not have the exegesis to define the word religion, and indeed to define it unwise and dangerous to define religion in another part of the order in a footnote, did you see that?
FED: Yes Sir.
C.J.M.: Ok, when a judge can't define the words, how can he interpret the law? He can't. He has to make it up by what he feels. Judge Myron Thompson said that he felt that this monument gave off a holy aura. Now that's something. Someway to rule on the case. ...I think what we have here is a lot of judges ruling on other things besides the Constitution--they're sworn to uphold both in the Federal, specifically in the Federal, and also in the State Judiciary. But the Federal bench is replete when three or four United States Supreme Court Justices start ruling on the human rights court out of Europe.
FED: Would these sorts of rulings--from the Supreme Court, from the Ninth Circuit Court of Appeals, from Judges Thompson and Carne--what do you see as the future of our republic if we don't change the direction in which we're going?
C.J.M.: The Future of our Republic will lead to Tyranny.
FED: How so?
C.J.M.: Because Washington and our forefathers recognized that it would. "That it is important likewise with habits of thinking in the free country should inspire caution in those entrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in exercise of powers of one department to encroach upon another. This spirit of encroachment tends to consolidate all the powers, the powers of all departments of one and thus creating whatever the form of government a real despotism. A just testament that the love of power promised to abuse it which predominates in the human heart is sufficient to satisfy us the truth of this position." I am quoting from memory, and that is what he said about separation of powers. When a judicial branch consumes those powers it will result in despotism. ...[T]hat is exactly what happens when the Federal Government or Federal Courts assume to make the laws which are made by Congress.
FED: It was Jefferson's concern, was it not, that the constitutional checks on the courts would be inadequate to the purpose. I believe he said, "It will be said that a federal court may encroach on the jurisdiction of the state's courts. It may, but there will be a power to let Congress watch and restrain them." But apparently we haven't seen Congress.Ö
C.J.M.: I will adopt that answer as my own. (Laughter)
FED: Ah how come we have not seen Congress step up--step into that role to restrain a way word judiciary? Would you agree?
C.J.M.: Yeah, oh yes, absolutely.
FED: On a more personal note, you've fought this battle and continue to fight this battle at great personal sacrifice, both for you and your family. Would you care to detail for us some of those sacrifices, which the media seems loath to report?
C.J.M.: Yeah, the media reports I'm doing this for political advantage. What political advantage is it getting ousted in mid-term from your office, loosing your retirement..., loosing your entire income, your heath insurance for four children in school, your position of authority and respect, criticized by all the editorialists in the state--does that sound like political advantage to you? I don't think it is and I think its not been reported that I had one of the highest positions or one of the highest paying positions in the state, and yet I have no income at the present. I've lost much of my retirement. I lost my health insurance for my children. I've lost income, but I haven't lost my honor and I haven't given up my oath.
FED: And you're preparing again to appeal this?
C.J.M.: I am, it contradicts even the courts own precedence...in 1961 where they allowed a Maryland notary public to hold office when he would not acknowledge God; forty-two years latter they're excluding someone for acknowledging God. ...[H]ave you read the transcript of the attorney generals question of me before the court of the judiciary? Let me recite them, this I am reading from the transcript. Question: "Mr. Chief Justice, in your understanding is it the federal court order that you could not acknowledge God isn't that right?" My answer was "Yes." Question: "And if you resume your duties as chief justice after this proceeding, you will continue to acknowledge God as you have testified that you would today?" My answer was, "That's right." Question: "No matter what any other official says?" Answer" "Absolutely, without, let me clarify that without an acknowledgment of God I cannot do my duties. I must acknowledge God. It says so in the Constitution of Alabama. It says so in the First Amendment to the United States Constitution...." Question: "The only point I'm trying to clarify, Mr. Chief Justice, is not why, but only that in fact if you do resume your duties as Chief Justice you will continue to do that, without regard to what any other official says. Isn't that right?" Answer: "Well, I'll do the same thing this court did with starting with prayer. That is an acknowledgment of God now we did the same thing that justices do when they put their hand on the Bible and say 'So help me God.' It's an acknowledgment of God. The Alabama Supreme Court opens with 'God save the state and this honorable court.' It's an acknowledgment of God. In my opinions which I written, many opinions acknowledging God as a source, a moral source of our law. I think you must." You see, three times I was asked to deny God. If I resume my office would I acknowledge God, I said I would. So I think those questions being asked by one who reports to be a federalist are very important.
FED: Those questions were coming from...?
C.J.M.: Attorney General Bill Prior.
FED: Thee same Attorney General Bill Prior who's under filibuster in the Senate? Correct?
C.J.M.: That's right.
FED: Ah, but you're the one being accused of doing this for political gain?
C.J.M.: That's right.
FED: Final question. Chief Justice Moore, if you care to comment, what are your plans for the immediate and long-term future? Are you holding out the possibility for future elected office--I'm thinking specifically of the governor's mansion for instance?
C.J.M.: Well, my future plans are to appeal this case and try to retain the job I was elected to do as Chief Justice of Alabama. Certainly one should not be excluded from his office for what he believes to be right in holding the Constitution of Alabama, Constitution of the United States, for acknowledging the very God upon which these constitutions are predicated. Am I holding out all possible future elected office if I am unsuccessful in my bid to retain the one I've got? I guess I would consider future elected office, or I might go for some other job...and the governor's mansion, well it's just one elected position that might be available someday.
FED: Sooner than latter?
C.J.M.: I am not saying I would or I wouldn't.
FED: Justice Moore, thank you.