The Ten Commandments
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The storms of moral crisis has descended upon the State of Alabama. Among the most vital issues facing American jurisprudence are (1) whether our legal system may acknowledge the Higher Law of God as the source and measure of our laws; (2) whether the establishment clause of the First Amendment prohibits the State of Alabama from acknowledging God and His law as the moral foundation of law; (3) whether the State of Alabama (and the 49 other states) are distinctive and viable entities in the American constitutional system or whether they are merely closely supervised subdivisions of a national government; and (4) whether it is ever appropriate to disobey the order of a federal judge.
All of these issues come together in the Alabama Ten Commandments case, often cited as Glassroth v. Moore.
The symbolic portrayal could not be more graphic. In the rotunda of the Alabama Judicial Building in Montgomery, stands a 5,280 lb granite monument depicting the Ten Commandments, with various quotations from America's founding fathers on the monument's four sides. Just a few blocks away, in front of the Federal Court House, stands a sculpture of Themis, the Greek goddess of law and justice. The 10 Commandments monument was financed entirely with private donations; Themis was paid for by federal funds. And yet, the Themis is guarded by federal officers, while U.S. District Court Myron Thompson has ruled that the Ten Commandments monument must be removed from the Judicial Building rotunda. Chief Justice Judge Roy Moore still stands.
Recently I have noticed a shift in the debate. A few weeks ago the debate centered between those who say Judge Thompson is right and those who say Judge Thompson is wrong. Today, the debate seems to be between those who say Judge Thompson is wrong but his order must be obeyed, and those who say that Judge Thompson is wrong and we must resist his order. I have written at great length to articulate my belief that the 10 Commandments may properly be displayed in court houses and other public buildings; the most complete exposition of my position may be found in my article " The Alabama Ten Commandments Case: Is the Pendulum of Establishment Clause Jurisprudence Swinging Back to Nonpreferentialism?" Jones Law Review II:1 December 1998 pp. 39-97. I am writing to you to declare my belief that Alabama Chief Justice Roy Moore is justified in disobeying Federal Judge Myron Thompson's order to remove the Ten Commandments monument, and that public officials, pastors, and other citizens of Alabama and across the nation should come to Chief Justice Moore's defense. I do not treat disobedience lightly. As a former prosecutor, a retired Air Force Lt. Colonel and Judge Advocate, and a Colonel and Chaplain in the Alabama State Defense Force, I strongly believe in the rule of law. The rule of law means we submit to lawful authority. But just as strongly, the rule of law means we resist unlawful authority. For the rule of law restrains both the people and their rulers. Where law does not restrain the people, the result is anarchy. Where law does not restrain the rulers, there is tyranny. Those who believe in the rule of law must be equally opposed to both.
It is often said that a public official, especially a State Supreme Court Chief Justice, has a higher duty than others to obey the orders of a federal court, that civil disobedience may be an option for a private citizen but not for Chief Justice Moore. The exact opposite is true. State officials have a heightened duty to resist unlawful federal authority, and when they do so it is called interposition. Black's Law Dictionary, Fourth Edition offers the following definition: " Interposition. The doctrine that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government. The concept is based on the 10th Amendment of the Constitution of the United States reserving to the states powers not delegated to the United States. Historically, the doctrine emanated from Chisholm v. Georgia, 2 Dallas 419, wherein the state of Georgia, when sued in the Supreme Court by a private citizen of another state, entered a remonstrance and declined to recognize the court's jurisdiction. Amendment 11 validated Georgia's position. Implementation of the doctrine may be peaceable, as by resolution, remonstrance or legislation, or may proceed ultimately to nullification with forcible resistance.
The Constitution does contemplate and provide for the contingency of adverse state interposition or legislation to annul or defeat the execution of national laws." In Re Charge to Grand Jury, Fed. Case No. 18,274 [2 Spr. 292]. Far from a radical doctrine, interposition is actually a middle ground position. Absolute submission to unlawful authority leads to and sanctions tyranny and oppression. Popular rebellion can lead to chaos and bloodshed. Interposition -- lesser magistrates, state and local authorities, placing themselves between their people and the higher magistrates or federal authorities -- is a moderate course that is less likely to result in either extreme. Interposition has a long tradition in Western law and has led to some of the greatest advances in constitutional liberty. Medieval theologians and philosophers who addressed and endorsed interposition include John of Salisbury (1030-85 AD), James of Viterbo (circa 1300 AD), and Thomas Aquinas (1225-1274 AD). Aquinas believed that "...the duty of obedience is, for the Christian, a consequence of this derivation of authority from God, and ceases when that ceases. But, as we have already said, authority may fail to derive from God for two reasons: either because of the way in which authority has been obtained, or in consequence of the use which is made of it." (Book 2, Commentary on the Sentences of Peter Lombard) When a ruler becomes a tyrant, his authority no longer comes from God and he becomes an illegitimate ruler. While it may be better to bear with moderate degrees of tyranny, Christians must stand against the ruler when his tyranny becomes excessive. But popular rebellion may have disastrous consequences: the ruler may suppress the rebellion and become more tyrannical than before, or those who overthrow him, fearing that others may do the same, become just as tyrannical as their predecessors. So what is the solution? Aquinas says, "...it seems that to proceed against the cruelty of tyrants is an action to be undertaken, not through the private presumption of a few, but rather by public authority." (Book 1, On Kingship ) While continental theologians wrote about interposition, English theologians and nobles put interposition into practice. Since 890 AD England had been governed under the legal code of Alfred the Great, which began with a recitation of the Ten Commandments. But after the Norman Conquest of 1066 AD, Anglo-Saxons and Celts felt themselves oppressed under the more centralized Norman rule. Finally in the 1200s, chafing under the autocratic measures of King John, English leaders decided it was time to act. On August 25, 1213, a group of barons and bishops met at St. Paul's Cathedral in London. Stephen Langton, the Archbishop of Canterbury (also known for having divided the Bible into chapters), read to them the old Charter of King Henry, expounded to them the doctrine of interposition, and administered to them an oath that they would conquer or die in defense of their liberties and those of their subjects. Two years later, the barons and bishops commissioned Robert Fitz Walter as Marshall of the Army of God and Holy Church. On June 15, 1215, they met King John at Runneymeade and compelled him to either sign the Magna Charta or abdicate the throne. John signed, and the 63 articles of the Magna Charta constitute a founding document of English liberty. Its main significance, however, is not the rights it contains, which are simply the reassertion of the ancient rights of Englishmen against the encroachments of a Norman king, but rather the fact that the king was forced to sign against his will on threat of being overthrown. This was a constitutional crisis of the first order. It was handled by interposition - and we have been blessed with the results for nearly eight hundred years. A century later, the Scots practiced interposition against English rule under King Alexander, Malcolm Wallace, William Wallace, Robert the Bruce, and others. In April 1320, Robert the Bruce gathered the Parliament of Scotland at Arbroath Abbey, where they drafted and adopted the Declaration of Arbroath, in which they set forth their history as a free people until the usurpation of King Edward of England, and vowed that "...for, as long as but a hundred of us remain alive, never will we under any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom -- for that alone, which no honest man gives up but with life itself." (Scottish history and thought have greatly influenced America, especially Alabama where our state flag bears the St. Andrew's Cross. When the Scots again fought for independence in the 1740s under Bonnie Prince Charles and were brutally suppressed, thousands of them fled to America. A generation later, Scottish-Americans became leaders in the American War for Independence. The Mecklenburg Declaration, drafted in 1775 by a group of Scottish Presbyterian elders in North Carolina, bears striking parallels to the Declaration of Independence.) Reformation leaders followed and further developed the Catholic teaching on interposition. John Calvin declared that private individuals normally should not undertake the curbing of tyrants but should follow "popular magistrates" in doing so: "For when popular magistrates have been appointed to curb the tyranny of kings (as the Ephori, who were opposed to kings among the Spartans, or Tribunes of the people to consuls among the Romans, or Demarchs to the senate among the Athenians; and perhaps there is something similar to this in the power exercised in each kingdom by the three orders, when they hold their primary diets), so far am I from forbidding these officially to check the undue license of kings, that if they connive at kings when they tyrannize and insult over the humbler of the people, I affirm that their dissimulation is not free from nefarious perfidy; because they fraudulently betray the liberty of the people, while knowing that, by the ordinance of God, they are its appointed guardians." (Institutes of the Christian Religion, Book 4, Chapter 20, 1559 AD) Other Reformation leaders who articulated the doctrine of interposition were John Knox, father of the Presbyterian Church (1505-72 AD), the French Huguenot author of Vindicae Contra Tyrannos (1579 AD) who used the surname Junius Brutus, and Scottish theologian Samuel Rutherford in Lex Rex (1644 AD). Among Catholic and Protestant theologians alike, I am just barely skimming the surface because of time and space constraints. In the 1600s, while the English colonies of North America were being planted and populated, England herself was locked in a struggle between the Puritans in Parliament and the Stuart kings. The common perception that the Stuarts believed in the "divine right of kings" is simplistic. Both sides believed governmental authority comes from God; the issue was lines of governmental authority. The Stuart kings believed God gives authority directly to the king. The Parliamentarians contended that God gives governmental authority to the people, who delegate that authority to lesser magistrates (local earls, sheriffs, barons, members of Parliament), and they in turn delegate authority to the king. That being so, they insisted, the king is answerable to the parliament, and the parliament in turn is answerable to the people. Through decades of struggle, the Parliament practiced various forms of interposition: negotiation, legislation, litigation agitation. Twice they took interposition further, trying and convicting King Charles I of treason and executing him in 1649, and deposing James II in the bloodless Glorious Revolution of 1688 and forcing him to flee to France. The following year the English Parliament reaffirmed the ancient God-given rights of Englishmen in the English Bill of Rights of 1689. And as the struggle for liberty waged in England, the American colonists looked on with approval. Nathaniel Hawthorne captured their spirit in his short story, The Gray Champion. Less than a century later it was America's turn. Believing the English king and parliament were usurping their rights and the autonomy their colonial charters had guaranteed to them, the colonists came together in the first Continental Congress of 1774. On October 14 they issued their Declaration and Resolves that "...The good people of the several colonies...justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies to meet, and sit in general Congress...in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted." After two years of futile attempts to practice moderate forms of interposition and resolve their differences with England, in 1776 the Continental Congress adopted the Declaration of Independence. Perhaps the best-known document of interposition in history, the Declaration proclaims that the American colonies are entitled to independence by "the Laws of Nature and of Nature's God." It sets forth the basic "unalienable rights" endowed "by their Creator," proclaims that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." The Declaration then claims: That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. The Declaration cautions that established governments should not be changed for light and transient reasons: But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them to absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The Declaration then sets forth a list of grievances that, taken together, establish that George III has exercised tyranny over the colonies and concludes that "A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people."Click Here to read the rest of this article
8 Owe no man any thing, but to love one another: for he that loveth another hath fulfilled the law.
9 For this, Thou shalt not commit adultery, Thou shalt not kill, Thou shalt not steal, Thou shalt not bear false witness, Thou shalt not covet; and if there be any other commandment, it is briefly comprehended in this saying, namely, Thou shalt love thy neighbour as thyself.
10 Love worketh no ill to his neighbour: therefore love is the fulfilling of the law.
The law is fulfilled by love.
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