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!

[HapaxLegamenon]

I think the point is that he is not violating any law by displaying the commandments. If this is the case, how can he lose. Judges must rule on the law.

[lugsoul]

Can't you answer a simple question? I'll answer yours. It doesn't matter what the Preamble says. It doesn't even matter what the Constitution as originally ratified says. The only thing that matters is what the ENTIRE Constitution says.

You keep dancing around the question. Do you believe, for example, that there is no Constitutional (federal) problem with a state passing a law that bans newspaper articles which are not approved in advance by the governor's office?

[webstersII]

"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."

Sounds interesting. Have you got any links for us to explore?

[lugsoul]

I don't know of any free sites that will group opinions by judge. But you can always just look at the 11th Circuit opinions and look for him. From a general search, however, I did find the following comments at, of all places, the ACLU website:

Of the Reagan-Bush appointees, the newspaper said, three judges seem to have emerged as the most influential conservative voices: J.L. Edmondson, Edward Carnes and Stan Birch.

Edmondson, 50, a school board attorney and manager of Reagan's 1984 re-election campaign in Gwinnett County, was the first of the six Reagan-Bush appointees. He has championed the legal doctrine of "qualified immunity," which protects government officials from civil trials and liability in most instances.

In August 1994, Edmondson wrote a key ruling that granted immunity to Alabama A&M University, which had fired a professor without offering him a hearing.

In January 1996, Edmondson upheld the Georgia law requiring drug testing of political candidates, saying "the state's interest in filling these positions with drug-free people is great." But the U.S. Supreme Court, in an 8-1 decision, threw out the law, saying the tests were an unconstitutional invasion of privacy.

Carnes, 47, a Harvard University law school graduate who was chief of Alabama's death-penalty division before his appointment by Bush, is considered by many legal observers to be one of the court's new intellectual leaders.

Bush's nomination of Carnes was opposed by civil rights groups and criminal defense lawyers, who called him "Mr. Death Penalty" because of his fervent advocacy of capital punishment. In February 1995, he made his mark in death penalty appellate law by affirming the death sentence of Eurus Kelly Waters, who kidnapped, molested and killed two women on Jekyll Island.

The ruling sparked a stinging dissent from Senior Judge Thomas Clark, who said Waters' lawyers performed so poorly the condemned man deserved a new trial. "The promise . . . that death penalties should not be indiscriminately imposed is now lost in this circuit," he wrote. "Without adequate defense counsel, death without the opportunity for a life sentence becomes a matter of pure chance."

"This is a court that historically has enforced the protections of the Bill of Rights for racial minorities, prisoners, the mentally ill, the poor," said Stephen Bright of the Southern Center for Human Rights. "Now, some members of the court are like soldiers who come on the battlefield after the battle and shoot the wounded."

FYI, both Carnes and Edmundson were on the panel that issued the ruling against Moore.

[William Terrell]

It has been well settled in law that the first ten amendments to the national constitution are for the purpose of curtialing the powers of the national government. The powers and prohibitions at the state level is dealt with in that state's constitution.

I didn't feel I had to spell out something so obvious.

[Mr. Bird]

I guess I'm not understanding your points here, with respect to the actual case at hand. In your opinion, is it unconstitutional for the judge to post the ten commandments? If so, which part of the constitution forbids it? I'm not trying to be a jerk here, but I'm not looking for a slippery slope argument or a treatise on the abusive nature of governments. I would just like to know how, as a matter of law OR constitutionality (if there's a difference), the judge can be compelled to remove the item?

[webstersII]

"Carnes, 47, a Harvard University law school graduate "

A conservative judge from Hahvard? Amazing.

Then he certainly knows what it's like to go against the mainstream.

[lugsoul]

Well, it may be obvious to you but it is just plain incorrect. It is well-settled in the law since the passage of the 14th Amendment that the states cannot violate the liberties granted to the people in the U.S. Constitution. As far as the 1st Amendment is concerned, that has been established and followed as the law of the land since the case of Gitlow v. New York in 1925.

[lugsoul]

"A conservative judge from Hahvard? Amazing."

Keep that knee jerking, webster.

Scalia went to Harvard. So did Posner. We can keep the list going all day if need be.

[lugsoul]

Yes.

The 1st, via the 14th.

Read the case. It is all set out pretty clearly.

[webstersII]

"Keep that knee jerking, webster."

Back off, lug. I have not stated an opinion about this case, I have merely found it interesting reading, and I've been reading your posts with definite interest because you are obviously learned in this area.

But it's no secret that most people that graduate from Harvard are not conservative. There are notable exceptions but I've met quite a few grads and they are, for the most part, liberal and extremely cynical.

[lugsoul]

"But it's no secret that most people that graduate from Harvard are not conservative."

True with regard to the undergrads. Not so with the law school.

[webstersII]

"True with regard to the undergrads. Not so with the law school."

That's why I said I read your posts with considerable interest. You have just enlightened me about something.

[webstersII]

"Lawrence Tribe, Professor of Law, Harvard Law School"

BTW, isn't this guy known for being a liberal? Maybe a few well-known guys like that who are on talking head shows are the reason I had it wrong. Then apparently he must be an exception at Harvard.

[lugsoul]

There are liberal professors at every law school, even Chicago. But that doesn't mean they are churning out little clones. Think, instead, of both the demographics and the achievement-oriented mentality that dominate this student body, and figure how that is reflected in political viewpoints.

[xzins]

Obviously, my God.

I have no expectation that humans will do anything except pursue their self-interest.

My Creator, however, informs that that I been "endowed with certain inalienable rights" such as "life, liberty, and the pursuit of happiness." That those come to me from God means that I don't have to believe the humans when they tell me they decided to curtail those rights.

I'm within God's will at such a time to overthrow those humans who would attempt to deprive me of that which God has granted.

[webstersII]

"But that doesn't mean they are churning out little clones. "

Thank God for that. I thought that colleges were not in the habit of letting people think for themselves anymore (maybe that's an undergrad phenomenon, also). Sounds like they are turning out a good cross-section of people that know how to think and apply themselves.

[William Terrell]

A judge can use any American law he desires, within some small limitation. Since the 1st is generally accepted as philosophy, I don't doubt it has been used. Usually a due process controvery involving states uses the 14th and involving the fed uses the 5th. The majority of the articles are not applicable to the states and are not used there by any judge.

The state constitutions have the same 10 as does the national constitutional, and usually more than that. I have seen the state counterpart used in pleadings just as often.

None of this changes the fact that the first 10 are for the limitation of fed power. Because a court usurpts and through consistant use, makes it a custom generally accepted doesn't make it proper. The courts have been drifting toward the improper a long time, as exemplified by Ruthie using non-American cases under non-American law as precedent.

Moore is challenging the very basic principle of this legal impropriety and I wish him well.

[lugsoul]

"None of this changes the fact that the first 10 are for the limitation of fed power."

It is not a fact. It is not even a widely held opinion. The first 10 are for the exposition of the rights of Americans which are not to be infringed by ANY government, federal, state, or local. It is not much of a right if the governments you deal with every day can violate it with impunity, and the only recourse you have to stop the violation is to that same government.