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]

Well, you are just wrong. This is about Moore and his own stated goals. And its not in his courtroom. It dominates the rotunda of the judicial building and Moore refused to allow other "lawgiver" and religious displays.

I really wish some of the knee-jerk people on here would do a little research on Judge Carnes, who wrote the 11th Circuit opinion. If every Federal judge shared his conservatism, no one here would be complaining about Federal judges.

This is create-an-issue, courtesy of Judge Moore and his political ambition. Your blind and non-factual support of him only furthers his personal cause.

[xzins]

As Moore said, he is a judge in Alabama and he is not the US Congress. That certainly is clear. Nor is he the legislature of Alabama. It is also clear that no law has been passed. He chose to set up a monument in his courthouse.

He argues that is the true God is not over the laws of the land, then that means that human beings are supreme. If they're supreme, then hold onto your hat because they'll someday pass a law that says they can legally steal your hat.

And to whom will you then appeal for justice and rights?

[lugsoul]

Oh - as far as passing a law is concerned, it is well-settled that a state can't act in a way that would be illegal if it passed a law to the same effect. This is simple, common sense. A state can't act in an unconstitutional way and avoid the legal issue by simply not passing a law justifying its actions. An example - is it constitutional for state officials to arrest and jail persons for practicing a certain religion, if there is no law against it?

[lugsoul]

This argument is addressed a thousand times in these threads and in the law, including in this case. Do you really believe that only legislatures can violate the Bill of Rights? Do you really believe that those countries that trample the rights we hold dear do so only by enacting laws?

[Mr. Bird]

There is a law against that. That's what habeas corpus addresses.

[Tax-chick]

Your arguments are interesting, and I will certainly think about them. However, this:

Your blind and non-factual support of him only furthers his personal cause.

is just silly. My opinion, stupid or not, on this issue has no effect on anything to do with Judge Moore. No one will even know my opinion, except my husband (if he's listening :-) and a few FReepers. I'm a resident of North Carolina, and have nothing to do with Alabama. I'm not going to send him money; that's for charity or local political campaigns. So I'm furthering his "personal cause" ... how?

You can think I'm a ditz if you want - certainly plenty of other have - but to imagine I'm influential is the Far Side.

[diamond6]

"We must help Chief Justice Roy Moore stand fast against the ACLU theophobes and the anti-constitutional heathens who abet it and sit on the 11th Circuit Court."

Any suggestions?

[lugsoul]

Yep - and that has been suspended before.

[lugsoul]

And my question was not whether it was illegal. It was whether it is unconstitutional.

[William Terrell]

Do you really believe that only legislatures can violate the Bill of Rights?

The Preamble to the Bill of Rights:

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution."

The legislatures have their own constitutions to violate.

[lugsoul]

Does that mean you do believe that the Bill of Rights does not constrain the states in any way?

[Sloth]

I support Moore, but some of this is just silly.

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;

False, unless the Constitution *requires* the placement of a monument declaring that truth.

(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;

I'll go along with those.

and most importantly (d) to concede that the God of Scripture is not supreme over the laws of the United States.

False. Go nowhere requires public display of such monuments. The presence or absence of a man-made monument does not change God or His relationship to man, nor does it imply anything about that relationship.

[bert]

.....As a matter of law.....

The Judge seems to be arguing that congress passed no law. If that is true, how did he lose in court? The ACLU argued something in court. What law did the ACLU argue and what did the judges rule on that specific point of law.

[Centurion2000]

There is not a learned judge in the nation, from Scalia on down, who believes that the states can violate the prohibitions of the 1st Amendment at will.

Funny but they seem entirely comfortable with letting states violate the 2nd amendment at will ...

[William Terrell]

Does that mean you do believe that the Bill of Rights does not constrain the states in any way?

What does the Preamble say? Does it mention the states, or just the national government?

[HapaxLegamenon]

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.

But don't you know, the 14th Admendment "incorporates" the Bill of rights* to all other legeal entities...

* With the exception of course to the 2nd admendment which is a part of the bill of rights, but gives no rights, and the 9th admendment which gives the peolple the right, unless the courts of course say no, and the 10th admendments which gives states the right to make their own laws, subject of course to the Veto power of Ruth Gader Ginsburgh et al.

[RipSawyer]

"then hold onto your hat because they'll someday pass a law that says they can legally steal your hat."

Hasn't that already been done? What else is the progressive income tax?

[HapaxLegamenon]

Here here! See my post below concerning incorporation.

[drjimmy]

He argues that is the true God is not over the laws of the land, then that means that human beings are supreme. If they're supreme, then hold onto your hat because they'll someday pass a law that says they can legally steal your hat. And to whom will you then appeal for justice and rights?
Of course human beings are supreme when it comes to governing themselves. Exactly who is it you appeal to for justice and rights right now? Is it your God or your government?