When Elvis Presley met his maker on that fateful day in August 1977, John Lennon of Beatles fame remarked that the King had made "a good career move." Lennon made his comment unmindful of the fact that a scant three years later, he himself would make his own "good career move" when a disturbed young man shot down the rock star while he stood in front of his apartment building in Manhattan. Martyrdom — or what is called such in our postmodern age — is good for one’s reputation and (sometimes) upward mobility.
Thus, the newest martyr of the Religious Right, Judge Roy Moore, has sealed his fame and is now cashing in on the rubber chicken circuit. His own act of martyrdom was being removed from his position as Alabama’s chief justice shortly after maintenance workers removed his granite Ten Commandments from the Alabama Supreme Court building. Not only are his supporters shelling out the bucks to see him (and eat their chicken), some are even calling for him to run for President of the United States so he can be the Religious Right’s answer to Ralph Nader. And while I am not so crass as to assume that Moore is a huckster who has done all of this for the fame and money, I do believe that while the former judge has raised some important issues, in the end he is hardly better than his political opponents.
Before going further, however, let us recount why Moore suddenly has become the man that people in the church basements want to draft for the government’s chief executive. Several years ago, Moore was an obscure state judge in Etowah County, Alabama, who became famous by posting the Ten Commandments on the wall behind his courtroom bench.
Of course, all sophisticated Americans know that the placing of the Ten Commandments on a state courtroom wall is what the framers of the U.S. Constitution meant when they wrote in the First Amendment that "Congress shall make no law" regarding the establishment of religion. Granted, Moore was a state judge, not "Congress," but the ACLU swears that is what the First Amendment really means and the federal courts have agreed. For that matter, putting the Ten Commandments on a courtroom wall does not establish anything, but no matter, federal judges have spoken, and their message is that nothing shall be permitted to go before the Great God of Secularism that Congress, the executive branch, and the courts have determined to be the True State Religion. So much for the "establishment" clause.
Having become famous for his brief stand against the ACLU, Moore parlayed that fame into being elected chief justice in Alabama, promising during his campaign that the Ten Commandments would be placed in the Supreme Court building in Montgomery. Alabama voters agreed with his stance and put him in office, thus setting up the inevitable train wreck with the ACLU, Southern Poverty Law Center, and the editorial page of the New York Times, which considers itself to be the "conscience" of Alabama.
Not surprisingly, Moore lost the showdown (that he knew all along he would lose). During the litigation period and the ruckus that followed, however, Moore lost all of the brief opportunity to raise the real Constitutional issues in this matter. While he declared (rightly) that the federal courts do not have jurisdiction over what a state judge places in the lobby of the state Supreme Court building, he quickly passed over that line of reasoning to insist that the governments of Alabama and the United States of America must openly acknowledge "Almighty God." Thus, he basically gave the ACLU exactly what it wanted, as he tossed yet another can of gasoline into the cauldron of what we call the Culture War.
In other words, Moore’s Ten Commandments episode is not so much about law as it is about cultural dominance. Yet, the survival of what is left of our nation’s heritage of liberty is not so much a matter of culture as it is of law itself, and its purpose. Let me explain.
There are two important historical aspects of U.S. law that have been overlooked — or deliberately buried, take your choice. The first is the federalist system of the assignment of limited powers to the various governing bodies of this country, both at the national and state levels. These divisions were supposed to act as checks against the accumulation of too much power by one branch of government.
The majority of the U.S. Constitution’s framers (except for Alexander Hamilton and his followers) clearly did not want the nationalization of all law in this country, as they believed it ultimately would lead to tyranny. Thus, they would equally have abhorred the sweeping judgments of the U.S. Supreme Court and the creation of a vast number of federal crimes that in substance are works of fiction.
The second aspect of U.S. law was (and I emphasize was) its genesis in the Rights of Englishmen as outlined by the great British jurist, William Blackstone. American colonists rebelled against the Crown in 1776 precisely because they believed that the British government was violating those precious rights and they no longer wished to live under what they believed to be a tyrannical regime.
Blackstone described law as a "shield" that protected the innocent both from predators and from an overreaching state. Law was to be a limiting force upon government, not a license to kill, intimidate, and dominate. (The motto of the U.S. Transportation Security Administration’s air marshal program is "Dominate, Intimidate, Control," and that seems to be the motto for the rest of government in this country, as well.)
In subsequent public appearances since his removal from the Alabama bench, Moore has not contradicted the legal trends that have centralized power in this country and made a mockery of our liberties. Yes, as noted before, he briefly declared the federal government to have no jurisdiction over the placing of the Ten Commandments in the state court building, but his main message has been the need for governments at all levels in this country to acknowledge "Almighty God."
Furthermore, I have not been aware of any speech he has made since being removed in which he has decried the expansion of federal law, both criminal and civil. He has praised the "partial birth abortion" law recently passed by Congress as to be consistent with his legal worldview, despite the fact that the new "law" misrepresents and abuses the Constitution’s "Interstate Commerce" clause. He has not, however, spoken out against the clearly unconstitutional War on Drugs that has given governments at all levels awesome powers to arrest people, grab private property, and make our state and national prison systems the largest in the world. Nor has the good former judge said anything about the continuing trend to make federal crimes out of innocuous acts, thus creating an entire nation of federal criminals.
This is not surprising. Moore believes that drugs are bad, so there should be no limits as to what governments can do to stop people from selling, purchasing, and taking drugs, even if it means eviscerating the "Rights of Englishmen" in the process. Indeed, if I have heard anything from Moore and his followers, it has been that governments are not authoritarian enough.
In the end, Moore is no better than his political opponents, for both are following the same authoritarian legal theories (if one can dignify their views by calling them "theories"). If Moore cannot have his way, then the next step is martyrdom. Of course, Moore is not a real martyr, for I suspect that his income, fame, and mobility have increased with his actions, unlike the real martyrs of the Christian faith, who have suffered deprivation, torture and death for their unpopular beliefs.
In his brief battle with the ACLU and the federal courts, Moore had an opportunity to remind all of us of our lost liberties and to help rekindle the federalism debate that supposedly was settled with the ratification of the U.S. Constitution in 1787. Instead, we received yet another nauseating version of the intractable and unwinnable Culture War. I am not sure whether Americans in this day and age deserve anything better, but it would have been a wonderful and educational moment had Moore dealt with the real issues of law and justice. Instead, he took the money and ate fried chicken.
February 9, 2004