THE RULE OF LAW can vanish without anybody noticing. In America, when law professors say, "rule of law", they ordinarily mean "rule of judges". What this means is that they refuse to acknowledge that what judges say the law is and what the law really is can be different, and that judicial behavior can violate the rule of law.
A case in point is the Judge Moore controversy over the 10 Commandments in Alabama. Judge Moore, of the Alabama Supreme Court, put up the 10 Commandments in his courthouse. Some lawyers objected, and got a federal judge to issue a court order telling Judge Moore to take down the 10 Commandments. He refused. Is he violating the Rule of Law?
Judge Moore seems to have made rather lame excuses for his behavior, which is odd
because there are simple and good reasons for it. The 11th Circuit
opinion ruling against him says, with amazing candor,
The First Amendment does not say that no government official may take any action
respecting an establishment of religion or prohibiting the free exercise thereof. It
says that "Congress shall make no law" doing that. Chief Justice Moore is not Congress.
Nonetheless, he apparently recognizes that the religion clauses of the First Amendment
apply to all laws, not just those enacted by Congress. See Everson v. Bd. of Educ., 330
U.S. 1, 15, 67 S. Ct. 504, 511 (1947) (holding that the Establishment Clause applies to
the states through the Due Process Clause of the Fourteenth Amendment).
What is amazing is that they actually quote the Constitution and note that it lets Judge
Moore off the hook. They follow that, however, by saying that although the Constitution
does not prohibit his behavior, the 1947 Supreme Court did-- and Judge Moore agrees with
that!
To appreciate the divergence here between the rule of law and the rule of judges, you
need to see the full Constitional clauses that are cited. Here is the
1st Amendment.
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.
As you can see, the 1st Amendment plainly applies only to the federal government, not to
the states. Indeed, it was passed precisely to prevent behavior by the federal
government such as the 11th Circuit is engaged in-- imposing federal religious policy on
the states-- and when the 1st Amendment was passed, more than one state had an
established, official state religion.
But did the 14th Amendment change all that? Section 1, the Due Process Clause cited in
Everson, says
No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
Clearly there is nothing about establishment of religion here. In fact, this amendment
was passed to prevent Southern states from oppressing blacks and Northerners. It doesn't
seem to say that state judges cannot post the 10 Commandments in their courthouses, any
more than it says they must provide air conditioning or tasteful artwork to soothe the
troubled minds of attorneys practising there.
But the Supreme Court said in Everson that the 14th Amendment implies that no state can pass a law establishing religion. (Even if that were so, it still wouldn't take the argument all the way up to banning the 10 Commandments, since "establishment" has a technical meaning: that the state not only endorses a religion, but pays for buildings and employees for the religion. When the Church of England was disestablished in Ireland and Scotland, nobody thought that meant that the government could no longer buy the Book of Common Prayer for its employees.)
So Judge Moore is on solid ground saying that a federal judge cannot tell an Alabama judge what his courthouse should look like. And that would be true whether it was a U.S. federal judge or the U.S. Supreme Court. The Rule of Law means that an Alabama judge should not abandon the law just because of the crazy anti-religious opinions of federal judges.
Alas, Judge Moore's colleagues disagree. The other eight Alabama Supreme Court justices
have just overruled Judge Moore, saying on p. 7 of their document,
citing the U.S.
Constitution's Article VI, Clause 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
and then saying,
The justices of this court are bound by solemn oath to follow the Law, whether they
agree or disagree with it, because: "All of the officers of the government, from the
highest to the lowest are creatures of the law, and are bound to obey it. United States
versus Lee, 106 U.S. 196, 220 (1882).
Their implication couldn't be clearer: if the Constitution and the U.S. Supreme Court
disagree, the Law is what the Supreme Court says it is. And, even more remarkably, this
is not to say that the Supreme Court is never wrong. Rather, the current
Supreme Court is never wrong. Past Supreme Courts are wrong frequently--- they would
have allowed the 10 Commandments, allowed sodomy laws, and so forth. So what the Rule
of Law means is not even the rule of an institution, but the rule of 9 individuals-- and
actually not even that, but rather the rule of the whim of the moment of the 9
individuals (remember: at least one justice changed his mind on homosexuality and what
constitutes eternal inalienable rights from Bowers to Lawrence).
Now of course it would be awkward if all of us refused to obey court decisions whenever we disagreed with their reasoning. But it would be equally awkward if all of us refused to disobey court decisions whenever we disagreed with their reasoning. What if, for example, the Supreme Court says that the Constitution requires that the President be a member of the Supreme Court? Or that it forbids nuclear weapons? Or that it forbids state laws against abortion (Oops--we've already had that one.) If the Supreme Court's reasoning is flimsy enough, we all have a duty to disobey it.
[ http://php.indiana.edu/~erasmuse/w/03.08.22a.htm ]
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