CPAC 2004: ALAN KEYES' SPEECH

FLOYD BROWN, INTRODUCTION: Well, when you look at the landscape, the political landscape in America, every once in a while, men of principle come along--and this morning's speaker is one of those men of principle.

In the mold of Ronald Reagan, and other key conservatives that have been consistent and upheld to their principles, our speaker is probably one of the most powerful advocates for the life of the unborn, he's one of the most powerful advocates for true conservative principles. You see him on television, you hear him on the radio, he now is currently writing a book, and he has a wonderful website--he's got Declaration.com, I believe [Declaration.net], and then RenewAmerica.us.

He is a genuine conservative. He's worked in the movement, he worked in the Reagan administration in the State Department, he has been an ambassador to the United Nations Economic and Social Council, he's worked in the movement, having been president of Citizens Against Government Waste, and a founder of the National Taxpayers' Action Day. He's been a two-time candidate to U.S. Senate, he's been a candidate for the presidency.

But I think the reason we here at CPAC have an extraordinary opportunity today is because he is a man of conviction, he is a man of principle, and when you listen to him, you are hearing pure, unadulterated truth. Let me introduce Ambassador Alan Keyes.

I do have to wonder, as a lot of people do from time to time, what that means--but I know for certain that I am a Christian, I know for certain that I am an American, and I like to think that I am a conservative.

It's the latter that I'd like to talk to you about today, because I think we're having to be more and more careful, and if we don't start being more careful soon, then we shall have to find a new way to describe people like myself.

I look over the events of the past year or so, and I've got to tell you: I think that there are signs on the horizon that if folks who call themselves conservatives don't wake up and speak up and act up soon, the title "conservative" will mean nothing in our politics!

There was a time when you said "conservative," and you knew what you meant. You said "conservative," and you understood that that would be somebody who understood the real meaning of self-government, and who stood against the consolidation of power in the hands of an all-powerful government.

There was a time when you said those words, and you understood that you were speaking of someone who respected the ability of people to care for themselves and demanded that a tax structure exist that would respect their right to earn and use the money that they labored so hard for.

There was a time, especially, when you knew for sure that you were speaking of somebody who understood the relationship between self-government and self-discipline, and who knew that we could not survive as a free people if we did not have strong hearts, strong families, and a strong commitment to do the will of God.

But I think these days we're allowing ourselves to see that label drift into the hands of folks who have no understanding, no concern about what it really ought to mean.

He dared to describe [Sen. John] Edwards and [Sen. Joseph] Lieberman with the term "conservative."

Well, I understand that reaction, but come along. I look over the past year, and what do I see? I see the spectacle of groups and organizations, of individuals who have posed for the longest time as the articulators and champions of the conservative philosophy, and they dared to stand before the American people and tell us that Arnold Schwarzenegger is a conservative!

So, if you think O'Reilly made a mistake, he was exampled in that mistake by folks who should have known better.

How long do you think that this movement's going to survive as a viable cause, when we pretend to know what we believe, but are willing to sacrifice and betray on the alter of political expediency those who have dedicated heart and life throughout their careers to a consistent championing of the conservative cause?

I listened to the sick arguments that were made by individuals of all varieties, some of whom have built their very careers on their supposed commitment to conservatism--and there we saw it in California. What was that race? It was a situation that I think was, in some ways, handed to the conservative movement by the providence of God, almost as if He said, "OK, here's your chance. Let's see who you really are." See?

I have heard the arguments. A matter of fact, I, sadly, have been the victim of those arguments from time to time. You know, "Well, we gotta win, and so-and-so can't win, and therefore it's the lesser of evils. We gotta vote for the lesser of evils"--forgetting, as we often want to do, that the lesser of evils is evil still; that, at the end of the day, you keep voting for the lesser of evils, and you will find yourself lost in evil with no way to get back!

But was that the case in California? A failed liberal governor going down in flames. An effort that had been put together over the opposition of many of the so-called liberals and moderates who bear the "Republican" label, to recall him on account of his failures to the people of California--and when that effort succeeded on the strength of popular revulsion against his liberalism, a situation was created where, first, they thought they were going to destroy it by putting lots of candidates in the race, but then somebody must have realized that that meant that the race was going to go to the person who got the strongest plurality.

Now, I know that there are some people who may forget it from time to time, but it is still the case in many situations in America, including California, that when you control all other factors, and you get into a situation like that, the people who are most committed to those things that they believe are most likely to constitute that winning plurality, that's the time when, regardless of labels, when, regardless of phony arguments, you see your chance to pursue a path of principle, and you look around for somebody who, in their career and in their abilities, will articulate those principles in a way that will rally the choir to sing from the same page on election day.

I found it interesting that we moved through that race, and Tom McClintock was doing his job, and just as he got to the point where he was breathing down the neck--Schwarzenegger stalled, he was moving up--it was at that point that certain people started to twist arms and pound the table and tell the lies, to make sure that the conservative heart would not rally 'round the conservative candidate!

Now, I'm having to tell you: if conservatism can't find itself in that situation, then, my friends, you've got to start fearing that it never shall.

If so-called conservative groups are willing to stand behind those who openly and gleefully spit upon the positions that must lie at the heart and soul of the conservative cause, then conservatism means nothing, and it will go nowhere, and we'll have to start again with a new label that better reflects the heart of our beliefs.

But I'm not ready to give up on it. I think we ought to fight for it--and the first way we fight for it is we're going to have to start challenging people, whether it's O'Reilly or any others, we're going to have to start challenging them openly and without any shame when they start to apply the conservative label to those who betray, in their policies and their statements, those things that correspond in truth to the conservative cause!

And yes, I'm a Republican, too. But I'll tell you one thing: just as I will not sacrifice my faith to a partisan label, nor shall I sacrifice my political creed to the arguments that are subservient to the single-minded pursuit of partisan political power.

It is time we understood that for the sake of this nation, for the sake of its freedom, for the sake of its self-government, for the sake of its moral heart and families, we must stand first as conservatives before the people of America, and demand from every party in this nation that they commit themselves in fact to those things that will serve constitutional government and real liberty!

Now, I know that there are folks who are going to come before you, and they're going to tell you, "Well, my friend, forget all that, because we gotta win, and you gotta rally behind this and that. You gotta choke down your beliefs, put aside your principles. Just get in there, hold your nose, pull the lever, don't worry about what you think."

You know, there was a time in American when politicians understood that when you get into a situation where this policy and that policy and the other policy have offended those who, though their support, put you were you are, you understood they don't put side their beliefs, you put aside your abhorrent policies before you ask again for their support!

But no. We are allowing ourselves to be talked to and talked about as if we are the pawns of partisanship, when we ought to be the soldiers of principle.

Decide who you are! Decide what you will stand for--because, if you'll stand for all of this, then in the end this nation will fall.

Now, I don't want to pretend that this year was without, though, its encouragements--but they were encouragements in a way, this one I think of, that encouraged me as Calvary encourages me, when one sees the perfect sacrifice of goodness on the altar of truth.

For, just as Tom McClintock was abandoned by so-called conservatives, though he stood foursquare where we claim conservatives ought to stand, so there was one man in this country who refused to abandon his true conservative and constitutional principles, though in terms of career and power and standing it cost him everything he had--and that man was Judge Roy Moore of Alabama.

Now, there was one for you. In the so-called trial, after which his treacherous colleagues removed him from the chief justiceship, Bill Pryor--and I won't go into that. Will you go into that? I'd like to go into that, but I'll just mention it. I want you to see this role, see? Because when Christ was brought before the Sanhedrin, there was somebody there to question Him and ask Him the questions through which they hoped that somehow they would justify their destruction of His life. And I don't know what his name was in Hebrew or in Aramaic, but I think in English it was Bill Pryor.

Yes. Anyway, in that trial, there was Bill Pryor, asking Judge Moore the question. What was the key question of that trial? All of [unitelligible] don't understand. Do you know what the key question was?

The key question was, "Mr. Chief Justice, if you are allowed to continue in office, will you insist in that office upon your right to acknowledge God?" and the Chief Justice responded, "Yes, I will."

And then they asked him again, Bill Pryor asked him asked him again, "As Chief Justice--I just want to be clear--if you are continued in this office, will you insist upon your right to acknowledge God?" and the second time, he said, "Yes, I will."

And he asked him again a third time, "Will you insist upon your right to acknowledge God?" and he said, "Yes, I will."

And in that moment, he did what even Peter could not find it in himself to do! Three times he was asked to betray his faith and God, and three times he refused--though it cost him all he had.

Do you know when I will believe that the conservative movement in this country has once again found the courage and the heart and the integrity to stand forward, as Ronald Reagan did, and pull it back from the precipice of its loss of liberty and destruction? I'll believe it when every one of you, when everyone who dares to wear the conservative label will stand as Judge Roy Moore did and risk losing everything before they will betray the principles of their faith and their conservative creed!

And I know there are so-called "conservatives" out there who want to confuse us all with the notion that "oh, no, no, Alan, you're wrong; Judge Roy Moore was breaking the law. Judge Roy Moore can't be supported. We're conservative, we respect the law."

I do respect the law. I respect it deeply. That's why, when I see a judge like Myron Thompson, telling a state official that he must do what the Constitution of the United States makes clear he as an official has the perfect right to do, when I see that judge basing his judgment on a simple and clear and pure fabrication that has nothing to do with the Constitution or the law, then I say to you that we have done, if we've called that the rule of law, what all the founders and all the statesmen in our history understood we should never do: we have substituted the arbitrary rule of men for the rule of law!

There is a difference! There is a difference between constitutional government and judicial dictatorship, and I think it's time we remembered that our Constitution was not put together in order to establish the sovereignty of the judges, it was framed in order to guarantee the sovereignty of the people.

And with respect to the judiciary, they were very careful. There was a reason why that phrase, "Congress shall make no law respecting an establishment of religion," was the first phrase in the Bill of Rights--and I hope that we'll some day come to understand what it really means. It means what it says. What it says is, there can be no federal law that deals with the subject of religious establishment. What it means, therefore, is that if you're sitting on the federal bench, you've got no lawful basis for addressing or interfering with this issue.

But no, no. [Some say,] "Alan, it's in the Constitution!" Well, as I recall, it's that very phrase they use in the Constitution to usurp their authority. So, frankly, the separation of church and state and this mythology they talk about--scour the document, you'll find it nowhere in there. What you will find is a clear statement in the First Amendment that this power is withheld from the federal government, and a clear statement in the Tenth Amendment that "all those powers not given to the federal government, or prohibited in the Constitution to the states, are reserved to the states respectively, and to the people."

Judge Roy Moore did what the people of Alabama elected him to do, and what, under our Constitution, he had the perfect right to do!

When shall we stop calling ourselves conservatives, and start acting like people who understand what it means?

When? Well, we'll do it on the day when Tom McClintock and people like him stand up and find all of those who wear the label rallying 'round the cause! We'll understand it when we find folks standing next to Judge Roy Moore, standing next to those who are willing to look the tyranny in the face, to look the destruction of our Constitution in the face, and do what previous generations of patriots were willing to do: say no to that which destroys the foundations of our liberty.

We have come to that time, my friends, that crisis in which nothing can any longer be taken for granted. The moral basis of our society is being assaulted and destroyed, and the chief instrument of that destruction is the abusive power of the courts. We must break that power, or they will destroy our way of life.

This is all of the message that I wanted to leave with you today--see, because I think there are times when words are not sufficient. The only thing that's sufficient is the deed. Tom McClintock was the deed. Roy Moore was the deed.

Do you want to know and think about, in the course of your gathering here, the real meaning of conservatism? Then know and think about the meaning of their struggle, of their example, of their cause, of their lives, and decide who you shall be.

And if you shall be like them, if you shall stand alone with principle as your only companion, if you shall stand alone with faith as your only foundation, if you are willing to stand alone with only your commitment to America and its principles and its heart as your consolation, then you shall be conservatives again--and in that integrity, you shall be the hope of America.

Sorry about the late reply, but you raised some interesting questions regarding the Establishment clause. This is especially in reply to tpaine.

It seems that tpaine was unable to refute the strongest argument against him, which was that Judge Moore's action was not prohibited by the 1st amendment, because by his action he made no law, not being either a member of Congress or a state legislator. Neither did he break his oath to uphold the Constitution, because as a judge, he has no authority to make law . Therefore he cannot be restricted by that clause which pertains to not making law, even if in fact the courts do "make laws," which I think we all regard as without authority from the Constitution and without force but by WILL alone, as Hamilton said in Federalist 78. Moore merely put up the ten commandments. The nice thing about most state supreme court justices is that they are electable and if the people didn't like his action, they could vote him out -- unlike the Supreme Court. Not much harm done. It's not like he put up a sign saying "Vote Democratic" which he might have done unless it was expressly forbidden him by some state statute. But he wasn't ousted because of a state law but on constitutional grounds. To me clearly he was not forbidden by the first amendment. To recap: he's not a lawmaker, either state or federal, and didn't make a law. He just posted some old laws that we don't seem to much like any more, just as a reminder of where our laws once came from. It wasn't unlawful of him, maybe just a bit rash.

Now those who did punish Moore seemed to think that the law applied to Moore, probably because judges now are so used to acting (and perhaps even thinking of themselves) as lawmakers. Thus if they read the "privileges and immunities" clause of the 14th amendment as saying the states may make no law respecting the establishments of religion of US citizens, they may think that the usurptitiously legislating justices of the lower puppet states also are prohibited from such. And even prohibited from copying down the laws not of man but allegedly of God, upon which we in the West base many of our laws. If this is your argument you may be correct.

Of course we would then concede that the judiciary may read and write into the law what they WILL, thus remaking the law which they are sworn to safeguard, making it now their whim merely and at the same time making all of us willing sheep trembling before the might and power of a gavel and a black robe. The men with the bigger gavels from the higher courts overrule the smaller-gaveled men. Moore had a smaller gavel. That would make the nine men in black the head gavelpersons: power-hungry willful men in black -- reminds me the dark riders in my favorite trilogy. What could we call that? rule by gavel -- I suppose it might be a kind of rule by force among men who are sheep. The mighty gavel makes right. Don't you wonder what a Hamilton would say to the actions of the judges today or what any of the others who signed the Declaration of Independence might do?

In any case, you've definitely got me interested in the greater issue, that of the Establishment clause. I think the whole meaning of that clause hinges on the word "establishment". The words 'Congress' and 'shall' and 'make' and 'no' and 'law' and 'respecting' and 'an' and 'of' and 'religion' are pretty clear. The other question of course is what is meant in the fourteenth amendment by "privileges and immunities." That will take some more serious thought and debate, but I'm interested in your thoughts.

. . . to begin which debate . . . It seems to me that "an establishment of religion" is a legal term referring to any particular sect especially of Christianity but also of any other religion, and that Congress may not make a law prohibiting its practice or giving monies to sponsor such a sect or to create a new one or tax and abolish an obnoxious one. Now "privileges and immunities of citizens of the US" seems to only refer to individual liberties protected in the amendments, but I'm not really sure. AND I certainly don't expect that our illustrious gavel beaters really understand it too well themselves --- not that many of them even care, since they just use them gavels to beat up the Constitution and smash the rights and privileges we inherited from real men who founded this country.

Finally, if there is any ambiguity in the Constitution, I am of the opinion that is primarily for the legislators to decide which interpretation ought to be taken, not the priesthood of the judiciary whose arcane arts of the last fifty years I completely fail to understand, except perhaps as outright usurpation of government from an idle, careless, no longer worthy of free republic people.

tpaine, I think if you look carefully into the matter you will find that your best interest lies with Dr. Keyes, and that his warning is that we are in the last throes of a consumption that if not soon remedied will find our dear republic soon buried. Whatever Frankenstein might patch together will hardly resemble the noble experiment she was. Not that the experiment was a failure, just that it might be over without action now.

It seems that tpaine was unable to refute the strongest argument against him, which was that Judge Moore's action was not prohibited by the 1st amendment, because by his action he made no law, not being either a member of Congress or a state legislator. Neither did he break his oath to uphold the Constitution, because as a judge, he has no authority to make law.

Judges are "lawmakers."
For centuries in both England and in the United States, judges have been lawmakers. Over a period of several centuries, judges created what we call our "common law." I would bet that most of the everyday legal principles that you take for granted came from the judiciary. For example, the notion that you have special rights enforcible against all others with regard to the use of a patch of geography that you "own" (from the law of property) came from judges. The notion that some promises are enforceable, while others are not (from the law of contracts), was developed by judges. The notion that you might be entitled to compensation for personal injuries caused by the negligence of another (from the law of torts) was the inspiration of courts.

The judges created the common law on a case by case basis, relying upon what judges believed to be historical practices, customs, and their best judgments as to what they conceived would be the best approach to keeping peace and resolving differences. Thereafter, others could rely upon a prior court case as precedent and argue that their cases should be governed by the same principles. Or, if a party felt that a principle developed in a prior case would be unfair as applied to his particular case (because of somewhat different circumstances), that party could argue for an exception to that principle or argue that the principle should be modified so as to accommodate the slightly different circumstances. If the court agreed, that exception or modification would then itself become a principle which could be relied upon as precedent for future decisions.

Historically, this is the process by which most of our laws were in fact created. To get a good idea as to the breadth of our common law, check out The Common Law by Justice Holmes.

Legislatures have played an increasingly large role in the development of our laws, particularly in the last one hundred years. Remember, though, that when a legislature passes a law, it does so against the backdrop of the existing common law and that courts continue to apply (and to develop) the common law unless there exists a statute that is contrary to the common law.

All of that tradition, history and practice should be kept in mind when we evaluate your comment that "as a judge, [Chief Justice Moore] has no authority to make law." The reality is that, in this country and in England, judges have now and have always had a huge, huge lawmaking function. In fact, I think it would be very difficult to argue that legislatures have had a greater influence than courts on the development of our present laws and legal system.

Chief Justice Moore was undoubtedly operating under the auspices of some statute.
Setting aside the reality that judges are lawmakers, let's just assume, for purposes of argument, that this world is as simple as your argument suggests and that courts make no laws and that legislatures make all laws. Let's see where your argument leads. Let's suppose that the Alabama Legislature passes a law creating a state militia and makes the Governor the commmander in chief of that militia. And, let's suppose further that the statute provides that the Governor is given discretion to mobilize and station that militia "as he deems to be in the best interests of the citizens of Alabama." If a particular Governor were to station that militia on the public streets completely surrounding all Catholic churches so as to prevent people from attending services, many folks might claim that the State of Alabama was thereby interfering with the First Amendment rights of those citizens to exercise their freedom of religion. Would you dismiss their claims on the ground that the Governor is not a lawmaker and thus his acts may not be considered in determining whether the State of Alabama is interfering with the First Amendment rights of citizens? I doubt you would. I suspect that, even if only to preserve the integrity of your general argument, you would point out that it was an act of the Legislature that granted to the Governor the discretion to mobilize that state militia and that he must therefore do so in a manner that does not violate the First Amendment because, if surrounding the Catholic churches is a legitimate exercise of the discretion that was granted to him by the statute, his actions are directly traceable to the lawmakers of the Legislature. Similarly, I suspect that, if you look into the background of Chief Justice Moore's Ten Commandments case, you will find somewhere a statute that grants to the Chief Justice some discretion in the maintenance and decoration of the courthouse. Can he, any more than a Governor, exercise that discretion in a manner that might violate the First Amendment?

More generally, though, note that the Fourteenth Amendment creates obligations to be borne by "states" and not just by state legislatures. In the last analysis, the question concerns whether the State (acting through any of its branches and agents) is violating or failing to comply with its obligations under the Fourteenth and First Amendments.

How would your argument help Chief Justice Moore?
Finally, even if you were to disregard all of the above and continue to insist that as the result of some universal, ironclad law of nature, judges just cannot, because they are not lawmakers, engage in conduct which offends the First Amendment, doesn't that argument prove too much to help Chief Justice Moore? Wouldn't that same defense also be available to the Federal judges who ordered that the monument be removed? If judges just cannot be lawmakers and are incapable of violating the First Amendment rights of others, then it would seem to follow that their courts’ orders could not have violated any of Chief Justice Moore's First Amendment rights, could they?

Good post! These are not simple issues. ;-)

Historically, this is the process by which most of our laws were in fact created. To get a good idea as to the breadth of our common law, check out The Common Law by Justice Holmes.

Interesting you should bring up Holmes, the father of the modern legislative Courts. The view of the courts as having power to judge on the basis of common or natural law had been rejected back during the days of Marshal and Story. Holmes himself was a lone wolf who first set the stage for understanding the constitution as a living document. In fact he was the first to use the term (if my memory serves me). I was actually thinking of bringing him up myself. Holmes began the usurpation of the last hundred years although he himself was powerless to put into practice, being the only man on the court holding such an opinion. For the previous hundred odd years the court pretty much stuck to the limited task of striking down laws contrary to the Constitution and others that were in conflict with one another. They maintained the discipline recommended by Hamilton in Federalist 78 (with some notable exceptions of course -- but few only, which likely rather demonstrated the axiom that the exception proves the rule). You continue:

Legislatures have played an increasingly large role in the development of our laws, particularly in the last one hundred years. Remember, though, that when a legislature passes a law, it does so against the backdrop of the existing common law and that courts continue to apply (and to develop) the common law unless there exists a statute that is contrary to the common law.

I would argue it is hardly common law, but rather judgements of WILL out of whole cloth. Indeed there are very few among the liberal progressives who think there is a common law, unless it be one that evolves over time, changing with times, the conscience of which is seated in the minds of the men in black. The reason the Constitution ought never be considered a living document is that once it is so considered it quickly becomes a dead document, one without meaning, since it can mean whatever any judge so WILLs.

To your next point, regarding the situation of the Alabama governor surrounding Catholic churches etc., you must remember that at the founding there were some state sponsered Churches and some sects were persecuted in some states. We have clearly moved away from that, but that is why I raised the question regarding the scope of the 14th amendment and whether it ought to apply to the states at all. It is a very interesting question and one that poses very grave problems for either interpretation we take.

Finally regarding the "orders" of the federal judges. I for one think that the judges MAY NOT give any orders. For one the power to order rests in the executive and legislative (to a much lesser extent) branches. Hamilton again in 78 points out that even if judges could order or make law, they have no means to enforce such mandates. In fact every order that the judicial branch has ever made has required the force of the Executive who until this point has sheepishly cowed to the almighty gavel.

Thanks for the considered reply. I still think the most interesting question is regarding the meaning of establishment and the scope of the 14th amendment. I haven't studied con-law in many years. I may have to go back and investigate these two questions. They certainly are worthwhile, though I don't really have the time.

Cinci wrote: Neither did he break his oath to uphold the Constitution.
tpaine's reply: Read my opinions on that issue on the thread. Feel free to present specific arguments countering mine..

I did read them. I knew I could have made a more cogent, careful argument, but my posts are already too long. So here goes:

The argument is as follows:

As I recall you cited two violations that Moore made: 1) that he violated the 1st amendment per se and 2) that he violated his oath to uphold the Constitution of the US (I too assume he made such an oath -- although considering it's Alabama, such an oath may not be required :)). I will attempt to address other arguments you may also have made. If I leave any out, please show me what I may have missed, but I read all of your posts)

The first question: whether Moore made an unconstitutional law (regardless of whether or not he has authority to do such).

This he did not do. Instead he set up in his Court House a display of the ten commandments. If he had said that he was going to make his decisions based on the ten commandments and not on the laws of the state of Alabama or of the US, then clearly that would violate his oath as well as violate the prohibition of making law respecting the establishment of religion (if it is correctly applied to the states -- remember that's my question). Of course, in the present climate of judicial interpretation and legislation there is nothing preventing him from making decisions based on extra-constitutional laws except the more powerful gavelbeaters . But if he were to do so, I would be among the first to condemn him for such judgement of WILL -- I really think we're not far apart on this one.

What did Moore do? He merely displayed a code of Hebrew Law regarded by some as a Holy Covenant between God and the ancient tribe of Israel and which some regard as the basis for some of our own laws and part of our heritage as a Western free republic. He was displaying then merely his pride in our heritage and also expressing his belief in the divine authority of those laws. If it makes folks feel unwelcome, that's not a legal justification in itself to throw him out (except at the next election). I would feel intimidated if the judge were a seven foot 300 pound black man. Does that mean he should be barred from presiding in court. Com'n we are men. So long as he respects the Constitution, what hangs in his court is not a matter of legal importance, only a matter of imprudence and bad taste. Moreover, it is a political and religious expression, a right of his protected by the Constitution according to you. Now doing so in a public courthouse -- again perhaps not very smart on his part, but as I recall the people of Alabama elected Moore precisely because he promised to do this very thing. Why? because many feel that the judicial branch is attempting to irradicate from all public life the Christian religion, attempting to establish a binding anti-Christian sect, a strange kind of religion, only devoid of God, whose priests and conscience are the judges themselves.

Let's take another case. If a Muslim judge were to display in his courthouse excerpts of the Koran, some of which are extremely intimidating, I would be somewhat intimidated if I were in his court. Nevertheless, if I was confident that the judge in question, ruled on the basis of the laws of the state and of our government, I would not fear at all that this judge would deal with me inequitably. That is why I am so adamantly against judicial activism, because it substitutes WILL for LAW. What makes a Republic differ from a democracy (one step from tyranny) is that in the former men are ruled by LAW, in the latter the LAW is completely subject to the WILL, whether that WILL be of many men or one alone (the only difference between democracy and tyranny).

One final case: would I be intimidated if hanging over the courthouse of a judge were a declaration of his conviction that there was no God whatsoever, not even some divine principle of reason, some deity which is the final cause of our reason? Yes, certainly. I would find it perhaps a bit more difficult that he could properly and fairly administer the law and interpret its statutes. But it is very possible. I would be much more comfortable if he were at least agnostic and not so self-sure that there was no God. My confidence in his ability would be less than say an agnostic or a Muslim or just about anyone else for that matter. Yet I happen to know a few atheists and even one an ethicist who would be quite competent in adjudicating the law, so long as they weren't making it up on whim.

To the second question

Did Judge Moore uphold his oath to honor and defend the Constitution? This hinges on the previous argument. Nothing in the Constitution prohibits a judge from putting a display in his Courthouse. Again there is a measure of prudence we expect from judges when putting displays of any kind in the Courthouse. To elaborate a little, however:

I have stated that my opinion is that judges have no authority to legislate. They do so unconstitutionally. Thus if Judge Moore had indeed violated the Constitution by making a law regarding an establishment of religion, say: he made a law saying that every defendent must profess his belief in the code hanging on his wall or serve 30 days in solitary confinement, beating himself on the head with a Bible. That would be a law. It may violate the 1st amendment, depending on how you understand the 14th amendment. CERTAINLY, however, it is in violation of the judges specific role in interpretating the law. The judge is not to make law, but interpret. Therefore, it is impossible, in my opinion, for any judge to break the 1st amendment unless he oversteps his bounds by making law. Judge Moore to my knowledge did not make any law. Again he merely displayed a set of old laws, some regard as having divine authority --- which Code of Law Judge Moore AUGHT NEVER TO USE as the central argument in deciding cases(though merely citing of it is not wrong only imprudent perhaps -- so long as the central argument is based on actual ratified US or state law). It is merely a payment of respect, to some offensive and to others intimidating, but neither THE law of the land nor unconsitutional. Do you see the difference?

THE REAL PROBLEM

The real fear, I think, stems from the abuses by the liberal courts, not by conservatives, even by most religious conservatives (although many are a little confused -- all the more reason for more debate, to separate the good opinion from the bad). When the judge becomes tyrant, whoops I mean judicial activist, he opens this pandora's box. We then fear that a judge will do whatever he wants and not simply decide on the constitutionality and coherence of law, but rather make law. That is why the courts must be corrected. That is why I like what Alan Keyes is trying to do. He wants to limit the scope of the appellate courts based upon unused provisions of the Constitution, written precisely in part to address this problem. If we are merely to wait and hope and pray that we get a prudent president and a big enough Congress and the stars all alined just so in order to elect someone to the bench who we hope will not turn on us once in the supreme seat of power, our hopes of a revival of a truly free republic are dim indeed.

Sorry it's so long, but you asked for it. :)

Again if I have missed some argument of yours or not properly addressed it, please direct me.

Cordially,

I would be thankful if you could offer your insight with respect to #429 above. I think I answered your best arguments there. But I'll cite the particulars. Please don't respond to this, since your strongest arguments I addressed above, not here. Two overlengthy posts would be too much, even for me. The posts and the quotes following are links to your posts above. I don't think I missed any of your major arguments.
POST 135:

Moore was openly favoring one religion over another in the courthouse. He has no power to do that.

To favor is not to make law. Making law that favors one sect would be unconstitutional. Simply to favor, so long as the favoritism did not go so far as to judge based on the 10 commandments contrary to ratified law, is not prohibited.

post 145:

Moore was violating the first by openly favoring one religion in the courthouse. He was 'respecting an establishment' of the Judeo-christian religion, [the ten commandments], favoring them over the principles of other religions.

“Respecting” is a preposition in the Constitution. You’ve made it into a verb. Bad grammar. Bad interpretation. (I really didn't want to bring that one up.)

post 257:

Moore took an oath to honor the Constitution & BOR's..
His offical action violated the 1st by favoring one religion over others

This was what I considered one of your main contentions and is addressed above.

post 288:

Denial. The facts are clear. He put up the 'monument'. He was ordered to take it down on 1st amendment grounds. He refused, he lost.

Point addressed above. Gavelbeaters have no ability to enforce their orders.

post 52:

if some lawmaking body is writing law that favors the principles of one religion over another, they are violating the rights of non-favored citizens by ignoring the 1st.. The courts can redress such violations.

See my argument above. Moore neither made nor wrote any law. Nor was he using the 10 commandments as an alternate law on which to base his judgements. Do read the argument above. I address this thoroughly.

Wrong, Alan.. It deals with legislators making no law about "respecting AN establishment of religion". 'AN' establishment, not 'THE' establishment of religion. Big difference in meaning.
'An establishment of religion' is any teaching, precept, dogma, or object relating to any specific religion.

Now this was the statement that most interested me. The meaning of “establishment” and the 14th amendment. However, it is not germane to the present argument, because Moore did not violate the establishment clause since he made no law. I am interested in further discussion of this issue and will probably course through the thread below. Thanks for the link.

Your link to the thread on the 14th amendment discussion: I'll be checking this out

Thanks for the time. I am interested in your thoughts on 429 above.

The view of the courts as having power to judge on the basis of common or natural law had been rejected back during the days of Marshal and Story. Holmes himself was a lone wolf who first set the stage for understanding the constitution as a living document.

It's important to understand that natural law and common law are two totally different concepts. Natural law involves a distinct philosophical approach to how laws should be designed. One can be for or against a natural law approach.

However, the common law is just a description of the body of nonstatutory law that did in fact evolve over a period of several centuries in England and in the United States. It forms the basic framework for our current laws in the areas of property, criminal law, contracts, torts, agency, etc. Even when statutes are written or read, they are written and read within the context of words and concepts that were developed as part of our common law.

One can be for or against the common law, I suppose, but only in the same sense that one can be for or against the historical fact that there were kings and queens in England. The English common law and the tradition that judges made law on a case by case basis is just part of our English heritage and it was brought to the New World with the English colonists.

The common law has never been "rejected." In fact, many states have codified it. For example, Section 22.2 of the California Civil Code provides:

"The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State."

It's a bit late to either favor or oppose the common law. At this point, it just is.

I would argue it is hardly common law, but rather judgements of WILL out of whole cloth.

First, let me clarify something about that link to Holmes on the common law that I gave you in my last post. That piece by Holmes is not a work of advocacy; it is an historical description of how judges had been making the common law on a case by case basis for centuries. And, as he points out, judges are human beings living in and affected by a real world environment:

"The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become."

I also detect in your posts a suggestion that judges making law is some sort of recent development. In fact, just the opposite is true. For the last several hundred years, it has been judges who have been creating the vast majority of our laws one case at a time, creating rules and precedents for us to live by. The recent development (over the last 150 years) has been the increase in lawmaking activities by legislatures. At the present time, most states now have full-time legislatures composed of career legislators who are producing statutes like McDonald's produces hamburgers. It is the increasing influence of legislatures (as opposed to courts) in the development of our laws that has been the recent trend.

Well, the Fourteenth Amendment is expressly applicable to the states. The more interesting issues have concerned what that amendment really means, i.e., what does it require of states? The Fourteenth Amendment doesn't say anything about the establishment of state religion or the free exercise of relgion or freedom of speech or the freedom of press, does it? In post 166, I linked a case (Everson) which held that, because of the Fourteenth Amendment, states are required to comply with the establishment clause of the First Amendment. In post 173, I linked a case (Boy Scouts of America v. Dales) which makes it clear that all of our justices (including Scalia and Thomas) believe that, because of the Fourteenth Amendment, states are required to comply with concepts found in the First Amendment. If it ever was, it is not now a conservative v. liberal issue. All of them agree on that point!

I still think the most interesting question is regarding the meaning of establishment and the scope of the 14th amendment.

You're absolutely right. It is the most interesting of the issues presented by this Ten Commandments case.

And, you can call me cynical, but I suspect that Chief Justice Moore got the decision by the federal courts that he really wanted all along. ;-)

Good post.

I understand the difference between common and natural law. However, I am less sure of the application of common law concerning the federal courts. Nevertheless, based on what I have read of Holmes, especially in his dissents, he did show the way for the modern court. To cite cases, I cannot and do not have time. Sorry.

Regarding the fourteenth amendment, it is unclear precisely what is referred to by "priviliges and immunities of the citizens". It is unclear especially that this refers to making law regarding the establishment of religion. An establishment of religion is not an individual, so I am not sure that its application is appropriate.

What exactly is meant by establishment is another question I have. I'll have to dig back in my constitutional law book.

In any case my main quarrel is with the intrusion of both the federal and the state governments into public education. There was a time, as Tocqueville notes, when the States merely mandated by law that townships provide public education (and little else). The citizens admistered that law: they raised the funds, built the school and hired the teachers. The teachers were guided by the citizens and their expectations. Should they teach that there was a God or no God was left to the self-government of the teacher and the citizen.

We are now past the era of self-government it seems to me. All of the hoopla about prayer in school and public monuments would be less important had the States and feds not overreached their authority.

Thanks again for the consideration. I will have to look into above-said matters. If you can direct me, I'ld be appreciate it. However, I've got my fat con-law book at least off the shelf. Now I just need to read it.

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