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Going to Hell over the Ten Commandments
08/27/2003

I'm in a close place about one aspect of the Ten Commandments controversy.

It took me a moment, after thinking to write that sentence, to remember where the wording came from, and once I remembered, I realized that the relevance to the topic at hand is much more than linguistic. It's from the pivotal moment of Huck Finn:

It was a close place. I took it up, and held it in my hand. I was a trembling, because I'd got to decide, forever, betwixt two things, and I knowed it. I studied a minute, sort of holding my breath, and then says to myself:

"All right, then, I'll go to hell" — and tore it up.

All his life, Huck has been taught that slaves are property. Therefore, helping a slave to escape would be akin to theft, a sin. He can obey the law as he understands it, which he believes to have God's approval, or he can reject the law and offend God. Of course, the reader is supposed to realize that the laws permitting slavery, being immoral, are not in line with God's will, and that there is a higher moral law that he would be obeying by helping Jim to escape.

The reason I'm in a close place is that I agree with Rush Limbaugh that it sets a dangerous precedent for Judge Moore to disobey a higher court on the basis that he is following God's law. No, says Rush, take down the monument and take up the fight to work within the system for the same effect. This could include appealing to higher authorities within the government, whether higher courts or Congress, to rein in courts that have stepped beyond their boundaries. It could also include perpetuating the ideals denoted by the Ten Commandments apart from Roy's Rock.

On the other hand, I see more than a little merit in what Alan Keyes suggests after showing that it is clearly the intention of the Constitution and the Bill of Rights that matters of public religion be left to the states:

Now, the 14th Amendment to the U.S. Constitution, as it applies the Bill of Rights to the states, lays an obligation upon state legislatures, officers and officials to refrain from actions that deprive the people of their rights. With respect to the First Amendment, therefore, it becomes their positive obligation to resist federal encroachments that take away the right of the people to decide how their state governments deal with matters of religion. This obviously has a direct bearing on the case of Chief Justice Roy Moore in his confrontation with the abusive order of Judge Myron Thompson.

His refusal of the order is not only consistent with his duty to the Alabama Constitution, it is his duty under the Constitution of the United States. Alabama Attorney General Bill Pryor, the eight associate justices of the Alabama Supreme Court, and indeed any other state officials in Alabama who submit to the judge's order are, by contrast, in violation of the federal Constitution, as well as their duty to the constitution and people of Alabama.

In this view, Judge Moore, as a public official of the state of Alabama, has a moral and legal obligation to assert the rights of his state even in opposition to a federal court, not based on God's law, but based on Constitutional law. That it is a federal court that is usurping the state's authority only goes to show the difficulty that a state would have in working within the system to assert its rights. What if, for example, a federal court insisted that the state of Alabama incarcerate all conservatives? Or what if a federal court insisted that the state of Alabama release all of its convicted murderers? Shouldn't the public officials of Alabama refuse to comply? It seems obvious that there are scenarios in which, while working toward peaceful resolution of differences, affairs ought to be left in a state of civil disobedience.

In this Ten Commandments scenario, there may indeed have been better ways for Moore to deny the federal government's jurisdiction. For example, it might have made his point stronger and more specific had he refused to submit to a federal court for judgment at all. And compliance is hardly as urgently dangerous as it would be if the judgment had meant roving packs of convicted felons on the streets. Alan Keyes actually suggests that Congress "pass legislation that, in order to assure proper respect for the first clause of the First Amendment, excepts from the appellate jurisdiction of the federal courts those matters which, by the conjoint effect of the First and 10th Amendments, the Constitution reserves to the states respectively and to the people."

Although such legislation strikes me as redundant — like passing a law that requires people to obey the law — I would support it. I am not, however, optimistic at the chances of making the argument to an American citizenry that has, over years of eroded principle, come to see the judiciary's word as gospel. How many Americans are even aware that Congress has the authority to declare that the judiciary has been exceeding its jurisdiction for years and must cease to do so? Perhaps a state leader's direct and visible rejection of the rapidly expanding purview of the federal courts will serve to direct people's attention to the facts that (1) there is a legitimate conflict, and (2) there is already a mechanism to resolve it.

Be the specifics of Moore's case what they might, I can't help but feel that Limbaugh and other conservatives overestimate the possibility of asserting federalism from within the federal government. That just doesn't seem to be how these things work. More likely, federalism will require states to reaffirm the belief that they are, indeed, independent entities participating in the United States. This could begin through a state judge's rejection of a federal court's authority over him on a matter of religious expression, but it will require larger numbers of a given state's government than just one man to declare their intention, if obeying the federal government is a moral obligation, to go to hell.

Posted by Justin Katz @ 03:26 PM EST