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Under the Rule of Law or of Man?

[COMMENT:  This is an extremely important principle.  The piece below is excellent.

It should be noted that being under the rule of law logically requires that we be under the rule of God.  Why?  Because there is only one law, the law of God.  No human law can transcend the law of God.  Even more, no human being, apart from the authority of God, can obligate another human being.  All authority comes from God.  If there is no God, there is no authority.  Hence, without God there is no government -- apart from coercion.  That is tyranny, not law.    E. Fox] 

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Below is a new opinion article by Judge Roy Moore. You can view a printer-friendly version with graphics at http://www.judgeroymoore.net/pdfs/Vol1No7.pdf.

Rule of Law

At the entrance to Washington Hall at the United States Military Academy at West Point, New York-my alma mater-is "Constitution Corner." Located adjacent to a statue of George Washington riding a magnificent stallion, Constitution Corner reminds visitors and cadets of the purpose of the academy: To provide leaders "of principle and integrity so strong that their oaths to support and defend the Constitution will unfailingly govern their actions."

The plaque on Constitution Corner, entitled "Loyalty to the Constitution," informs all who visit there that the "United States boldly broke with the ancient military custom of swearing loyalty to a leader. Article VI require[s] that American Officers thereafter swear loyalty to our Basic Law, the Constitution." Article VI of the Constitution is also binding on all executive, legislative, and judicial officials of both the state and federal governments.

[COMMENT:  In a God-less world, the strong man will always replace God as the bringer of order and peace out of chaos.  Power politics is the only way the God-less world has to go.  It is typical of every civilization outside of Biblical civilization.   E. Fox]

Article VI provides that "this Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." In other words, the Constitution is our "rule of law," and all judges are bound by solemn oath to its clear meaning and its express terms, which no judge can alter or disregard.

That is exactly the principle stated on the plaque at Constitution Corner at West Point. It states: "Our American Code of Military Obedience requires that should orders and the Law ever conflict, our officers must obey the law."

When people who are sworn to support the law disregard it and issue orders which they think are "the law," we are governed by the rule of man, not the rule of law! The United States did break boldly with ancient customs and practices on July 4, 1776, when it declared independence from Great Britain and established a nation under the authority of the "Laws of Nature and of Nature's God."

When Thomas Jefferson and other founders bravely proclaimed in 1776 that "the History of the present King of Great Britain is a history of repeated Injuries and Usurpations all having in direct Object the Establishment of an absolute Tyranny over the States," they were stating that King George III had placed himself above the law and had become a tyrant. The authors of the Declaration of Independence then enumerated in that document violations committed against the colonies, appealing to the "Supreme Judge of the World for the Rectitude [righteousness or correctness] of [their] intentions."

The "rule of law" was the very basis on which our founding fathers rejected the rule of King George and declared independence from Great Britain. They recognized that the biblical admonitions of the thirteenth chapter of Romans required obedience to authority, but they also recognized that no man, no king, no prince, and-I might add in my case-no federal judge, could place himself above the law he is sworn to uphold, or above God upon Whom he takes his oath. The founders rejected the rule of man!

In 1750, Reverend Jonathan Mayhew stated in a sermon that "all commands running counter to the declared will of the supreme legislator of heaven and earth, are null and void: And therefore disobedience to them is a duty, not a crime." Rev. Mayhew went on to say, "as soon as the prince sets himself up above the law, he loses the king in the tyrant: he does to all intents and purposes unking himself..."

When a military commander, a president, or a federal judge sets himself above the law, he has no right to be obeyed; he, in effect, "unkings" himself. Or, in the case of a federal judge he loses his judicial mantle and becomes a tyrant.

In 2003, Federal Judge Myron Thompson ordered me to remove the monument of the Ten Commandments from the Judicial Building in Montgomery because it acknowledged God. I refused to follow an order which conflicted with the U.S. Constitution. Judge Thompson's order also required me to violate my conscience and my oath to the Constitution of the United States and the Constitution of the state of Alabama. Judge Thompson placed himself above the law.

That is precisely why I could not remove the monument: to do so would violate my oath and my conscience. To recognize man as sovereign would be a violation of the first commandment (see Exod. 20:3) as well as the First Amendment to the United States Constitution.

How have we been led to believe that we must follow the Constitution as the law unless and until a federal judge issues an order contrary to the law to which we are bound? The unwillingness of judges to follow the Constitution according to its express meaning and clear interpretation is the problem in our government today.

The crucial point is that our written Constitution-this nation's fixed, fundamental law-is synonymous with the rule of law. The framers recognized that people in power are prone to abuse it, so they sought to, in the words of Thomas Jefferson, "bind them down from mischief by the chains of the Constitution." Enumeration of the powers of the federal government in the Constitution shows that those powers are "few and defined," as James Madison stated, holding the government accountable to the people, who can point to the written Constitution for proof of government abuses of power.

In Cooper v. Aaron in 1958, the United States Supreme Court claimed for the first time that "the federal judiciary is supreme in the exposition of the law of the Constitution." From that day, federal courts have presumed that their rulings were equivalent to the Constitution, "the supreme law of the land"; and for the most part, lawyers and laymen throughout the country have accepted this as the truth.

The Supreme Court in Cooper was wrong. The Constitution is the rule of law for the courts just as much as it is for Congress and the state legislatures. Judges cannot be above the Constitution that they are sworn to support. If what the federal courts say really is the supreme and final word on what the Constitution means, then the courts are the supreme law, making "the constitution, on this hypothesis, a mere thing of wax in the hands of the judiciary," as Thomas Jefferson warned. Under the guise of interpreting the Constitution, the federal courts have violated every principle of the rule of law, removing all permanence or stability there from. For nearly two hundred years no "right" to an abortion existed, but in 1973 the United States Supreme Court invented one in Roe v. Wade. Similarly, for the last five thousand years of civilization homosexual sodomy has been shunned by society and the law. But the Supreme Court in 2003, looking for guidance to the laws and court decisions of the United Kingdom and the European Court of Human Rights, "discovered" that a right to engage in homosexual activity was protected by the Constitution in the infamous case of Lawrence v. Texas. The Court had come to the exact opposite conclusion seventeen years earlier in Bowers v. Hardwick.

The Constitution itself has not changed in these areas over the last two centuries, but the ideology of the Supreme Court and lower federal courts certainly has. Because we have exalted the Supreme Court as the gatekeepers of our laws, there is no stability or permanence to our law. The Supreme Court and lower federal courts make decisions based on their feelings rather than the words of the Constitution, defying the meaning of "the rule of law" and making judicial decisions nearly impossible to predict.

The "opinion" or ruling of a court deserves obedience only if it is supported by the law. A court decision not grounded in the Constitution does not merit the respect we owe to the law. Such a decision is nothing more than a judge's opinion based on a whim, not on the law that "we the people" agree to be governed by as a nation.

One might ask, how can the court system function properly if a lower court judge refuses to obey the orders of a higher court? It is quite simple. A higher court may always order a different result in a particular case, but it cannot order the lower court judge to violate his oath to the Constitution or his conscience. For example, under Alabama law, a minor who becomes pregnant and wants an abortion without her parents' consent may receive a judicial waiver of the parental consent requirement.1 But what if a judge, who cannot in good conscience allow the minor to abort her child, denies the minor the waiver and on appeal the higher court reverses the decision? Alabama law provides that the higher court may simply grant the waiver itself or order the lower court to grant the consent waiver by a certain date and time; but if the lower court does not grant the waiver by the deadline, then a judgment granting the waiver is automatically rendered by the higher court.2 By this procedure, the higher court achieves the result it desires but without forcing the lower court judge to violate his conscience-and certainly without removing the judge from the bench.

In my case, Judge Thompson could have ordered the Ten Commandments monument to be removed by commanding a ministerial officer (one not sworn to uphold the Constitution) to carry out the order. But he did not have the authority to order me to remove the monument. It still would have been an unlawful order, but a violation of the oath of office would not have been implicated. This method of resolving such disagreements between a higher court and a lower court judge preserves the integrity of the Constitution, our rule of law.

As a cadet at West Point and a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depend on strict adherence to the chain of command. That principle of obedience to superiors is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.

We as Americans must recognize that the federal courts are now making rather than interpreting the law, that those courts are not the supreme and sole arbiters of the law, and that surrendering to such tyranny affirms the rule of man rather than the rule of law on which America was founded. If we fail to do that, we will suffer grave consequences. Unchecked power cannot remain in judicial hands for too long before it is abused.

The prophet Zechariah warned his generation that "they should hear the law" (Zech. 7:12). Because the previous generations of Israel had failed to adhere to the law, God had "scattered them with a whirlwind among all the nations. . . . Thus the land was desolate after them, that no man passed through nor returned: for they laid the pleasant land desolate" (Zech. 7:14).

If we do not adhere to the rule of law and instead continue to blindly follow judicial orders that veer from the Constitution and our moral foundation, we as a nation may also be scattered to the whirlwind, having made this pleasant land desolate.

Adapted from Chapter 19 of Judge Roy Moore's book, So Help Me God (Broadman & Holman Publishers, 2005).

1. Ala. Code of 1975 26-21-4.
2. See Ala. Code of 1975 12-22-70; In re Anonymous, 905 So. 2d 845, 851 (Ala. Civ. App. 2005); In re Anonymous, 684 So. 2d 1337, 1338 (Ala. Civ. App. 1996); see also Ex parte Anonymous, 810 So. 2d 786, 795 (Ala. 2001) (entering judgment granting waiver of parental consent).

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