Constitutional Crisis in the Making?

World View Weekend | 6 Aug 03 | Douglas W. Phillips, Esq.

[SLB]

Earlier today, the 11th U.S. Circuit Court of Appeals lifted the "stay" on the "order to remove" the Ten Commandments from the Alabama State Judicial Building. Now that the stay is lifted and the order to remove is in place, Chief Justice Roy Moore has been given fifteen days to remove the Ten Commandment, or else.

But he will not obey this order. To do so would be (a) to violate his oath of office to the Alabama Constitution which specifically declares the state laws to be under God; (b) to grant jurisdiction to a federal court which is acting beyond the scope of its lawful jurisdiction; (c) to ratify an unlawful and usurpatious application of the First Amendment; and most importantly (d) to concede that the God of Scripture is not supreme over the laws of the United States.

Because the Chief Justice will not obey this order, he may well be found in contempt of court and jailed or fined. (In the order handed down today, the Eleventh Circuit Court anticipates Moore's refusal to comply and threatens a $5,000 per day fine to be levied against the Chief Justice in his official capacity.) Alternatively, federal marshals could be sent to remove the Ten Commandments, although the recent movement of Congress to defund such an activity may put the brakes on this approach. There are other possibilities as well, but whatever the tactic of enforcement adopted by the 11th Circuit Court, one thing is certain: the stage will be set for one of the greatest constitutional crises in American history (second perhaps only to the crisis between Andrew Jackson and the Supreme Court over the establishment of an unconstitutional monetary system, and the crisis precipitated by the Lincoln Administration when it raised troops against Virginia).

In this case, a "constitutional crisis" means a showdown between competing governmental jurisdictions. This showdown is all the more likely if the Governor of Alabama sticks to his principles and supports Chief Justice Moore against the unconstitutional order of the 11th Circuit Court.

There are many Ten Commandment cases surfacing around the country. This one is different from most of the others for two reasons: First, the defendant in the case is not a school official or a lower judge, but the highest judicial officer of a state, the Chief Justice of a Supreme Court. Second, the Chief Justice has refused to employ the specious arguments which are so tempting to conservative constitutional attorneys intent on winning their cases at all costs. Such lawyers often employ enemy arguments based on enemy assumptions in the hope of getting a technical "win," without considering the long-term implications for our nation of reinforcing bad precedent. Such lawyers consider it a victory when the Ten Commandments are allowed to stand because they were able to squeeze such a practice into the "Lemon Test" or because the court found the placement of the monument to be of purely historic significance.

Justice Moore refuses to use such arguments. He has staked his case, his career, his very life on a simple proposition: The Lord God of the Bible who gave us the Ten Commandments is the only source of law and authority under which our nation and its judges may govern. It is this very God of Scripture to whom our Framers appealed when they drafted the charter documents for our nation. These same Framers gave us a Bill of Rights, the First Amendment of which makes it clear that the federal government may not interfere with the Church, nor prohibit any individual from freely exercising their religious beliefs.

To be precise, the First Amendment reads: "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof." As Moore has pointed out: He is not Congress, and no law has been passed. He is simply acknowledging the source of law, God Almighty.

This is the type of argument that makes the judges of the land quake with indignation. They are the gods of the land and do not like to be challenged. Like Pharaoh before Moses, Eleventh Circuit Court Judge Myron Thompson has hardened his heart, mocked, belittled, and even taunted the prophet who stood before him. Thompson and the Republican-appointed judges who ruled against Moore have forgotten God's warning to them:

Be wise now therefore, O ye kings: be instructed, ye judges of the earth. Serve the LORD with fear, and rejoice with trembling. Kiss the Son, lest he be angry, and ye perish from the way, when his wrath is kindled but a little. (Psalm 2:10-12)

The true mettle and faith of many professing Christians may soon be tested. Where will they stand? If the Governor of Alabama stands with the Chief Justice, God's Law will remain publicly displayed in the gates of that state. As the Chief Executive over the federal government, President Bush may also be presented with a decision of far-reaching implications: Enforce the federal court and stand with the 11th Circuit Court in their opposition to the display of God's Law, or declare it invalid and stand with those who revere the God of our Constitution. Either way, America will have a constitutional crisis which opens the door for what is, from a spiritual perspective, arguably one of the two or three most significant Supreme Court cases in history.

The United States Supreme Court has discretion as to whether or not to hear a case. But where a significant conflict exists between jurisdictions, it is virtually obligatory that the Court help to resolve the matter. If the Court grants a writ of certiorari to hear the case, you and I will be living spectators to an unprecedented event.

Picture this: For the first time since the Founding era, a state Chief Justice with faith in God Almighty will stand before the Supreme Court and exhort them of their duty to God, to man, and to the Constitution. He will defend the proposition that the God of Christianity is supreme over the laws of our nation and that we must acknowledge Him or perish. Perhaps he will quote Scripture. Perhaps he will exhort these judges to "kiss the Son, lest He be angry." But whatever happens, it will be a defining moment in our nation's history.

Once again, America will be tested. Where will we stand? You can decide to stand with Justice Moore by appearing for the national rally which will be held at the Alabama State Judicial Building on August 16, or simply by praying that the Governor will reject the authority of the 11th Circuit Court to enforce this order.

One thing is clear: God has raised up Chief Justice Moore as a Moses to the children of these United States. He stands immovable because his confidence is in the Lord. He knows that the Lord of hosts will do battle for us. The same God who opened the sea with the blast of His nostrils to free the children of Israel is the same God who will defend all those who diligently seek him.

Perhaps because of this Moses of the American court system, we will someday live to see the same principle God gave to Israel, realized in the life of our own nation:

Thy princes are rebellious, and companions of thieves: every one loveth gifts, and followeth after rewards: they judge not the fatherless, neither doth the cause of the widow come unto them. Therefore saith the LORD, the LORD of hosts, the mighty One of Israel, Ah, I will ease me of mine adversaries, and avenge me of mine enemies: And I will turn my hand upon thee, and purely purge away thy dross, and take away all thy tin: And I will restore thy judges as at the first, and thy counselors as at the beginning: afterward thou shalt be called, The city of righteousness, the faithful city. (Isaiah 1:23-26)

Oh, that God would restore our judges as at the first. Oh, that we would be called a city of righteousness! Do you believe in the power of God? Will you stand with Him and the prophets of righteousness that He raises in our own land? Who is on the Lord's side?

Stand still and see the salvation of the Lord!

[Woahhs]

I'll admit, I can't see Dubya doing that myself. But I didn't think I'd see what happened with Elian Gonzalez either. Besides, I don't necessarily think it's exclusively government troops that would fight to keep the clinics open.

[Tax-chick]

Well, you win the "last word" prize from me, sir or madam. Enjoy!

[Woahhs]

And if our governance was as cut-and-dried as you propose, there would be not one law infringing on the private ownership of firearms in the entire country.

I do not accept your "throwing myself on the mercy of the court, because I'm an orphan now that I've killed my parents" argument. Do I dispute the text? No. Do I think it means something other than what it says? No, I think it means something other than what YOU say it says. Simple as that.

[William Terrell]

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . ."

Let's temporarily substitute "A legislative body" for "Congress" to make this apply to the states. Now, how does Moore, a state supreme court justice, erecting a monument that has the 10 commandmnets on it violate this clause? Logically, how does it even fit? Show me the legal opinion that applys this clause, standing alone, as it logically must, to the action of a judicial officer. The "lemon test" presuposes a fit.

Do I hear you saying that anything the Supreme Court says regarding the Constitution stands, in spite of any reasonable interpretation thereof? You agreee with Roe v Wade, and the second legal tender case, I take it? You factor not the packing of the court by a president and a compliant Congress to establish a socialism into your opinon?

There is no rule of law when the written law can be preverted as a govenment body so wishes. There is only the rule of man, which the People ordained and established this country for the precise purpose of avoiding.

Your lack of knowledge of our form of government scares the piss out of me. If you want rule by a king or an asistocracy then why don't you move to a country that has one or the other?

[Woahhs]

I'm always amazed at the zealotry of "constitutionalists" defending precedent, but who ignore the fact there isn't a peep in the Constitution establishing judicial review...least of all the magic wand variety we've had to suffer.

[William Terrell]

Sadly, it seems several possibilities for perversion were not considered by the Founders.

[c-b 1]

Actually, it is about Moore's ambition.

That is your opinion, to which you are entitled.

My opinion differs slightly.

I have studied Judge Moore's accomplishments, I have heard him speak, I met him, I spoke with him. He is one of the most humble men I ever met. His ambition is to serve God.

This is about our God Given Rights, guaranteed by the Constitution. Judge Moore is fighting the erosion of our rights, the Ten Commandments is the issue that was presented him by the ACLU.

[lugsoul]

Which of your rights is eroded by not having a 2 1/2 ton 10 Commandments monument in the State Judicial Building?

[wcbtinman]

"I do, however, have a problem with them being displayed as if they are the law of the land."

If you look closely, you will see that, in various permutations, the Ten Comandments are the law of the land.

[lugsoul]

Since you turned it into a joke, I guess you concede the point that English common law is NOT the only historical antecendent of our law. French, Spanish, polyneisian have all played a role in this country and are reflected in today's laws. Ever take a look at Hawaiian property law? It ain't English, that's for sure. And there was a Spanish court of law in Santa Fe before there was ever an English court in the colonies. Louisiana? Hell, they still call a lien a "privilege."

[William Terrell]

French, Spanish, polyneisian have all played a role in this country and are reflected in today's laws.

Ok, show me.

Does this mean you're fully supportive of using foreign law, custom and precedents to judge legal issues in the US?

I thought you were making the joke.

[lugsoul]

Show you? Are you kidding? Don't you know that Louisana law is derived directly from the Napoleonic Code? Do you really want proof of that? Have you never heard about the native ownership laws in Hawaii? Do you really believe that the 200 plus years of Spanish rule in New Mexico left no legal vestiges? (An aside - the longest continuously used government building in the U.S. is in... Santa Fe.)

If you are really curious, I'd be glad to fish around for some example, but this stuff is fairly common knowledge.

[lugsoul]

First, despite all the Ginsburg brouhaha, no one has said they are using foreign law as precedent. And all of the people who complained about the discussion of foreign law in Lawrence must've just missed that it was presented in direct response to the arguments in Bowers to the effect that the laws of OTHER countries meted out punishment for sodomy - so the court replied to Bowers.

Do I support using it as precedent? No, and it is not used as precedent. Do I think that relevant legal traditions have nothing to do with with our laws and should be completely avoided? No. You yourself stated that reference to Blackstone was appropriate because our common law is founded in English common law. And for those states where that is true, it is appropriate. For interpreting Louisiana law, the French civil code is equally appropriate. In interpreting tribal law on sovereign reservation matters, Blackstone doesn't really carry much weight. I agree that Blackstone and other historical legal foundations are appropriately referenced. But English common is not the only antecedent.

[Woahhs]

Which of your rights is eroded by not having a 2 1/2 ton 10 Commandments monument in the State Judicial Building?

Which of your rights is eroded by leaving it there?

[jimt]

So it's cool if a Satanist judge puts up a monument glorifying Satan? Or if a Hindu judge puts up wall hangings glorifying Shiva, the destroyer?

I think Judge Moore is a nut and his expensive piece of statuary inappropriately placed. The first four commandments are explicitly religious in nature and have nothing to do with law, unless we're going to jail people for working on Sunday, or for using the Lord's name in vain.

[lugsoul]

Well, I've addressed that for three days here. Let me give a very abbreviated answer, then answer my question.

If I walked into the court to have my case heard, and the building was dominated by a Christian monument and the Chief Justice was proclaiming that we are all governed by a Christian God, it is not that big a deal. I worship that God, as well. But if someone who doesn't represent that God comes before the Court to have his case heard against a Christian opponent, would he not be justified in thinking that the other side was the "home team?"

Our Courts are supposed to be about impartial justice. A court that openly favors the views of PART of our population does not give the appearance of impartiality.

[Woahhs]

You're entitled to your opinion. You are not entitled to have the state prevent you from being offended.

[Woahhs]

But if someone who doesn't represent that God comes before the Court to have his case heard against a Christian opponent, would he not be justified in thinking that the other side was the "home team?"

No.

[Woahhs]

then answer my question

It further establishes the tyranny of judicial activism and the magic wand variety of judicial review.

[jimt]

You are not entitled to have the state prevent you from being offended.

So I take it you're all right with Judge Padmahni's "All Hail to Shiva!" wallhangings in her courtroom, correct?