Moore's Law

Terry Eastland | The Weekly Standard | Friday, February 20, 2004

Moore's Law

ROY MOORE, you will recall, is the former chief justice of the Alabama Supreme Court who last summer defied a federal court order to remove his hefty Ten Commandments monument from the rotunda of the State Judicial Building. The order eventually was carried out by the associate justices of his court. Since then, Mr. Moore, who later was removed from office by a state judicial ethics panel, has become a celebrity of sorts in some conservative circles, with talk that he even might run for president.

But before Mr. Moore's sympathizers begin ordering bumper stickers, they ought to consider a speech given earlier this month by William Pryor, the Alabama attorney general.

Mr. Pryor had a major role in Alabama's Ten Commandments drama. He thought the state had a duty to obey the injunction, and he urged the chief justice's colleagues to do that, notwithstanding his own view that there are ways of depicting the Ten Commandments in a courthouse that are constitutional. Mr. Pryor also represented the state in the ethics deliberation that resulted in Mr. Moore's removal.

While Mr. Moore and Mr. Pryor hold to the same Christian faith, they remain at odds on essential questions of duty and the rule of law. Both men can't be right. And in his speech, delivered to the Federalist Society of Harvard Law School, Mr. Pryor shows why Mr. Moore is wrong.

Mr. Moore criticized Mr. Pryor and other Alabama officials for failing to accept that they had a moral duty to acknowledge God that required them to join him in disobeying the injunction. Citing a number of New Testament texts, Mr. Pryor makes the theological argument that because God is sovereign and government exists by his will, "we have a moral obligation to obey the commands of our government" and that this duty, which is "for our protection and common good," isn't suspended "even when we believe its commands are unsound"--unless, of course, government should command a citizen to violate a Christian duty.

That didn't happen in the Ten Commandments case, says Mr. Pryor, who makes the obvious point that "Christ did not command us to maintain a monument of the Ten Commandments in the rotunda of the State Judicial Building."

To my mind, Mr. Pryor makes a convincing argument for why Mr. Moore should have seen his duty. But the Alabama attorney general also usefully addresses Mr. Moore's contention, made after the monument had been removed, that "if the rule of law means to do everything a judge tells you to do, we would still have slavery in this country."

The implication is that slavery ended as a result of defying a court's injunction. That isn't true. It took a long and bloody civil war and then the 13th Amendment to end slavery. Of course, there was a most noxious court decision that those events effectively overrode, Dred Scott vs. Sandford, which held that the Missouri Compromise unconstitutionally prohibited slavery in the territories and also that black people weren't citizens. But if you look at Abraham Lincoln's response to Dred Scott, as Mr. Pryor does, what you find is compelling instruction on how properly to respond to a court decision you think erroneous.

As Mr. Pryor explains, Lincoln argued that Dred Scott was wrongly decided, but the means of opposition he endorsed didn't include defiance of a final court order. Lincoln understood that the Constitution created a judiciary to decide disputes, that the parties to a lawsuit were obligated to adhere to court orders and that if they disobeyed the orders, the rule of law would be undermined. For Lincoln, the legitimate method of opposition was political - voters supporting the right candidates, representatives enacting the right laws, and judges in proper cases reversing erroneous decisions.

Perhaps the only good thing to say about a run for office by Roy Moore is that it would constitute the right kind of response - a political response - to the legal decision he thought wrong. Yet it is how he responded as a judge to that decision that will remain his regrettable legacy. Mr. Pryor's worthy speech is a reminder of where Chief Justice Moore's duty truly lay - and of what the rule of law fairly required.

Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.

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