I am now going to occupy a position that is, ironically in this case, called the Devil's Advocate. I'm doing this in order to see that an honorable opponent is fairly treated, though I strongly disagree with the case he is making. Those of you who are no longer interested in the subject of Roy Moore or the Ten Commandments monument may skip on to other things. Those who are, but wonder what my actual position on the matter is, can find it starting here and finishing here.
With that said, I'm now going to treat Sovay McKnight's discourse on the Ten Commandments. She has a pretty good roundup of the legal reasoning behind the current Supreme Court thinking on religious symbols. She winds up:
The Alabama district court was right to rule the way it did. Any way you look at it, the law prohibits Roy Moore's Ten Commandments from being placed in the Alabama State Judicial Building in their present form. Now, you're welcome to try and repeal the Fourteenth or First Amendments, it's a free country after all, but until that's done, the courts are going to keep on ruling against Moore.Now, I am all for repealing the Fourteenth Amendment, or rather, recognizing that it was never legally ratified in the first place. It has no place in the Constitution, having been put there illegally and improperly, and it is incompatible with the Classical Liberal foundations of this country. Unfortunately, though all of that is true, to date the people who have argued on behalf of that truth have been doing so for dishonorable reasons, with the result that the argument has become tarnished by their participation in it. Nevertheless, someday the 14th will face organized opposition from honorable men, and we will bring it down.
However, the repeal of neither the First nor the Fourteenth Amendments are necessary to Justice Moore's position. All that is necessary is a different understanding of them--and it happens that the different understanding of them is the proper understanding. I will demonstrate why, and then I will argue against her conception of Justice Moore himself, which I think is both unfair to the man, and also underestimates the danger his case poses.
First, it should be said that Justice Moore disagrees not merely with the Lemon test, but with the entire legal tradition that supports it. His challenge isn't to the US Supreme Court, but to Jefferson, as he himself says:
They have trotted out before the public using words never mentioned in the U.S. Constitution, like "separation of church and state," to advocate, not the legitimate jurisdictional separation between the church and state, but the illegitimate separation of God and state."Separation of Church and State" is, we all know, taken from one of Jefferson's letters on his understanding of what ought to be the way the government functioned. It is not in the Constitution, as Justice Moore correctly points out. Furthermore, it was far from a unified position among the Founders, many--perhaps even most--of whom felt that religion was not separable from government. The 1st Amendment's statement that Congress would "make no law respecting the establishment of religion" meant to most of the Founders that Congress could not establish an official state Church, the way that England, Scotland, Ireland, and generally every other nation of the day had done. It was intended to allow for the "free exercise" of all religions. Jefferson's formula, which has become our own, was unusual and has only the force of intellectual argument to defend it, not Constitutional standing. A future Supreme Court could simply decide to hold that the First Amendment means what the other Founders thought it meant; the repeal of the First is not necessary.
When Justice Moore makes his argument that the First Amendment prevents only Congressional action, and that he "is not Congress, and no law has been passed," he is invoking that alternative understanding. It has as long a history and as respectable a pedigree as the one that forms the basis of the Supreme Court's current understanding. There is, honestly, nothing except the composition of the US Supreme Court to prevent it from becoming the new law of the land. Keep that point in mind--we will return to it.
The second point has to do with Justice Moore's invocation of the Alabama Constitution:
We must acknowledge God in the public sector because the state constitution explicitly requires us to do so. The Alabama Constitution specifically invokes "the favor and guidance of Almighty God" as the basis for our laws and justice system. As the chief justice of the state's supreme court I am entrusted with the sacred duty to uphold the state's constitution. I have taken an oath before God and man to do such[.]Here the argument against Moore is, essentially, that the Alabama Constitution doesn't count. That argument follows this form:
1. The First Amendment prevents any Federal government action from including religious content.
2. The Fourteenth Amendment requires that state government actions comply with that prohibition as well.
3. Therefore, the Alabama Constitution can't invoke God.
On first inspection, the argument against the Alabama Constitution's language seems stronger even than the argument against Justice Moore's monument. The Alabama Constitution is a law, after all, even if the Justice is not. But a Constitution isn't a law like other laws. The First Amendment can't apply to Constitutions, as it lacks the standing to tell the People what they can do; it can only apply to the people's representatives. A Constitution draws its authority directly from the people, who ratify it as the basic law of the land. It is through that process that the limits of government authority are drawn, and it is through that process that they are changed. The Alabama Constitution has been ratified by the people of Alabama, not created by the legislature of Alabama. The First Amendment speaks to Congress; even if you accept the 14th Amendment, it speaks to legislatures.
No Constitution, though, can set limits on the People. Constitutions lack the standing: all government lacks the standing. No governmental body--not a legislature, not an executive, not a court, not the Supreme Court--can tell the People what they can and can't put in a Constitution. No Constitution can set limits on future constitutions. This is because all government power is descended from the will of the People. Constitutions are only the codification of the more permanent parts of that will. The right of the People, acting as a whole, to set the powers and limits of government is the very basis of Classical Liberalism. It is the basis of the United States of America and the American way.
That is to say: if the People wish, they can invoke God in their Constitution, and no governmental body can tell them otherwise. All such bodies are bound by the fact that they are themselves creatures of the will of the People. They are not superior to the will of the People, and they can set no limits on it. A government can, and does constantly, tell an individual person what that person can do or is forbidden from doing. No government can legitimately tell the People what they can do, or are forbidden from doing. That is Classical Liberalism in "sixteen words," if you like.
Sovay says that Roy Moore is acting out of a desire for personal glory and power. I think she terribly misreads him. I think Justice Moore is acting out of a deep personal belief that the founding principles of this country are being ignored, and that his pursuit of power is a means to the end of correcting the course of American government as a whole. Yes, he has set up this Ten Commandments battle precisely in order to have a fight. The fight he wants to have, though, is not about the presence or absence of a monument, but about the nature of government itself.
I will recall the reader's mind to the statement that only the composition of the Supreme Court, not the 1st or 14th Amendments, stood between us and a reading of the law that permits Justice Moore's ideas from being accepted as right and proper. That is where this is all going. Justice Moore is positioning himself to build and lead a movement to return America to an understanding of government that he thinks is the correct one. It is not going to stop with any court ruling, and it isn't going to stop in Alabama. What you are seeing is the beginning of a groundswell that will command attention far beyond the borders of the Old South. If it is to be combatted in the long run, you can't simply tell people what the Supreme Court says the Constitution says. They know already. They disagree, and they are prepared to do what it takes to change it. If you're going to win the war of ideas, you need to be prepared to defend the Jeffersonian tradition on the merits. Remember that their tradition is just as old, and if anything had more support among the Founders than does the Jeffersonian tradition that we defend. They can't be dismissed as quacks or gloryhounds: the power and depth of their argument demand a full reply.
Furthermore, remember that their understanding of the limits of government power is not only defensible, it is correct. The government has greatly overstepped its bounds, and is therefore off balance. When this groundswell has built to the point that it is ready to challenge the orthodox reading of the First Amendment on a national scale, it is going to be very hard to combat. Much of its power will come from the fact that previous defenders of Jefferson's reading have overstretched, ignored the right and proper limits on government power, and otherwise acted against the vision of what our Republic was founded to defend: that vision of a government which draws its power from the People, and is created and in thrall to them. When these angry men come in their regiments, to challenge in Congress and from the statehouses and benches that orthodox reading, they will be powerful because, on very many questions, they will be right.