the shield of the law

In a discussion in the real world with Jason (who I might someday induce to guest post), I came down strongly in favor of the rule of law with respect to states' rights. I agreed with his case example of California defying federal law about medical marijuana, but on the whole I approach any such conflict from the a-priori assumption that federal law, especially when validated by a Supreme Court decision, trumps state and local. Jason took the opposite view, saying that such conflicts need to be approached from the state-primacy viewpoint. Ultimately we both agreed that regardless of how you approach an issue, it should still be possible to find agreement - for example, we both agree about California and marijuana, and about Alabama and the 10 (Protestant) Commandments.

But an article in World Net Daily by Alan Keyes really made an impact upon me. Speaking from a rigidly constitutional perspective, he made a compelling case in defense of Judge Moore. For context, here are the relevant Amendments:

Article 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

On to Keyes' analysis:

Taken together, therefore, the First and 10th Amendments reserve the power to address issues of religious establishment to the different states and their people.
The establishment clause of the First Amendment secures a right of the people. Until now, though, many have treated the first two clauses of the amendment as if they are one ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."). This practice ignores both the linguistic and the logical contrast between the two clauses. Where the first clause deals with a right of the people (that is, a power of government reserved to the states and to the people), the second clause deals with an action or set of actions (the free exercise of religion) that cannot be free unless they originate in individual choice. The first clause forbids Congress to address a subject at all. The second allows for federal action, but restricts the character of such action.

By virtue of the first clause, the states and the people as such are protected from federal domination; by the second, individuals are protected from coercion in their religious conduct. The first clause allows the states and the people as such to follow their will in matters of religion; the second guarantees the same liberty to individuals and the corporate persons they voluntarily compose. The first has as its object matters that are decided by the will of the people (i.e., by the will of the constitutionally determined majority in the different states). The second involves matters decided by the will of each individual.
As the U.S. Constitution is written, matters of religion fall into this category of parallel individual and governmental possibilities. Federal and state governments, in matters of religion, are forbidden to coerce or prohibit individual choice and action. Within the states, the people are free to decide by constitutional majority the nature and extent of the state's expression of religious belief.

This leaves individuals free to make their own choices with respect to religion, but it also secures the right of the people of the states to live under a government that reflects their religious inclination. As in all matters subject to the decision of the people, the choice of the people is not the choice of all, but of the majority, as constitutionally determined, in conformity with the principles of republican government (which the U.S. Constitution requires the people of each state to respect).
The Constitution reflects the view that the choice with respect to governmental expressions of religious belief must respect the will of the majority. Unless, in matters that should be determined by the people, the will of the majority be consulted, there is no consent and therefore no legitimacy, in government.

Though it may be argued that matters of religion ought to be left entirely to individuals for decision, this has the effect of establishing in the public realm a regime of indifference to religion. Thus, a choice of establishment is inevitable, and the only question is whether the choice will be made by the will of the people or not. The U.S. Constitution, being wholly republican, decides this question in favor of the people, but in light of the pluralism of religious opinions among the people, forbids any attempt to discern the will of the people in the nation as a whole.

By leaving the decision to the people in their states, and by permitting a complete freedom of movement and migration among the states, the U.S. Constitution offers scope for the geographic expression of this pluralism while assuring that the absence of a formal and legal expression of religious reverence on a national scale does not inadvertently result in the establishment of a national regime of indifference to religion.

When, by their careless and contradictory abuse of the 14th Amendment, the federal judges and justices arrogate to themselves the power which, by the First and 10th Amendments, the Constitution reserves to the states, they deprive the nation of this prudent and logically balanced approach to the issue of religious establishment.

Whether through carelessness or an artful effort to deceive, they ignore the distinction between the individual right to free exercise of religion and the right of the people to decide their government's religious stance. They have, in consequence, usurped this right of the people, substituting for the republican approach adopted by the Constitution an oligarchic approach that reserves to a handful of un-elected individuals the power to impose on the entire nation a uniform stance on religion at every level of government.

The right to decide the issue of establishment is a fundamental right of the people. It is also among the most likely to cause bitter and passionate dissension when the religious conscience of the people is violated or suppressed. That may explain why it is the very first right secured from federal violation in the Bill of Rights.

When they take this right from the people, the federal judges and justices depart from the republican form of government. They impose, in religious matters, an oligarchic regime upon the states. They therefore violate, in letter and spirit, Article IV, Section 4 of the U.S. Constitution. This section declares that "The United States shall guarantee to every State in this Union a republican form of government ..."

This is a tough article to excerpt. You really need to read it in its entirey (and yes, it's long) to get a full sense of the legal argument being made. Its way out of my league but I'm prepared to accept that Judge Moore did have at least a Constitutional interpretation that supported his view. Keyes goes on to argue powerfully that when a federal order violates the spirit and intent of the federal law (as Keyes argues that the order to remove the monument construed), there is a federally-derived responsibility for state and local actors to disobey on grounds of conscience.

This argument speaks powerfully to my sense of morality and civic justice - it appeals to my liberal instincts.

However, there is another side to this coin. David Neiwert, whose essay on Fascism (PDF) is absolutely required reading, has a relevant historical example of precedent in the South of defying court orders:

Consider, if you will, a tale from 1906: The lynching of Edward Johnson.

Johnson was a 23-year-old black carpenter who did odd jobs for friends at the Last Chance Saloon in Chattanooga, Tenn., who had the misfortune to be chosen almost randomly for a public lynching by the local white populace. Here is a nicely succinct version of the first round of events, from a review of a book (scroll down to "Lynching in Tennessee") about the case titled Contempt of Court: The Turn of the Century Lynching that Launched a Hundred Years of Federalism.
This was at the height of "the lynching era," that spate between 1890 and 1920 when racial violence inflicted by whites against blacks, all for the purposes of terrorizing them into submission, was not only common but positively celebrated as a form of the "popular will." Often these lynchings came at the end of spectacle trials in which blacks were swiflty convicted with flimsy or nonexistent evidence and then swept out into the public square by the vengeful mob.

Edward Johnson received this sort of "let's give 'em a fair trial afore we hang 'em" proceeding in court, swiftly convicted even though the only evidence against him was Nevada Taylor's half-hearted identification, though in fact she told police she wouldn't be able to identify her attacker positively because she did not get a good look at him. Johnson's substantial alibi evidence was dismissed. He was convicted and sentenced to death, but was whisked away to Knoxville before the crowd could stir to action.

Johnson's trial ran afoul of the U.S. Supreme Court because 20 years before, it had ruled that jury pools must contain African-Americans as well, while Johnson's jury pool excluded blacks. A courageous black lawyer named Noah Parden took up Johnson's case and pursued it all the way from state appeals courts to the Supreme Court, where he finally found a sympathetic ear in the person of Justice John Marshall Harlan, the "Great Dissenter."

On March 19, Harlan issued a stay of Johnson's pending execution and announced that the Supreme Court would hear his appeal. It announced that he was now a federal prisoner, and issued an order that he be remanded to federal custody.

But before that could happen, the mob struck. That very night -- with the collusion of the sheriff, who left only one man on duty to guard the jail -- Johnson was hauled out of the jail and lynched. They hauled him out to a bridge that had been the site of the last previous lynching in Chattanooga (in 1893). Here is how Philip Dray describes it in his profound and disturbing study of the era, At the Hands of Persons Unknown: The Lynching of Black America:

Slipping a rope around his neck, the mob demanded that Johnson confess, assuring him he had nothing to lose now by telling the truth. "I am ready to die," Johnson replied, adding:

"But I never done it. I am going to tell the truth. I am not guilty. I have said all the time that I did not do it and it is true. I was not there. I know I am going to die and I have no fear at all. I was not at St. Elmo that night. Nobody saw me with a strap. They were mistaken and saw somebody else. I was at the Last Chance Saloon just as I said. I am not guilty and that is all I have to say. God bless you all. I am innocent."

Someone fired a pistol, then a spray of bullets struck him. One shot split the tope and Johnson fell to the ground, where his body was fired into hundreds of times as it lay motionless on the ground. The mob then departed, leaving a note pinned on the corpse:

"To Justice Harlan. Come get your nigger now."

A last note: This case, as Contempt of Court goes on to explore, was at the root of the famed United States v. Shipp ruling.

This is the seamy underside of states' rights. And it provides an equally effective moral counter to Keyes' argument, because it emphasises that the only constant is the authority of law. Defying court order may be noble in some cases, but assuredly ignoble in others - and the only way to ensure justice is to work within the system. Justice in the broader sense, which occurs sometimes at the expense of justice in a specific case.

I don't shed any tears of sympathy for Justice Moore, and find his invocation of states' rights obscene, because it arises out of a craven desire for personal political gain rather than any true standard-bearing for religious freedom and proper accord of the 1st and 10th Amendments. Keyes may be correct in the letter of the law but the spirit has been violated, in the name of religion, wich offends me as much when it occurs in Christianity as when it occurs in Islam.

And my gut instinct that government, and the structure of law, provide a bulwark against evil has been validated again. Even if the implementation of that governance and the interpretation of that law is sometimes flawed. The alternative is a retreat from civilization, honor, and decency.

UPDATE: Matthew Yglesias writes:

You should know that Alan Keyes' defense of Roy Moore isn't nearly as strong an argument as you seem to think. What Keyes overlooks is that a long string of precedents have established the principle that the 14th Amendment's due process clause applies the same limitations to state government actions as the bill of rights applies to the federal government [emphasis mine]. It's possible to question the soundness of the reasoning that led to this doctrine -- it's called the "incorporation doctrine" -- as a matter of constitutional interpretation but it's very much a settled precedent and part of the positive law of the United States. If Keyes means that the courts ought to invalidate these precedents and put us back to the early 19th century view that we have no first amendment rights vis-a-vis state governments, he ought to come out and say so. The consequences of such a move would, however, be quite grave.

See the post by Jack Balkin, a professor of constitutional law at Yale Law School, for more on this subject.

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