An Open Letter in Support of Alabama's Ten Commandments Monument

"I believe the States can best govern our home concerns, and the General Government our foreign ones. ... The States supposed that by their tenth amendment, they had secured themselves against constructive powers." --Thomas Jefferson (1823)

Alabama Chief Justice Roy Moore and his Ten Commandments monument on display in the rotunda of the state's judicial building have become the latest flashpoint in the ongoing war over First Amendment rights, states' rights, and the interpretation of the so-called church-state "separation clause," presenting a major test case over the fundamental nature of government and the Constitution. Installed in 2001 after Moore's election to the state's chief judicial office, the 5,300 pound, granite monument came under attack from the American Civil Liberties Union and Southern Poverty Law Center, among others, on the grounds that the monument's presence in a state building constituted a violation of the First Amendment.

In keeping with the "living Constitution" and "wall of separation" sentiments of our time, a recent New York Times editorial laments, "There is a very serious principle at risk in Justice Moore's grandstanding. The federal Constitution applies to the states, and the federal courts are its ultimate interpreter. Justice Moore's desire to ignore the Constitution's mandates on the separation of church and state has an uncomfortable resemblance to the arguments Gov. George Wallace made when he mounted his stand in the 'schoolhouse door' to block blacks from enrolling at the University of Alabama."

The comparison to Wallace's segregationist policy echoes the comparison made by District Court Judge Myron Thompson in his original ruling against Moore -- a decision upheld by the 11th U.S. Circuit Court of Appeals. Justice Moore now plans to appeal to the U.S. Supreme Court, having already filed a motion with the high court arguing that Thompson did not have jurisdiction to pronounce his original ruling. His argument is simple: the Constitution's Tenth Amendment guarantees sovereignty to the State of Alabama and its judicial arm over matters internal to the state, and the monument in question is in keeping with the Alabama State Constitution.

President Ronald Reagan affirmed this principle in his 1987 Executive Order 12612 on Federalism: "The people of the States are free, subject only to restrictions in the Constitution itself or in constitutionally authorized Acts of Congress, to define the moral, political, and legal character of their lives. ... Acts of the national government -- whether legislative, executive, or judicial in nature -- that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers."

(Executive Order 12612 on Federalism was revoked in 1998 by Bill Clinton's new EO 13083, which sought to justify a broader, extra-constitutional role for the central government, where the States are subject to "the limitations in the Constitution itself or in Federal law, [emphasis added] to define the moral, political, and legal character of their lives," contrary to the Tenth Amendment. Reagan's EO 12612 has since been reinstated by the executive order of President George Bush.)

The only way the federal court's ruling could be construed as valid and binding is if the issue of the Ten Commandments monument was contrary to constitutional law; the only way the issue could be construed as contrary to constitutional law is on the basis of a prevalent, though dangerously flawed, interpretation of the so-called "Separation Clause" of the First Amendment. The First Amendment says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The name "Separation Clause," however, is itself a misnomer. While the First Amendment's Establishment Clause clearly forbids Congress from institutionalizing a state religion, there exists no such prohibition -- no "wall of separation" -- against the establishment of religion by a given state, and Justice Moore's actions are far from the establishment of religion by law, even so. In Thomas Jefferson's oft-cited 1802 letter to the Danbury Baptists, from whence we inherit the phrase "wall of separation" between church and state, it is clear that Jefferson is affirming a church's constitutional guarantee against intrusion by the state, not an absolute separation thereof. As Supreme Court Chief Justice William Rehnquist writes, "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."

Likewise, Supreme Court Justice William Douglas, in the 1952 Zorach v. Clauson decision, writes, "The First Amendment ... does not say that in every respect there shall be a separation of Church and State.... Otherwise the state and religion would be aliens to each other. We are a religious people and our institutions presuppose a Supreme Being.... When the state encourages religious instruction ... it follows the best of our traditions."

Again, Jefferson: "The several States composing the United States of America are not united on the principle of unlimited submission to their General Government; but ... by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, -- delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government."

Simply put, there is no palpable evidence that the State of Alabama is contradicting a federal statute or overriding a federal prerogative. The Federal government has no legal basis on which to preempt the state's position.

On the subject of preemption, the U.S. Supreme Court itself has recognized the criterion for its own judicial review: the Constitution. In the 1803 decision Marbury v. Madison, Chief Justice John Marshall concludes, in part, "...it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! ...If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime."

The Tenth Amendment clearly establishes Federalism as a fundamental constitutional principle: "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."

This is prefaced by the often-overlooked Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

To be certain, this Federalism does not envision a central government that is infinitely diminished and ultimately impotent. Rather, it requires that the central government be constitutionally-limited in the scope of its power and function. For the proponents of Federalism, the issue of constitutional authority is ultimately a question of epistemology: If the Constitution is not an unchanging and knowable standard of law, then what is the standard? Without a constructionist reading of our nation's governing document, law is reduced to the arbitrary will of men. Instead of being limited by law, the branches of government themselves become law, resulting in a legal system where judges are self-referential and ultimately subjective -- a system where law is the mirror of its interpreter.

The Executive and Legislative branches of government -- presently under the sway of those who bill themselves as sympathetic to constitutional constructionism -- now have the opportunity to stand in defense of constitutional restrictions upon the central government and Federalism in general, and the First, Ninth and Tenth Amendments in particular. The House of Representatives has already taken the first step in this direction, passing an amendment offered by Republican Rep. John Hostettler to defund any effort by federal officers to remove the monument. This is in keeping with Thomas Jefferson's conception of the constitutional check on the courts, when he wrote, "It will be said, that [a federal] court may encroach on the jurisdiction of the State courts. It may. But there will be a power, to wit, Congress, to watch and restrain them." We encourage the Senate and the President to affirm the House's initiative in defense of constitutional Federalism.

In conclusion, the foundational question all constitutional constructionists must ask is this: 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? For this generation of Americans, the case of Justice Moore may prove the occasion to renew a serious national debate over the issues of states' rights and the meaning of Constitutional law.