Roy Moore In The Crosshairs Because He Threatens The Establishment

Alabama's candidate for U.S. Senate, Roy Moore, has been hit with 11th-hour accusations that he got fresh with teenage girls at some point in the distant past. I have no idea whether the accusations are true, but I do know that they pale in comparison to what popular men such as Bill Clinton or JFK are confirmed to have done, and I also know that the establishment hates Roy Moore because he defied an imperial judicial decree on the basis that it violates the Constitution (a heroic concept in these degraded times).

I wrote about Moore's heroism in my first book Unlawful Government: Preserving America In A Post-Constitutional Age, as follows (footnotes and endnotes removed):

On November 13, 2003, a nine-member panel of judges voted unanimously to remove Alabama Supreme Court Chief Justice Roy Moore from his post for violating the Canon of Judicial Ethics. Had he accepted bribes? Had he made political speeches about cases under his review? Or had he engaged in secret communications with a particular side to a legal dispute, as had U.S. Supreme Court Justice Frankfurter in Brown v. Board of Education? No. According to the panel, he had done something far worse: he had refused to obey a federal court injunction ordering him to remove a stone rendering of the Ten Commandments from his courthouse. This despite the panel’s own opening prayer that day, not to mention the prominent presence of the Ten Commandments at the United States Supreme Court itself. The Kafkaesque ordeal in which Justice Moore found himself had originated with the twisted jurisprudence surrounding the Fourteenth Amendment, an amendment that makes no mention of church and state.

Before the Fourteenth Amendment had ever come into existence, some States went so far as to establish official churches – an order of magnitude more serious than placing mere religious monuments on public property. No court dreamed of interfering in these activities because nothing in the Constitution prohibits them, and States enjoy the right to do anything not specifically prohibited in the Constitution’s few pages. To be sure, the federal government could not establish a church, since the federal government can do only that which the Constitution allows, and no enumerated power authorizes a national church. The First Amendment serves as a reminder of this inherent limitation of the federal government by cautioning that “Congress shall make no law respecting an establishment of religion . . . .” Nothing in the First Amendment curtails the power of the States to involve themselves in religious activity, and when the Fourteenth Amendment was debated and passed in 1868, no one treated it as changing that state of affairs.

So how did it come to pass that the “establishment clause” of the First Amendment got applied to the States at all? To put it bluntly, the Supreme Court just decided to do it. This first occurred in 1947, when the Court reviewed a New Jersey law that reimbursed parents for the cost of sending their children to parochial schools on public-school buses. Nowhere in the opinion did the Court analyze how or why the eighty-year-old Fourteenth Amendment made the First Amendment relevant. Instead, the Court simply declared it to be so and launched into a flowery paean to the Founding Fathers and religious diversity. Although the Court ultimately upheld the law, the Court had presumptuously asserted the ability to examine such arrangements through the lens of the First Amendment’s “establishment clause.”

After crossing that Rubicon, the Court grew more brazen. In 1948 the Court struck down an Illinois school board’s practice of allowing students to attend sectarian classes located in public schools and taught by parochial instructors. In 1962 the Court prohibited New York public-school officials from leading students in a daily recital of a non-denominational prayer. Even when an activity was not “coerced” by school officials, the Court nevertheless intervened. For example, in 1985 the Court nullified an Alabama law allowing schools to set aside one minute each day for students to engage in “meditation and voluntary prayer.” The Court later prohibited the reading of a non-sectarian prayer at a middle-school graduation – where no student participation was required – on the basis that some students might feel marginalized.

Apart from the school context (where feelings of exclusion had assumed full status as constitutional determinants), the Court showcased its prowess for secularizing general public activities as well. This came to the fore in 1989 with two apparently contradictory decisions arising from the same case. First the Court found it improper for a Catholic organization to place a nativity scene on the steps of a county courthouse. In the same breath, though, the Court allowed a menorah to be displayed at a city-county building. The stated rationale for banning the nativity scene was that “nothing in the context of the display detracts from the crèche’s religious message.” With the menorah, however, the “religious message” of the display was sufficiently watered-down with secular symbols to suit the Court’s taste: “the relevant question [is] whether the combined display of the tree, the sign [saluting liberty], and the menorah has the effect of endorsing both Christian and Jewish faiths, or rather simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society. [The] latter seems for more plausible . . . .”

So this is the path we have trod: from a Constitution that places no bar on States’ involvement in religion, to a Court that decides in its own infinite wisdom what comprises “too much” religion for display in the public sphere. Roy Moore found himself at the wrong end of that path, but not because he had lost his way. Those who dominate America’s political and judicial firmament detest religion, not only because it would acquaint them with the concept of shame, but also because of its respect for an authority that transcends any earthly source such as their own sorry selves. Roy Moore reminded them that America was founded with a view to that higher authority, and that they, not he, were in the wrong. Having stood up for justice despite little chance of victory, Roy Moore achieved greater honor than those Lilliputians judging him can ever aspire to.