The Ten Commandments
"And thou shalt write them upon the posts of thy house, and on thy gates."
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by John Eidsmoe
Judge Roy Moore and the Ten CommandmentsThe Declaration proclaims that "these United Colonies, are and of Right ought to be free and independent States,." appeals to "the Supreme Judge of the world for the rectitude of our intentions," rests "a firm reliance on the protection of Divine Providence," and the signers close by pledging "our Lives, our Fortunes, and our sacred Honor."
Think for a moment. Suppose liberty's champions of the past had believed that one should never resist higher authority. Archbishop Langton would never have forced King John to sign the Magna Charta, the Scots would not have fought for independence, the Glorious Revolution would never have taken place, the English Bill of Rights would never have been drafted, and we today would still be subject to the English king.
But they did believe in interposition. Aren't you glad they did?
The Founding Fathers did not renounce their belief in interposition once America became independent. They fought to preserve their independence, and that independence was finally secured and recognized by the Treaty of Paris of 1783, which begins with the words,
"In the Name of the Most Holy and Undivided Trinity."
Four years later they drafted the Constitution which was designed to, among other things, "secure the Blessings of Liberty to ourselves and our Posterity;" note that "blessings must come from a Higher Source.
The Constitution was intended to ensure that government had enough power to govern effectively, but also to ensure that government did not become tyrannical and oppressive. Washington wrote that
"Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant, and a fearful master."
Jefferson echoed that sentiment in Kentucky Resolutions:
"In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution."
Knowing the tendency of power to corrupt and aggrandize, they designed a Constitution that would chain down that dangerous servant and keep it from becoming a fearful master. They accomplished this end by carefully limiting the powers of government; by separating the powers vertically among federal, state and local levels and horizontally among legislative, executive and judicial branches; and by providing checks and balances whereby each branch and level, guarding its own powers against encroachments by the others, would check and balance the other branches and levels and force them to adhere to their constitutional limitations. This constitutional system has made the United States of America a great and free nation for over two centuries.
But in recent decades the system has become unbalanced. Federal power has expanded exponentially, at the expense of state and local authority and individual freedom. And the judicial branch of the federal government has become nearly absolute in its authority. Checks and balances against the judiciary still exist, but the other branches and levels of government seem unwilling to employ them. The result is that, as Professor Graglia of the University of Texas School of Law has stated,
"...judicial usurpation of legislative power has become so common and complete that the Supreme Court has become our most powerful and important instrument of government in terms of determining the nature and quality of American life. Questions literally of life and death (abortion and capital punishment), of public morality (control of pornography, prayer in the schools, and government aid to religious schools), and of public safety (criminal procedure and street demonstrations), are all, now, in the hands of judges under the guise of questions of constitutional law. The fact that the Constitution says nothing of, say, abortion, and indeed, explicitly and repeatedly recognizes the capital punishment the Court has come close to prohibiting, has made no difference.
The result is that the central truth of constitutional law today is that it has nothing to do with the Constitution except that the words 'due process' or 'equal protection' are almost always used by the judges in stating their conclusions. Not to put too fine a point on it, constitutional law has become a fraud, a cover for a system of government by the majority vote of a nine-person committee of lawyers, unelected and holding office for life."
A further problem with judicial review is that many judges no longer feel bound by the plain wording of the Constitution and the intent of those who wrote it. The result, as Chancellor Kent once wrote, is that judges feel free to "roam at large in the trackless fields of their own imaginations." And if they are not bound by the plain letter of the Constitution as intended by its Framers, their power is virtually unlimited.
Good arguments can be made for judicial review, at least in a limited form. But does judicial review really mean that every time a federal judge issues an order, every other branch and every other level of government must salute, say "Yes Sir!" and march in lockstep to the beat of a federal judge's drum. As a Professor of Constitutional Law for 20 years, I challenge anyone to show me any language in the Constitution that gives federal judges such absolute power. Such a notion would fly in the face of the Framers' basic belief that no one branch or level should have such absolute power. Many leading Americans have emphatically rejected this notion. For example, Thomas Jefferson wrote in an 1820 letter,
"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. ... Our judges are as honest as other men, and not more so... . They have, with others, the same passions for party, for power, and the privilege of their corps.
... The Constitution has erected no such tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots."
President Andrew Jackson refused to enforce orders of the Supreme Court with which he disagreed. Abraham Lincoln declared that
"...if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties to personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
And Theodore Roosevelt also wrote,
"It is the people, and not the judges, who are entitled to say what their constitution means, for the constitution is theirs, it belongs to them and not to their servants in office -- any other theory is incompatible with the foundation principles of our government."
University of South Carolina Law Professors William J. Quirk and R. Randall Bridwell, in their book Judicial Dictatorship (New Brunswick: Transaction Publishers, 1997), note that
"The philosophical assumptions of judicial review are so inconsistent with democratic theory that there is a long tradition of resistance to it. The resistance, today, is a largely underground movement that exists outside the normal academic and law school curriculum. Historically, the members of the resistance are an impressive group. The include the great democratic presidents: Thomas Jefferson, James Madison, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Franklin D. Roosevelt. They include the great constitutional scholars: James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law (1893) and John Marshall [a 1920 book by Thayer]; Louis Boudin, Government by Judiciary (1932); Edward S. Corwin, Court over Constitution (1938); Henry Steele Commager, Majority Rule and Minority Rights (1943); and Learned Hand, The Bill of Rights (1958). Who made the Court, as Learned Hand asks: 'the arbiters of all political authority in the nation with a discretion to act or not, as they please?'"
Chief Justice John Marshall firmly entrenched the principle of judicial review in Marbury v. Madison, 5 U.S. 137 (1803). In that opinion he declared that a law repugnant to the Constitution is null and void. But if an Act of Congress is null and void if inconsistent with the Constitution, does not follow that the order of an unelected federal judge is also null and void if inconsistent with the Constitution?
At some point we must stand up and say to the federal judiciary, "Enough is enough! You have usurped powers that the Constitution has not delegated to you. You have imposed upon the rightful authority of the states." But when do we reach that point?
I believe we have reached that point when a federal judge tells the people of Alabama that they may not place the Ten Commandments, the moral foundation of law, in the Judicial Building of the State of Alabama -- and when, to add insult to injury, they vaunt their sculpture of the Greek goddess Themis at the federal court house just a few blocks away.
The issue is more than a monument. The issue is whether a judge may acknowledge the existence of transcendent moral absolutes and use those absolutes as he interprets and applies the law.
Many pastors have criticized the U.S. Supreme Court's decision to legalize abortion in Roe v. Wade (1973) and to legalize sodomy in Lawrence v. Texas (2003). But what is wrong with a court legalizing abortion and sodomy, if God's Law has no place in American courts?
Judge Roy Moore - Alabama Chief JusticeI have known Chief Justice Roy Moore of Alabama for many years. In this case, and in the earlier Etowah County litigation, I have traveled with him, worked with him, dined with him, worshiped with him, prayed with him, argued with him, and I know him to be a man of unquestionable sincerity and impeccable integrity. He has taken a stand, and risked the ruination of his career on that stand, because he is firmly convinced this is the only honorable course to follow. He believes he has a duty to God and to the people of Alabama, under the oaths he has taken to uphold the United States Constitution and the Alabama Constitution, to restore the moral foundation of our law.
Alabama has an unprecedented opportunity to stand in the gap with Chief Justice Moore and resist this federal usurpation of state authority and federal dismantling of America's Biblical heritage. If the Governor, the Attorney General, and the eight Associate Justices had stood with Chief Justice Roy Moore, if Governor Riley had issued the call on statewide television for Alabamians to come to the Judiciary Building by the thousands to stand against the removal of the Ten Commandments, if the pastors of Alabama had joined in calling upon their parishioners to respond with a massive but peaceful protest, Judge Thompson could not have enforced his order, and the federal judiciary would have had to retreat.
I regret that the eight associate justices did not join with Chief Justice Moore as did the Justices of the Supreme Court of Utah in 1968. In Dyett v. Turner, 439 P.2d 266, the Utah Supreme Court stood against the usurpations of the Warren Court, stating:
"The United States Supreme Court, as at present constituted, has departed from the Constitution as it has been interpreted from its inception and has followed the urgings of social reformers in foisting upon this Nation laws which even Congress could not constitutionally pass. It has amended the Constitution in a manner unknown to the document itself. While it takes three-fourths of the states of the Union to change the Constitution legally, yet as few as five men who have never been elected to office can by judicial fiat accomplish a change just as radical as could three-fourths of the states of this Nation. As a result of the recent holdings of that Court, the sovereignty of the states is practically abolished, and the erstwhile free and independent states are now in effect and purpose merely closely supervised units in the federal system.
We do not believe that justices of once free and independent states should surrender their constitutional powers without being heard from. We would betray the trust of our people if we sat supinely by and permitted the great bulk of our powers to be taken over by the federal courts without at lest stating reasons why it should not be so. By attempting to save the dual relationship which has heretofore existed between state and federal authority, and which is clearly set out in the Constitution, we think we act in the best interest of our country.
We feel like galley slaves chained to our oars by a power from which we cannot free ourselves, but like the slaves of old we think we must cry out when we can see the boat heading into the maelstrom directly ahead of us; and by doing so, we hope the master of the craft will heed the call and avert the dangers which confront us all.
But by raising our voices in protest we, like the galley slaves of old, expect to be lashed for doing so. We are confident that we will not be struck by 90 percent of the people of this Nation who long for the return to the days when the Constitution was a document plain enough to be understood by all who read it, the meaning of which was set firmly like a jewel in the matrix of common sense and wise judicial decisions.
... When we bare our backs to receive the verbal lashes, we will try to be brave; and should the great court of these United States decide that in our thinking we have been in error, then we shall indeed feel honored, for we will then be placed on an equal footing with all those great justices who at this late date are also said to have been in error for so many years."
I deeply regret that the other Justices have not seen fit to join with Chief Justice Roy Moore in resisting this federal judge's attempt to prohibit us from acknowledging the Ten Commandments as the moral foundation of law. But other judges, legislators and public officials have stood with Chief Justice Roy Moore of Alabama, and it is therefore of crucial importance that the people of Alabama rally to the Chief Justice's defense.
In the crisis that is upon Alabama today, pastors have a special responsibility to inform their people and inspire them to action. Lord Acton observed,
"...when Christ said 'Render unto Caesar the things that are Caesar's and unto God the things that are God's,' He gave to the State a legitimacy it had never before enjoyed, and set bounds to it that had never yet been acknowledged. And He not only delivered the precept but He also forged the instrument to execute it. To limit the power of the State ceased to be the hope of patient, ineffectual philosophers and became the perpetual charge of a universal Church."
During the American War for Independence, America's clergy led the way for their people to become involved. In Boston the "Father of the American Revolution," Sam Adams, proclaimed independence, and he was echoed by the "Black Regiment," the black-robed New England clergy who preached independence in pulpits throughout New England. Throughout the colonies, clergy of many faiths called upon their parishioners to answer their country's call.
Today Alabama faces a constitutional crisis of similar proportions: Are we subject to the higher Law of God? Or is law simply what the government says it is? Are human rights unalienable because they are the gift of our Creator, or are they simply negotiable privileges that government can give or take away at will?
Is Chief Justice Roy Moore's battle for the Ten Commandments a "lost cause?" There is no such thing as a lost cause until the last chapter of history has been written. Various new legal moves are underway, and the Spirit of God is at work. But regardless of the outcome of this case, we must take a stand for what is right. A century from now, as Americans seek to put the pieces together and rediscover the moral foundation of law, they will remember what we did in Montgomery in that hot summer of 2003. And as my wife reminds me, God will remember even if no one else does.
And in the evening of your life, when your grandchildren ask what you did during the constitutional crisis over the Ten Commandments, what will you tell them?
"For if thou altogether holdest thy peace at this time, then shall there enlargement and deliverance arise to the Jews from another place; but thou and thy father's house shall be destroyed: and who knoweth whether thou art come to the kingdom for such a time as this?" Esther 4:14
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Fear God, Keep his Commandments
Deuteronomy 6:2 That thou mightest fear the LORD thy God, to keep all his statutes and his commandments, which I command thee, thou, and thy son, and thy son's son, all the days of thy life; and that thy days may be prolonged.
Let us hear the conclusion of the whole matter: Fear God, and keep his commandments: for this is the whole duty of man.
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