A question for haters of Judge Roy Moore at National Review: If a lower federal court rules that your publication is unconstitutional, will you shut it down?
Our history is unconstitutional
Earlier this month, a three-judge panel of the Fourth Circuit, which has been on a rampage lately, sided with the radical district judge in Maryland who ruled that a 92-year-old WWI memorial is “unconstitutional” because it has a cross. This solemn tribute to our WWI veterans, which has sat at an intersection in Prince George’s County, Maryland for longer than anyone can remember was suddenly scorned because it “excessively entangles the government in religion,” according to two of the three judges. The 40-foot memorial was built in 1925 by the American Legion to honor the 49 residents of PG County, Maryland, who died in WWI, but has been on state-owned land for about half a century.
All three judges were Democrat appointees, but Judge Stephanie Thacker’s opinion, which was joined by Judge James Wynn, was too much for Judge Roger Gregory, a Clinton appointee, who sharply dissented. “I cannot agree that a monument so conceived and dedicated and that bears such witness violates the letter or spirit of the very Constitution these heroes died to defend,” wrote the chief judge of the panel. Well, believe it, Mr. Gregory. This is just the beginning.
James Wynn is the same judge who decided to commandeer North Carolina’s election law and invalidate every map and voter integrity law as racist.
As we’ve noted throughout the past year, the Fourth Circuit has been out of control and is now rivaling the Ninth as the most anti-American panel. The court has granted rights to immigrate, dramatically abused rules of standing, enshrined transgenderism, barred public prayer, and erased the Second Amendment.
So now, Somali Muslims have a religious liberty right to come to America, yet American Christians can’t honor their war dead with symbols that have been a part of the country’s landscape since the Founding. There is a constitutional right for a male to use a female bathroom and for someone who is mentally ill enough to pursue castration to demand a place in the military, but there is no constitutional right to carry a firearm.
Smart-set conservatives whine about lawless judges, but then crown them king
Now, let’s return to the plethora of National Review writers who complain about judicial tyranny but offer no solutions other than obsequiously complying with their every whim. They have been trashing Roy Moore every few days as “unfit for office” because, among other things, he declined to follow a lawless court order. Wasn’t he the canary in the coal mine in the case of the Ten Commandments? If a district judge could grant standing to random plaintiffs to sue against the existence of an inanimate object, a clear violation of their judicial power, and then supplant the First Amendment, there’s nothing a court can’t do. So, in this case, would they say the state of Maryland should rip down this 92-year-old memorial for an opinion that is manifestly lacking any force of law and is an anathema to our Constitution and heritage?4
Many will say, “Well, let’s see what the Supreme Court has to say.” Fine. Let’s say the Supreme Court upholds the Fourth Circuit’s decision. Or what if it narrowly reverses but continues to allow lower courts to attack many other symbols, as it has done for decades with its meandering and incoherent jurisprudence on the Establishment Clause? Should Maryland hire a hauler and get rid of the monument?
Those who argue this way are ignorant of the difference between judicial review and judicial supremacy. Courts have the power to grant relief to legitimate plaintiffs who have valid grievances that can be redressed by the relief within the power of the court. For example, a court can stay an execution. Even if the executive branch in a state or federal government strongly disagrees with that decision, nobody would suggest they actively execute the man in contravention to a judicial order. But what if a court places a positive on the negative action of states or other branches of the federal government and demands that they issue a visa they don’t want to issue or rip down a monument? Should the other branches violate their oaths of office to the Constitution and use executive powers to actively comply with an order issued without a legitimate case or controversy?
John Marshall already answered that question in Marbury vs. Madison. The very source of judicial review as a co-equal branch of government is a repudiation of judicial supremacy.
States and other branches of federal government cannot abide by unconstitutional rulings
Every high-ranking state and federal official swears an oath to uphold the Constitution — the same oath taken by federal judges — no more, no less. In justifying why federal courts should have concurrent (not exclusive) jurisdiction over constitutional interpretation instead of upholding even unconstitutional laws passed by the legislature, Justice John Marshall pointed to this very oath. “How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!” declared an indignant Marshall in his famous Marbury opinion. In defense of judicial review, Marshall rhetorically asked, “Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?”
Well, as state officials swear the same oath and wield even more robust power than judges, don’t they have the same obligation to use their powers to counter the courts when the courts impose the most unconstitutional social changes imaginable? Changes to our law and society that violate the foundation of natural law and nature’s God to whom that oath is directed?
This is why the Congressional Research Service, the research arm of the legislative branch, stated in a recent report that the federal courts were never intended to wield “a final or even exclusive role in defining the basic powers and limits of the federal government.” They observed that, “[T]o the contrary, the early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.” The report concludes that it was the complacence of Congress over the past half-century that allowed the judiciary to declare itself supreme to the other branches and to the Constitution.
Now more than ever, therefore, shouldn’t we strive to elect state and federal officials who will uphold their oaths of office? If we are going to allow the courts to declare our Constitution unconstitutional, what is the purpose of elections?
This is exactly what Roy Moore did twice as the elected chief justice of the supreme court of Alabama. Yet the smart-set conservatives spit on him. But I don’t hear them offering any solutions for dealing with the lawless courts.
Editor’s note: Daniel Horowitz has endorsed Roy Moore for Senate in Alabama.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.