The Ninth Amendment to the Constitution states that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This past Sunday Chris Wallace interviewed Alabama Chief Justice Roy Moore. Chief Justice Moore is once again in the news for standing up for the rule of law, limited government, and the viability of the Constitution as a meaningful document as opposed to a Living Document that means whatever the nine black robed oligarchs say it means.
This happened once before. Back in 2000 he was elected to the position as Alabama’s top jurist on the promise that he would restore the moral foundations of the law in Alabama. Several months later he made good on that promise when he set a Ten Commandments monument in the rotunda of the Alabama Judicial Building. He was promptly sued in federal district court by the Southern Poverty Law Center, the American Civil Liberties Union and Americans United for the Separation of Church and State who complained that the Chief Justice’s actions were an unconstitutional “establishment of religion.”
The lawyers had charged the Chief Justice with illegally establishing “religion.” But what religion was he trying to establish? That remained a mystery since these aggrieved lawyers also argued that the court should not define the term “religion.” The federal district court judge, Myron Thompson, agreed with their argument refusing to render a definition of “religion.” Judge Thompson nevertheless found the Chief Justice guilty of establishing that which he himself could not define and ordered the monument removed.
The Chief Justice refused to comply with this order. Chief Justice Moore said, “The entire judicial system of the State of Alabama is established in the Alabama constitution invoking the favor and guidance of almighty God. The 10th amendment of the United States Constitution prohibits federal courts from interfering with that power to establish a judicial system. They have no power, no authority no jurisdiction to tell the State of Alabama that we cannot acknowledge God as the source of our law.”
At least in Alabama the Chief Justice did not stand alone. Another man elected by the voters of the State, Governor Bob Riley said, “I have a deep and abiding belief that there is nothing wrong or unconstitutional about the public display of the Ten Commandments and disagree with the court’s mandate to remove them.”
And yet this representative of the people of Alabama was removed from the Alabama Supreme Court in November 2003. A state ethics panel unanimously decided to remove him from the bench owing to his refusal to follow judicial rulings.
That was then. This is now.
In 2015 the courageous Chief Justice Moore (he was re-elected in 2012) has ordered probate judges in his state to ignore a Supreme Court ruling allowing same-sex marriages to go forward over the state’s constitutional ban. Once again the Chief Justice is standing up for State sovereignty against a judicial system that believes they can make law. This time the battle is over gay marriage. The Alabama Constitution as amended in 2006 by Amendment 774, the Alabama Sanctity of Marriage Amendment, makes it unconstitutional for the state to recognize or perform same-sex marriages or civil unions. This amendment was approved by 81% of the voters. On January 23, 2015, Chief Judge on the United States District Court for the Southern District of Alabama, Callie V. Grenade, issued a ruling striking down Alabama’s ban on same-sex marriage as violations of the Fourteenth Amendment’s guarantees of equal protection and due process.
This brings us to the aforementioned interview of Chief Justice Moore by Chris Wallace on his Sunday Fox television program.
Chris Wallace seemed baffled by Chief Justice Moore’s arguments as if he had never heard such things before. When he questioned how anyone could dispute a ruling of a Federal Judge, Chief Justice Moore replied, “When federal courts start changing our Constitution by defining words that are not even there, like marriage, they’re going to do the same thing with family in the future,” Moore declared. The Chief Justice went on to say, “When a word’s not in the Constitution, clearly the powers of the Supreme Court do not allow them to redefine words and seize power. Powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states respectively or to the people. This power over marriage which came from god under our organic law is not to be redefined by the United States Supreme Court or any federal court.”
The look on Mr. Wallace’s face was one of bewilderment.
To support his argument that the words of Federal Judges are final Mr. Wallace appealed to President Obama who stated in an interview with Buzzfeed News about this controversy saying, “When federal law is in conflict with state law, federal law wins out.”
The Chief Justice answered, “I’d like to tell President Obama that he’s entirely correct, federal law does trump state law,” Moore said. “But what this Harvard professor who is president of the United States does not understand, is that a trial court’s decision on the constitutionality of a federal question is just that — it’s an opinion. It may be law of the case before her. It is not overturning the Alabama constitution. Federal law is not made by judges.”
Mr. Wallace looked at the Chief Justice as if he were speaking a foreign language. I believe that the reason for this disconnect is not merely Mr. Wallace’s. It is shared by many who have had the benefit of America’s progressive education. It has been drummed into generations of Americans that the opinion of judges about the meaning of the Constitution, and not the Constitution itself, is the law of the land. For them, whether conservative or liberal they have an allegiance to the judiciary rather than to the Constitution and the laws enacted pursuant to it.
A still apparently amazed Wallace then accused Moore of being “a little fuzzy” on whether state judges would have to adhere by a SCOTUS ruling in favor of allowing same-sex marriage.
To which Chief Justice Moore replied, “State courts are bound by the ruling of the Supreme Court,” Moore replied. “But when a strict interpretation of the Constitution…is abandoned in the theoretical opinion of individuals are allowed to control its meaning, we have no longer a Constitution. We’re under the government of individual men who for the time being declared what the Constitution is according to their own views.”
As if saying something is the same as proving something Mr. Wallace replied, When Mr. Wallace stated that, “When the Supreme Court Rules, It Rules.”
However, there is a fundamental principle of constitutional law that most Americans have never been taught. According to the Constitution Congress, and Congress alone, has the power to make law. According to the Constitution Federal Courts have the power only to apply law in particular cases and controversies. Yet in the face of the clear language of the Constitution, most Americans who have been progressively indoctrinated over several generations blindly repeat the platitude as if it is common knowledge that courts make law.
An error that flows from this false view that courts have the power to make law is the belief that the law is not what the Constitution says but rather what judges say about the Constitution. Through a distortion of the common law principles of precedent and stare decisis, a court’s holding in a particular case is converted into a law binding on all persons within the court’s jurisdiction and all inferior courts. The proper use of the principles of precedent and stare decisis is that holdings in past court decisions serve as a compelling guide in subsequent proceedings, but they do not bind unless they are themselves consistent with the law.
We have come to the place where the Progressives want to ignore the clear language of the Constitution as in the Second Amendment protection of citizens to own and carry guns. At the same time these same big government statists demand that citizens submit to decisions carrying the weight of law based on the partisan interpretations of words which are found nowhere in the document such as Privacy and Marriage.
The Tenth Amendment to the Constitution states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
With a vision of State Sovereignty, individual liberty, personal freedom and economic opportunity framed by the ninth and tenth amendments to the Constitution. Looking at the current crop of right and left wing Progressives and the coming crop of potential right and left wing Progressives my only reaction is, “We need more of Moore.”
Dr. Owens teaches History, Political Science, and Religion. He is the Historian of the Future @ http://drrobertowens.com © 2015 Contact Dr. Owens [email protected] Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens