Revolution and "The Rule of Law"

The Chief Justice of the Alabama Supreme Court placed a monument of the Ten Commandments in the state courthouse, and a federal judge ordered them removed. This in a formerly Christian nation whose First Amendment says that the federal government

shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

There can be no doubt about this: the Constitution would not have been ratified if the states perceived that the newly-created federal government would have the power to order the states to remove all copies of the Ten Commandments from the public square. No doubt whatsoever.

It must be remembered that the Ten Commandments are the basis of America's legal system. Only by appreciating that fact can we appreciate the evil of the most recent decisions to remove the Ten Commandments from the public square.

The banning of the public display of the Ten Commandments should force some serious re-thinking about what it means to be an American. Unfortunately, it has not spurred much thinking at all.

Ironically, most "conservatives" have come out against Judge Roy Moore.

Below is an article by David Limbaugh, Rush Limbaugh's brother. David Limbaugh's columns can be found at, JewishWorldReview, NewsMax, and WorldNetDaily. His recent book, Persecution: How Liberals Are Waging War Against Christianity, is an excellent survey of the anti-Christian hostility of the liberal media and government. He is certainly not unaware of the war on Christianity being waged by the ACLU and other liberals. But when push comes to shove, he sides with the ACLU and "the establishment."

A Clashing of Principles and Jurisdictions

Our Response on the Right

by David Limbaugh
Posted Aug 26, 2003 

Human Events Online 
The National Conservative Weekly Since 1944

While everyone is focusing on the propriety of Alabama Supreme Court Justice Roy Moore's refusal to remove a Ten Commandments monument from his courthouse, we are giving the federal courts a pass -- and we mustn't. The recent anti-Christian decisions of federal courts are completely and utterly unconstitutional. These courts have no jurisdiction at all in the area of religion, and the position they take in an area over which they have no jurisdiction is completely contrary to their oath of office. The oath to "support the constitution" taken by federal judges includes an "affirmation of [our] 'organic law.'"[1] Our "organic law" includes the Declaration of Independence and the Northwest Ordinance. Both of those documents clearly endorse belief in God, and the latter declares that
Religion, morality, and knowledge [are] necessary to good government and the happiness of mankind
Undeniably, the federal constitution's Supremacy Clause makes the federal constitution and constitutional federal laws supreme over state constitutions and laws and binding on state judges. If a federal judge issued an order purportedly binding on all the states that all churches must be closed,[2] would the "supremacy clause" make that decision binding on the states? Not a single person who signed the Constitution would agree with that claim. Every one of them would say such a federal judge should be resisted.

What is the "supreme law" in America? The Constitution? No, this is a nation "Under God." The nation was created "appealing to the Supreme Judge of the world for the rectitude of our intentions." We are a nation that recognizes the supremacy of "the Laws of Nature and of Nature's God."

So should our analysis end here? That's what some conservative pundits are saying. The federal courts have ordered Justice Moore to remove the monument under authority of the United States Constitution, which is the supreme law of the land. The U.S. Supreme Court is the final arbiter of what the Constitution means, having arrogated to itself that authority in 1803. Since the high Court declined to hear the case, the ruling of the 11th Circuit Court of Appeals ordering Judge Moore to remove the monument now stands. Thus, Justice Moore must comply, notwithstanding his belief that to do so would violate his oath of office affirming that the state government was established under God. Judge Moore took a solemn oath to God to acknowledge God publicly and defend the Alabama constitution. Limbaugh says Judge Moore should violate his oath to God in order to obey an unconstitutional ruling by a federal judge. This is idolatry. This is putting a federal judge above an oath to God.
This is a very difficult case for me because my sympathies are with Justice Moore, yet I am also a staunch believer in the rule of law -- and an equally strong opponent of anarchy. Anyone who believes in "the rule of law" must see the Constitution and the rule of law being overthrown by anti-Christian judges. Judge Moore is acting to restore the rule of law.

Limbaugh contrasts "the rule of law" and "anarchy." This is a false antithesis. One can have an extremely complex and powerful apparatus of "the State" (which would stand in stark contrast to "anarchy") and yet this state machine could be based entirely on the arbitrary whim of a monarch or an army of bureaucrats, none of whom are bound by law or principle. On the other hand, a system of "anarcho-capitalism" might be devoutly bound to "the Laws of Nature and of Nature's God" with private courts and market-driven institutions which follow the Ten Commandments and the rule of law. Such a state of "anarchy" is much closer to the libertarian theocracy of the Founding Fathers than the judges Limbaugh defends.

This shows that Limbaugh is in essence not a defender of "the rule of law," but a defender of "the State" at all costs.

My allegiance to the rule of law leads me to believe that we cannot permit a state court judge -- no matter how righteous his cause -- to violate federal appellate court rulings. He should vigorously oppose the wrongheaded feds at every phase and exhaust all possible remedies, but once they are exhausted, he must obey. Our entire system of ordered liberty depends on the integrity of our legal system, which in turn depends on government officials, especially judges, obeying the law. Indeed, state judges also take an oath to uphold the federal constitution. Again, it is not Limbaugh's allegiance to "the rule of law" which leads him to his conclusion, because it is federal appellate court (and Supreme Court) rulings which are arbitrary and could not have been predicted by the Framers of the Constitution. They are destroying "the rule of law."

Our system of liberty depends on the morality of the Ten Commandments, not the "integrity" of the legal system. A legal system which is at war with morality cannot maintain its integrity. Ask "the man on the street": our legal system has no integrity. More important, ask God: our legal system has no integrity. If Limbaugh is saying our legal system has integrity, not a single person who signed the Constitution would agree with him. Not one.

Notice that Limbaugh is arguing in a complete circle: even if the divine foundation for law and order is repudiated by the courts, and judges violate their oath of office and rule based on fiat and whim, our legal system depends on government officials obeying these unconstitutional lawless rulings. Limbaugh is not defending  justice, he's only defending power.

The Pharisees of Jesus' day paraded their defense of "law and order" before the public but were exposed by Jesus:
"You're hopeless, you religion scholars and Pharisees! Frauds! You keep meticulous account books, tithing on every nickel and dime you get, but on the meat of God's Law, things like justice and compassion and faith -- the absolute basics! -- you carelessly take it or leave it. Careful bookkeeping is commendable, but the basics are required."
Matthew 23:23 [MSG]
As a legal scholar, Limbaugh is a Pharisee. He's protecting the outward form without the substance.

On the other hand, our liberties also depend on two other very important concepts that are at issue in this case. The Framers believed that our Constitution was grounded in the principles of the Christian religion and that without that foundation neither our Constitution nor the liberty it guarantees could survive. Justice Moore is fighting laudably to preserve that tradition. On what grounds was the American Revolution fought? A 3% tax rate? We pay ten times that amount today. The Constitution would not have been ratified if there had been a perception that the federal government had been given the power to order the states to remove all copies of the Ten Commandments from public view. Everything America stood for as a Christian republic is under attack by the judges Limbaugh defends. The ACLU and the judges in their pocket represent a far greater threat to liberty, order, and the rights of man than King George III ever did.
The Framers also believed that liberty could best be achieved and sustained through a system of federalism -- which they quite specifically established, dividing governmental power between the federal and state governments. To be sure, they made the federal government supreme as to those matters on which they conferred it authority -- but the 10th Amendment expressly reserved the balance to the individual states. Not a single person who signed the Constitution would agree that Judge Thompson's arbitrary, lawless, unconstitutional and anti-Christian decrees should be obeyed.
Justice Moore is aware that the federal courts have egregiously exceeded their authority, usurping power properly reserved to the states. He is fighting to preserve the principle of federalism in furtherance of the cause of liberty.  
Here's where it gets messy. I'll say.
The First Amendment contains two religion clauses, the Establishment Clause: "Congress shall make no law respecting an establishment of religion"; and the Free Exercise Clause: "or prohibiting the free exercise thereof." The federal courts have ordered Justice Moore to remove the monument on the grounds that it constitutes an unconstitutional establishment of religion.  
Their ruling is flawed on a number of grounds, but unfortunately seems to follow the precedent of earlier lamentable Supreme Court decisions. As you can see, the Establishment Clause, on its face, prohibits only the U.S. Congress from "establishing" a religion. Sadly, the Supreme Court has repeatedly held that the Establishment Clause is also applicable to state governments through incorporation in the Due Process Clause of the 14th Amendment. The abuses outlined in the Declaration of Independence also followed the precedents of earlier lamentable decisions of the Crown.
But the 14th Amendment was never intended to make the federal Establishment Clause binding on the states. Nor did the Framers intend that the Establishment prevent the federal government, much less the states, from all support for religion. See details here.
Supreme Court Chief Justice Joseph Story wrote, "Thus, the whole power over the subject of religion was left exclusively to State governments, to be acted on according to their own sense of justice and the State Constitutions." And, "Probably, at the time of the adoption of the Constitution, and of the (First Amendment), the general, if not universal, sentiment in America was that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation." More evidence here.
The federal courts have greatly eroded states rights and religious freedoms through renegade decisions in the most cynical tradition of judicial activism. So while our federal law is certainly entitled to supremacy, at what point do citizens stand up and say that federal courts have claimed supremacy in areas over which they were never given authority? What can be done about their obscene misinterpretations of the Constitution? That point has long been passed.
Congress could selectively limit the Court's jurisdiction. And, we should fight for constitutionalist federal judges with the courage to preserve our religious liberties. In the meantime, we should honor the Court's rulings. This is like saying that America should not have declared independence from King George III, on the ground that Parliament might have restrained his abuses.
Copyright 2003 HUMAN EVENTS. All Rights Reserved.



1. Cole v. Richardson, 405 U.S. 676 at 682, 92 S.Ct. 1332 at 1336, 31 L.Ed.2d 593 (1972), citing Ohlson v. Phillips, 304 F.Supp. 1152 (Colo. 1969). [return to text]

2. On what grounds could a judge possibly order the closing of all churches? On the grounds that by allowing them to exist the government was "establishing a religion." In Santa Fe v. Doe, the Supreme Court held that high school students are not allowed to publicly pray before a football game because if the government permits such student-initiated prayer, that's an "establishment of religion." The Court said:
Regardless of whether the prayers are selected by vote or spontaneously initiated at these [football games], school officials are present and have the authority to stop the prayers
The new rule appears to be:  If a school official sees that prayer is about to take place and does not actively intervene to stop it, the school is guilty of "establishing a religion."

Similarly, if government officials passively allow churches to exist, then they are "establishing a religion." Right? Why not? So if local authorities, wishing to avoid an ACLU lawsuit, closed down all churches, and a federal judge upheld that law, would Limbaugh say "the rule of law" was threatened if people resisted the judge and went to church anyway? [return to text]

To his credit, David Limbaugh has more recently taken a stand contrary to the "Rule of Law" liberals, by questioning the results of the Rule of Law in the Terri Schiavo case. It is not clear whether Limbaugh would, if Governor of Florida, walk into Schiavo's hospice room and defy "the Rule of Law" by giving her water or food as commanded by Christ.