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!

[lugsoul]

Have you read this case? The only way the 11th could have ruled otherwise would have been to ignore Supreme Court precedent. Which, for this court, is binding precedent. THAT is judicial activism.

[lugsoul]

And if Moore decided to decorate the entire judicial building in Crimson Tide gear, I guess the Auburn folks should think nothing of it when they show up for court against the 'Bama folks.

Since we are talking religion here, I had to bring up football.

[lugsoul]

Judicial activism? This court did exactly what they are compelled to do by the decisions of a higher court. Standing up and declaring that you and ONLY you are the final arbiter of what the Constitution says is judical activism. Oh, in case you didn't notice, THAT is Moore's position.

[Woahhs]

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

Yup.

[Woahhs]

And if Moore decided to decorate the entire judicial building in Crimson Tide gear, I guess the Auburn folks should think nothing of it when they show up for court against the 'Bama folks.

Yup. When you show impropriety in his rulings, I'll be more than happy to entertain the point.

[jethropalerobber]

...but as for me and my house, we will serve the LORD.

"render unto caesar that which is caesar's"

[Woahhs]

Standing up and declaring that you and ONLY you are the final arbiter of what the Constitution says is judical activism. Oh, in case you didn't notice, THAT is Moore's position.

Quote please. I don't recall Moore claiming exclusive prerogative in Constitutional interpretation.

The Court wanted to play politics...politics it is.

[Tax-chick]

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?"

Judge Moore's religion affects every aspect of his life, whether the 10 Commandments are in the rotunda or not. At least the monument is "truth in advertising."

I haven't seen any suggestion that, as Chief Justice, he's going after people for not worshipping the God of Israel, or for failing to honor parents, adultery, or coveting ... so it's simply the public proclamation of his beliefs that's causing the ruckus. Isn't free speech protected by the First Amendment? No, what was I thinking!? We're only allowed to state believes that the Powers On High agree with ... Sorry y'all, for a minute I thought I was in the United States!

[William Terrell]

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?

Yes, but Lousiana uses the common law today. When the meat renderers went to the SC in the Slaughterhouse Cases, nothing but common law was used to dispose of that case, which of course is a landmark police powers case. Nothing of any Nepoleonic code was used there there to decide that case.

Have you never heard about the native ownership laws in Hawaii?

No, I haven't. Have they stood up to an "overriding government interest"? And if they did, can they be used in another state?

Do you really believe that the 200 plus years of Spanish rule in New Mexico left no legal vestiges?

Are those legal vestages usable against an "overriding government interest"? Whatever those vestage are, they will bend to the state constitution and some elements of the BOR if a local judge uses it. Those vestages will have no effect on issues of establishments of religion and they're not found in New Mexico's analog of the 1st:

NM Const. Article 1, Sec. 11. Every man shall be free to worship God according to the dic- tates of his own conscience, and no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion or mode of religious worship. No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any preference be given by law to any religious denomination or mode of worship.

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

I know that many states have fragments of foreign custom, and they will show up in local laws. But they will all conform to the wall against the state establishing laws constituting an establishment of religion. The New Mexico is more detailed than the fed 1st, that's all.

From my observations, our highest courts use the principals of the common law and equity to decide cases. If it's a little different in custom, that custom will not be reflected in any sovereign way, and certainly not at the national level.

Nowhere is a state supreme court justice erecting a monument with 10 ancient commandments on the other side of that wall. They are the principles of which the vast majority in America religious profile, Christian and its Israelite roots, all denominations and sects, hold as basic foundation of the law, and in fact was the foundation of that law.

The basic cornerstone of our law is self policing through the golden rule found in Luke 6:31 and Matthew 7:12. This depends on God as a higher power than man. If that philosophy does not control the hearts of the people, our law fails at its foundation.

From my observations, in Alabama, and everywhere else, the American common law, which came from the English common law, and equity law is based on the meaning of each and every one of those commandments, however worded, and the sense of there being a higher power then mankind is what makes them work.

Do you think incompatable laws and customs from countries that have no governmental philosophy like that of the US should be used to settle US internal cases of law?

[William Terrell]

Thank you responding to my question. I asked it again in the immediately prior post, so please disreqard it.

The Ginsburg brouhaha is a clear call for using foreign custom and law as guidance in American cases. When someone on the Supreme Court says something like this, it is tanamount to a declaration of precedent. Don't fool yourself. We have renegade courts. Would this have been expressable or even considered 50 years ago. The fact that it couldn't have been while it is today establishes a vector.

In interpreting tribal law on sovereign reservation matters, Blackstone doesn't really carry much weight.

Actually, the American indian tribe gained so much respect that they are treated as a seperate sovereignty. However, the indians have SOCIAL SECURITY accounts and the tribes are recipeints of federal money. So, tribal law is extremely local only, which affects the picture none at all, from wher I sit.

I'm glad you don't support using nutty European country customs as factors in our cases. Their laws and customs have born its fruit, and American laws and custom have born its fruit.

[lugsoul]

"Yes, but Lousiana uses the common law today."

Not English common law. Nope.

The extent to which they rely on precedent rather than code is very different than the other states, and is far more akin to a civil law system than a common law one.

[lugsoul]

"From my observations, in Alabama, and everywhere else, the American common law, which came from the English common law, and equity law is based on the meaning of each and every one of those commandments, however worded, and the sense of there being a higher power then mankind is what makes them work."

What parts of the law are derived from Nos. 1-4? And which God are they referring to if those are the law? And which Sabbath?

[Woahhs]

On reflection, I find myself perversely enthralled by your post 123. It's a veritable tribute to Ann Coulter's observation: "The moment you concede some small point to liberals, they go to work building an enormous elaborate edifice on top of the first lie."

You are, of course, more than welcome to claim you've owned the very same axe for more than thirty years; just don't expect to impress those who know it's had two new heads, and three new handles. In that spirit, I'd like to point to the heads and handles in post 123.

Judicial activism? This court did exactly what they are compelled to do by the decisions of a higher court.

I've no doubt you're perfectly aware no one has claimed the actions of the 11th circuit constituted judicial activism, only that it propagated prior activism. What you intended to accomplish with such obvious disingenuousness is a mystery to me. I can understand the utility of misrepresenting an opponent's position to a third party: but misrepresenting their position to the opponents themselves? It conjures up thoughts of little children covering their eyes to hide from you.

Standing up and declaring that you and ONLY you are the final arbiter of what the Constitution says is judical activism. Oh, in case you didn't notice, THAT is Moore's position.

While I've already dealt with this claim, I should point out it's just plain factually incorrect. First, because Moore never declared anything of the kind. Second, because the commonly understood definition of judicial activism is de facto legislating from the bench. What Moore is doing is no more judicial activism than a judge shouting at you for scratching his car door is judicial abuse. The association is convenient, but inappropriate because the linkage rests on his title, not his actions.

Finally, regardless of Justice Moore's personal reasons for wanting the monument, I'd be far more inclined to trust his impartiality until proven otherwise, than that of his detractors in light of the reckless specious claims brought forth to oppose him.

For the life of me, I can't figure out how we Americans got the idea we have to give in to the dissembling of moral relativists if we can't prove their most absurd hypothetical scenarios won't happen.

[The Mayor]

On seperation of Church and State
It is impossible to build sound Constitutional doctrine
on a mistaken understanding of Constitutional history...
The establishment clause had been expressely freighted with
Jeffersons misleading metaphor for nearly forty years...
There is simply no historical foundation for the proposition
that the framers intended to build a wall of seperation
[between church and state]...
The recent court decisions are in no way based on either
the language or the intent of the framers.
William H. Rehnquist
1985 Assoc. Justice U.S. Supreme Court
Wallace vs Jafree

It cannot be emphasized to strongly or too often
that this great nation was founded, not by religionists
but by Christians, not on religions,
but on the Gospel of Jesus Christ
For this very reason people of other faiths
have been afforded asylum, prosperity,
and freedom of worship here.
Patrick Henry

The Bible
The more profoundly we study this wonderful book,
and the more closely we observe it's divine precepts,
the higher will be our destiny as a nation
President William McKinley, Inaugural address
March 4, 1897

[lugsoul]

"I've no doubt you're perfectly aware no one has claimed the actions of the 11th circuit constituted judicial activism, only that it propagated prior activism."

WHAT A JOKE! Oh, sure, every one recognizes that this court correctly followed precedent, but that only the PRECEDENT was bad. Sure.

Maybe you should read the thread.

"this court is renegade"

"It is too bad they don't just die when they issue these rulings though. I wish God would strike them with lightning like they deserve."

[William Terrell]

Nope, the state changed from the civil alw to the common law. Not English common law, American common law.

[Woahhs]

WHAT A JOKE! Oh, sure...Sure. Maybe you should read the thread.

;)

With more than 130 posts, you cite two sentences? Sorry those slipped by me...no doubt overshadowed by your sane and temperate rhetoric. I suppose on those grounds I should be moved by your petty hysterics?

[William Terrell]

The commandments don't specify which sabbath, just that you keep it holy. But lets look at the commandments.

Thou shalt have no other gods before me
Thou shalt worship no graven images
Thou shalt not take the Lord's name in vain
Thou shalt keep the Sabbath day
Honor your father and mother (Thou shalt not dishonor them)
Thou shalt not kill (murder)
Thou shalt not commit adultry
Thou ahalt not steal
Thou shalt no bear false witness against your neighbor
Thou shalt not covet thy neighbors house, wife, ect

The first four have to do with honoring God. The last six have to do with honoring your fellow man. Let's bypass honoring God for a moment, that would be in one's heart and no one knows anyone's heart but themselves and God.

The last six are absolutely necessary for a free society. They each have to do with things no one wants some one else to do to them, with the moral implication that makes them bad and therefore things not to be done to anyone else.

As a society, we can only condone the acts of these things one against another if we want chaos.

One can have the law of the jungle and just live in close proximity to one another. But that turns out to not be free. In such "freedom", one has to look over one's shoulder constantly, not trust the word of another making trade difficult, constantly guard one's possessions and the only form of justice would be arbitrary.

A truly free society is one in which each individual is free to pursue his path as long as he harms no one and his society by law and custom protects that state of being.

The commandments of God point to the precise strictures that are necessary for freedom.

The first four commandments are for the truth that God is perfect and man is not. In a society where knowledge of God does not exist, there must also be chaos, even if the last six commandments are present in law and custom. Man can move by darkness. The darkness hides his acts.

Without the consciousness of a higher power than man, each law in concurrance with the last six can be broken out of the sight of men, and if the act is not caught, there is no sin and retribution. The law can't be enforced because it's not in the heart, only on the books and no man watches another constantly. If one can break the law uncaught, and without the consciousness of God's judgement, why should anyone follow it when no one is watching?

So, without the first four, the last six can't function. In no way can any be ignored and have, not only a free society, but a society at all for very long.

[Tax-chick]

Excellent summary, Mr. Terrell! When I hear someone say, "The Ten Commandments may be fine for some people, but we don't want to impose them on everyone," I generally don't think it's observing the Sabbath they're really worried about, or graven images. These are people who want the door left open to kill, steal, commit adultery, bear false witness, and covet. Not the kind of people we want running loose in society.

[Woahhs]

It should be noted, in the first four Commandments we see the seeds of our moder concepts of holidays, mandated loyalty, proscription against fraudulent claims to authority, and the primacy of mind over material.