Politics

Roy Moore Isn't Just Defiant. He's Dangerous.

He twice lost his job for denying the supremacy of the Constitution. Is that a message the people of Alabama support?

Lawbreaker.

Photographer: Scott Olson/Getty Images

Roy Moore is more extreme than you think -- and his candidacy for a U.S. Senate seat is not a joke, but a serious threat to the Constitution and the rule of law. The shenanigans that got Moore thrown out of office as the chief justice of the Alabama Supreme Court -- twice! -- were more than just acts of civil disobedience on behalf of evangelical religion. Both times, Moore intentionally defied and denied the authority of the U.S. courts to have the final say on the Constitution. That’s the core principle on which our legal system rests.

I first wrote about Moore some 12 years ago, after his first act of defiance. In the summer of 2003, Moore, then Alabama’s elected chief justice, refused to remove a 5,280-pound granite monument inscribed with the Ten Commandments. He had installed the monument in the rotunda of the Alabama Judicial Building, home of his court, just down the hill from the state capital in Montgomery.

This was a blatant violation of the establishment clause of the Constitution, as a federal district court soon held. A federal appellate court affirmed the lower court’s judgment. Moore didn’t ask the U.S. Supreme Court to review the decision. Instead he announced he would not follow the ruling.

“As chief justice of the State of Alabama,” he said, “I have no intention of removing the monument of the Ten Commandments and the moral foundation of our law. To do so would, in effect, result in the disestablishment of our system of justice in this state. ”

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The Dexter Avenue Baptist Church, where Martin Luther King Jr. served as pastor, is just a few steps away from the judicial building. Moore’s act may have been intended as a form of civil disobedience.

But it’s a very different thing for private citizens to defy a law they consider unjust and accept the punishment than it is for a public official sworn to uphold the Constitution to defy it. Moore was, in essence, asserting that as an official of Alabama he was not bound by the U.S. Constitution.

That’s wrong, of course. The supremacy clause specifically says that the Constitution is the “supreme law of the land” and that “the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” It could hardly be more explicit that Moore was bound by the Constitution.

His view is also dangerous. It’s worth remembering that the Civil War was fought partly to validate the authority of the federal government to make the states comply with the Constitution.

In the civil rights era, the U.S. Supreme Court had to reaffirm that its interpretation of the Constitution was binding on state courts. The 1958 case of Cooper v. Aaron stands for this proposition. Little Rock, Arkansas, was trying to defy the Supreme Court’s desegregation command. Ultimately, President Dwight Eisenhower had to send the 101st Airborne to Little Rock to make sure the court’s dictates were followed.

As a result of his defiance, Moore was relieved of his post. The chief justice of a state can’t be a lawbreaker. But Moore is nothing if not persistent, and despite twice losing a race for governor, he clawed his way back, eventually getting re-elected chief justice in 2013.

Then Moore did it all over again. After the Supreme Court’s landmark 2015 gay-marriage decision, Obergefell v. Hodges, he used his position as chief justice to direct the state’s probate court judges not to issue marriage licenses for same-sex couples.

This was a replay of constitutional defiance. The Supreme Court had spoken, but Moore purported to be countermanding its commands in the name of Alabama’s right to interpret the Constitution differently.

Alabama’s legal establishment responded appropriately. A judicial inquiry commission charged him with violating federal judicial orders. In 2016, Moore was suspended from his post. He resigned this year to run for the Senate.

It would be a mistake to think of Moore simply as an opportunist who cleverly exploited hot button issues like the Ten Commandments and gay marriage to become a well-known statewide figure. Moore is a lawyer and judge who believes that he, not the U.S. Supreme Court, should have the last word on what is lawful.

The upshot of Moore’s past is that he’s fully prepared to engage in open defiance against the Constitution.

Admittedly, it’s worse to deny the Constitution if you’re a judge than if you are in a legislature. The judges apply the law, while senators only make it. As one of 100 senators, Moore won’t be able to pass unconstitutional legislation on his own.

Yet senators, too, swear an oath to the Constitution. Moore has repeatedly shown that he’s prepared to violate that oath. That disqualifies him from office, to be sure.

More important, if Alabama voters elect Moore, they will be signaling their approval of his open defiance. That’s extremely worrisome.

In the end, our American system relies on the consent of We the People. Populism threatens the structure of a constitutional government only when the people ignore the Constitution to which they have consented. Moore’s election would be a disturbing sign that, at least in Alabama, that consent is up for grabs.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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