In the midst of all
of the flap about Judge Roy Moore and his monument to the Ten Commandments,
virtually everyone is concentrating on the issue of religious freedom and
the First Amendment to the Constitution. Even Judge Moore appears to
have done the same thing. Of course, the ACLU and their collective
flunkies have done the same in this and every other such controversy by placing
religion and the Establishment Clause squarely in their sights. It
appears that few in the assembled ranks of the legal community have done
much homework on this matter. Or, if they have, their work has not
made it very far into the arena of public discourse. It’s a shame,
because these cases present a unique opportunity in American legal and political
history. It is an opportunity for the states to take back their constitutional
rights, and to secure increased liberties for themselves and their citizens.
If we turn back the clock a few years we see clearly that the relationship
between the states and Washington, DC has changed substantially. In
fact, it was the competition among the states that made it necessary to replace
the Articles of Confederation with the Constitution. The Articles simply
didn’t have what was needed to deal with disputes between fractious governments.
The Constitution was intended to provide a central authority to deal with
these and other problems.
But the purpose of the Constitution was not to replace the independent state
governments. This was made abundantly clear by the Ninth and Tenth
Amendments, which states that powers not delegated to the United States are
reserved to the states or the people, and that the enumeration of certain
rights in the Constitution “shall not be construed to deny or disparage others
retained by the people.”
At late as the 1850’s the rights of the states to govern their own affairs
was generally taken for granted. The Tenth Amendment allowed the states
to trump federal law except where explicitly stated in the enumerated powers
of Article One, Section Eight. However, when abolitionism became a
major political concern it also presented a challenge to the concept of the
Union, and not just because the South favored retaining slavery. The
real issue was how to eliminate slavery without causing undue damage to the
southern states’ economies. An excellent exposition of the issues and
events of that time can be found in Emancipating Slaves, Enslaving Free Men: A History of the American Civil War,
by Jeffrey Rogers Hummel. Unfortunately, war ensued, and in the end
a mockery was made of several constitutional principles. The Supreme
Court, in Texas v. White, ruled that states could not leave the Union,
but cited no controlling authority other than their interpretation of the
authors’ intent. The Tenth Amendment’s delegation of this authority
to the people was never addressed, even though as part of the secession process
Texas held a popular vote which favored leaving the Union. A ceremonial
readmission was held for the former Confederate states after “reconstruction”
despite the fact that the Court had ruled that they never left, and the new
state of West Virginia was allowed to continue as a state separate from Virginia
proper; something which clearly violated the Texas v. White decision.
Once the high court found it possible to ignore the 10th Amendment, a process
of “self legitimization set in by which the federal courts and federal government
paid progressively less attention to the rights of the states. In effect,
the courts also ignored the 9th Amendment by construing the Constitution
to, first, mean things other than what was originally intended, and second,
to suit the purposes of political pressures and vocal trends in popular culture."
While the Bill of Rights may state expressly, “Congress shall make not law,”
the courts found it easy to make laws instead. This allowed the courts
and the rest of the federal government progressively greater power and was
a welcome development for virtually everyone in Washington, DC. Eventually
the states succumbed to a combination of court decisions and a stream of
federal monies obtained by way of the national income tax … with strings
attached, of course.
One of the few commentators who has recognized the importance of the Ninth
and Tenth Amendments to the issue of Judge Moore’s monument is Bruce Walker,
who noted that at one time individual states were not fettered with respect
to declaring state religions. Of course, if the people found it inconvenient,
they could move, as the Mormons did, going to Utah to avoid discrimination.
Ilana Mercer is another writer who has noted the Ninth and Tenth Amendment
connection, but she has done so by way of the Fourteenth Amendment, noting
how it was ratified without proper participation of the all of the states,
and how it has been used to justify the incessant growth of federal power
through the court system. The federal government became the entity
ultimately responsible for enforcing individual rights. Of this steady
progression the only thing which can be truly said is that the eventual destination
of the path the courts have taken is to make certain that everyone’s rights
are enforced by allowing no one any rights. Unless, of course, they
can claim to be victims of past bad acts by those currently in disfavor.
Judge Moore’s placement of the Ten Commandments monument in the court building
was certainly constitutional within the context of the original meaning of
the document, but not because of the First Amendment protections of religious
belief. It was the Tenth Amendment that granted the states the power
to regulate such things as morals, which clearly flow from religious faith
and the laws invoked by Biblical authority. It is merely the fact that
it has become unpopular to allow the states any say in such matters, along
with the seeming unquestionable authority that has been granted to the ACLU
to concoct trumped up lawsuits to destroy our American heritage that allows
this kind of thing to happen. One wonders what they will try next.
Removing all of the crosses (and other symbols) from military cemeteries
because they are federally owned land?
Alan Keyes, in an excellent analysis of the situation, has called for federal
law to exempt matters covered by the joint ambiance of the First and Tenth
Amendments from coverage by the federal courts, on the basis that such matters
are reserved to the people and the state governments. Keyes' approach
is a valid one, but it should not be necessary. The federal judges
should know that they are mistaken in these rulings. Besides, if anyone
truly looked into the minds of the founders of this nation, they would see
men who were religious, who intended to maintain a religious philosophy at
the heart of the governing process, and who placed the First Amendment protections
in the Constitution in order to prevent government interference with individual
observance; not to prevent people from placing religion in conjunction with
government function as a standard of justice which we should strive to emulate.
The intent was freedom of religion, not freedom from religion.
George Washington, John Adams, Thomas Jefferson, James Madison, Samuel Adams,
William Penn, Ben Franklin and Daniel Webster all cited religious principles,
including the Gospel of Jesus Christ, as foundation stones of the Republic,
and warned of the evil that would follow if these principles were abandoned
and unprincipled individuals placed in office. It is now time that
we re-examined the nature of our liberties, from whence they came, and the
limitations that have been placed on them in the name of freedom but in the
interest of increasing government power. Our children have been taught
that there is no divine origin to human morality, and perhaps that morality
itself does not exist. It is no wonder then that we can elect a Bill
Clinton to the White House, and nearly place an Al Gore in the Oval Office
If we neglect the success our ancestors achieved by virtue of their faith
and reliance on religious principles, then there is only one thing I can
say; “God help us, for we certainly won’t be helping ourselves.”
Anyone interested in a serious critique of the decision in Texas v. White may obtain one by emailing the author.
Steven Laib is a practicing attorney.