A Closer Look at Justice Moore, the Ten Commandments, and the Rule of Law

I took more heat for my last column (defending Alabama Chief Justice Roy Moore yet concluding he should obey the federal court order) than any other. It’s a good sign when your political opponents disagree, but much of this criticism was from fellow conservatives.

There is no way I could answer the hundreds of emails I received, so this column is an attempt to clarify and expand on the previous one.

I believe passionately in religious freedom and that our society is selectively discriminating against Christians and suppressing our religious freedom – so passionately that I’ve just completed a book on the subject, titled Persecution: How Liberals Are Waging War Against Christianity, that will be released in September.

To reiterate, I believe that nothing in the federal Constitution prevents Judge Moore from displaying the Ten Commandments monument. The First Amendment Establishment Clause prohibits Congress from establishing a national church. It also prohibits Congress from interfering with the right of individual states to establish their own churches if they choose (between seven and nine colonies had established churches at the time of the founding) – not that any would consider it today.

I also believe that the Due Process Clause of the 14th Amendment was never intended to incorporate the Establishment Clause as a prohibition against state governments. Incorporation is a regrettable legal fiction.

I further believe that the other religion clause of the First Amendment, the Free Exercise Clause, has been consistently eroded and often ignored by judicial misinterpretations. I also believe that nothing in the Constitution, or any of its Amendments, gives the courts the power of judicial review. But since 1803, the United States Supreme Court has been exercising that right — having established itself, by its own bootstraps, as the final arbiter of what the Constitution means. In 1824, the Court further declared that state courts are bound to honor Supreme Court decisions.

In my last column I essentially said that although Judge Moore is correct and the federal courts are wrong, he should not disobey the federal courts’ order once all of his legal appeals and other remedies have been exhausted. That, I feared, could result in a breakdown of the rule of law. (It’s still possible, though not likely, that the Supreme Court could decide to hear his case on the merits. It would be wonderful if it did and if it ruled, correctly, in his favor.)

Critics protest that we have no obligation to follow unconstitutional, unlawful or unjust laws. And Christians, especially, they say, must honor God above any man-made laws. Specifically, they say that Justice Moore had no duty to obey the federal order because it was itself unconstitutional, without jurisdiction and void. It is the federal courts, they say, not Judge Moore, that have undermined the rule of law.

I agree that the Courts have often undermined the rule of law through our history by judicially legislating and following their own dictates instead of the Constitution. And I believe there is a point at which people should disobey laws or orders. The American Revolution is an example.

The question is: When is enough enough? When is it time that we quit trying to work within the system and galvanize toward another revolution? Many of my e-mail critics seem to be implying that we should take the matter in our own hands. Let me explain my reservations about this.

By all means Christians should honor God’s laws. But it is very easy for anyone people simply to assert that he is following God’s laws. So easy, in fact, that every judge in every state, including closet Atheists and Agnostics, could make that claim. Then where would we be?

Of course our system of law is built on and derives its authority from God’s law. But it is a system. We simply cannot have a system of law where everyone gets to decide whether he should obey the law based on his assertion that he’s following God, or his interpretation of the Constitution. It’s not Justice Moore that bothers me – I believe he is trying to follow God’s law and I agree with his interpretation of the Constitution.

But what about charlatans? What happens when they invoke the same authority?

Well, you say, the deceivers will quickly be seen as the deceivers. Maybe by you, maybe by me, maybe by all with discernment. But it is the nature of deceit to fool people.

It’s one thing for a person to exercise civil disobedience – (I realize Moore argues that technically he is not engaging in civil disobedience). And I’m personally glad Justice Moore has brought attention to the religious freedom issue. If you critics are merely saying he should exercise civil disobedience and stop there, I have no major problem with that. But are you further saying that federal and state authorities should do nothing then to enforce the law?

If so, then any judge would be free to ignore precedent, indeed to ignore the law altogether. The entire system could break down. Without order, freedom is impossible.

In other words, there has to be an enforcement mechanism in a legal system for that system to establish any order at all, which is a condition to freedom. If higher judges usurp their authority — and they have, in abundance — people and even government officials can choose to disobey. If they do, the system, to retain any semblance of integrity, must then act in its enforcement capacity.

That is, it must unless you are willing to draw the line and say the system has been so abused by activist judges, among others, that it is no longer worth preserving. Are you really ready for a revolution?

Why do I say this? These things haven’t happened overnight. This is not a case of first impression. Our system – the way it has worked for the last 200 years at least, includes a process by which the constitutionality of laws is determined. Since Marbury v. Madison in 1803, the Courts have decided what the Constitution means in cases where its meaning is in dispute.

Since 1947, the courts have been applying the Establishment Clause against the states as well. And in the last few decades they have been greatly expanding its application way beyond the original intent of the Framers — just as they have other clauses, such as the Interstate Commerce Clause. There is no way the Framers (or the drafters of the Fourteenth Amendment) intended that the Establishment Clause prohibit many of the innocuous things it has prohibited, such as the displays of the Ten Commandments in state courthouses, or voluntary school prayer.

But under our system as presently constituted, whether we like it or not, the highest court says what is and isn’t constitutional. And under this system the lower courts are bound to follow its rulings. You can say that the system shouldn’t work that way because the Constitution doesn’t contain the right of judicial review. But you can’t say it doesn’t in fact work that way, because it does and has — virtually without challenge — for two centuries.

In other words, under our system, at least since 1803 (and 1824) in case of a dispute over the meaning of a provision of the Constitution, the ruling of the highest court prevails.

Therefore, while I may be personally certain that some actions the courts declare unconstitutional (such as Judge Moore’s display) should be constitutional according to an honest reading of the Constitution, by definition they are not, because the Constitution, under our system, means what the Court says it means.

This is not just semantics. It’s the way the system works. Judges are people – many of whom unfortunately don’t even believe in interpreting the Constitution according to its original intent. Or, they sometimes make mistakes. But under our system, the highest court’s rulings are the law whether they are mistaken or not. (Similarly, jury verdicts are binding whether or not they are correct).

In the last column I suggested as possible remedies that we nominate and confirm constitutionalist judges or that Congress, under Article III, could limit the Court’s jurisdiction. Since then I’ve thought of another one that I like even better. Why not propose a constitutional amendment to limit the Court’s authority in other ways? It could even be divested of its power of judicial review. I’m not sure that would be wise. As a lawyer, I envision incredible chaos in the absence of a judicial body passing on the legal meaning of the Constitution — but that could be because of my perspective as a lawyer. Or we could provide that judges don’t have lifetime appointments. There are arguments against this as well. Nevertheless, it would be gratifying if something positive did result from Justice Moore’s actions; it would be wonderful if they could be a catalyst for meaningful change.

But there is a major obstacle to all of these proposed solutions, and it illustrates that our problem transcends the activist judiciary. To accomplish these changes you need widespread popular support. Good luck.

The root problem, in my view, underlying these unfortunate developments in our law, is a breakdown in the moral foundation of our society — a breakdown in our culture. That is, among other things, what the Framers meant when they said the Constitution was made only for a moral and religious people. When our moral fabric begins to disintegrate, eventually, so will the Constitution. When judges rule according to how they believe the law should be rather than how the Constitution requires, the Constitution breaks down.

It’s nearly impossible to get a filibuster-proof majority in the Senate to ensure that constitutionalist judges are confirmed. How much more difficult would it be to pass a constitutional amendment to rectify some of these problems? Just because you and I may believe that certain solutions are desirable doesn’t mean they will be implemented.

Indeed, it may be impossible to fix the current flaws in the system without first correcting the problems in our society, because the breakdown of the system is a symptom of our problems, not their cause. While we should work vigorously to reform the system and to appoint constitutionalist judges, these remedies will be very difficult without some transformation in our society. And that transformation may just have to begin in our churches.

So I understand if you believe Justice Moore should disobey the court order. But if you believe that following such disobedience the enforcing authorities should not enforce the law against him, then be prepared for the potential consequences, including a complete breakdown in order and a consequent loss of our liberties. If you think the system is already broken and that our liberties are already lost, then it may be worth the risk to you. But please don’t advocate these things unless you have thought them through thoroughly and are prepared for the consequences, which could be much worse than the present state of affairs.

Is this the hill you want to die on? I can understand you thinking the system, in many ways, is broken. But if we throw it away, what and who will replace it? Don’t forget that there are hordes of people who don’t agree with the conservative Christian worldview. Where will this revolution lead?

Those who keep citing Thomas Jefferson approvingly to the effect that a rebellion is healthy every 20 years — so be it, but be careful what you wish for.



  • “A Clashing of Principles and Jurisdictions”