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Judge Roy Moore and the Rule of Law
At this writing, conservatives appear to have defeated Judge Roy Moore’s
gallant attempt to restore Constitutional government in Alabama and the
United States.
Yes, you read that sentence correctly. Conservatives are the culprit.
Judge Moore, a practitioner of full contact karate, had the federal
judiciary on the ropes, and he was about to administer to it a severe
beating. There is precedent for this prediction. Several years ago, as a
Judge in Etowah County, Alabama (Since 2000, one of the proposed counties of
Christian eXile) Judge Roy Moore had a similar run in with federal judges.
He posted the 10 Commandments in his judicial chambers, and a federal judge
ordered him to remove it. Judge Moore called his bluff and refused to take
it down. Nothing happened.
Thereafter, the good people of the State of Alabama elected Judge Roy Moore
their Chief Justice. Judge Moore ran for that office as “the 10
Commandments Judge”. His campaign was not divisive, but rather unifying.
The author has first hand reports from Alabama that many African Americans
who ordinarily voted Democratic cast their ballots for Judge Moore, a
Republican. One such person was overheard that she “was not voting
Republican, but voting for the 10 Commandments”
JUDGE MOORE’S OFFENSES
True to his word, his conscience and his Christian faith, Judge Moore placed
a monument bearing the 10 commandments within the rotunda of the Alabama
Supreme Court. For this, the Chief Justice of the Supreme Court of the
State of Alabama was neither praised for keeping his promises, nor hailed
for promoting racial harmony. Instead, the media vilified him, holding him
up for ridicule as a Bible totin’ rebel yahoo.
Then, after instigation by the usual suspects, the full force and power of
the federal judiciary was brought to bear on one man - Judge Roy Moore. And
eventually and decisively, so was the judiciary and political establishment
of his own State of Alabama.
What Judge Moore did to provoke the wrath of the establishment was not
simply to promote the 10 Commandments as the basis for American law - which
they indisputably are. Many other State and local government officials,
e.g. those in Harlan County, Kentucky (Also, since 2000, one of the proposed
counties of Christian eXile) have done the same thing.
But whereas the officials of Harlan County, Kentucky did not question the
authority of federal judge Jennifer Coffman when she ordered the removal of
the 10 Commandments from County property, Judge Roy Moore, Chief Justice of
the sovereign State of Alabama, did. question the authority of federal
judges to do the same thing.
It was for that “act of defiance”, as more than one media wag phrased it,
that Judge Moore incurred the wrath of the whole political and judicial
establishment - federal judges, state judges, Democrats, Republicans.
Because to question the legitimacy, or even in a single case, the authority,
of federal judges is to chip away at the very foundations of antidemocratic,
elite rule.
WHO UPHOLDS THE RULE OF LAW?
For a moment, let us step back and ask simple questions. Who is upholding
the rule of law? Who is right about what the law says - Judge Moore or the
other judges?
What does the United States Constitution say? Amendment 1: “Congress shall
make no law respecting an establishment of religion, or prohibit the free
exercise thereof,...”
When Judge Moore placed his 10 Commandment monument within the Alabama
Supreme Court, was Congress passing a law establishing a religion? No.
But the federal judges who ordered him to remove it don’t care what the
Constitution actually says. As is meticulously documented in The Big Lies
about Religion and Immigration in American History, federal judges in 1947
simply rewrote the First Amendment to their liking, holding that the
“establishment clause” applied to State and local governments. This
contradicted the text of the First Amendment, which limited only “Congress”.
This also contradicted 158 years of judicial precedent and historical
practice from 1789, when the First Amendment was ratified, to 1947, when
federal judges overturned it.
But federal judges, and the elites who stand behind them, don’t care about
the law, the Constitution, the truth or anything else that might interfere
with their plans for social engineering. We know this because since
overturning the First Amendment in 1947, either the federal Supreme Court or
Courts of Appeals have held, variously, that the Bill of Rights emanates
“penumbras” that created a Constitutional right to contraceptives and
abortion; that an unborn human being is not a ‘person” and cannot be
protected under State law; that laws must treat men and women the same, even
though the Equal Rights Amendment was voted down; that the Second Amendment
does not secure to the people a right to keep and bear arms; that it is
unconstitutional for the Pledge of Allegiance to contain the words ‘under
God” because those words exclude Hindu and polytheistic belief; that the
Constitution secures a right to engage in sodomy; that the Constitution
allows States to discriminate on the basis of race to achieve the
“compelling governmental interest of diversity”. Et cetera, and ad nauseam.
So it is Judge Moore who is right about what the Constitution actually says.
And the first of Judge Roy Moore’s offenses is exactly that - that he is
outspoken and firm and right about what the law actually says. But being
right about what the law says is Judge Moore’s least grievous offense.
It is his still and far graver offense that Judge Roy Moore will not admit
that federal judges have unquestionable authority over State officials, even
when they are wrong. The establishment’s view is that his being right about
the law, and their being wrong about the law, is ultimately irrelevant:
Federal judicial orders must be obeyed - no matter what.
Even the conservatives who routinely disagree with federal judges admit that
federal judicial authority must remain untrammeled no matter how wrong, how
decadent and how preposterous their decisions may be. This concession by
conservatives is the price of their admission into ‘the mainstream” of
political discourse.
Many conservatives think that unquestioning and unconditional obeisance to
federal judges constitutes the essence of the “Rule of Law” Nothing could
be further from the truth.
In fact, the “Rule of Law” is historically juxtaposed to the “Rule of Men”
No man, even if he be a judge, may issue lawless edicts and claim they must
be obeyed and enforced as the “Rule of Law”. The essence of the Rule of Law
is that government officials, even Judges, may not issue orders that plainly
contradict the law.
Thus, as von Hayek observes in the Road to Serfdom, government action may be
“legal” in the narrow, juridical sense, and still violate the “Rule of Law”:
By analogy, federal judges who pretend to apply the Constitution may invoke
the authority of the Supremacy Clause in Article VI of the Constitution.
They may claim that their edicts bind “the Judges in every State”. But
Article VI makes the Constitution, not Supreme Court decisions, the “Supreme
Law of the Land.” To the extent that their decisions deviate from or
contradict the language of the Constitution, their decisions are not the
“Supreme Law of the Land” and neither do they comport with the “Rule of Law”
Neither the Constitution nor the Rule of Law requires unconditional
obedience to federal judges. The Constitution requires the President of the
United States to take an oath to “preserve, protect and defend the
Constitution of the United States.” The oath imposes upon him an
independent obligation to uphold the Constitution, precisely because federal
judges are as capable as anyone of subverting it. For that reason, he does
not take an oath to obey the Supreme Court.
Similarly, the civil officers of federal, state or local governments do not
take oaths to obey orders issued by federal or state judges. They take an
oath to the United States Constitution and/or their State Constitution.
If the framers of the Constitution, or those who ratified it, believed in
judicial infallibility, or judicial supremacy, they could have written it
into the Constitution. They did not.
The authority of the federal judiciary ultimately depends on public
acceptance of its decisions and orders. Law professor Alexander Bickel
recognized this decades ago when he dubbed the judiciary “the least
dangerous branch” of the federal government:
To the extent that federal judges in deciding cases depart from the legal
text of the Constitution and enact instead their own personal and arbitrary
views of what the law should be, they lose pro tanto whatever authority and
legitimacy the Constitution would otherwise confer upon them. Bickel and
von Hayek warned these judges that they could not hide behind the Rule of
Law. They should expect resistance from citizens. They should expect that
other civil officers will honor their own oaths to uphold the Constitution,
and refuse to simply “follow orders.”
And so Judge Roy Moore, Chief Justice of the Supreme Court of Alabama, was
both right on the law and upholding the rule of law when he said that his
oath to the Constitution required him to decline obedience to a federal
judge’s order issued in violation of the Constitution.
CONSERVATIVES -
Again, it appears that conservatives, not liberals, will prove to be Judge
Moore’s undoing. Specifically, his fellow judges on the Alabama Supreme
Court and David Pryor, his own State’s Attorney General.
Had these State officials stayed uninvolved, a showdown between Judge Moore
and his supporters and the federal judiciary might have taken place.
By Constitutional design, federal judges are powerless to enforce their own
orders. They must rely on federal marshals to do that for them.
The marshals act under the authority of the Executive Branch, headed up by
the chronically beleaguered Bush II and his saturnine Attorney General, John
Ashcroft. They would have gone out their way to avoid a showdown with Judge
Moore. Judge Moore commands the sympathies if not outright support of the
GOP’s Christian base.
Election 2004 is slightly more than a year away, and the fading Bush II
cannot afford to lose his “Christian base”
The Republican controlled House of Representatives had already passed a
largely symbolic bill disallowing any of its appropriations to be used for
removing Judge Moore’s monument. Naturally, the bill would be spiked in the
Senate, but the point is made that Congressional Republicans realize they
can ignore but not repudiate their “Christian base.”
Thus, election conscious elements of the Executive and Legislative branches
were slowly backing away from the showdown with Judge Moore Only a
senescent and toothless federal judiciary would have remained to oppose
Judge Moore and his supporters.
An alternative but unlikely scenario would have been Bush II invoking the
provisions of 10 U.S.C. 332 - “Use of militia and armed forces to enforce
federal authority.” This statute allows the President call into federal
service the militia of any State (National Guard) or the supposedly the
Armed Forces (subject to Posse Comitatus) to enforce federal law. Without
question, both Karl Rove and Donald Rumsfeld would have opposed this course
of action.
Rove would have opposed it for political reasons. The President has invoked
this authority a total of four times in 1957 (Arkansas), 1961 (Mississippi),
and twice in 1963 (Alabama) to enforce federal judicial integration orders.
In 1968, Alabama Governor George Wallace wrested four Southern States away
from their traditional preference for Democratic Presidential candidates.
The Democrats then lost the White House. Bush II cannot lose the South and
win reelection. The GOP cannot lose seats in the South and retain their
tenuous majority in Congress.
Rumsfeld is already facing a severe shortage of troops as he is busy
conducting military adventures in 140 different countries, most recently
Liberia. He would have resisted diverting troops in order to deploy them in
Alabama.
Had elites persuaded Bush II to raise the ante and call up the National
Guard, the potential for positive developments would have existed. The
government’s widespread and public use of force spoils the illusion that it
governs by consent. This is why totalitarian regimes eventually resort to
“secret police” and “secret courts”
Bush II’s use of military force against Judge Moore, his supporters and the
10 Commandments had the potential to “radicalize” conservative Republicans,
i.e., to transform them into Christian Counterrevolutionaries. This
development alone would have been worth the effort of confrontation and even
the risk of bloodshed.
Alas, it appears that neither of these scenarios will come to pass. Judge
Moore won’t have a chance to humiliate the federal judiciary, and neither
shall he and his supporters clash with federal troops.
His conservative brethren on the bench turned against him. No doubt every
one of them hopes to succeed Judge Moore as chief justice. No doubt most if
not all of them profess Christian faith. His own State’s Attorney General,
David Pryor, has opposed him. Pryor has been nominated for a federal
judgeship himself. By opposing Judge Moore, he is seeking to curry favor
with the Senate Judiciary Committee, on whom his confirmation depends.
The lesson is well drawn; Judge Moore is right on the law, he upholds the
rule of law, he is a true Christian, willing to sacrifice his livelihood and
career in order to honor his oath, his conscience and his faith.
Judge Moore is a fighter and a counterrevolutionary.
Had he been allowed to do battle with the federal judiciary, he probably
would have won, and the 10 Commandments would stay in the rotunda. Had he
been allowed to do battle with the military, he would have lost the battle,
but the cost of that victory to the other side would have helped us win the
war.
Instead, Judge Moore has been undermined and subverted by those who call
themselves Christians, They are not fighters or counterrevolutionaries.
They are conservatives. They are looking to conserve or improve their
position or their property. They are unwilling to sacrifice.
According to these two types, every day, we choose which one we shall be.
X - In Hoc Signo Vinces
“The Rule has little to do with the question whether all actions of
government are legal in the juridical sense. They may well be and yet not
conform to the Rule of Law. The fact that someone has full legal authority
to act in the way he does gives no answer to the question whether the law
gives him power to act arbitrarily [...] It may well be that Hitler has
obtained his unlimited powers in a strictly constitutional manner and that
whatever he does is therefore legal in the juridical sense. But who would
suggest for that reason that the Rule of Law still prevails in Germany?”
[U. of Chicago Press, p.91 1944, 1994]“The Supreme Court’s law (N.B., not the Constitution) could not in our
system prevail [...] if it ran counter to deeply felt popular needs or
convictions, or even if it was opposed by a determined and substantial
minority [..] This is why the Supreme Court is a court of last resort
presumptively only”
Bickel. The Least Dangerous Branch p. 258 (1962)
(parenthetical material and emphasis added)
THE TRUE ENEMIES OF COUNTERREVOLUTIONARIES
Luke Exilarch
August 25, 2003