While everyone is focusing on the propriety of Alabama Supreme Court Justice Roy Moore's refusal to remove a Ten Commandments monument from his courthouse, we are giving the federal courts a pass -- and we mustn't.
Undeniably, the federal constitution's Supremacy Clause makes the federal constitution and constitutional federal laws supreme over state constitutions and laws and binding on state judges.
So should our analysis end here? That's what some conservative pundits are saying. The federal courts have ordered Justice Moore to remove the monument under authority of the United States Constitution, which is the supreme law of the land. The U.S. Supreme Court is the final arbiter of what the Constitution means, having arrogated to itself that authority in 1803.
Since the high Court declined to hear the case, the ruling of the 11th Circuit Court of Appeals ordering Judge Moore to remove the monument now stands. Thus, Justice Moore must comply, notwithstanding his belief that to do so would violate his oath of office affirming that the state government was established under God.
This is a very difficult case for me because my sympathies are with Justice Moore, yet I am also a staunch believer in the rule of law -- and an equally strong opponent of anarchy.
My allegiance to the rule of law leads me to believe that we cannot permit a state court judge -- no matter how righteous his cause -- to violate federal appellate court rulings. He should vigorously oppose the wrongheaded feds at every phase and exhaust all possible remedies, but once they are exhausted, he must obey. Our entire system of ordered liberty depends on the integrity of our legal system, which in turn depends on government officials, especially judges, obeying the law. Indeed, state judges also take an oath to uphold the federal constitution.
On the other hand, our liberties also depend on two other very important concepts that are at issue in this case. The Framers believed that our Constitution was grounded in the principles of the Christian religion and that without that foundation neither our Constitution nor the liberty it guarantees could survive. Justice Moore is fighting laudably to preserve that tradition.
The Framers also believed that liberty could best be achieved and sustained through a system of federalism -- which they quite specifically established, dividing governmental power between the federal and state governments. To be sure, they made the federal government supreme as to those matters on which they conferred it authority -- but the 10th Amendment expressly reserved the balance to the individual states.