The Ten Commandments and the Tenth Amendment
The function of the U. S. Constitution is to define and limit the powers of the federal government. It was ratified by the people of the States. From this ratification and consent by the people of the respective States, the U. S. Constitution derives its validity. The Tenth Amendment was meant as a final reinforcement and written guarantee that the powers of the U. S. Government would be limited only to those enumerated in the Constitution. This was a safeguard against the infringement of rights and powers retained by the States and their people. It was also a safeguard against the tyranny, despotism, and abuses, which have so frequently in history evolved from unchecked centralized power. The wording of the Amendment is very brief and to the point:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Thus the Executive, Legislative, and Judicial branches and subsidiaries of the federal government have only those powers and those powers alone that are delegated to them by the Constitution. All other powers are reserved to the States or the people and are thereby prohibited to the federal government except by Amendment to the Constitution, which would require not only Congressional approval including two thirds of both the U. S. House and the U. S. Senate, but the approval of three quarters of the States.
It is important to note here that the people of the States do not derive their rights from the federal judiciary, nor have they by any means since delegated that power to federal judges. The people of the States have reserved the power to determine their unalienable rights to themselves. The Tenth Amendment thus cannot be left to the federal government and its courts to ignore or interpret for itself. A defining characteristic of a constitutional government is that power must not be allowed to define its own limits. Power must be checked and restrained by equal or greater power.
Federal judges in their rulings ought to insist on rigorous compliance to the Tenth Amendment. Congress should further insist on not only its own compliance, but also the compliance of the Courts. However, it is ultimately up to the States to insist on their own rights and enforce compliance by every honorable means at their disposal.
Failure to honor and enforce the Tenth Amendment by the Judiciary, Congress, the States, and the People has spawned an ever-escalating abuse of power, social nonsense and evil, and political chaos. In its misguided and unconstitutional zeal to impose a liberal and godless social agenda on the American people, the Federal Judiciary has over-stepped its powers so often that judicial tyranny is now accepted and defended as “The Rule of Law.” There is quite a bit of difference between the Rule of Law, which in the U. S. is constitutionally based, and the rule of judges legislating their own agenda. Federal judges who flout the Tenth Amendment, distort the First amendment beyond recognition, and create federal powers not enumerated in the Constitution are not upholding the Rule of Law. They are destroying law and have become tyrants.
Who will check such tyranny? The American people have been lulled into complacent surrender of the principles we inherited as a constitutional and federal republic. The majority of our elected officials do not seem to possess the political and moral courage to defend our rights. Who will defend the Republic and our rights?
There are historical, Christian precedents and traditions going all the way back to the Magna Carta in England in 1215 that call for “interposition” of civil magistrates against unlawful decrees and usurpations by rulers. This approach was endorsed by Calvin, Knox, Rutherford, and many others in the sixteenth century and provided much of the rationale for the American Revolution.
The bottom line here is that when federal judges give decrees that are obviously unconstitutional or which overstep their constitutional jurisdiction they are acting unlawfully. It is the duty of other civil magistrates to say, “No, this must be contested.” This could be done by Congress or State governments. Again, the very essence of preventing tyranny in a republic is that power must not be able to define its own limits. The federal judiciary must be kept in check by Congress and/or the States. The horizontal separation of powers in the Constitution between the Executive, Legislative and Judiciary is well known to most people. What is less known, but still very applicable is the vertical separation of powers between the federal and state governments.
Robert H. Bork has a new book, Coercing Virtue, the Worldwide Rule of Judges. In this book Bork traces the transformation of American culture by liberal judges hell bent on imposing a radical and anti-Christian humanism on society by means of judicial fiat. This effort seems to have emerged in the 1950s and has been very successful in displacing the older American traditions with the new socially engineered leftist agenda.
The progress of this judicially imposed radicalism has been steady and is now gaining unprecedented momentum. It reminds one very much of the old Mark Twain story about boiling frogs in water. If you heat the water up slowly the frogs are cooked before they realize what happened to them. Around the world free or formerly free peoples have shown a tendency not to resist or even to recognize judicial tyranny.
Somewhere, some place, some civil magistrate or preferably many civil magistrates must stand up and say, “No.” Alexander the Great once remarked that the peoples of Asia were slaves because they would not learn to pronounce the word, “No.” Let that not be the epitaph of the American Republic, of religious liberty, or of the influence of Christian teaching in society.
In regard to the recent issue of the Ten Commandments in the Alabama Judicial building, there are those who say that this was not a good case to protest. It would have been better if the monument was ordered by the State Legislature, etc. Indeed it would have been better, but we will never find the perfect issue, the perfect man, and the perfect time, or the perfect circumstances to resist tyranny. Each victory of a wayward federal judiciary tightens the noose around freedoms neck a bit tighter. The frog has been heated a bit closer to the point of his being unable to resist. At this point, standing up and saying, “No” is far more important than what influence Judge Moore or others might have by staying on the bench and getting in a few just rulings now and then. Otherwise just judges will find their ability to render justice increasingly hampered and overturned by a federal judiciary legislating a radical liberal agenda unfettered by reasonable constitutional interpretation.
In the face of increasing judicial tyranny it is high time more of our elected civil magistrates learned to pronounce the word, “No.” It is high time we rediscovered the neglected and suppressed Tenth Amendment and the doctrine of interposition.
The Rule of Law is not the rule of judges. It is the rule of the people through Federal and State Constitutions duly authorized by them in their respective states and interpreted according to their original and common sense meaning. Judge Moore is right. The federal government and its courts are constantly violating the Tenth Amendment and the true Rule of Law. These transgressions against the Constitution and the people cannot be tolerated
Courage seems to be the critical virtue needed to save our Republic. It would be well to remember the words of Samuel Johnson (1709-1784):
“Where courage is not, no other virtue can survive except by accident.”
Let us hope and pray that courage will not be in such short supply among our elected officials that our Republic and our liberties should be suffered to perish and be swept into the dust bin of history. Let us hope that the words of South Carolinian Henry Laurens (1724-1792) will prove as true of our time as in his:
“At a time when liberty is under attack, decency under assault, the family under siege, and life itself is threatened, the good will arise in truth; they will arise in truth with the very essence and substance of their lives; they will arise in truth never shying from the Standard of Truth, never shrinking from the Author of Truth.”
Judge Moore is right on the Constitution and right on the Ten Commandments. The Tenth Amendment is essential to our liberties and has not been repealed. We cannot allow the First Amendment, guaranteeing our religious freedoms, to be turned upside down by black- robed tyrants.
Judge Moore has raised a banner of truth and courage. To very roughly paraphrase the words of Robert Burns attributed to Robert the Bruce:
“Let those who would fill a coward’s grave turn and flee, but let the true and the brave join in striking a blow for liberty.”
More public officials need to pluck up their courage and defend the Constitution, our Christian heritage, and the liberties of the people who elected them. Otherwise our freedoms will soon be in extreme jeopardy. May it never be!
February 17, 2004
Mike Scruggs lives in Birmingham, Alabama. He may be reached for comment here.