At least as things now stand, Judge Roy Moore will probably walk through his election to the Senate with his hands in his pockets. Because of the “peculiar” stand he has taken on several issues, he is drawing the opposition of some conservatives. And I do not put conservative here in scare quotes, because I believe that there are some real conservatives who are unsettled by Moore. I just want to take a moment to explain why this is unsettlement is entirely a good thing for us, and about time.
For those just joining us, Moore is a West Point grad who did a stint in Vietnam, went to law school, and who eventually served as chief justice of the Supreme Court of Alabama—until he was removed over his refusal to take down the Ten Commandments. He was elected to that position again, and was removed a second time for his refusal to bow and scrape before the monstrosity known to legal theorists as Obergefell. He just won a primary contest for the Republican nomination, and in a few weeks—barring some outlandish event—he is likely to be sent off to Washington by a host of adoring Bamers.
Now a couple of conservative arguments against him would be something like he believes in religious tests, and he does not support the rule of law. In this case, the conservatives believe that they are conserving the American secular settlement, one that they believe (for some reason) has worked so well. The myth of secularism has been successfully fobbed off on many conservatives—people who would themselves govern with decency and respect, but who have allowed a central confusion to take up residence in a part of their brain where no unsettling arguments are permitted. But look. Things are pretty bad. We really need to “go there.”
When the Framers prohibited a religious test as a requirement for holding a government office, they were thinking about the differences between Anglicans and Congregationalists. They were not envisioning those whose sincere religious beliefs resulted in flying jet airplanes into skyscrapers. The Framers rejected the formal establishment of a particular denomination at the federal level. There is a Church of England. There is a Church of Denmark. There is no Church of the United States, and there ought not to be. Congress is prohibited from establishing one, and please note that Congress is the entity restricted in the First Amendment.
When the Constitution was adopted, 9 of the 13 states had established denominations as their state churches. This means—work with me here—that only four of them did not. The Framers were guarding against future regional conflicts. When states pick a state bird, there is no possible conflict if the national government then goes on to pick a different bird. Same with the state flower. Same with state anthems and the national anthem. But if Connecticut had the Congregational Church as their official church and the national government picked the Anglicans, you were just begging for the country to blow up.
We had a federalist system from the beginning, and something as important as whether or not to have an official church was left to the states. The last established church was removed in the 1830s, that being the Congregational Church in Connecticut. Now my point here is not that establishments at the state-level are a great idea—I myself am dubious—and so my only point is that there was nothing whatever unconstitutional about it.
The Framers did not reject the idea that we are endowed by our Creator with certain inalienable rights. They would not have believed that American currency, adorned with In God We Trust, is un-American currency. They would not have believed that the insertion of under God in the Pledge was unconstitutional.
So they did not insist on the separation of church and state. Rather they insisted on the separation of a denomination and the national state. And neither did this federalist caution require a separation of God and state, or a separation of morality and state. You cannot have a unified society unless there is a wide swath of commonality on questions like who made us?, why are we here?, and how are we supposed to behave? That commonality was provided, for most of our history, by an informal establishment of evangelical Protestantism.
We are now governed by an elite who were educated to believe that nobody made us, there is no point but power, and that our behavior should be the pursuit of as many orgasms as possible. This is the informal establishment of an alien religion, and it has had devastating consequences. There is an inescapable concept here. It is not whether any given society will have an established faith, but rather which established faith it will have. I am a Christian, and do not desire to be government by men who acknowledge no God above them.
And that is because when your rulers acknowledge no God above them, then you are just ten minutes away from them claiming to be the only God above you.
Enter Roy Moore, and his disregard for the “rule of law.” He was told to take down the Ten Commandments, and he did not. He was told to kiss the Obergefellian ring, and he declined. Renegade or hero? All the concerned murmuring about Moore would disappear if the war were already over, and if the good guys had won it, and his name somehow rhymed with Bonhoeffer.
The rule of law really is precious, and is essential to any stable society. But we need to identify who the real troublers of Israel might be. Was it really Elijah, for identifying the problem? Or was it Ahab, who had married the problem? When the law has been made a laughingstock by the lawless, what is the only appropriate response?
“All right, all right!” said Sam. “That’s quite enough. I don’t want to hear no more. No welcome, no beer, no smoke, and a lot of rules and orc-talk instead” (The Return of the King, p. 977)
“What’s all this?” said Frodo, feeling inclined to laugh.
“This is what it is, Mr. Baggins,” said the leader of the Shirriffs, a two-feather hobbit: “You’re arrested for Gate-breaking, and Tearing up of Rules, and Assaulting Gate-keepers, and Trespassing, and Sleeping in Shire-buildings without Leave, and Bribing Guards with Food.”
And what else?” said Frodo.
“That’ll do to go on with,” said the Shirriff-leader.
“I can add some more, if you’d like it,” said Sam. “Calling your Chief Names, Wishing to punch his Pimply Face, and Thinking you Shirriffs look a lot of Tom-fools” (p. 978).
So Moore refused to countenance the gnat-strangling Red Queen reasoning that went into Obergefell. Good for him. When the concept of law itself has been made a laughingstock by the solons in power, all of them with solemn faces and puffy lips, and the ordinary people out in the countryside start to laugh (because that is what you do with laughingstocks), and the conservative people who are worried about everything coming unstuck start to shush us, what do you say to them? Look, what I have been saying, what I have been trying to say, is that everything has already come unstuck. The thing you are trying so hard to prevent is a smallish object in our rearview mirror.
You guys—you good-hearted guys—listen to me. Think it through. We have murdered fifty million kids. We sell their parts for profit. The organization that sells their parts gets massive subsidies from our government. The federal government has solemnly told us that two dudes can marry, and on top of that, that it is actionable hatred to mutter under your breath, no, they can’t. The rule of law? The rule of law? Are you kidding?
So, someone might ask, do you have nothing to say against Roy Moore at all? Well, I am a Presbyterian and he is a Baptist. But we Americans don’t believe in religious tests.