The Constitution, Alabama Style

Alabama state Chief Justice Roy Moore got his final comeuppance last week when he was stripped of his job. Not for placing his 5,280 pound stone version of the ten-commandments in the lobby of the courthouse, but rather because he defied the order of a higher court to remove it. If there is one rule of natural law upon which every jurist agrees, it is that nobody defies a higher court. The judicial pecking-order is sacred. So they got him on a technicality-as they say in legal circles.

Judge Moore did not acknowledge the judicial pecking-order because he did not acknowledge the authority of the federal courts over the god-like rules of the solemn State of Alabama. It was an issue of states-rights Moore's supporters told us. The Judge himself said his oath to the Alabama
constitution trumped the rulings of any mere federal court. And here all this time we silly Yankees thought the doctrine of nullification had been settled by the Civil War. Apparently it is true what they say, some Southerners are still fighting that late, lamented Lost Cause.

Inevitably, Judge Moore went right from the courtroom to the waiting television cameras where he shared with America his vision of Christian jurisprudence. "The acknowledgement of God is a predicate upon which this nation and our country was founded. It's contained in the First Amendment. The very first amendment . . ."

For Judge Moore, the First Amendment is about the glories of Christianity, not religion in general, but Christianity in particular. Or, to be generous to the Judge, about those religious traditions which contain the Ten Commandments of the Old Testament. Which means that Hindus, Moslems, Buddhists, Jains, etc. (in other words, about half of the religious believers on the planet) need not apply. Not to mention Atheists, humanists, and the merely indifferent.

The Judge's bravura performance before the cameras caused the Reverend D. James Kennedy, who is Moore's resident film maker as well as pastoral adviser, to prophesy that "they may persecute him into the White House." His attorney, Terry Butts, who has weaker gifts of prophesy, would only predict that Moore will wind up in the Governor's Office, or maybe the U.S. Senate.

In our excitement over that two-ton stone, we skipped right over Judge Moore's comments about the First Amendment. Just in case we have forgotten our high-school civics lessons, let's review the actual text of the First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment is only 45 words, but apparently Judge Moore's attention span won't take him past the first 16. There are a few other important matters in the remaining clauses, such as freedom of the press, freedom of speech, freedom of assembly and the right to petition the government. Some of us foolishly thought these notions were some important part of the First
Amendment.

And while I don't wish to quarrel with such an eminent legal scholar, it is not all that clear that even the first 16 words of the First Amendment were intended by the founders to grant freedom of religion as Moore and his legion of admirers understand it. There are actually two clauses in those first 16 words, a primary and a secondary one. The first provides freedom from religion, and the second, freedom of religion. Which is to say, the first problem that concerned the founders was the practice in the Old World of established state religions imposed on the populace through the power of government. It was this type of pious tyranny which the First Amendment
clause on freedom from religion was meant to establish. So we might say that the purpose of the religion clause is to grant Americans freedom both from state-imposed religion, and freedom to pursue, in consequence, whatever religion we like. The difference in readings is subtle, and lord-knows, Judge Moore is not, but the difference matters. You see, the problem is that Judge Moore, in his capacity as a state official, was a representative of the government, attempting to impose a religious sensibility on the citizens of Alabama through the power of his office. So actually, it was guys like Judge Moore that the First Amendment's religion clause was meant to protect us from.

But, I for one, am outraged that Judge Moore has been removed from office for violating the judicial pecking order. I say we return him to the bench immediately; then we impeach him for having obviously cheated on his exams to pass law school.
11/18/03