A few good men: 8 Alabama judges rally to Roy Moore's side
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A few good men: 8 Alabama judges rally to Roy Moore's side

Posted December 21, 2016 06:00 AM by Daniel Horowitz Book on flag
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Roy Moore, chief justice of the Alabama Supreme Court, has been persecuted for being one of the few judges in America to take his oath to “support the Constitution of the United States” seriously. An oath which, by the way, is sworn to God — the source of natural law and inalienable rights.

After standing alone for so long, a group of sitting and retired judges have joined his legal fight.

Judge Moore and the Constitution on trial

As we reported in October of this year, the Alabama Court of the Judiciary, at the behest of the Southern Poverty Law Center, suspended Judge Moore from the Alabama Supreme Court for a guidance he issued to state probate judges informing them of Alabama state law and settled precedent from the state’s supreme court regarding marriage licenses. Even though there was no allegation of corruption and the panel lacked unanimous support to remove Moore — which is required by state law — they removed him in all but name only. They suspended him without pay for the remainder of his term, installed a new chief justice who then fired Moore’s staff, but still kept him as an official sitting judge in the sense that he is unable to obtain other employment and earn a living.

Moore appealed his case to the Alabama Supreme Court, but given that they are all his colleagues and this case would have posed a conflict of interest, the appeal was outsourced to an ad hoc panel of retired judges vested with the power of the state’s highest court. Now, after a period of appalling silence from Republicans in the state, a group of eight judges have filed an amicus brief in support of Moore’s appeal.

In their amicus brief, the judges make the point that the Alabama Court of the Judiciary clearly violated the rules of disciplinary action by essentially removing Moore without the required unanimous vote. In addition, they opined that as sitting judges they all have reason to fear disciplinary action for simply for issuing legal opinions in political disputes rather than the traditional ethical violations that engender such action.

“Also, the severity of the punishment for the Chief Justice’s administrative speech in this particular case calls for modification by this appellate court lest judges misperceive that their judgment and the expression of that legal judgment must comport with a particular political and religious viewpoint, even when they state a valid, though arguable, point of law,” wrote the group of judges in the amicus brief.

Let’s not forget that Judge Moore was elected. Unlike with federal judges — such as Justice Anthony Kennedy, who get involved in political decisions but don’t stand for reelection — Moore stood for reelection after fighting lawless federal courts on the Ten Commandments 13 years ago. If people don’t like his political views, they could have voted him down, but that should not warrant removal from office.

The oath of office matters 

More importantly, Judge Moore swore an oath to uphold the federal and state constitutions. And pursuant to both documents, the state of Alabama has plenary power over marriage. As chief justice of the Alabama Supreme Court, he was allowed to give guidance based on the true law of the land in Alabama. There is no ambiguity in this case as to who has the Constitution on his side. Kennedy overturned decades of settled law in Obergefell, including his own Windsor opinion just two years prior when he said emphatically that states have control over defanging marriage.[1] At the time the Fourteenth Amendment was ratified in 1868, most states had laws outright banning homosexual acts, and certainly never fathomed recognizing them as marriages. Irrespective of one’s view on the morality of the issue, there is no way a reasonable person can say that the Constitution forces a state to uproot the marriage laws they’ve had since the founding.

Yet, Anthony Kennedy, in the notorious 23 words that will forever change our system of governance, reduced the Constitution to his private insidious interpretation: “and so [through the 14th Amendment] they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we [meaning: federal judges] learn its meaning.”

As we explained yesterday, constitutional interpretation was given over to every elected state and federal official as well as the courts, especially state supreme court justices. The entire foundation of the U.S. Supreme Court’s power to get involved in constitutional interpretation as opposed to merely interpreting statute is built upon Marbury v. Madison. In Marbury, Chief Justice Marshall said that it would be “immoral” and “a crime” to issue an opinion contrary to the Constitution. This point holds doubly true for state judges like Roy Moore who swear an oath to “support the Constitution of the United State of America, and the Constitution of the state of Alabama…so help me God.”

Even in ambiguous cases, a state judge has the right to adhere to the conscience of his oath, but in this case there is no ambiguity where the federal and state constitutions stand with regards to a state’s power to define marriage. And there is certainly no ambiguity as to where God stands on this issue relating to the foundation of natural law, which is the source of inalienable rights. Those rights were bastardized by federal judges whose sole power of judicial review, in the view of John Marshall, comes from the oath they swear to the very same God.

It’s heartening to see other judges join the battle for the Constitution with Roy Moore and not cede it to the federal judiciary. The Constitution is of no single individual’s private interpretation, especially when it comes from unelected officials who blatantly mock its authentic interpretation. As Madison said, “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” It’s time for officials from the other branches to get on the playing field and save our Constitution from the judicial oligarchy.

Closing thought: as conservatives, we are tired of being betrayed by pseudo-conservatives in the Senate. Wouldn’t Roy Moore make a great senator to replace the great Sen. Jeff Sessions, R-Ala. (C, 78%)?

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.