Judge Moore is now Former Judge Moore. This is a good and necessary move.

As I said to my wife last night, a judge who doesn’t understand that he is violating the law even when his own peers have explained it should not be allowed to remain in office. This is especially true concerning fundamental, well-settled issues not just of constitutional law, but of civil procedure and the particular judge’s place within the system of laws of the country in which he expects to practice.

Before going on, let me note that even though I am not a christian, none of my writings, including this one, should be taken to be anti-christian. None of the writings I’ve done on this topic have been intended to be “religious” commentary either on my own or anyone else’s religion. My focus is specifically on the legal issues.

To understand why Moore had to be removed, bear with me for a moment and think this all the way through. I promise not to slam any religious beliefs of you, Moore, or anyone else in the process. That not only isn’t really polite, but it’s completely unnecessary — especially in this situation.

You see, the problem isn’t with Moore’s religious beliefs. In considering whether or not someone is fit to serve as a judge, it is his beliefs about the law that matter. And there are several reasons here why Moore is unfit to be a judge, none of which have anything to do with whether or not his religious beliefs constitute veridical views of the universe or not.

The real issues are:

• Who decides what our society will and will not allow?
• What place does the judiciary play in the United States of America?
• Is there an authoritarian hierarchy in the U.S. judiciary in regards to issues such as the one arising in this case?
• Is the law applicable to Moore’s actions settled?
• And, finally, is a judge who refuses the strictures of the law of the United States of Amerca fit, or unfit, to hold his judicial seat?

In the debate about Moore’s acts, there are many more issues that could be identified than just these. For example, there are the specific questions of whether allowing the display of religious artifacts in a courthouse actually constitutes an endorsement of the religion. U.S. law has already decided that this is the case; I argue below that Moore’s failure to recognize this is one reason Moore is unfit to be a judge in any U.S. court, whether state or federal. But this and other issues could easily be debated at great length. I’ve tried here to focus specifically on issues as to why Moore was rightly removed from office.

As I’m gearing up for mid-term examinations (and a final exam in Basic Tax Law), I will sadly only touch superficially on these important questions. For more information, be sure to take a look at some of the books I’ll list at the end of this post. Purchasing books via my Internet site is also an excellent win-win-win proposition: You get a useful book at a good price; Amazon gets a paying customer; and I get a little help paying my website costs.

What May Society Control?

One question which does perhaps deserve some attention before looking at the list of issues above is an age-old question: “What may/should societies rightly control with respect to (human) behavior?”

In the debate that swirls around former-judge Moore, for example, christians claim — with some justification — that their right to worship their god as they wish has been impeded. According to them, it is a necessary component of their religious system that they place religious artifacts which they believe honor their god in public locations, such as courthouses. Assuming this is properly identified as a “right” — another question not really considered in this article — there can be no doubt that their right to do this is being impeded. The fact that it is being legally impeded — that is, in accordance with the law of the United States — does not mean that it is any less impeded.

Should, or may, societies properly impede the rights of others?

If christians need to place religious artifacts in public locations such as courthouses, then they are correct that their rights are being impeded. As in most situations involving “rights,” however, we have here a sword which cuts both ways.

One reason for this is that public spaces are finite. There are only so many of them and they are only so big. If we allow the utilization of public spaces for one purpose, we necessarily reduce its utilization for another. More importantly in this situation, if we allow christians to use the space to make more of their monuments visible, we necessarily abolish the “rights” of others not to be exposed to (what they may well think are) idols. I am not suggesting that we do the following, but imagine that christians were forced to enter courthouses decorated with demonic symbols or mildly-bacchanalian images.

“But that’s different!,” you exclaim. Actually, the real reason you think it’s different is because in one case you are the one being offended; in the other case, others are being offended. There fact that there may be anywhere from a few to a gazillion others who agree with your views doesn’t change that fact. Millions of Filipinos love to eat balut. I doubt that would make it any less gross or more palatable to the average American.

Any time you have more than a few people with competing and incompatible views, then, there has to be some method of arbitration, some way of deciding which of the views will get air-time, so to speak. Otherwise, even peace-loving followers of Jesus may potentially turn to violence to endorse their preferences.

It would seem then that society should control some behaviors, including even some behaviors you may think innocuous (or beneficial!), such as placing monuments to the version of god which has historically predominated in American “culture.”

How Does “Society” Decide?

While perhaps we could have a single individual who would decide how everyone was to act, most people would consider it more “fair” to allow for decisions based to some extent on the will of the people. Of course, in a truly fair society, we wish to be sure that the majority does not completely crush the minority, especially when we may be talking about matters of preference. (This is one reason the U.S. used to be a Republic, rather than a true Democracy [a.k.a., “a mob”] and why even now it still has remnants of a republic, especially as pertains to the legal system.)

The republican method — and I’m referring to the methodology of our form of government, not to the Republican party — involves legislators who have been elected by the people. “Legislator,” according to Merriam-Webster’s dictionary, means “one who makes laws”; the secondary definition as “one who constantly campaigns for funds to stay in office” is a relatively recent development on the American landscape. Legislators propose legislation based upon the perceived desires of those who have elected them. The way our Founding Fathers set things up, the perceived needs of the electorate was filtered through the (theoretical) wisdom of the legislators in a way that hopefully avoided the more negative aspects of Democracy — that is, those aspects that cause some to refer to Democracy as “mob rule.”

In the United States (and in some other countries now) there is a document: The Constitution of the United States. This document has been periodically amended, most notably right after it was written, when the Bill of Rights was added as the first Ten Amendments. These documents are like a corporate charter, in a sense, indicating what the Founders of this country established as the primary rules by which our country is to be governed. More than two-hundred years of experience have shown the wisdom of the principles contained within these documents. As a side note, it always amazes me when people start thinking about — willy-nilly — tampering with the freedoms outlined in this document by introducing more restrictive amendments. These documents, then, place limitations on the kinds of laws our legislators may pass because, after all, it would make no sense to allow them to pass laws which abrogate principles which have stood the test of two-hundred-plus years!

Where does the Judiciary fit in this scheme?

The legislators, then, are responsible for the creation of new laws. They do so with the limitations placed upon them by the Constitution, its Amendments and the interpretation of these which has developed through the years.

To be sure, the Founding Fathers did not intend a complete separation of powers.

…Madison admonished at the founding that while our Constitution mandates that “each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others,” Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935), the Framers did not require — and indeed rejected — the notion that the three Branches must be entirely separate and distinct. See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977) (rejecting as archaic complete division of authority between the three Branches); United States v. Nixon, 418 U.S. 683 (1974) (affirming Madison’s flexible approach to separation of powers). Madison, defending the Constitution against charges that it established insufficiently separate branches, addressed the point directly. Separation of powers, he wrote, “d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other,” but rather “that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted. Mistretta v. United States (1989) 1 Fed. Sent. R. 377.

After all,

[t]he actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based
on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. Tanielian, Separation of Powers and the Supreme Court: One Doctrine, Two Visions (1995) 8 Admin. L.J. Am. U. 961, 984.

As noted, the purpose of the separation of governmental functions into three somewhat distinct branches was done “the better secure liberty.” And, as the Supreme Court noted in Marbury v. Madison in 1803,

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. Marbury v. Madison (1803) 5 U.S. 137, 177.

While legislators make laws, the judiciary is responsible to interpret them. (See also, Pittman, The Federal Arbitrarion Act: The Supreme Court’s Erroneous Statutory Interpretation, Stare Decisis, and a Proposal for Change (2002) 53 Ala. L. Rev. 789, 800 [“originalists believe that the appropriate role of the judiciary is the role of an interpreter of statutes that Congress has enacted, and not the role of a judicial legislator that creates its own laws through statutory interpretation”].)

The Quasi-Hierarchical Structure of the Judiciary

Fine. So the legislators make laws and the judiciary interprets the law — both bound by the limitations of the Constitution and its Amendments.

Yet the United States has this odd duality. Although united, each state is, for purposes of internal governance, a quasi-independent entity. There is the federal government and there are the various state governments; there is a federal judiciary and there are the various state judiciaries.

So in a situation such as that presented by the former judge Moore, who sat as a member of his state’s judiary and whose actions were ruled unconstitutional by a federal court judge, who wins? After all, while for many Americans the federal government is the “larger” and “more powerful” system of government — even if they are unaware of the Supremacy Clause of the Constitution — a sense of autonomy arising from a juxtaposition of principals of vehement freedom and substantial fairness informs us (even if the law didn’t, though it does) that there are nevertheless times when the Supreme Court is stripped of jurisdiction by the “counter-supremacy” effect of states’ rights. (See Althouse, How to Build a Separate Sphere: Federal Courts and State Power (1987) 100 Harv. L. Rev. 1485, 1491.)

It appears to be the case (pun intended) that sometimes a federal court trumps a state court while at other times the state court trumps the federal court. While this is true, the decision as to which court trumps which is not a game of eeny, meeny, miny, moe. Once again, the Constitution of the United States comes to our aid.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. – Constitution of the United States, Article VI, Clause 2.

The Supreme Court has noted that,

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. – Cooper v. Aaron (1958) 358 U.S. 1, 18 (78 S. Ct. 1401, 1409-1410; 3 L. Ed. 2d 5, 16-17).

Article III (Section 2, Clause 1) of the Constitution said that the “judicial power” of the United States over “all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States” was (Article III, Section 1) “vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Framers of the Constitution thus set things up in such a way that the federal government, via judicial review, had authority over the States. (Founding Father James Madison even went so far as to advocate giving Congress itself veto power over state laws and the Virginia delegates to the Constitutional Convention initially proposed such authority for “all laws passed by the several states, contravening in the opinion of the National Legislature the articles of Union.” Kramer, The Supreme Court 2000 Term: Foreword: We The Court (2001) 115 Harv. L. Rev. 4, 60-61.)

Where there have been conflicts between religious groups and state regulations, the application of the authority of the federal courts over both has been virtually unquestioned. (See particularly Shifrin & Choper, The First Amendment: Cases – Comments – Questions (3d ed. 2001), ch. 12, § I, “Conflict with State Regulation”.)

And, finally, Title 28 of the U.S. Code, covering the judiciary and judicial procedure, § 1257, says the Supreme Court is authoritative (among other times) whenever “any title, right, privilege or immunity is specially…claimed under the Constitution” while § 1331 extends authority for federal questions — those “arising under the Constitution, law or treaties of the United States” — to all federal courts.

Moore Tries To Be More

As the Alabama Chief Justice, Moore had to know not only the law relating to these procedural issues, but also that the Supreme Court has repeatedly rejected governmental sponsorship of religious displays. (See, for example, County of Allegheny v. American Civil Liberties Union (1989) 492 U.S. 573 [109 S. Ct. 3086; 106 L. Ed. 2d 472]. For more on the establishment question, see my other posts on the subject.) As a first-year law student, I was already well-aware of the historical record regarding the position of the Supreme Court and lesser Federal Courts on this subject.

If this wasn’t enough, Moore should have taken a strong hint from recent events directly involving his own case: The Supreme Court refused to hear the case. The impact of this was that the lower federal court ruling stands. Essentially, the Supreme Court is saying, “We’re not really going to waste our time on this.” That’s about as settled as the law gets.

Fit No Mo[o]re

Moore’s public refusal to obey a court order “undercuts the entire workings of the judicial system.”

“What message does that send to the public, to other litigants? The message it sends is: If you don’t like a court order, you don’t have to follow it,” he said. “Commandments Judge Expelled,” CBSNews.com, November 13, 2003.

I couldn’t have said it better myself. Or, as CBS News Legal Analyst Andrew Cohen put it,

The fact is that thousands of judges across the country every day enforce and obey laws that they don’t necessarily agree with. I think the panel wanted to send a message that no one, not even the chief justice of a state, can decide for himself which laws to obey and which to disobey.

Ultimately, it doesn’t matter whether Moore’s religious views are right or wrong. Certainly no one will stop him if he decides now to go into the ministry, start a religious movement, or decides to build a Crystal Monument to the Ten Commandments in Southern California. I, for one, would not bother to argue religion with him — I don’t care about his religious viewpoint one way or the other.

The question for me and many others has always been a legal question and, perhaps, on some level, a philosophical belief that a judge who cannot or will not perform his job because it conflicts with his conscience should not be sitting in that position.

There are plenty of openings in the Church for men like him. Or he can go into politics, where doing what is right has never taken precedence over doing what is popular. But whatever else he does, he clearly should be a judge no more.