The Rule of Law? by Stephen Erwin

The Rule of Law?

By Stephen Erwin

January 15, 2004

Judge Roy Moore was dismissed from the Alabama Supreme Court on the grounds that he had violated the "rule of law". His crime was his failure to honor an order from a federal judge that required him to remove a Ten Commandments monument from the Alabama state court building. The Eleventh Circuit Court of Appeals upheld this action and the U.S. Supreme Court refused to accept the case. All of which leads us to ask what is actually meant by the term "rule of law"?

Those opposed to Judge Moore apparently feel that a blind acceptance of any Court decision is required by the rule of law. Dr. Martin Luther King might have been inclined to debate that position. And, like King, Judge Moore had the courage to put his career and his future on the line for his convictions.

The existence of a written Constitution implies by its very nature that the letter of the written law is the basis for a legitimate rule of law. The inclusion in that document of a specific and extremely difficult method of amending the Constitution implies that only that method may be used to change its meaning.

In 1803 in Marbury v. Madison the great Chief Justice John Marshall declared that the Court had the power to rule laws unconstitutional. He said "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if those limits may, at any time, be passed by those intended to be restrained." He further stated that "it is apparent that the framers of the constitution contemplated that instrument, as a rule for the government of the courts, as well as the legislature." Obviously the only legitimate rule of law is that based on the written law, not the whims of judges.

Unfortunately today the official Court doctrine of stare decisis finds in favor of the courts over the actual written law. Stare decisis is Latin meaning "to stand by that which is decided." "It is . . . a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy . . . 'is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.'" (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.)

The original doctrine was never intended to prevent re-examining bad decisions. However, modern usage assumes that virtually all decisions are well-founded, unbiased legal decisions, rather than political decisions. They are presumed to have the authority of the "letter of the law" on which they are based. This is compounded when a precedent is based upon layer after layer of bad precedents. The doctrine also tends to give great weight to the opinion in the case. Often an opinion is treated as though it was law, even though only the order and findings have the actual force of law. This means that an unconstitutional decision can create a set of legal precedents that greatly exceed the "letter of the law" and which become superior to the law itself. In effect it has meant that liberal judges can reverse the Constitution itself, but conservative judges are bound by liberal precedents.

Suppose that a new Constitutional Amendment declared that wearing black t-shirts was unconstitutional. Let us further suppose that the Supreme Court decided that there was a compelling governmental interest in banning red t-shirts, so they arbitrarily rule that red t-shirts are also banned by the Amendment. There would obviously be no legitimate basis in the law for this decision. But under the doctrine of stare decisis the decision becomes superior to the written law and is not supposed to be questioned or debated by future courts. If you are caught wearing a red t-shirt you can now be arrested and sentenced to jail even though you could never learn about this ban by reading the law. It is buried somewhere in a decision written by a court which does not even have the constitutional authority to write a law.

Judge Moore held in his Eleventh Circuit Court appeal that the First Amendment bans any "law respecting (regarding) an establishment of religion". The judge correctly points out that "because of its "no law" language, the First Amendment proscribes only laws" and his monument was not a law. The Eleventh Circuit totally failed to provide a reasonable explanation of how or why his position was wrong. Their only answer was to say that precedent (state decisis) requires "seperation of church and state" and to express horror that "if we adopted his position, the Chief Justice would be free to adorn the walls of the Alabama Supreme Court's courtroom with sectarian religious murals and have decidedly religious quotations painted above the bench. Every government building could be topped with a cross, or a menorah, or a statue of Buddha, depending upon the views of the officials with authority over the premises. A crèche could occupy the place of honor in the lobby or rotunda of every municipal, county, state, and federal building."

These judges have completely forgotten that an independent and impartial judge is bound to interpret the law and let the legislature correct any problems that may result from a fair interpretation of that law. Political correctness is simply not within the official purview of our courts.

"The seperation of church and state" is a concept that is not found anywhere in the Constitution. It is just one of many red t-shirts invented by our courts. And as long as we allow our imperial judiciary to ban red t-shirts there will be no legitimate "rule of law".