Ever since Judge Roy Moore won the Republican Senate primary in Alabama, there has been endless virtue signaling and handwringing over his “dangerous” disregard for court rulings.
Yet, he was the canary in the coal mine, as he warned that if we are to give a lowly federal district judge the ability to rule that our history, tradition, natural law, and Constitution are “unconstitutional,” there is nothing a judge can’t do (and no purpose to federalism and the separation of powers).
Once again, a federal judge in Pennsylvania proves this warning to be ever prescient as he “struck down” the Lehigh County flag, which contains a Christian cross. On Thursday, Judge Edward Smith of the Eastern District of Pennsylvania, an Obama appointee, ruled that, based on “precedent,” the Christian cross contained in the official flag and seal of Lehigh County violates the Establishment Clause of the First Amendment.
While he seemed to indicate he personally believes it doesn’t violate the First Amendment, he incoherently hid behind phony precedent to say that it is incumbent upon defendants to show that the symbol has a secular purpose; otherwise, it is endorsing Christianity.
But even if one agrees with the unconstitutional “Lemon test” (whether the government is “endorsing” religion) that the judge used, a basic flag such as this is clearly not an endorsement of anything potent — rather, a symbol of the county’s founders. Are we going to deny that the entire state of Pennsylvania was founded by Quakers and expunge any of their symbols from state figures and property?
What’s next? Are they going to attack the official seal of Puerto Rico? It has a pictorial presentation of Jesus as the lamb of God with references to John the Baptist in Latin:
Obviously, anyone with even rudimentary knowledge of the First Amendment knows that the Establishment Clause was designed to do the exact opposite. In fact, it was to prevent even the elected branch of the federal government from violating the religious practices of the states, much less the unelected federal judiciary running rogue shot over states.
As Clarence Thomas wrote in his partial concurrence in Town of Greece v. Galloway, “[A]pplying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby “prohibit[ing] exactly what the Establishment Clause protected.”
Yet, here we have the Freedom from Religion Foundation, a Wisconsin-based atheist group, scandalously obtaining standing to sue a Pennsylvania county and get a federal court to erase the heritage of the state that has been there since the founding (this particular symbol for 70 years).
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Freeze frame right here: This is exactly the point of Judge Moore — no branch of the federal government or state is the supreme law of the land. The Constitution is the supreme law of the land. Even unelected federal judges have an obligation to uphold the Constitution. But certainly the other branches of government — which wield more robust power — do.
That is the entire rationale of judicial review. Thus, if one believes that a specific precedent (in this case, all sides agree it’s very dubious and muddled anyway) is unconstitutional, the judge has an obligation, pursuant to his oath of office, to uphold the Constitution.
Furthermore, this is a perfect example of what distinguishes the “judicial power” of “cases and controversies” from the power of a super-legislature with final and exclusive jurisdiction over every political and social issue in the country.
A court can only adjudicate a case with valid standing that has a re-dressable grievance; a court cannot rule on a policy and most certainly not on an inanimate object. There is no reason anyone should get standing to sue in this case. If you don’t like the flag of the county, then go and petition your county government to change it. For out-of-state groups to get standing in a federal court is beyond the pale.
This is not the system of government we adopted 230 years ago. A court doesn’t have veto power like an executive outside of a valid case with a legitimate grievance — and most certainly can’t actively demand a county redraw their flag. Why even have state governments if we are going to grant a judicial veto to unelected judges over every state symbol, much less state policy?
It’s one thing for a federal court to stay an individual execution based on ridiculous logic. Even if a state judge or state official disagrees, nobody will suggest they actively execute the guy in contravention to the court ruling. But for a federal judge to demand that a replica of the Ten Commandments or a state flag be ripped down, there is no reason to actively obey it.
These judges should be impeached, their jurisdictions should be stripped, and the other government officials have an obligation – the same obligation that serves as the basis of Marbury v. Madison – to follow the Constitution, not the unconstitutional order.
The judicial war on God and America’s heritage has only gotten worse since Judge Roy Moore originally warned about it in 2003. We are strangers in our own country. According to Madison, the Establishment Clause merely prevents the federal government from choosing an official state religious denomination and coercing individuals by force of official penalties “to worship God in any manner contrary to their conscience.”
Now we have the weakest and unelected branch of the federal government establishing a secular theocracy, ripping up symbols, banning public prayer, redefining marriage, and coercing individuals to violate their consequence with their private property. (Oh, but these same federal courts are saying the Establishment Clause undermines the sovereignty of America and forces Congress and the president to bring in Somali immigrants.)
In case the political class, including phony conservative bloggers, are baffled by the anger of the people and the appeal of someone like Roy Moore, maybe they should start paying attention to this growing war on America’s history, culture, heritage, and founding documents.
In a twist of irony, this federal judge, although appointed by Obama, was originally a Republican and had more Republican support in his Senate confirmation because of a deal between the two Pennsylvania senators. Democrats actually thought he was too conservative. Indeed, he claims to personally believe the flag doesn’t violate the First Amendment but then goes out of his way to use mental gymnastics to say he is bound by precedent.
Folks, this is exactly what distinguishes the phony “respectable” Republican judges from people like Judge Roy Moore. While they give lip service to the Constitution and then join along and even expand unconstitutional precedent that violates our foundation, Judge Moore will actually live by his oath of office.
Editor's note: Daniel Horowitz has endorsed Roy Moore for Senate for Alabama.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.
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