Judge James DeWeese
A United States District Court judge ordered Alabama Chief Justice Roy Moore to remove a Ten Commandments monument from the lobby of the Alabama Supreme Court building. Justice Moore’s disobedience of that order caused many commentators to contend he violated the rule of law. Those commentators got the issue right but got the analysis wrong.
Understanding the rule of law is key to understanding the controversy surrounding Justice Moore’s case. The rule of law is the idea that law is the highest authority and that all men – including even the highest government officials – are subject to the same law. The law, which is usually written, fixes legal rights and legal duties.
The opposite of the rule of law is the rule of man. Under the rule of man, the highest government officials command and do what they please. Legal rights and legal duties depend on the arbitrary will of government officials.
Our country was birthed in the conflict between the rule of law and the rule of man. The Declaration of Independence lists more than 25 violations of the rule of law by King George. These offenses included violating the colonial charters, depriving accused persons of trial by jury and kidnapping Americans on the high seas.
The founders appealed to the rule of the fixed law of God to challenge King George’s arbitrary rule. Their Declaration appeals to God as the source of law (“the separate and equal station to which the laws of nature and of nature’s God entitle them”), the author of individual rights (“they are endowed by their Creator with certain inalienable rights”) and the ultimate judge (“appealing to the supreme Judge of the World for the rectitude of our intentions”).
If the Declaration serves as the articles of incorporation of our United States, then the United States Constitution is our bylaws. After the founders achieved independence, they adopted the Constitution as the fundamental law to rule this land. The Constitution establishes the United States government as a government of limited, delegated powers. It also includes a Bill of Rights limiting the encroachments federal lawmakers can make on individual rights.
But in the last seventy years a new subterfuge has arisen for destroying the constitutional rule of law and returning to the rule of man. It is the doctrine of the living, evolving constitution. The advocates of this doctrine contend that our fundamental law needs to change and evolve to meet the changing needs of the times, and that judges ought to be the agents of that change. Judges should consequently change fundamental constitutional law to keep pace with evolving societal consenses. Examples of such sentiments include:
(1) Roscoe Pound: “We have … the same task in jurisprudence that has been achieved in philosophy, in the natural sciences, and in politics. We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science.”1
(2) Justice Charles Evans Hughes: “We are under a Constitution, but the Constitution is what the judges say it is.”2
(3) Justice Earl Warren: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of maturing society.”3
The federal courts and particularly the U.S. Supreme Court are regular practitioners of the doctrine that the Constitution means whatever the judges say it means. Just a few examples of their changing the law by judicial edict include the following:
(1) In Church of the Holy Trinity v. U.S. (1892) the Supreme Court ruled that the United States was “a Christian nation.” But in Everson v. Board of Education (1947), it ruled, “The First Amendment has erected a wall of separation between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”
(2) In Plessy v. Ferguson(1896) the Supreme Court ruled that the Constitution approved segregation, permitting children to be assigned to schools on the basis of race. Then in Brown v. Bd. Of Education (1954), it ruled the Constitution prohibited the assignment of children by race. Then in the Swann (1971) case, it ruled that the Constitution required the assignment of children to schools on the basis of race to achieve racial balance.
(3) Prior to 1973, nearly every State in this nation regulated or prohibited abortion. In 1973, the Supreme Court discovered in Roe v. Wade that a woman had a constitutional right to abort her baby.
(4) In Bowers v. Hardwick (1986), the Supreme Court ruled that State laws making homosexual sodomy a crime were constitutional. But in Lawrence v. Texas (2003), it has just decided that there is a constitutional right to commit homosexual sodomy and that no state can make it a crime.
Problems with an Evolving Constitution
There are a number of very serious problems with this evolving constitution doctrine:
First of all, it’s unconstitutional. Judges are not lawmakers. The Constitution says in Article I, section 1 that all law-making power is given to Congress and none to the courts: “All legislative powers herein granted shall be vested in a Congress of the United States.” The Constitution specifies the only means to amend it in Article V. It grants no power to amend the Constitution by judicial edict. The Constitution also makes clear in Article VI that Supreme Court opinions are not included in the supreme law of the land: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby…”
Second, the doctrine of the evolving constitution is the arbitrary rule of man masquerading as the rule of law. Think about it. The only life the law has is in its fixed meaning. If the law has no fixed meaning, it can not guarantee any fixed rights or duties. Citizens enjoy their rights only so long as the court suffers its latest interpretation to continue.
Note, for example, that nothing changed in the Constitution between the abortion and sodomy decisions described above. The law did not change. The Constitution was not amended in any relevant way. The only thing that changed was the willingness of a majority of the judges to read their latest preferences into the law.
The “living constitution” doctrine makes the constitution a lump of dead putty to be molded to suit the judge. The Constitution is reduced to eyewash which any five justices of the Supreme Court may use to impose their will on the nation. We return to the rule of man – by an unelected judicial oligarchy.
Third, the doctrine of an evolving constitution violates the Constitution’s guaranty of a republican form of government. Article IV, Section 4 of the Constitution states “the United States shall guarantee to every state in this Union a Republican form of government…” A republican form of government is a government by representatives chosen by the people. In other words, the Constitution guarantees that we will be ruled by law made by our elected legislatures. Federal judges are neither elected by nor accountable to the people.
What’s more, the Supreme Court is making the most important law of all. That’s because constitutional law trumps statutes. The Supreme Court contends that its constitutional decisions are super-law which take away whole fields of law from our elected legislatures. For example, in 1973 nearly every state’s elected legislatures had enacted laws regulating or prohibiting abortion. The Roe v. Wade decision that year took away nearly all law making power in this area from our elected legislatures. Allowing unelected judges to make law denies a republican form of government to the people.
Fourth and finally, the evolving constitution doctrine violates the intention of the founders about how the Constitution should be interpreted. They thought its meaning was fixed and could be modified only by amendment. Four examples of their opinions are:
(1) James Madison: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers…What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.” 4
(2) George Washington (“Farewell Address”): “If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation, for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”5
(3) Justice James Wilson (signer of both the Declaration and the Constitution): “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”6
(4) Thomas Jefferson: “On every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”7
Examination of Chief Justice Moore’s Case
The federal judges in Alabama accuse Chief Justice Moore of violating their latest version of the First Amendment. They say that the presence of the words of the Ten Commandments in a public area of a government building offends the Establishment Clause of the First Amendment. And they accuse Justice Moore of defying the rule of law by failing to obey their order to remove those offending words.
To evaluate an accusation of violating the rule of law, one must begin by examining the applicable law. The applicable law, the Establishment Clause, states in its entirety that: “Congress shall make no law respecting an establishment of religion.”
There are three problems with saying Chief Justice Moore violates the Establishment Clause: (1) He is not Congress. (2) He did not make a law. (3) A government official’s acknowledging God is not an establishment of religion. Any one of those problems independently means he could not have violated the Establishment Clause and that the federal judge’s order was unlawful. Moreover, Justice Moore could not simply capitulate to the unlawful order. He was bound by his oath of office to resist it.
The first problem is that, the Establishment Clause is a prohibition against the United States Congress. It has no application to state court judges.
The second is that the Establishment Clause only prohibits law making. A law is a rule of conduct recognized as binding and enforced by a controlling authority. Judge Moore’s monument and the words engraved on it were not a law. No one was compelled by them to do anything. The monument was objectionable because of what was written on it. It’s speech, not law making, which offends the federal judge. But the First Amendment does not let the federal government prohibit speech. In fact it protects speech: “Congress shall make no law…abridging the freedom of speech…”
The drafters of the First Amendment intended particularly to protect speech about the most controversial topics, like politics and religion. It doesn’t matter that someone is offended by that speech. All speech is offensive to someone, but the First Amendment protects it anyway.
The third problem is that the Establishment Clause does not prohibit official acknowledgments of God. The “establishment of religion” was a term of art to the founders meaning to establish one Christian denomination as the official church of the United States, entitled to tax support, like the Anglican Church in England. The founders saw no conflict with the Establishment Clause in publicly acknowledging God or acknowledging the necessary influence of religion on good government. For example:
(1) The same day in 1789 that Congress reported the newly adopted text of the First Amendment to President Washington, it asked him to declare a national “day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God.” President Washington did so.
(2) President Washington said in his 1796 “Farewell Address”: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, the firmest props of the duties of men and citizens…And let us with caution indulge the presupposition that morality can be sustained without religion.”8
(3) Our second president, John Adams, said in 1798: “[W]e have no government armed in power capable of contending in human passions unbridled by morality and religion…Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.”9
(4) Supreme Court Justice Joseph Story, author of one of the nation’s first constitutional law treatises, also affirmed: “It yet remains a problem to be solved in human affairs whether any free government can be permanent where the public worship of God and the support of religion constitute no part of the policy or duty of the state in any assignable shape.”10
(5) Supreme Court Justice James Wilson said: “Human law must rest its authority ultimately on the authority of that law which is divine…Far from being rivals or enemies; religion and law are twin sisters, friends and mutual assistants. Indeed these two sciences run into each other.”11
Consequently, for the three independent reasons discussed, the federal judge’s order misinterpreted the Constitution. Given that fact, Justice Moore could not simply capitulate to that unlawful order out of respect for its apparent authority. His constitutionally mandated oath of office prevented that.
The Constitution itself requires all state court judges to take an oath to support and defend it. Article VI states “…all executive and judicial officers, both of the United states and of the several States, shall be bound by oath or affirmation, to support this Constitution.” For someone who takes such an oath seriously, that oath imposes a weighty obligation. The oath does not apply only when it’s easy to support the Constitution or only when it’s challenged by foreign enemies. It also applies when it’s threatened by domestic enemies, even by the federal judges themselves.
For this reason, public officials up to the president of the United States have repeatedly defied Supreme Court decisions they thought were unconstitutional. President Jefferson denied that the Supreme Court was the ultimate interpreter of the Constitution: “[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”12 And again: “You seem… to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy…The Constitution has erected no such single tribunal.”13 President Jackson defied the Supreme Court’s decision about the constitutionality of the National Banking Act. President Lincoln, and also Congress, defied the Supreme Court’s Dred Scott decision.
Justice Moore courageously did in this case what his oath required him to do. He defended the Constitution by resisting an unlawful order that did such damage to the First Amendment. He vindicated the rule of law. As Ambassador Alan Keyes explains the issue: “Thus when a federal judge issues an unlawful order that a state official conscientiously believes violates a fundamental and constitutionally protected right of the people of his state, that official must refuse the order that assaults their right just as he would refuse an order that violated the rights of individuals. It is of no consequence whether the unlawful order comes from one judge or many; from a lower court of the Supreme Court, it must be refused. Note that the wording here implies an obligation, not a choice. This is important; since it makes clear that the Court’s unlawful order places the state official in a situation where his substantive duty to the law conflicts with his formal obligation to obey a court order. A regime in which slavish observance of the empty forms of law substitute for substantive respect for the real terms and requirements of the law clearly represents the demise of law as such.”14
Justice Moore was placed in the position of having to defend the Constitution against judicial usurpation because Congress has failed to exercise three of the checks on the judiciary which are provided to it by the Constitution: First, Congress has power to limit the appellate jurisdiction of the Supreme Court. Article III, Section 2 says the Supreme Court “shall have appellate jurisdiction…with such exceptions, and under such regulations as the Congress shall make.” Congress also controls the existence and jurisdiction of lower federal courts. Congress could consequently remove public acknowledgments of God or Ten Commandments cases from the jurisdiction of the federal courts. This is perhaps Congress’ most powerful weapon.
Second, Congress has the power of the purse. Congress could cut off funding to federal courts who abuse the Constitution.
Third, Congress has the impeachment power. The Constitution does not say that federal judges are appointed for life unless they commit a crime. Article III, section one says “The judges, both of the supreme and inferior courts shall hold their offices during good behavior…” Changing the Constitution without a legitimate amendment is not good behavior.
It’s not necessary, by the way, that impeachment be successful to exercise a restraining influence on the judiciary. Federal judges are not stupid. They get away with what they think they can get away with in reading their political preferences into the constitution. Merely beginning impeachment efforts against an abusive judge will have a strong prophylactic effect.
In sum, Chief Justice Roy Moore did not violate the Establishment Clause. The federal judge’s order that he did, violates the rule of law and turns the First Amendment on its head. Congress should exercise its constitutional responsibility to check such judicial despotism.
1 “Mechanical Jurisprudence” by Roscoe Pound, Columbia Law Review, vol. 8, no. 8, December, 1908, p. 609.
2 Charles Evans Hughes, The Autobiographical Notes of Charles Evans Hughes, David J. Danelski and Joseph S. Tulchin, editors (Cambridge: Harvard University Press, 1973) p. 144, speech at Elmira on May 3, 1907.
3 Trop v. Dulles, 356 U.S. 86, 101 (1958).
4 James Madison, The Writings of James Madison, Gillard Hunt, editor (New York and London: G.P. Putnam’s Sons, 1910) vol. IX, p. 191, to Henry Lee on June 25, 1824.
5 George Washington, Address of George Washington, President of the United States…Preparatory to His Declination (Baltimore: George and Henry S. Keatinge, 1796), p. 22.
6 James Wilson, The Works of the Honourable James Wilson, Bird Wilson, editor (Philadelphia: Bronson and Chauncey, 1804), Vol. I, p. 14, from “Lectures on Law Delivered in the College of Philadelphia; Introductory Lecture: Of the Study of the Law in the United States
7 Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), Vol. IV, p. 373, to Judge William Johnson on June 12, 1823.
8 George Washington, Address of George Washington, President of the United States…Preparatory to his Declination (Baltimore: George and Henry S. Keatinge, 1796), pp. 22-23.
9 John Adams, The Works of John Adams, Second President of the United States, Charles Frances Adams, editor (Boston: Little, Brown and Company, 1854), Vol. IX, p. 229, to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts on October 11, 1798.
10 Joseph Story, Commentaries on the Constitution of the United States, (Boston: Hillard, Gray and Co., 1833), Vol. III, p. 727, §1869.
11 James Wilson, The Works of the Honourable James Wilson, Bird Wilson, editor (Philadelphia: Bronson and Chauncy, 1804), Vol. I, pp. 104-106, “Of The General Principles of Law and Obligation.”
12 Jefferson, Memoir, Vol. IV, p. 27, to Abigail Adams on September 11, 1804.
13 Jefferson, Writings, Vol. XV, p. 227 to William Charles Jarvis on September 28, 1820.
14 Alan Keyes, “The Rule of Law Must be Upheld: What the Constitution Really Says About Establishment of Religion,” (Vision Forum website: www.visionforum.com, 8-25-2003) at p. 7