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]

For the most part, if you get to Harvard Law you know how to think for yourself.

My school had a number of liberal professors and a number of conservative professors. Interestingly, the liberal profs were usually the "favorites" of the student body but also drew the most argument in class.

[drjimmy]

I have no expectation that humans will do anything except pursue their self-interest.
Which includes, of course, yourself and Judge Moore.

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.
So how exactly did your Creator inform you of those rights? Those words look awfully familiar, almost like something I've seen that was written by humans. But that couldn't be true, since, as you say, humans only pursue their self-interest.

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.
And "those humans" are also within God's will to hold you accountable for depriving them of that which God has granted.

[mrsmith]

Barron v. Baltimore.
Chief Justice Marshall: "it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States.
These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them. "

John Marshall was not one to shirk from claiming any power for the federal courts.
But he was also an honest man.

(Of course, he didn't have the benefit of today's NEA education!)

Rehnquist's scholarly dissent in Everson HERE is neccessary reading to understand the establishment clause: "...Madison then spoke, and said that "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id., at 730. He said that some of the state conventions had thought that Congress might rely on the Necessary and Proper Clause to infringe the rights of conscience or to establish a national religion, and " to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit." Ibid. "
The patently false rationale of the Everson case has been largely abandoned by the court.

But Judge Crain has followed the precedents which remain- as a conservative judge properly should.

You started out on the right foot using the Fourteenth Amendment.
At some point States can violate the Fourteenth by supporting a religion. I don't see how this does, but a case can be argued based on the Fourteenth.

[xzins]

look awfully familiar

probably explains those quotation marks. :>)

They are "self-evident truths."

[William Terrell]

You have the written intention of the first 10 included in the constitution itself. Because it is not generally included in reprints, does not mean it is not included therein and made apart thereof, just like the Preamble to the Constitution itself.

The transfer of sovereignty accomplished by the 14th amendment doesn't change it any material way. If state judges want to use the first 10, they can.

However, the Moore case isn't about any of the first 10, and not the 1st of them. It has to do with an out of context quote made by a famous participant of the constitution to another individual in a letter. This misquoted and misrepresented partial statement has been used to lower the bar of the customary guidance of religious philosophy until it has been, in all sense, eliminated.

At no time before this letter notion was floated and customized, was it thought that the religious foundation of this country was to be kept from government in every detail. People living during that time would have laughed at the idea.

Obviously, there was a change made, and that change started precisely when that partial out of context quote surfaced in legal consideration. It is interesting that that statement has been considered before, but in its entirety and in context.

How do you have any doubt that we have a largely renegade court system, especially after Ruthie's remarks and actions?

Do you really think that washing machine sized list of the 10 commandments is a government establishment of a state religion, such that any participant in the administration of government would have to swear feality to it in order to serve?

Bear in mind that an "establishment of religion" is an instant thing like the codification of a law. If you can't look at that chunk of stone and know that the executive power to compel people to that religion sprang into being when it was put there, then there is no way it falls under the 1st federal or its analog in the state constitutions.

Therefore, there can be no constitutional foundation, shadow, numbra or prenumbra that forms a basis for the courts order. It's time somebody is willing to go to the wall to get that settled.

Regardless of any state interest, this is the fed judiciary's action, and according to the purpose of the BOR by those who established that BOR, that court, being a part of the national government, is bared from taking a postion of the 1st prohibiting religious philosophy around government buildings.

All they have, where the rubber meets the road, is an extraconstitutional segment of a letter written by an individual. If they use that to change the clear meaning of a provision in the very document that creates their power anyway, this court is renegade, just like that state court in, what was it, Utah, that has nullified a part of it's document.

Moore is right and you are right. But the area in which you are right links back to an act of constitutional rebellion, where Moore's rightness is pure.

[lugsoul]

A question about Ruthie's remarks and actions: do you think it is wrong to quote Blackstone in a Supreme Court opinion? Foreign law, after all.

[lugsoul]

"The breadth of the Chief Justice’s position is illustrated by his counsel’s CONCESSION at oral argument that if we adopted his position, the Chief Justice would be free to adorn the walls of the Alabama Supreme Court’s courtroom with sectarian religious murals and have decidedly religious quotations painted above the bench. Every government building could be topped with a cross, or a menorah,or a statue of Buddha, depending upon the views of the officials with authority over the premises. A crèche could occupy the place of honor in the lobby or rotunda of every municipal, county, state, and federal building. Proselytizing religious messages could be played over the public address system in every government building at the whim of the official in charge of the premises.However appealing those prospects may be to some, the position Chief Justice Moore takes is foreclosed by Supreme Court precedent."

[lugsoul]

From Glassroth v. Moore:

Based on the evidence presented during a week-long trial and for the reasons that follow, this court holds that the evidence is overwhelming and the law is clear that the Chief Justice violated the Establishment Clause. But, in announcing this holding today, the court believes it is important to clarify at the outset that the court does not hold that it is improper in all instances to display the Ten Commandments in government buildings; nor does the court hold that the Ten Commandments are not important, if not one of the most important, sources of American law. Rather the court's limited holding, as will be explained below in more detail, is that the Chief Justice's actions and intentions in this case crossed the Establishment Clause line between the permissible and the impermissible.

[lugsoul]

Some reason and Constitutional wisdom from Judge Roy Moore - his religion is the only religion:

"By leaving religion [seemingly] undefined, the [Supreme] Court has opened the door to the erroneous assumption that, under the Establishment Clause, religion could include Buddhism, Hinduism, Taoism, and whatever might occupy in man's life a place parallel to that filled by God ... In such a case, God and religion are no longer distinguished in meaning, permitting the First Amendment to be used to exclude the very object it was meant to protect, namely the sovereignty of God over civil government."

[lugsoul]

That's a pretty typical Curry post. Gettin' those meds dialed in, I see.

[William Terrell]

Well, the Supremes have historically mentioned English law and customs in cases. But our law came from English law. American common law is just a subset of English common law, so the justices trace back the meaning of common law at issue in some cases to the event in England that gave rise to it. Never used French, Italian, German or Chinese law before, though.

[Woahhs]

Much ado about nothing. It's a shame that both sides of this issue can't exert their energies more towards issues that actually matter.

What part of "first credible challenge to judicial usurpation in a generation" don't you get?

[squidly]

What part of "first credible challenge to judicial usurpation in a generation" don't you get?

If this "challenge" was in relation to a meaningful issue, I'd be more inclined to agree.

[Woahhs]

You, my dear, "get it!"

[lugsoul]

"Never used French, Italian, German or Chinese law before, though."

What? You don't consider our friends down in Louisiana to be Americans? New Mexico? Hawaii? Northern Maine?

[Woahhs]

If this "challenge" was in relation to a meaningful issue, I'd be more inclined to agree.

In light of the fact this issue has VERY LITTLE chance of turning into an armed conflict while it is played out to the end: what issue would you suggest?

[Woahhs]

* 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.

Supreme Coup't

[Woahhs]

* 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.

Supreme Coup't

[ZeitgeistSurfer]

It's really simple. Since the Warren court of the '50's there has been an ever-increasing crescendo of usurpations of power by the Federal judiciary. This is simply the latest. We all know that the Establishment clause referred to a state setting up an established church, nothing more. Every other interpretation is simple a few nabobs deciding what the rest of us peasants should be forced to do. I hope this case goes to the wall. I believe in the Constitution as it was originally written, not the mish-mash of liberal tyranny that has been imposed on it.