On Roy Moore's constitutional ignorance

|The Volokh Conspiracy |


Senate candidate Roy Moore speaks at a revival on Tuesday in Jackson, Ala. (Brynn Anderson/Associated Press)

When former Alabama Supreme Court chief justice Roy Moore won the Republican Senate primary in Alabama, conservative politicians rushed to endorse him. Citing his alleged fealty to the Constitution and the rule of law, they urged Alabama voters to support him. Former House speaker Newt Gingrich even praised Moore as a "constitutional scholar." They should have known better.

Long before allegations surfaced that Moore had a penchant for "dating" teenage girls, it should have been clear that he was no champion of the rule of law. Indeed, as I explain in the Weekly Standard, it should have been evident that Moore has no particular commitment to the Constitution, if he even understands it.

Moore cites those constitutional provisions he finds amenable and completely disregards those he finds inconvenient or objectionable. Worse, he clings to the mistaken belief that a state judge may disregard a federal court order just because he thinks the federal courts are wrong. Yet that's not how our system works. Indeed, it's not how our system has ever worked.

From the article:

Our federal system readily accommodates differences in state laws. It is one of its virtues. Different parts of the country can adopt and enforce those laws that are most in line with local preferences. Federal law, however, is of a different nature. When laws are enacted by Congress, they are the "supreme law of the land"-and a law can hardly be "supreme" if it means something different in different places. Thus, a federal judiciary, with the authority to hear cases originating in state courts and overrule decisions on federal law issued by state judges, was essential. Indeed, to some, the lack of a federal judiciary was among the most important reasons to ratify the Constitution. As Alexander Hamilton wrote in Federalist 22, the lack of a federal judiciary "crown[ed] the defects" of the Articles of Confederation.

"The responsibility to administer the justice system of the State of Alabama is a power clearly not delegated to the federal government under the U.S. Constitution," Moore argued in his defense. True enough, but the "supremacy clause" in Article VI provides that federal law is "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."

Moore's defenders sometimes seek to explain his actions by citing Abraham Lincoln's harsh criticism of the Supreme Court's decision in Dred Scott v. Sanford. Lincoln believed the 1857 decision was wrong and, when president, argued he was under no obligation to follow the court's holding in the performance of his official duties. In contrast to Moore, however, Lincoln never claimed the authority to reject a court order. To the contrary, he acknowledged "decisions must be binding in any case upon the parties to a suit as to the object of that suit."

Put another way, where federal courts have jurisdiction, federal court decisions trump state court decisions—and may bind state officeholders—not because our system presumes that the federal court system is more likely to reach the right answer on federal questions, but because federal questions need to have a single, uniform answer that applies throughout the nation.

It's nice that Republican officeholders and political leaders are finally realizing that Moore is not the sort of person who should sit in the Senate. It's a shame it took salacious accusations about decades-old conduct for them to realize it.