The following is a very interesting and valid argument for action by one branch of the government as opposed to another. The Marbury case could well be used, validly, in protecting our 2nd Amendment rights at some time in the future.
Battle Over 10 Commandments Highlights Need for President's Intervention
U.S. Federal courts have ordered the Chief Justice of the Alabama State Court to remove a monument inscribed with the 10 commandments from the Alabama State Supreme Court building.
This order by the federal courts is another sign of (1) creeping federalism and (2) a hostile effort by anti-Christians to drive every element of religion as far out of society as possible even to the extent of denying that our culture grew out of a Judeo- Christian world view.
In my opinion, the best solution to this and other attacks is not another appeal to the Supreme Court but action by the Bush Administration.
Below is my open letter to Chief Justice Moore explaining the importance of this alternative.
Please forward this to your friends and associates and ask the President to guarantee religious freedom in America.
RE: Ten Commandments monument and an appeal to President Bush
Dear Chief Justice Moore,
You are certainly very busy, but I hope you will take a few minutes to consider this rather bold and novel proposal.
In regard to U.S. District Judge Myron Thompsonís order to remove the Ten Commandments monument, you will do more to help this country out of the quagmire of federalism through court edicts by writing an appeal to President George W. Bush rather than to the U.S. Supreme Court.
Simply ask the President this: will he send in federal troops to enforce an abysmal interpretation of the Constitution on the State of Alabama and your high court? Will he use federal law enforcement or treasury deparment personnell to sieze property or assets in payment of the fines the federal courts have ordered to impose their decree? If his response to these questions is "no," as it should be, than any further judicial appeals are moot and a waste of taxpayer dollars.
In presenting this inquiry, please remind President Bush that each of the three federal branches of government are equally bound to uphold the Constitution, and equally bound to uphold their understanding of the Constitution. Therefore, the president is obligated by his oath of office to direct the executive branch to refuse to undertake any action which violates the Constitution, even if directed to do so by a federal court.
Remind him that the underlying principle of Marbury v Madison is that one branch of the federal government cannot instruct another branch to undertake an act that violates the Constitution.
As Iím sure you will recall, in Marbury v Madison, the Congress passed a law to extend the powers of the Supreme Court to act as a trial court to order a government official to do what his job required of him. The Court refused to do so on the basis that the Congress could not extend an authority to or obligation on the Court that exceeded those provided by the Constitution. From this ruling developed the wide spread view that the Supreme Court is the final arbiter of the Constitutionís meaning.
But the reasoning in Marbury also would require that the executive branch should refuse to enforce judgements by federal courts which would involve the executive branch in any violation of the constitutionally protected rights of states and individuals. Just because a federal court offers an argument for its opinion that is couched in an interpretation of the Constitution, as a coequal and independent branch of the government the executive branch is independently obligated to abide by the Constitution as it is understood by the president.
More pointedly put, if a federal courtís arguments are not solidly grounded in the plain meaning of the Constitution, but are instead a creative attempt to legislate from the bench, the president has an obligationógrounded in the presidentís own oath to uphold the Constitution, not renegade judicial rulingsóto refuse to enforce judicial orders which are, at the very least, arguably unconstitutional and in conflict with the presidentís own understanding of his obligations and duties under the Constitution.
That reflects the true meaning of Marbury. Our system of constitutional of checks and balances requires each branch of government to respect the other branches but not to be ruled by the other branches. Each federal branch has a duty to uphold the Constitution and to protect the rights of the states and the people. And the two important checks on the federal judiciary are that it does not have its own police force nor the keys to the federal treasury.
Unconstitutional orders from the federal judiciary are only dangerous if the executive branch ignores its duty to exercise it duties under the Constitution to protect state and individual rights and instead slavishly obeys the orders of the judiciary. Obviously, the check on the presidentís ability to ignore federal court orders is also limited, first by Congress and then by the people at the polls. In practice, I believe that conflicting interpretations of the Constitution by the Supreme Court and the President should be resolved by Congress enacting a bill identifying one or the other interpretation as binding on the federal courts on its basis to regulate the courts provided in Article 3, Section 2, paragraph 2. An interplay of court rulings, executive orders, and acts of Congress which would follow conflicts over interpreting the Constitution would provide a very appropriate means of dialogue and compromise that would leading to a final governing interpretation that is most reasonable to the people. Until two or more of the branches were in agreement, the situation would be no different than when two or more federal appellate courts are in disagreement on how to interpret the Constitution and are waiting for direction from the Supreme Court.
Some will complain that what I am counseling will lead to a constitutional crisis. My response is we already have a constitutional crisis. Federal judges, including the Supreme Court, no longer limit themselves to interpreting the law but are unduly anxious to create laws reflecting their own personal convictions and beliefs through creative interpretations of the Constitution. The logic offered to justify these interpretations is often ludicrously weak and clearly odds with the original intent the Constitutioní s articles when they were adopted. What I am proposing is the solution to the crisis we already have.
Social engineering and legislating from the federal bench must be stopped, or at least curtailed. This can done simply by electing a president who recognizes his coequal authority as a sworn defender of the Constitution and has enough spine to tell the courts: "Send in your own troops. Weíre not going to enforce court orders which are clearly unconstitutional. To do so would place my Administration in violation of my oath to uphold the Constitution."
We as individuals and states have a right to develop and reinforce our own culture. Part of that culture is a respect for God, the Bible, and the Ten Commandments. Secular humanist judges who want to strip God out of the Pledge of Allegiance and out of our public buildings are trying to use the courts to force our culture into an atheistic mold. Enough is enough.
Please consider bypassing, at least for now, an appeal to higher federal courts. Appeal instead, by an open letter, to President Bush. Ask him if he is prepared to send in the troops to haul off your monument if this order to remove it is upheld by the Supreme Court. Tell him that you appeal directly to him to know if it is worth the continued waste taxpayer dollars on appealing this ridiculous suit. Tell him that this is an ideal time to send a message not only to federal circuit court judges, but to the entire federal judiciary, that the executive branch is not the judiciaryís lapdog.
By taking this initiative, and publicly appealing to President Bush to announce his intent to enforce or ignore a federal court ruling to remove your monument, you will single handedly compel the Administration to take a stand or admit that it is a lapdog. Your decision to do this will restore the right of the people, through their elected president, to reject judicial activism and reaffirm the original intent of the Constitutionís provisions, including the right to value and express religious views in the public sphere.
This is exactly the right time for the President to intervene, and exactly the kind of outlandish case where exercising his right to intervene would generate maximum public support. (His statement should also make clear that he will never authorize government troops or law enforcement officials to enforce a court order banning our school children saying "under God" as part of their Pledge of Allegiance.)
Thank you for your consideration of my suggestion. Unless you request that I not make this letter public, (perhaps to avoid a distraction from a public letter to President Bush that you will be sending) I intend to forward this to the media late next week in the hope that it will spark a public discussion of this issue.
By the way, I forgot to say thank you for your effort to show respect for the role the Ten Commandments have played in our culture and law.
With great respect I am yours,
David C. Reardon, Ph.D.
The flag represents a living country and is itself considered a living thing.
The only criminal class native to the United States is Congress.
Marlin, thank you for a very thought provoking read. This is the kind of thinking that will help put our country back on the right path. Let's hope that this will find its way to President Bush's in basket. Thank you.
Well apparently Federal military forces are not needed. Yesterday a bunch of cops arrested Justice Moore's supporters who were positioned around the monument. They even arrested an old woman in a wheelchair.
It just goes to show that there really is no separation anymore between Federal, State, and local law enforcement. They all serve the same master.