case of Alabama Chief Justice Roy Moore and the so-called Ten
Commandments monument in the rotunda of the Alabama Judicial Building
has touched off a firestorm of church-state controversy, even
among evangelical and Reformed Christians. Given that the Decalogue
has historically been a significant influence on American jurisprudence
and given that the Ten Commandments are a summary of the Moral
Law of God (at least as Christians see it), the issue in this
case is really something different. The proponents of strict church-state
separationism (by which they often mean separation or suppression
of Christian words, practices, or symbols in the public arena)
of course oppose the display of any meaningful Christian symbolism
on "Separation" grounds (using a specious constitutional
argument of "Separation of Church and State", instead
of the straightforward phrase in the Constitution regarding "No
Establishment of Religion".
the opponents of Justice Moore (including some Christians) claim
that his refusal to obey a federal court order to remove the monument
is a violation of the Rule of Law principle. So the real (and
most important issue) seems to be whether the "Rule of Law"
has been violated. To answer this, more basic questions must be
posed. Is a federal court order equivalent to the Rule
of Law (automatically, in all cases)? Or to ask it another
way, is it always wrong to disobey a federal court order? The
ancient concept which we today call the Rule of Law presupposes
some kind of authoritative objective law standing behind a court
decree, from which the court order is derived. If the order is
not based on this "higher law" (whether a Constitution
or some unwritten law) then the Rule of Law does not exist for
the issuing judge any more than it would for a legislative or
executive body that decreed something which was arbitrary. In
other words if a court order has no law upon which it is based
(or has faulty law) then what we have is not the Rule of Law but
rather the rule of a judge, or as has been said in recent decades
judicial tyranny. At least some opponents of Justice Moore's actions
claim to have great respect for the Rule of Law and claim Moore
has subverted it. There are two points to be made here, one general
and the other specific to the Moore situation.
these Moore opponents could not (I hope) be arguing that any
order or decree by a federal judge (or any federal authority)
must be obeyed in all cases (or else the Rule of Law is subverted).
That would be to overthrow centuries of Bible-based, Reformation-refined
and applied Resistance-to-Tyranny theory, and also reduce the
Rule of Law to absurdity. (Such theory was indeed applied in the
case of the English "Civil War" and the American "Revolution".)
Surely such a well-developed theory (even some of the secularized
versions) is even stronger in this case because the resistance
comes from a legitimate civil authority (the Chief Justice of
the sovereign State of Alabama). Would these opponents agree that
if a federal judge ordered all green-eyed people
to be shot then that order must be obeyed or the Rule of Law falls?
(Of course I have used an "extreme" example. The principle
however is indisputable. I think these opponents would say that
obviously the order can be disobeyed. But why?) If it must be
obeyed then the Rule of Law means nothing and there can never
be resistance to tyranny, not even by the "lesser magistrates".
Judicial tyranny is no different. I doubt the christian opponents
want this, and I am not so sure the "secular" opponents
do either (given such events as the civil rights movement and
anti-war movements and demonstrations).
more specific to the Moore case, we must know exactly what the
legal principle is upon which the federal judge ruled. Does it
conform to the U.S. Constitution (as it must) or is it a judicial
invention? Moore's opponents act as if there is no issue here:
of course the order was constitutional. But Moore claims (among
other things) that the order is not based on the U.S. Constitution,
but rather on unconstitutional church-state jurisprudence tradition.
Moore and others claim that the No-Establishment clause of the
First Amendment has been interpreted in a grossly faulty (unconstitutional)
way by the federal judiciary over the past 50 years, that generally
it is up to the States to decide such issues (and thus the federal
court order is an infringement on constitutional--both U.S. and
Alabama--powers of the States. Perhaps the issue is debatable.
However the federal judiciary, the Alabama Supreme Court (minus
Moore), the Alabama Attorney General (who wants to be a federal
judge himself), and the Alabama "ethics panel" all acted
as if it was evil to even raise the issue. The problem here is
that there are really two Constitutions being
debated. The one is the written U.S. Constitution. The other is
the jumble and myriad of judicial opinions about
the U.S. Constitution (call it Judicial Tradition).
he is upholding the written Constitution. The federal judge (and
others) says he is upholding the judicial opinions about the Constitution
(although it is rare for a federal judge to actually put it in
those stark terms--nonetheless the judge is applying his
interpretation of the U.S. Supreme Court's previous interpretations
of the First Amendment.) Is it not fair to at least give the benefit
of the doubt to a genuine disagreement over which Constitution
is correct? There must be a clear understanding of the Rule of
Law in order to properly resolve the issue. The Rule of Law does
not mean that every time a civil officer orders something the
ordering itself is axiomatic proof of the correctness of the order.
(If it does then why have a Constitution or similar fundamental
law at all?) The Rule of Law means that all civil
authorities (even federal judges) must conform to the higher legal
standard (e.g., the Constitution).
the underlying problem (or at least one of them) in this case
is much more complex and serious than the immediate incident.
One such underlying issue is the Rule of Law versus the Rule of
Judges. Another is the issue of the correct "constitution"
and therefore the correct interpretation of the applicable standard.
(On this Moore claims a pre-1950 interpretation leaving most Religion
issues to the States and defining No Establishment very narrowly
in accordance with the plain meaning of the words in their historical
and grammatical context is correct, and this author agrees.) Justice
Roy Moore has brought to the surface the more basic issue still,
who makes law and how do we challenge unlawful "laws"?
Far from usurping the Rule of Law, Justice Moore, as a "lesser
magistrate" (Calvin, et al.) has actually attempted to uphold
the Rule of Law by challenging the apparently unconstitutional
(unlawful) order arising from modern "judicial tyranny".
Kevin Clauson was born and lived in Huntington, WV.
He graduated with a B.A. in International Affairs and
a B.S. in Chemistry in 1978, and earned a M.A. in Political
Science in 1982 from Marshall University. Also in 1982,
he married his wife Marcia and graduated from West Virginia
University with a J.D. (Law). From 1982-1985, Dr. Clauson
was Assistant Professor of Political Science at Grove
City College (PA). Currently, he can be seen at Christ
College, where he is the President and Professor
of Political Economy and Law (since 1996) as well as
at Liberty University where, since 1985, he is the Chair
of the Government Department and Professor of Government.
He has four children, ages 19, 17, 12, and 10, and is
a Ruling Elder at Grace Orthodox Presbyterian Church