More on Moore

The eight Associate Justices of the Alabama Supreme Court have acted to overrule on Chief Justice Moore on the Ten Commandments, and the judicial ethics commission has suspended him from office pending a hearing on his dismissal.[*] Attorney General Bill Pryor, who supported Judge Moore’s position as long as he could, will now be in the position of making the case on behalf of the state that the Chief Justice should be dismissed.

It’s truly gratifying to see the Republican establishment in Alabama reacting with such complete propriety; they are acting, apparently unanimously, as if they believed in the rule of law. Assuming they reflect the ruling opinion in their state, it’s possible that the political Bible-thumpers, such as Jerry Falwell, Howard Phillips, Alan Keyes, and James Dobson, have attempted bridge too far this time. (Falwell is urging that the supporters of the monument force a confrontation in which military or police have to come into the courthouse “with jackhammers” to enforce the federal court order.)

Some key Religious Right figures thought so even before the revolt of the Associate Justices; according to the Dallas Baptist Standard, Richard Land, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, and Jay Sekulow, head of Pat Robertson’s American Center for Law and Justice, had already questioned Moore’s stance. [*]

All in all, it’s a great object lesson in respect for the law. All it lacks is the commentary of the figure who, because he is Head of State as well as Chief of Government, ought to be reading the lesson. [

[When T.R. said that the Presidency was a “bully pulpit,” he was using a bit of Gay Nineties slang (“bully” = phat, def, fab, cool, neat, awesome), and suggesting that the White House made a superb place from which to preach the sermons on our civil religion. He did not, contrary to the seeming beliefs of some of his successors, mean that it was a good place for to bully people from, or a good place for a bully to occupy. Hermeneutics is always tough, especially cross-culturally, and of course a different time is a different culture.]

A sympathetic reader of my work was puzzled by the rage in my earlier post [*] on the subject. Perhaps you were, too, or were instead merely resigned to more Bush-bashing from a fellow otherwise occasionally capable of rational thought. My reader wrote:

Judge Moore has been suspended from the bench and they will be voting whether to remove him permanently. The system worked the way it is supposed to. The President and Congress had no reason to become involved in a state matter and it was good that they did not. I wasn’t aware that the House voted to overturn a law. Which law was that?

That my correspondent didn’t know (and perhaps you didn’t either, gentle friend) testifies to the failure of the press and the Democrats to do their joint job of making a huge fuss when Republicans do something absolutely and utterly awful. I was referring to the Hostettler Amendments. Here they are, as described on their author’s website:

The amendments to the Commerce, Justice, State and the Judiciary appropriations bill would block federal funds from being used to enforce court decisions that found the use of “under God” in the Pledge of Allegiance unconstitutional and ordered the Chief Justice of the Alabama Supreme Court to remove the Ten Commandments from the courthouse. In Newdow v. U.S. Congress the 9th Circuit Court of Appeals last year ruled that the voluntary recitation of the Pledge of Allegiance in public schools is unconstitutional because the Pledge contains the phrase “under God.”

In the case of Glassroth v. Moore, decided earlier this month, the 11th Circuit Court of Appeals determined that a monument depicting the Ten Commandments in the Alabama State Courthouse violates the First Amendment’s Establishment Clause and therefore must be removed. Hostettler’s amendments would prevent federal funds from being used to enforce these decisions.

Hostettler pointed out that the U.S. Marshals Service executes and enforces all “lawful” orders of the U.S. District Courts. The U.S. Marshals Service, an agency of the U.S. Justice Department, is funded by this appropriation bill.

The amendment prohibiting funds for enforcement of the 9th Circuit Court of Appeals ruling on the Pledge of Allegiance passed 307-119. The second amendment, which blocks enforcement of the 11th Circuit Court of Appeals ruling that the Ten Commandments cannot be posted in the Alabama Supreme Court building, passed 260-161.

Hostettler goes on to develop a whole theory — rather brilliant in the sheer perversity of its misapplication of the analysis in The Federalist showing the courts to be naturally the weakest, and thus the most trustworthy, branch — that the Congress may properly overturn any decision it thinks wrong by refusing to appropriate funds to enforce it. [*]

If Hostettler’s theory is true, the Congress could equally well overturn a verdict in a civil case, or a writ of habeas corpus. The theory would leave us with literally no legally enforceable right that the Congress could not take away.

That what was the House passed, without the President’s ever saying a word against it. What do you want to bet that opponents of that provision are going to face ads back home accusing them of “voting to throw God out of the courthouse”? What do you want to be that it will cost some of them their seats?

The actions of the Alabama Supreme Court now make the Ten Commandments provision, though not the Pledge of Allegiance provision, moot. But the principle isn’t moot. Remember, this isn’t some item proposed by an irrelevant lunatic fringe. This passed the House of Representatives by a hundred votes. And every one of those 260 Congresscritters was violating his or her solemn oath, taken in almost every case on the Holy Bible, to “preserve, defend, and protect the Constitution of the United States.” Pah!

Until the Republicans in Washington show themselves capable of the level of principled

Constitutionalism displayed by the Republicans in Alabama, I don’t see how anyone who considers himself a lover of government under law can even consider voting Republican, no matter how much the tax bite hurts.

If there’s a defense to be offered of the Hostettler Amendment, I’d like to hear it. [Glenn Reynolds thinks Moore is an idiotarian, (*) but doesn’t have anything to say about Hostettler, whose actions pose a much more grave risk to our system of ordered liberty than Moore’s.]

President Bush’s friends ought to insist that the do the right thing in this case. As Mark Twain said, “It will please your friends and astonish the rest.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: