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Jewish World Review August 25, 2003 / 27 Menachem-Av, 5763

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A clashing of principles and jurisdictions

http://www.NewsAndOpinion.com | While everyone is focusing on the propriety of Alabama Supreme Court Justice Roy Moore's refusal to remove a Ten Commandments monument from his courthouse, we are giving the federal courts a pass - and we mustn't.

Undeniably, the federal constitution's Supremacy Clause makes the federal constitution and constitutional federal laws supreme over state constitutions and laws and binding on state judges.

So should our analysis end here? That's what some conservative pundits are saying. The federal courts have ordered Justice Moore to remove the monument under authority of the United States Constitution, which is the supreme law of the land. The U.S. Supreme Court is the final arbiter of what the Constitution means, having arrogated to itself that authority in 1803. Since the high Court declined to hear the case, the ruling of the 11th Circuit Court of Appeals ordering Judge Moore to remove the monument now stands. Thus, Justice Moore must comply, notwithstanding his belief that to do so would violate his oath of office affirming that the state government was established under God.

This is a very difficult case for me because my sympathies are with Justice Moore, yet I am also a staunch believer in the rule of law - and an equally strong opponent of anarchy.

My allegiance to the rule of law leads me to believe that we cannot permit a state court judge - no matter how righteous his cause - to violate federal appellate court rulings. He should vigorously oppose the wrongheaded feds at every phase and exhaust all possible remedies, but once they are exhausted, he must obey. Our entire system of ordered liberty depends on the integrity of our legal system, which in turn depends on government officials, especially judges, obeying the law. Indeed, state judges also take an oath to uphold the federal constitution.

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On the other hand, our liberties also depend on two other very important concepts that are at issue in this case. The Framers believed that our Constitution was grounded in the principles of the Christian religion and that without that foundation neither our Constitution nor the liberty it guarantees could survive. Justice Moore is fighting laudably to preserve that tradition.

The Framers also believed that liberty could best be achieved and sustained through a system of federalism - which they quite specifically established, dividing governmental power between the federal and state governments. To be sure, they made the federal government supreme as to those matters on which they conferred it authority - but the 10th Amendment expressly reserved the balance to the individual states.

Justice Moore is aware that the federal courts have egregiously exceeded their authority, usurping power properly reserved to the states. He is fighting to preserve the principle of federalism in furtherance of the cause of liberty.

Here's where it gets messy. The First Amendment contains two religion clauses, the Establishment Clause: "Congress shall make no law respecting an establishment of religion"; and the Free Exercise Clause: "or prohibiting the free exercise thereof." The federal courts have ordered Justice Moore to remove the monument on the grounds that it constitutes an unconstitutional establishment of religion.

Their ruling is flawed on a number of grounds, but unfortunately seems to follow the precedent of earlier lamentable Supreme Court decisions. As you can see, the Establishment Clause, on its face, prohibits only the U.S. Congress from "establishing" a religion. Sadly, the Supreme Court has repeatedly held that the Establishment Clause is also applicable to state governments through incorporation in the Due Process Clause of the 14th Amendment.

But the 14th Amendment was never intended to make the federal Establishment Clause binding on the states. Nor did the Framers intend that the Establishment prevent the federal government, much less the states, from all support for religion.

Supreme Court Chief Justice Joseph Story wrote, "Thus, the whole power over the subject of religion was left exclusively to State governments, to be acted on according to their own sense of justice and the State Constitutions." And, "Probably, at the time of the adoption of the Constitution, and of the (First Amendment), the general, if not universal, sentiment in America was that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."

The federal courts have greatly eroded states rights and religious freedoms through renegade decisions in the most cynical tradition of judicial activism. So while our federal law is certainly entitled to supremacy, at what point do citizens stand up and say that federal courts have claimed supremacy in areas over which they were never given authority? What can be done about their obscene misinterpretations of the Constitution?

Congress could selectively limit the Court's jurisdiction. And, we should fight for constitutionalist federal judges with the courage to preserve our religious liberties. In the meantime, we should honor the Court's rulings.

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.

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