Alabama Chief Justice Roy Moore and his Ten Commanddments display in the state Judicial Building got a boost from an unexpected source recently the U.S. House of Representatives.
Representatives on July 23 voted 260-161 to block the federal government from spending any tax funds to enforce the 11th U.S. Circuit Court of Appeals decision against the Ten Commandments monument Moore placed in the lobby of the building that houses Alabama's supreme court.
The measure, introduced by Rep. John N. Hostettler (R-Ind.), is of questionable constitutionality and may turn out to be little more than political grandstanding. But obdservers say the vote is evidence of the House's increasing hostility toward church-state separation and its disregard for constitutional principles.
"Rep. Hostettler needs to go back to school and re-take fifth-grade civics," said Barry W. Lynn, Americans United executive director. "Congress cannot nullify court rulings about the Constitution merely by passing legislation."
Continued Lynn, "This is pure political grandstanding. Worse than that, it's an insult to the Constitution. Our country operates under the rule of law. Hostettler is promoting a form of anarchy."
At the same time as its Commanddments vote, the House passed a measure forbidding the federal government from enforcing a decision by the 9th Circuit banning the recitation of the Pledge of Allegiance in public schools because of its religious content. That vote was even more lopsided, 307-119. (Both Hostettler amendments were added to an appropriations bill for the Commerce, Justice, State and Judidciary departments.)
For years, Religious Right organizations have attacked the federal judiciary because of court rulings upholding church-state separation, legal abortion and gay rights. These salvos have reverberated in Congress, with measures like the Hostettler amendments being the result.
Other House members want to take things a step further. Led by Majority Leader Tom DeLay (R-Texas), several GOP House members have formed a Working Group on Judicial Accountdability designed, as a recent DeLay press release asserted, to "identify and prevent judicial activism."
DeLay said the group's co-chairs, Rep. Lamar Smith (R-Texas) and Rep. Steve Chabot (R-Ohio), "have recruited a core of smart, tough and aggressive members, and based on the early meetings it's clear that when it comes to judicial abuses they're going to take no prisoners."
But DeLay may simply be blowing hot air. The Constitution gives the president the power to appoint federal judges "with the advice and consent" of the Senate; it prescribes no role at all for House members.
Article III of the Constitution also guarantees an independent judiciary. The Constitution provides for "checks and balances" among the three branches of government; it does not permit one branch to diminish another's power.
The "check" on the judiciary is that its members are named by the president and confirmed or rejected by the Senate. Once judges are seated, the Constitution makes no provision for removing or punishing them or taking away their powers simply because courts hand down rulings that some members of Congress dislike. (Federal judges, like all federal officials, can be removed from office only after being convicted of "treason, bribery or other high crimes and misdemeanors.")
During floor debate, Hostettler insisted that Congress has the power to curb the courts.
"We do not have to put our faith in the faint possibility that some day five people in black robes will wake up and see that they have usurped the authority to legislate and will constrain themselves from straying from their constitutional boundaries," he said.
In response, Rep. David R. Obey (D-Wisc.) charged that Hostettler's measure would have no effect.
"I would suggest," remarked Obey, "that rather than offering amendments that pretend to do that, if we want to protect the Ten Comdmanddments, we will simply start by following them in our lives and in our careers."
To become law, Hostettler's amendment would first have to clear the Senate. So far, no senators have expressed interest in it.
One Alabama newspaper blasted the amendment. Calling the move "outrageous and wholly unconstitutional," The Tuscaloosa News editorialized July 30, "While the amendment can and certainly should be stripped from the bill in the Senate, Hostettler's move shows that the same kind of blatant disregard of the law that Moore is trading in back here in Alabama is also current in Washington. That his ploy is not likely to stand does not make it any less outrageous."