Sometimes all it takes is a handshake and a look into a person’s eyes to see into his or her soul. That’s how it was with Judge Roy Moore when I met him. It was May of 2003 at the height of the controversy over the Ten Commandments Monument in the State Judiciary in Montgomery. My family was returning home from my oldest son’s graduation from Auburn University. We decided to stop at the Olive Garden in Montgomery for dinner. As we entered the restaurant I recognized Judge Moore with his wife. I pointed them out to my wife.
“Why don’t you go talk to him?” she asked.
I was reluctant to bother him as I was sure he was constantly being pestered by folks, both pro and con – not to mention the press. I figured all he wanted was to be left alone. I entertained a small struggle in myself, the man, his fight intrigued me. I thought it would be nice to get to speak to him to try and figure him out.
As a Government and Economics teacher in a public school I had been following the controversy around Judge Moore since his tenure as a judge in Etowah County. I agreed with him that displaying the Ten Commandments in his courtroom was not unconstitutional. If that was the case then the Ten Commandments carved into the walls of the US Supreme Court are unconstitutional. Having read the Federalist Papers myself and being aware of the opinions of the founders on the role of religion and faith in the republic they were trying to establish – not to mention the history behind the First Amendment – I do not believe in the complete separation of church and state as is held by the current conventional wisdom.
The words are found nowhere in either the Constitution itself, nor in the amendments. The First Amendment merely provides for freedom of conscience by forbidding CONGRESS from establishing a state church on the order of the Church of England (remember in England folks were forced to go to the Church of England or be punished by imprisonment or loss of property and life), or (here’s the forgotten part) FORBIDDING anyone from practicing their religion.
This prohibition applies only – ONLY to Congress. The original intent was to limit the National government’s power – it said nothing about the States. As a matter of fact several of the original States not only endorsed certain denominations, but supported those denominations with tax money. Here is where the infamous phrase, written by Jefferson (not Madison in the Constitution) originates. Jefferson was assuring Baptists in his home State of Virginia, who were worried about being persecuted as a religious minority (most folks in Virginia attended the old Church of England, now known as the Episcopal Church in the new nation), by telling them there was being built in the new nation a “wall of separation between church and state” protecting minority religions. This statement was taken out of context by a latter day Supreme Court to shove religion in a corner.
Even apart from the religious significance of the Ten Commandments, one cannot ignore the Ten Commandments as a basic foundation of Western Law. One can point to the Laws of Hammurabi as the earliest written law code (arguable with recent archeology); one can point to Ancient Greece (Athens) a the birthplace of the democratic idea; and the impact of Roman Jurisprudence in the Justinian Code gives us the idea of the law applying equally to all citizens. There is no doubt the influence of these and other sources on our ideas of law and government. But WHOSE law?
There was no greater single influence on European (Western) Civilization that produced the folks who ventured across the Atlantic Ocean in those tiny ships than the Christian Bible. Their civilization and law codes were based on the foundation of the Law of Moses – the Ten Commandments.
Though there is much debate over the levels of faith of those who were at the Constitutional Convention and deism was a popular fad of the day, there is little doubt that everyone who signed our Constitution were frequent Bible readers and held its moral precepts as sacred – even Jefferson who is popularly considered from his earlier writings to be the least religious of our founders (though he wasn’t in Philadelphia in 1787). One should read his letters to John Adams later in life and be surprised to find him moving closer to the faith of his fathers as his death grew near.
If our founders were Deists, they were Christian Deists, whose image of God was shaped by the Bible. If any were agnostic, they were “Christian” agnostics. Just as any atheists (such as Thomas Paine, who stands pretty much alone in that category) were “Christian” atheists whose image of the God they were rejecting was the God of the Bible.
It is a little known fact that Thomas Jefferson as President attended church services held in the Capitol building where Congress debated while the capitol city was being completed. One wonders what his opinion of the Supreme Court’s application of his words would be.
The Ten Commandments is the foundation of the moral code and law of three of the world’s greatest religions: Judaism, Christianity, and Islam. So, if I were to post one set of laws on my wall in a US Court, I don’t think I’d be posting the Bhagavad Gita of Hinduism, with all due respect to Hindus.
So Judge Moore’s posting of the Ten Commandments on his courtroom wall was a logical statement of the foundation of all our laws; his placement of the monument a similar statement. So why the fuss?
Perhaps it was in the WAY he did it?
Even US District Court Judge Myron Thompson’s decision ordering the removal of the monument stated that the monument would have been no problem had Moore not openly stated upon its installation that the purpose was to call the people back to a recognition of the source and foundation of all law – God.
“If all Chief Justice Moore had done were to emphasize the Ten Commandments’ historical and educational importance… or their importance as a model code for good citizenship… this court would have a much different case before it. But the Chief Justice did not limit himself to this; he went far, far beyond. He installed a two-and-a-half ton monument in the most prominent place in a government building, managed with dollars from all state taxpayers, with the specific purpose and effect of establishing a permanent recognition of the ’sovereignty of God,’ the Judeo-Christian God, over all citizens in this country, regardless of each taxpaying citizen’s individual personal beliefs or lack thereof. To this, the Establishment Clause says no.” (Glassroth v. Moore)
Today’s conventional wisdom would nod sagely and say that Moore should have left religion out of it; after all there is a separation of church and state in the United States and Moore clearly violated. If Moore had stated that his purpose was historical rather than religious, if Moore’s purpose had been sociological rather than religious, if it had been aesthetical rather than religious he might have gotten away with it.
So what are we to say, that our motives and thoughts are to be judged at the discretion of the Federal courts now? That any and all thought and motivation are approved in the public square except religion? Is this in keeping with the spirit of the First Amendment?
Did Judge Thompson have authority over a State court? Did Judge Thompson have jurisdiction over the highest court in the State of Alabama?
This is a thorny question that has caused conflict since the beginning of our nation and caused our bloodiest war.
Our Constitution was written and adopted to strengthen the weak national government created by the Articles of Confederation. There was controversy from the start over the document because it was a legitimate fear of many of our greatest minds of the time that a strong national government with too much centralized power would lead to tyranny. As the 19th Century English statesman Lord Acton said, “Power corrupts, absolute power corrupts absolutely.” Our founders believed the best way to check power (and its abuse) was to divide power as much as possible.
It was with this idea in mind our system of government was established. It was a presidential system of government. Unlike the British parliamentary system, the executive branch, or president, was totally independent of the legislative branch of government. Therefore the two branches could act as a check on each other and a series of checks and balances were installed to ensure that neither branch could gain too much political power over the other. The legislature, or Congress could pass bills, but any bill Congress passed had to pass through the President before it could become law. The President could approve or veto a bill and therefore had final authority, but even this power was checked by the threat of a Congressional override of the President’s veto if enough members of Congress felt the matter was important enough to warrant that extreme measure.
The third branch of government, the judicial was dependent on the other two not only for their positions, but was totally under the authority and jurisdiction of Congress. It is a little known or accepted fact that Article III of the US Constitution gives Congress the power to regulate which types of cases the Federal courts may hear and that Congress can step in and keep the courts away from certain types of cases. Barring that measure, Congress has the power of the purse and can always cut funding for the courts should they choose – or do away with courts if it is at their pleasure. This is all in Article III, Section 3 of the US Constitution. There was concern over lifetime appointments to the court but Hamilton pooh-poohed such concerns away in The Federalist 78 because in his mind the Judiciary was at the total mercy of Congress as stated above.
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive… (The Federalist 78 http://www.constitution.org/fed/federa78.htm )
Of course, this was written before the landmark case of Marbury v. Madison (1803) where Chief Justice John O. Marshall created for his Court the power of Judicial Review.
Jefferson, on the other hand, being an anti-Federalist, had severe reservations about the growing power of the courts. Even though he won the case of Marbury v. Madison he was less than sanguine about the idea of the Federal Courts being considered the final authority on what is and is not Constitutional, the idea of “Judicial Review.” In 1820 he wrote (in a letter to Thomas Jarvis):
“You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. (http://books.google.com/books?id=vvVVhCadyK4C&pg=PA178&dq=%22which+would+place+us+under+the+despotism+of+an+oligarchy%22#v=onepage&q=%22which%20would%20place%20us%20under%20the%20despotism%20of%20an%20oligarchy%22&f=false )
If the system of checks and balances wasn’t enough to check the unbridled lust for power of people on the bench, there was another wall for the Courts to overcome, the principle of Separation of Powers. There are two clauses in the Constitution (other than the First Amendment) which apply to Judge Moore’s case. They are the 9th and 10th Amendments to the US Constitution, which were put in the “Bill of Rights” just to prevent such an abuse of power as we’ve seen by the Federal government in recent years.
One of the objections many Federalists had to including a Bill of Rights to the US Constitution was the fact that many (particularly Washington), knowing human nature as they did realized that if one started listing rights folks had someone would come along and deny a right the founders forgot to include. We see this today over the wording when lawyers haggle over whether the 2nd Amendment is an individual right (as every other right enumerated in the Bill of Rights is, not to mention the term individual is in the amendment) or only applies to a person’s right to join the State militia or National Guard. Washington believed a general recognition of the rights of people to be free was a given and to name certain rights was to limit freedom. And of course he was right. However, anti-Federalists had a point when they stated that unless someone wrote down individual guarantees of freedom someone was likely to come along and try to deny those rights. It seemed the move to ratify the Constitution was at an impasse, so Madison agreed to put together a Bill of Rights to remove this obstacle to our new government. At the end of this list of basic individual freedoms he added the final two:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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 these two amendments the powers of the central or national government were severely limited to only those powers specifically given it by the US Constitution. As our own civics and US Government textbooks teach the powers of the national government are “delegated powers” read Amendment X, while the powers of the States and individuals are reserved powers. This should also apply to the Federal Courts as well. What does this mean? It means (or should mean) the Federal government can only do those things the Constitution says it can do and stay out of the business the US Constitution remains silent on – that belongs to the State or individuals.
So how come the Federal government is involved in every aspect of our life? Because we allow it. And we particularly are vulnerable to the lie that the Federal courts and the US Supreme Court are the final authority on what is Constitutional in the United States. Remember the power of Judicial Review is not found anywhere in the US Constitution, it is a power the Supreme Court established for itself in Marbury v. Madison (1803).
How did we get to this point when the Constitution and the words of our Founders speak so plainly? It didn’t happen overnight.
“Tell a lie long enough and loud enough and people will believe you.” Adolf Hitler
“The bigger the lie you tell, the more likely people are to believe it.” Joseph Goebbels.
We, the American people have been fed the lie of “separation of church and state” and “judicial review” and the 14th Amendment has been used for so long to get the Federal government into places our Founders never dreamed the government would be involved in the people have just accepted it as fact.
Congress, which has the responsibility of reigning in the courts when they get out of hand has abdicated that responsibility. After all, the courts have done congressmen a great favor by taking several controversial issues out of their hands. Face it, for a politician, issues such as abortion, school prayer, even integration and affirmative action are lose-lose propositions. No matter how a congressman or senator votes on these issues he or she is going to upset someone so they let the courts do the dirty work, shrug their shoulders and say, “What can I do?”
And we, the people have let them get away with it because by and large, most of us don’t know any better.
“My people are destroyed for lack of knowledge.” (Hosea 4:6)
Republican Congressman Terry Everett from our 2nd District Alabama tried to correct this through the legislative process by proposing the “Constitutional Restoration Act” which would have re-asserted the Congressional authority over the courts outlined in Article III of the US Constitution. He was roundly criticized from all quarters, including our local newspaper for trying to usurp the Constitution. I wrote a defense of Everett’s bill to their editorial but found my letter so destroyed by their editing as to lose its entire meaning. Everett retired the next election cycle and I cannot help but wonder if this was the final straw for him.
So what was I to make of Judge Roy Moore who had stood against the established conventional wisdom and stuck his thumb in the eye of an overriding Federal authority? Was he the opportunistic populist politician trying to make a name for himself? Was he one in a long series of charlatans spouting God, the Bible and country for his own gain? Was he just a fool tilting at windmills? Or was he that rare commodity, the “real deal?” A man of ideas, and principles he held above personal gain or well-being.
I find such beings rare these days, perhaps they always have been. I know when I used to tell stories of heroism in my history classes and try to explain why the men of Pickett’s division walked across that hot field in the face of federal guns, why Richard Garnett refused to excuse himself from duty that day, even though he was too sick to walk; why the Union Irish Brigade marched up to the slaughterhouse that was Marye’s Heights at Fredericksburg, or why those folks at the Alamo didn’t high-tail it when they had the chance; I know I had a hard time explaining to those students raised in our cynical age that there were folks for whom honor, and courage were more important than life itself. (Just an aside here, the troops serving in Iraq and Afghanistan give me hope that such qualities aren’t as rare as I once feared).
Could Judge Moore be one of that increasingly rare breed in public service these days?
I determined if I got the chance I would go up and speak to him and try to find out for myself. As things turned out I got my chance.
I had gone to the wash room and was returning when I saw Judge Moore and his wife standing at the register waiting to pay their bill. I walked over to him, put my hand out and said, “I’ve been praying for you.” And I had, in spite of my questions, something in my spirit told me to pray for him.
I saw his eyes tear up and at that moment I knew the intense pain he was enduring in his fight. Having been there myself more than once I knew this was no quest for glory that this man was in his own Gethsemane. Whatever one wants to think of Judge Roy Moore, whether one agrees with his stance or methods, the man is no hypocrite.
Suddenly all the things I read about him in the media began to make sense. The papers talked about his service in Vietnam, how his troops called him “Captain America” because he was so strict about the regulations. I knew that such a man could be no other way because it was his duty to enforce the regulations and this man was about duty, and honor, and country. And as we discussed his case briefly I knew at the top of the list was his God. What the media (and perhaps some of his troops) meant as a slam against his character I now knew was a tribute to his integrity.
One can say he lost his court battle and was removed and that the other seven justices on the Court opposed him. Well, I remember a story of a little boy who went against the crowd to tell the Emperor he was naked. Was he wrong because everyone disagreed with him?
I’ve never understood how an administrative panel could remove an elected official from office. Under my understanding of Constitutional law it would require an impeachment proceeding by the State Legislature. But there are many things in the law that I have to admit baffle me.
Since that day in the restaurant I’ve had the opportunity to meet, speak with, and hear Judge Moore on more than one occasion. I am always amazed at his encyclopedic knowledge of US history, the law, the Constitution, and the Bible. Even more so I am amazed at his understanding of these concepts and the practical application of them.
I personally am glad he has not chosen to go hide in a corner but is once more offering to enter public service. We need someone up there who is not afraid to tell the Emperor he’s naked.
Wednesday, October 26, 2011 at 12:03AM 