The Stone Idol

by Roderick Long

Libertarians are divided over Alabama Justice Roy Moore and his two-and-a-half-ton Ten Commandments monument. Those who favour the monument’s removal from the courthouse rotunda see it as an issue of the separation of church and state. Those who favour allowing the monument to stay see it as an issue of states’ rights.

In the end I come down on the side of favouring removal; but the issues are not simple.

Moore himself sees the issue as one of whether Alabamians have the right to acknowledge the Ten Commandments as the foundation of our legal system. That of course is a double confusion: first, the question is not what the people of Alabama may do but what the government of Alabama may do (a government that is theoretically supposed to represent all its citizens, not just those of a particular creed); second, it is simply historically illiterate to assert that the Ten Commandments are the foundation of our legal system, which in fact derives primarily from the Roman and Anglo-Saxon traditions – traditions that became Christian only late in their development. The Declaration of Independence (whose author was of course a Deist, not a Christian) makes no specific reference to the Judeo-Christian God, while the U. S. Constitution quite deliberately makes no reference to God at all. The Treaty of Tripoli, passed unanimously by the U. S. Senate in 1797, contains the assurance: “The government of the United States is not in any sense founded on the Christian religion.”

But the question at hand is not what Moore thinks about the issue, but what libertarians should think about the issue. Still, it’s difficult to separate the issue of the Ten Commandments monument from the issue of Roy Moore himself. As an advocate of the judicial murder of homosexuals¹, Moore is so detestable a figure that any defeat for the man seems worth cheering for. We really shouldn’t let our enemies pick our sides for us, however. Even worthy causes have unsavoury proponents. (Should we think better of Hitler because Stalin opposed him? Should we think better of Stalin because Hitler opposed him?)

Many of those who oppose Moore say, “Even if he were right, it’s his job as a judge to abide by the decisions of his judicial superiors rather than engage in civil disobedience.” I cannot agree with that claim at all. If Moore’s position is the just one, then it is his duty to stick to his guns and defy the removal order. But is his position the just one?

It is important here to distinguish two different questions: first, what is the Constitutional solution to this problem, and second, what is the just solution to this problem? There is no guarantee that these two questions will always have the same answer. As readers of this journal know, I subscribe to the Spoonerite principle that where competing interpretations of a Constitutional provision are possible, the one most favourable to liberty should be chosen. But when a provision’s meaning is unambiguously illibertarian, even Spoonerite jurisprudence cannot bring constitutionality and justice into alignment.

Is the Ten Commandments monument constitutional? This question resolves into two more specific questions: a) does the First Amendment apply to the States? and b) does the First Amendment prohibit displays like Moore’s monument?

With regard to (a), Moore has made much of the fact that the First Amendment mentions only a restriction on acts of Congress. But the Fourteenth Amendment forbids the States to “abridge the privileges or immunities of citizens of the United States.” If that does not mean that the Constitution’s guarantees of rights against the Federal Government are extended to encompass guarantees of rights against the State governments as well, then what on earth does it mean?²

What about (b)? Is it an “establishment of religion” for a State judge to display the Ten Commandments in his courthouse? If the monument were there for purely historical or artistic reasons, perhaps not – though that is debatable. But Moore has made quite clear that the purpose of the monument is to acknowledge the Judeo-Christian God. An official governmental declaration that one particular religion is correct is precisely what an “establishment of religion” amounts to. (Fox News thoughtcop Bill O’Reilly keeps insisting that the Ten Commandments are not specific to any one religion – presumably because the Judeo-Christian tradition encompasses several religions. He seems to think that a religion cannot have more specific religions as its proper parts – but that is surely false.)

But what, Moore’s supporters ask, about the Ten Commandments plaque in the Supreme Court building, or the motto “In God We Trust” on our coins, or the fact that Congress is opened with a prayer? Well, all of those are arguably unconstitutional as well. (Though, as I’ve noted, the Ten Commandments plaque in the Supreme Court obviously does not have the same significance as Moore’s monument, because, well, the Supreme Court doesn’t mean it. The same point applies to the statue of Themis, Greek goddess of Justice, that graces many courtrooms.) Nor is such a position as radical a departure from the intentions of the Founders as Moore’s supporters suggest: Alexander Hamilton objected to the practice of opening Congress with prayer; Thomas Jefferson, as President, refused to declare any national days of prayer and thanksgiving, on the grounds that such declarations violate the First Amendment. (And of course the intention of the document takes precedence over the intentions of the Founders in any case.)

In my judgment, then, Moore’s monument does indeed violate the First and Fourteenth Amendments. It is a transgression of the U. S. Constitution. But now we come to the moral question: should the Federal Constitution’s authority override the decisions of State officials in this way? Or, to put it another way: is the Fourteenth Amendment a good idea? Should the Federal government compel State governments to obey the Bill of Rights? After all, libertarians are fans of decentralisation. When the national government intervenes to protect us from local tyranny, should that be reckoned an increase in freedom – or should it instead be seen as weakening local autonomy and strengthening the power of the central Leviathan?

I prefer not to frame this as an issue of “states’ rights” – since, as an anarchist, I regard states as criminal organisations that have no rights. Neither the United States Government nor the State of Alabama has a “right” to do anything. Neither can claim justice on its side. From an anarchist perspective, the conflict between the two is a tussle between two rival gangs of thugs; we cannot in good conscience endorse either side.

There is no reason, however, to suppose we must be indifferent as to which of two rival gangs of thugs gains power over us. If the Mafia and the Khmer Rouge were fighting to control Alabama, and no comparable force was available to resist them both, we would be well-advised to hope for a Mafia victory, since life under Mafia rule would be infinitely preferable to life under Khmer Rouge rule. We can still ask, then, to which side in the current flap it would be most expedient to give, not our principled endorsement, but our strategic support.

On the one hand, as comments by Moore and his claque have made abundantly clear, the Ten Commandments is clearly intended as an opening wedge of theocratic oppression in Alabama – an evil to be fought tooth and nail. On the other hand, I think decentralisation is a good thing. Decentralisation down to the level of the idividual is my ideal, but decentralisation to local autonomous regions is at least a second best. I prefer the original Articles of Confederation (even though they mention God!) to the more centralised Constitution that succeeded them. I favour the disunion of the present United States into 50 independent nations. I would support (albeit with fear and trembling!) the secession of Alabama from the Union. And I have nothing but suspicion of the motives of the Federal government when it offers to protect us from the States.

Why, then, do I support (strategically) the Federal order to remove the Ten Commandments monument from the Alabama courthouse rotunda? More broadly, why do I support (strategically) Federal efforts to compel State governments to abide by the Bill of Rights? My reason is this: it is an anachronism to think of our State governments as in any serious sense counterweights to Federal tyranny. While Federal and State governments may clash from time to time – particularly when such clashes allow an elected judge to grandstand for his constituents – for the most part the State and Federal governments are entwined into a single criminal organisation that oppresses us. The States have become more akin to administrative departments within the Federal government than independent agents affiliated with it; the Federal government so regularly overrides the States that this latest issue is only a tiny drop in an enormous bucket. As a result, I’m more inclined to throw my strategic support to whichever head of the hydra is supporting the less oppressive policy on any given issue. In other words, I would be willing to accept the Ten Commandments monument if doing so were the price of achieving a significant degree of decentralisation (at which point I’d refocus my sights on the political dismemberment of Alabama itself), but not if all it buys me is a more oppressive state government with no significant decrease in centralisation. My position, then, is: strategic support for the Bill of Rights, whether at the State or the Federal level. I can see why libertarians of good will might judge that trade-off differently; but that’s the view from my head.

Still, as matters stand I’m willing to propose a compromise: let the monument stay, so long as Roy Moore himself goes. Such a compromise should be acceptable to both sides. Moore’s supporters presumably value the Ten Commandments more than they value this one judge; and Moore’s opponents surely find the judge more objectionable than the monument. Keep the chunk, dump the skunk.

[1] In a court opinion denying child custody to a lesbian parent, Moore wrote:

Homosexual behavior is a ground for divorce, an act of sexual misconduct punishable as a crime in Alabama, a crime against nature, an inherent evil, and an act so heinous that it defies one's ability to describe it. . . . The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle.

[2] Moreover, the Fourteenth Amendment also forbids any state to “deny to any person within its jurisdiction the equal protection of the laws.” Are non-Christians and non-Jews really guaranteed equal protection in Roy Moore’s courtroom? (We know homosexuals aren’t.) For that matter, as I’ve argued previously, the Fourteenth Amendment, properly interpreted, extends all of libertarian rights theory to cover the States. But this claim is not necessary in order to make my present point.