“Jurisdiction-Stripping”: Roy “Ten Commandments” Moore Is Back With His Constitution-Defying Tricks
Roy Moore, Chief Justice of the Alabama Supreme Court, best known for his flouting of the Establishment Clause for refusing, in 2003, to remove a 2.6 ton Ten Commandments monument from the Supreme Court building, is now questioning the jurisdiction of federal courts to decide the constitutionality of same-sex marriage bans.
After Moore was removed from the bench in that same year, he ran for governor several times and flirted with running for president. He won reelection to the Alabama high court in 2012.
Writing to Alabama Governor Robert Bentley today, Moore complains that last week’s federal court ruling striking down Alabama’s ban on same-sex marriage “has raised serious, legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment.” In the letter, Moore warns that local clerks who issue marriage licenses to same-sex couples will be “in defiance of the laws and Constitution of Alabama.”
Moore is attempting to argue for jurisdiction-stripping, a maneuver to deprive a federal court (despite what is required in the Constitution itself) of the ability to decide questions of federal Constitutional law. Moore, of course, cannot do this unilaterally; like his Ten Commandments stunt, he would be in defiance of the federal Constitution with his antics. All his efforts, and all his appeals to religion, can’t change the simple fact that under the Constitution, federal courts, not state courts, decide matters of federal constitutional law.
But Moore believes the Bible trumps the Constitution (or at least his version of the Bible). As Julie Ingersoll has observed, “Moore’s underlying philosophy of law is that only God and the Bible can be the source of moral authority.”
This wouldn’t be the first time that Moore has attempted (utterly unsuccessfully, I might add) to shut down a federal court’s constitutionally-granted jurisdiction and authority over constitutional matters, as I noted in 2011:
After Moore was stripped of his judgeship for defying a federal court order to remove his monument, [his lawyer, Herb] Titus drafted the Constitution Restoration Act, which would have deprived federal courts of jurisdiction in cases challenging a government entity’s or official’s “acknowledgment of God as the sovereign source of law, liberty, or government.” The bill, which did not pass, nonetheless had nine Senate co-sponsors and 50 House co-sponsors; including House Majority Leader Eric Cantor, Bobby Jindal, now the governor of Louisiana, Nathan Deal, now the governor of Georgia, and Mike Pence, a conservative hero who’s now running for governor of Indiana.
Moore argues in his letter to Bentley today that “The laws of this state have always recognized the Biblical admonition stated by our Lord,” citing Mark 10:6-9 (“But from the beginning of creation God made them male and female. . . What therefore God hath joined together let not man put asunder.”)
When others, like Mike Huckabee, speak loosely of the Supreme Court lacking the authority to decide whether same-sex marriage bans violate the Constitution, it stems from the ideology of Moore and his ilk: that despite what the Constitution says, the Bible comes first. Something tells me, though, Moore’s new stunt won’t fare much better than his last.
By: Sarah Posner, Religion Dispatches, January 27, 2015
“A Disingenuous Waste Of Everyone’s Time”: Tea Party’s Constitution Fraud; Why The Movement’s “Devotion” Is A Situational Sham
I’m hardly the first to make this point, but because it’s such a popular rhetorical tactic in our politics, it bears repeating: Policy arguments that focus on form and process instead of substance are, with notably rare exceptions, a disingenuous waste of everyone’s time.
For example: Because Republican politicians have so often worked themselves into high dudgeon over the way the Affordable Care Act cleared the U.S. Senate, a casual observer could be forgiven for assuming that opposition to reconciliation is a bedrock principle of modern-day conservatism. It is not. But arguing that the other side isn’t playing by the rules is sometimes easier, politically, than engaging in an actual policy debate — especially if your preferred policy is to allow insurers to deny sick children coverage and to renege on guaranteed healthcare for millions.
Confusing the issue is even more of an imperative if your chosen policy on a hot-button issue like immigration is to either maintain an unpopular status quo or to deport more than 11 million. And that, essentially, is the position congressional Republicans find themselves in right now, which was made crystal clear in the House on Wednesday, when the vast majority of GOPers voted to repeal President Obama’s recent unilateral moves to reduce undocumented immigrant deportations. It wasn’t much of a surprise, then, to see Speaker John Boehner try to frame the vote as having little to do with immigration policy per se, and everything to do with reversing an “executive overreach [that] is an affront to the rule of law” and a threat to the Constitution.
That said, the vote happened less than 48 hours ago. So, yes, I am a bit taken aback by a report from Politico that shows the Republicans’ facade of Constitution-fetishism and fealty to tradition has already crumbled. But that’s the unavoidable conclusion to be drawn from the article, which offers a preview of the agenda House Tea Partyers plan to unveil to their fellow Republicans during a GOP-only retreat. It’s an agenda that, in two key respects, has the ultimate goal of amending the Constitution.
One of the proposed amendments, Politico reports, would force the federal government to balance the budget, something conservatives have been trying, to no avail, to pass for decades. It’s a terrible idea, but it’s also pretty ho-hum at this point, too. However, their other proposal for how to make a document they usually speak of as nearly biblical in its sanctity even better is newer — and if it were to be accepted by anyone in the party outside its Tea Party fringe, it would represent a significant nativist shift on immigration from the GOP. It’s a proposal to tweak that pesky 14th Amendment in order to combat the phantom menace of “anchor babies” and end the long-standing U.S. practice of birthright citizenship. Needless to say, Steve King, the leader of what pro-immigration reform GOP aides derisively call the “boxcar crowd” (as in, they want to round the nation’s undocumented immigrants into boxcars for eventual deportation), is leading the charge.
Obviously, I’m not a fan of this ambitious plan to literally change the definition of who is and is not an American. But I don’t oppose it because I think the Constitution is sacrosanct or anything like that. (In fact, I’m sympathetic to those who argue that the Constitution could use a serious update.) Instead, the reason I dislike the Tea Party’s plan to amend some amendments is because I disagree with them on the substance. In my mind, the United States’ historically complicated but occasionally liberal approach to immigration is one of the strongest points in its favor; I think we need more immigration, not less. And I believe to change the Constitution so the definition of Americanness becomes more rooted in bloodlines and less rooted in simple geography — to, in effect, make it harder instead of easier to be an American — is the wrong thing to do, both symbolically and on the merits.
Admittedly, as a lefty, I don’t have to shoulder the burden of reconciling my policy preferences with my devotion to tradition and adhering to process for its own sake. The Tea Party and the GOP in general, on the other hand, are not quite as liberated. I seriously doubt that recognizing the blatant hypocrisy of deifying a centuries-old blueprint, while simultaneously urging it to undergo major revision, will disabuse these conservatives of their self-perception as the Constitution’s true friends. If that were to happen, if the right agreed to give up complaints about process arguments and simply argue for policy on its own terms, they’d likely find themselves frequently at a disadvantage. Because just like repealing Obamacare without replacing its most popular elements, booting millions of men, women and children out of the country is a political nonstarter.
By: Elias Isquith, Salon, January 16, 2015
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