Roy Moore and the Divine Right of Nullifiers

With Roy Moore in the national headlines again–this time for defying and urging state courts in Alabama to defy a federal court order–reinforced by the U.S. Supreme Court–to begin licensing same-sex marriages–it’s a good time to consult Sarah Posner, who has an important remembrance of a speech by the Ten Commandments Judge a few years ago. She helps explain why and how a lot of “constitutionalists” and “states rights advocates” like Moore have theocratic grounds for their supposedly law-based views.

That Friday night [in June 2011] in Severn [Maryland], Moore was speaking to a gathering of the Institute on the Constitution, a fringe educational group run by Maryland lawyer, former Constitution Party presidential candidate, and current member of the Anne Arundel County Council, Michael Peroutka. Back in 2010 and 2011, I made an irregular habit of attending the IOTC’s First Friday gatherings, at which there was typically an out-of-town celebrity speaker (Moore’s was particularly well-attended, with a few hundred people in the audience), covering topics near and dear to the IOTC’s unorthodox view of the Constitution. The Constitution, they claim, is a divine document designed only to protect the rights conferred by God, not to create “new” rights by way of jurisprudence. For all you law school graduates shaking your head as you read this, Peroutka, Moore, and their followers claim that the law schools are teaching it all wrong—that’s why they’ve created their own law schools….

In presenting Moore with a “Spirit of Daniel” award for courage, Peroutka gleefully noted that he was doing so on Jefferson Davis’s birthday. (The award was given because Moore “resisted a government that thought it was God.”)

That showdown between God and government is at the heart of Moore’s claims that he is on the side of righteousness and the federal courts on the side of an anti-God, unconstitutional “tyranny.” Moore believes there is a separation of church and state—but he believes it’s one that distinguishes America from royal monarchies. In other words, the government is separated from the church in that the government is barred from running the church, and it can’t tell the church what to do. Public schools, in his view, are “controlled by government,” and impose secularism; he favors tax credits for homeschooling because that’s “the right of the parent….”

Moore, who graduated from West Point and served in Vietnam, is fond of reiterating the he has sworn to uphold Constitution against enemies, both foreign and domestic. He readily agreed that America has been overtaken by enemies within. “Our government is infiltrated with communists, we’ve got Muslims coming in and taking over where we should be having the say about our principles.” And more: “I’m not so sure some in government don’t want to destroy our country.”

Sarah has more, but you get the drift. The scary thing is that Moore is not some isolated radio crank or even a state legislator, but the elected chief judicial officer of an entire state. He’s a useful study because he’s a little less crafty than most “constitutional conservatives” in speaking in code when he talks about the connection between religion and the law. For him, the divine law fundamentalists derive from the Hebrew scriptures was incorporated into the U.S. Constitution by the Founders and by definition cannot be legitimately modified by human hands, regardless of the instruments for doing just that made available in the Constitution itself. And so the presumed right of state nullfication of federal laws and court decisions is rooted not just in a pre-Civil War idea of federalism, but in an aggressively reactionary notion of religion and its implications for secular law.

While Moore’s bizarre and dangerous world view is plain for all who go to the trouble of looking for it to see, it has some pretty respectable fellow travelers. The Paul family’s close connection with the Constitution Party is a good example; indeed, in 2008, that party’s affiliate in Montana placed Ron Paul at the top of its ticket with Michael Peroutka as his running-mate (Paul protested this action, but apparently only to protect the status of national Constitution Party presidential candidate Chuck Baldwin, whom he ultimately endorsed over Republican John McCain and Libertarian Bob Barr).

So Roy Moore may be as crazy as he sounds, but he’s not as exotic a bird as you might think.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.