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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,