A Call to Stand with Chief Justice Moore

By John Eidsmoe

Today I am writing to declare my belief that Alabama Chief Justice Roy Moore is justified in disobeying Federal Judge Myron Thompson's order to remove the Ten Commandments monument, and that public officials, pastors, and other citizens of Alabama and across the nation should come to Chief Justice Moore's defense. The storm of moral crisis has descended upon Alabama. Among the most vital issues facing American jurisprudence are (1) whether our legal system may acknowledge the Higher Law of God as the source and measure of our laws; (2) whether the establishment clause of the First Amendment prohibits the State of Alabama from acknowledging God and His law as the moral foundation of law; (3) whether the State of Alabama (and the 49 other states) are distinctive and viable entities in the American constitutional system or whether they are merely closely supervised subdivisions of a national government; and (4) whether it is ever appropriate to disobey the order of a federal judge. All of these issues come together in the Alabama Ten Commandments case, often cited as Glassroth v. Moore.

John Eidsmoe

I do not treat disobedience lightly. As a former prosecutor, a retired Air Force Lt. Colonel and Judge Advocate, and a Colonel and Chaplain in the Alabama State Defense Force, I strongly believe in the rule of law. The rule of law means we submit to lawful authority. But just as strongly, the rule of law means we resist unlawful authority. For the rule of law restrains both the people and their rulers. Where law does not restrain the people, the result is anarchy. Where law does not restrain the rulers, there is tyranny. Those who believe in the rule of law must be equally opposed to both. It is often said that a public official, especially a State Supreme Court Chief Justice, has a higher duty than others to obey the orders of a federal court, that civil disobedience may be an option for a private citizen but not for Chief Justice Moore. The exact opposite is true. State officials have a heightened duty to resist unlawful federal authority, and when they do so it is called interposition. Black's Law Dictionary, Fourth Edition offers the following definition: "Interposition. The doctrine that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government. The concept is based on the 10th Amendment of the Constitution of the United States reserving to the states powers not delegated to the United States. Historically, the doctrine emanated from Chisholm v. Georgia, 2 Dallas 419, wherein the state of Georgia, when sued in the Supreme Court by a private citizen of another state, entered a remonstrance and declined to recognize the court's jurisdiction. Amendment 11 validated Georgia's position. Implementation of the doctrine may be peaceable, as by resolution, remonstrance or legislation, or may proceed ultimately to nullification with forcible resistance. The Constitution does contemplate and provide for the contingency of adverse state interposition or legislation to annul or defeat the execution of national laws." In Re Charge to Grand Jury, Fed. Case No. 18,274 [2 Spr. 292]. Far from a radical doctrine, interposition is actually a middle ground position. Absolute submission to unlawful authority leads to and sanctions tyranny and oppression. Popular rebellion can lead to chaos and bloodshed. Interposition -- lesser magistrates, state and local authorities, placing themselves between their people and the higher magistrates or federal authorities -- is a moderate course that is less likely to result in either extreme. Interposition has a long tradition in Western law and has led to some of the greatest advances in constitutional liberty. Medieval theologians and philosophers who addressed and endorsed interposition include John of Salisbury (1030-85 AD), James of Viterbo (circa 1300 AD), and Thomas Aquinas (1225-1274 AD). Aquinas believed that "...the duty of obedience is, for the Christian, a consequence of this derivation of authority from God, and ceases when that ceases. But, as we have already said, authority may fail to derive from God for two reasons: either because of the way in which authority has been obtained, or in consequence of the use which is made of it." (Book 2, Commentary on the Sentences of Peter Lombard) When a ruler becomes a tyrant, his authority no longer comes from God and he becomes an illegitimate ruler. While it may be better to bear with moderate degrees of tyranny, Christians must stand against the ruler when his tyranny becomes excessive. But popular rebellion may have disastrous consequences: the ruler may suppress the rebellion and become more tyrannical than before, or those who overthrow him, fearing that others may do the same, become just as tyrannical as their predecessors. So what is the solution? Aquinas says, "...it seems that to proceed against the cruelty of tyrants is an action to be undertaken, not through the private presumption of a few, but rather by public authority." (Book 1, On Kingship) While continental theologians wrote about interposition, English theologians and nobles put interposition into practice. Since 890 AD England had been governed under the legal code of Alfred the Great, which began with a recitation of the Ten Commandments. But after the Norman Conquest of 1066 AD, Anglo-Saxons and Celts felt themselves oppressed under the more centralized Norman rule. Finally in the 1200s, chafing under the autocratic measures of King John, English leaders decided it was time to act. On August 25, 1213, a group of barons and bishops met at St. Paul's Cathedral in London. Stephen Langton, the Archbishop of Canterbury (also known for having divided the Bible into chapters), read to them the old Charter of King Henry, expounded to them the doctrine of interposition, and administered to them an oath that they would conquer or die in defense of their liberties and those of their subjects. Two years later, the barons and bishops commissioned Robert Fitz Walter as Marshall of the Army of God and Holy Church. On June 15, 1215, they met King John at Runneymeade and compelled him to either sign the Magna Charta or abdicate the throne. John signed, and the 63 articles of the Magna Charta constitute a founding document of English liberty. Its main significance, however, is not the rights it contains, which are simply the reassertion of the ancient rights of Englishmen against the encroachments of a Norman king, but rather the fact that the king was forced to sign against his will on threat of being overthrown. This was a constitutional crisis of the first order. It was handled by interposition -- and we have been blessed with the results for nearly eight hundred years. A century later the Scots practiced interposition against English rule under King Alexander, Malcolm Wallace, William Wallace, Robert the Bruce, and others. In April 1320 Robert the Bruce gathered the Parliament of Scotland at Arbroath Abbey, where they drafted and adopted the Declaration of Arbroath, in which they set forth their history as a free people until the usurpation of King Edward of England, and vowed that "...for, as long as but a hundred of us remain alive, never will we under any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom -- for that alone, which no honest man gives up but with life itself." (Scottish history and thought have greatly influenced America, especially Alabama where our state flag bears the St. Andrew's Cross. When the Scots again fought for independence in the 1740s under Bonnie Prince Charles and were brutally suppressed, thousands of them fled to America. A century later, the next generation of Scottish-Americans became leaders in the American War for Independence. The Mecklenburg Declaration, drafted in 1775 by a group of Scottish Presbyterian elders in North Carolina, bears striking parallels to the Declaration of Independence.) Reformation leaders followed and further developed the Catholic teaching on interposition. John Calvin declared that private individuals normally should not undertake the curbing of tyrants but should follow "popular magistrates" in doing so: "For when popular magistrates have been appointed to curb the tyranny of kings (as the Ephori, who were opposed to kings among the Spartans, or Tribunes of the people to consuls among the Romans, or Demarchs to the senate among the Athenians; and perhaps there is something similar to this in the power exercised in each kingdom by the three orders, when they hold their primary diets), so far am I from forbidding these officially to check the undue license of kings, that if they connive at kings when they tyrannize and insult over the humbler of the people, I affirm that their dissimulation is not free from nefarious perfidy; because they fraudulently betray the liberty of the people, while knowing that, by the ordinance of God, they are its appointed guardians." (Institutes of the Christian Religion, Book 4, Chapter 20, 1559 AD) Other Reformation leaders who articulated the doctrine of interposition were John Knox, father of the Presbyterian Church (1505-72 AD), the French Huguenot author of Vindicae Contra Tyrannos (1579 AD) who used the surname Junius Brutus, and Scottish theologian Samuel Rutherford in Lex Rex (1644 AD). Among Catholic and Protestant theologians alike, I am just barely skimming the surface because of time and space constraints. In the 1600s, while the English colonies of North America were being planted and populated, England herself was locked in a struggle between the Puritans in Parliament and the Stuart kings. The common perception that the Stuarts believed in the "divine right of kings" is simplistic. Both sides believed governmental authority comes from God; the issue was lines of governmental authority. The Stuart kings believed God gives authority directly to the king. The Parliamentarians contended that God gives governmental authority to the people, who delegate that authority to lesser magistrates (local earls, sheriffs, barons, members of Parliament), and they in turn delegate authority to the king. That being so, they insisted, the king is answerable to the parliament, and the parliament in turn is answerable to the people. Through decades of struggle, the Parliament practiced various forms of interposition: negotiation, legislation, litigation, agitation. Twice they took interposition further, trying and convicting King Charles I of treason and executing him in 1649, and deposing James II in the bloodless Glorious Revolution of 1688 and forcing him to flee to France. The following year the English Parliament reaffirmed the ancient God-given rights of Englishmen in the English Bill of Rights of 1689. And as the struggle for liberty waged in England, the American colonists looked on with approval. Nathaniel Hawthorne captured their spirit in his short story, The Gray Champion. Less than a century later it was America's turn. Believing the English king and Parliament were usurping their rights and the autonomy their colonial charters had guaranteed to them, the colonists came together in the first Continental Congress of 1774. On October 14 they issued their Declaration and Resolves that "...The good people of the several colonies...justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies to meet, and sit in general Congress...in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted." After two years of futile attempts to practice moderate forms of interposition and resolve their differences with England, in 1776 the Continental Congress adopted the Declaration of Independence. Perhaps the best-known document of interposition in history, the Declaration proclaims that the American colonies are entitled to independence by "the Laws of Nature and of Nature's God." It sets forth the basic "unalienable rights" endowed "by their Creator," proclaims that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." The Declaration then claims: "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." The Declaration cautions that established governments should not be changed for light and transient reasons: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them to absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." The Declaration then sets forth a list of grievances that, taken together, establish that George III has exercised tyranny over the colonies and concludes that "A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people." The Declaration proclaims that "these United Colonies, are and of Right ought to be free and independent States," appeals to "the Supreme Judge of the world for the rectitude of our intentions," rests "a firm reliance on the protection of Divine Providence," and the signers close by pledging "our Lives, our Fortunes, and our sacred Honor." Think for a moment. Suppose liberty's champions of the past had believed that one should never resist higher authority. Archbishop Langton would never have forced King John to sign the Magna Charta, the Scots would not have fought for independence, the Glorious Revolution would never have taken place, the English Bill of Rights would never have been drafted, and we today would still be subject to the English king. But they believed in interposition. Alabama has an unprecedented opportunity to stand in the gap with Chief Justice Moore and resist this federal usurpation of state authority and federal dismantling of America's biblical heritage. If the Governor, the Attorney General, and the eight Associate Justices had stood with Chief Justice Moore, if Governor Riley had issued the call on statewide television for Alabamians to come to the Judiciary Building by the thousands to stand against the removal of the Ten Commandments, if the pastors of Alabama had joined in calling upon their parishioners to respond with a massive but peaceful protest, Judge Thompson could not have enforced his order, and the federal judiciary would have had to retreat. In the crisis that is upon Alabama today, pastors have a special responsibility to inform their people and inspire them to action. Lord Acton observed, "...when Christ said 'Render unto Caesar the things that are Caesar's and unto God the things that are God's,' He gave to the State a legitimacy it had never before enjoyed, and set bounds to it that had never yet been acknowledged. And He not only delivered the precept but He also forged the instrument to execute it. To limit the power of the State ceased to be the hope of patient, ineffectual philosophers and became the perpetual charge of a universal Church." During the American War for Independence, America's clergy led the way for their people to become involved. In Boston the 'Father of the American Revolution,' Sam Adams, proclaimed independence, and he was echoed by the 'Black Regiment,' the black-robed New England clergy who preached independence in pulpits throughout New England. Throughout the colonies, clergy of many faiths called upon their parishioners to answer their country's call. Today Alabama faces a constitutional crisis of similar proportions: Are we subject to the higher Law of God? Or is law simply what the government says it is? Are human rights unalienable because they are the gift of our Creator, or are they simply negotiable privileges that government can give or take away at will? There is no such thing as a lost cause until the last chapter of history has been written. Various new legal moves are underway, and the Spirit of God is at work. But regardless of the outcome of this case, we must take a stand for what is right. A century from now, as Americans seek to put the pieces together and rediscover the moral foundation of law, they will remember what we did in Montgomery in that hot summer of 2003. And as my wife reminds me, God will remember even if no one else does. And in the evening of your life, when your grandchildren ask what you did during the constitutional crisis over the Ten Commandments, what will you tell them? "For if thou altogether holdest thy peace at this time, then shall there enlargement and deliverance arise to the Jews from another place; but thou and thy father's house shall be destroyed: and who knoweth whether thou art come to the kingdom for such a time as this?" Esther 4:14 John Eidsmoe is a Constitutional Law Professor at the Thomas Goode Jones School of Law in Montgomery, AL, a Retired U.S. Air Force Lt. Colonel - Alabama State Defense Force, author of Christianity & the Constitution: The Faith of Our Founding Fathers, and member of the Ten Commandments Legal Defense Team in litigation involving Chief Justice Roy Moore of Alabama.