Free Speech in the Courtroom: An Interview with the Honorable James DeWeese

The Rule of Law

Religious speech, speech that favors moral absolutes, and generally, any speech that might be perceived as hurtful to a progressive’s feelings, do not enjoy such protection. This line of constitutional interpretation, at least, is what the American Civil Liberties Union (ACLU) was assuming when it sued Judge James DeWeese. DeWeese is a Richland County, Ohio, common pleas judge with the audacity to post a display in his courtroom titled “The Rule of Law.” Judge DeWeese discusses his case here in an interview with Catholic Exchange contributing author, Jameson Taylor.

You are currently a defendant in the case, ACLU of Ohio v. Ashbrook. What is this case about?

In the summer of 2000, I hung two documents in my courtroom. The documents are my personal property and were paid for with my own money. On one side of the courtroom, I hung the Bill of Rights. On the opposite side, I hung the Ten Commandments. Each is prominently labeled “The Rule of Law.” On March 8, 2001, the Ohio Civil Liberties Union sued me, contending that my posting of these signs in my courtroom violated the Establishment Clause of the First Amendment to the United States Constitution.

I contend to the contrary that this case is about freedom of speech, not the establishment of religion. I am represented in this matter by the American Center for Law and Justice.

The Establishment Clause says, “Congress shall make no law respecting an establishment of religion….” (emphasis added). It protects citizens from the abuse of federal law-making power. It is clearly law-making which is prohibited. A “law” is a rule of conduct formally prescribed as binding and enforced by a controlling authority.

My hanging a sign in my courtroom is not law-making. No one is compelled to do anything by that sign. It’s speech. If, as I believe the ACLU contends, burning a flag is speech and creating computerized child pornography is speech, then posting a written document has to be speech.

It makes no difference that the ACLU is offended by the contents of the sign. All speech is offensive to someone. No public debate can take place without disagreement and offense. That is precisely why the First Amendment also protects speech and debate from federal government interference.

I believe what this case is really about is the ACLU’s effort to censor speech with which it disagrees — any speech that mentions the name of God.

What precisely is the “Rule of Law,” and why is it necessary for the preservation of democracy?

The “rule of law,” as opposed to the “rule of man,” is the concept that there are limits on what people in power can do to other people. It is the idea that the law is the highest authority, and that all men — including even the king and high government officials — are subject to the same law. Under the rule of man, the highest government officials could do as they please. They could ignore the letter of the law when it was inconvenient or unprofitable for them. They could favor their friends and punish their enemies.

In the realm of legal philosophy and morality, the rule of law/rule of man distinction is reflected in the debate between moral absolutes and moral relativism. The moral-absolutes view holds there are unchanging rules of conduct and duty that apply to all people in all ages. The Founders relied on this view in our Declaration of Independence when they stated that all men are endowed by their Creator with certain inalienable rights, that governments are instituted among men to protect those rights, and that when a government becomes abusive of those rights, then it is the right of the people to alter or abolish it.

The moral-relativist view says every person or every society has to decide for itself what’s right and what’s wrong. There is no ultimate truth or unchanging standard. The best one can hope for is a temporary societal consensus in law and ethics. This is the view that has become prevalent in our society and is being taught in many of our schools and colleges.

This debate is important because ideas have consequences. Ideas result in action. Several years ago a college professor in upstate New York reported that 10 to 20 percent of his students could not bring themselves to criticize the Nazi extermination of Europe’s Jews. Some students expressed personal distaste for what the Nazis did, but were not willing to say they were wrong. They felt no culture could be judged from the outside by members of another culture. But under the moral-absolutes position, persons like Hitler, Stalin, or Pol Pot will always be condemned as arch criminals for their mass murder.

Fifty years ago, moral absolutes were widely taught in our homes, our schools and throughout society. Scarcely any unhappy student or disgruntled employee would have thought of going into a school or workplace and killing classmates, teachers or co-workers. Today they offer the pettiest of excuses for these terrible acts in places like Columbine High School. Moral relativism leaves them unable to distinguish between the gravity of their hurt feelings and the killing of another human being.

Inalienable Duties: The Ten Commandments

How are the Bill of Rights and the Ten Commandments related to the concept of “The Rule of Law”?

I chose to display both the Bill of Rights and the Ten Commandments in my courtroom because they are emblematic of fixed rights and duties — the basis of the rule of law. Our Declaration of Independence says we have rights that are inalienable because we have been endowed with them by our Creator. They do not depend on the permission of some government official.

We like the idea that our rights are not contingent on the largess of the government. We are quick to insist on our rights. But we cannot have these inalienable rights unless everyone else has an absolute duty to respect those rights. For example, we can have no right to life unless everyone else has a non-negotiable duty not to kill us. We can have no right to the use and enjoyment of our property unless everyone else has a non-negotiable duty not to steal it. Rights and duties are opposite sides of the same legal coin. We can enjoy the protection of our rights under the rule of law only if we recognize the obligation of our duties under the rule of law.

Just as the Bill of Rights is the emblem of inalienable rights, so the Ten Commandments are emblematic in western thought of the law of absolute duties. When Alfred the Great first codified the common law of England in the ninth century, he incorporated the entire Ten Commandments in that code. Twelve of the thirteen original American colonies also incorporated the substance of the Ten Commandments in their legal codes. John Quincy Adams, our sixth president, could thus observe, “Vain indeed would be the search among the writings of profane antiquity…to find so broad, so complete and so solid a base for morality as this Decalogue lays down.” The Decalogue is bound up in the history of our Anglo-American legal system.

Whether or not one agrees with every commandment, the Ten Commandments are historically and legally symbolic of moral absolutes and the rule of law. That is why we so often see them depicted in legislative chambers where laws are enacted and in our courtrooms where laws are applied. For example, I understand there are three depictions of the Ten Commandments in the United States Supreme Court chambers: (1) The two tablets of the Ten Commandments are engraved on the lower half of the two oak doors entering the chamber. (2) A marble frieze in the chamber shows Moses holding a copy of the Ten Commandments inscribed in Hebrew. (3) Two allegorical figures representing “The Power of Government” and “The Majesty of Government” stand beside a carved flat-faced tablet with two rows of Roman Numerals, I-V and VI-X, a rendering of the Ten Commandments or, perhaps, the Bill of Rights.

Similarly, in the United States District Court in Cleveland where the ACLU filed their case against me, there is a courtroom mural painting entitled “The Law.” In the center of the canvas, a seated female figure personifies “The Law.” On either side of her stand angels pointing to an inscription of the Ten Commandments upon a table of stone that fills the whole center of the panel.

But doesn’t the First Amendment require a total separation of “church and state”? How can one reconcile public support for religion with the Establishment Clause of the First Amendment?

The “separation of church and state” is legitimately intended to mean the church should not manage the affairs of the state (a theocracy) and the state should not manage the affairs of the church. Each institution has its own sphere of authority and responsibility. Incidentally, when the Establishment Clause was debated in Congress not one congressman expressed an opinion that the First Amendment was designed to accomplish the separation of church and state. The phrase was never mentioned. What the delegates said they intended “the establishment of religion” to mean was the establishment of a national tax-supported church denomination like the Church of England.

The Annals of Congress, from June 8, 1789, to September 25, 1789, contain the complete record of those who drafted and approved the First Amendment. Note some of their comments:

AUGUST 15, 1789. Mr. [Peter] Sylvester [of New York] had some doubts…. He feared it [the First Amendment] might be thought to have a tendency to abolish religion altogether…. Mr. [Elbridge] Gerry [of Massachusetts] said it would read better if it was that “no religious doctrine shall be established by law.” … Mr. [James] Madison [of Virginia] said he apprehended the meaning of the words to be, that “Congress should not establish a religion, and enforce the legal observation of it by law.” … [T]he State[s]…seemed to entertain an opinion that under the clause of the Constitution…it enabled them [Congress] to make laws of such a nature as might…establish a national religion; to prevent these effects he presumed the amendment was intended…. Mr. Madison thought if the word “national” was inserted before religion, it would satisfy the minds of honorable gentlemen…. He thought if the word “national” was introduced, it would point the amendment directly to the object it was intended to prevent.

Our Founders never intended to separate God from public affairs or education. The same day Congress reported the text of the First Amendment to President Washington, they also asked him to declare a national “day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God.” President Washington did so. Both houses of Congress employed at public expense chaplains to open each of their sessions in prayer. The Supreme Court began its sessions with prayer. The Capitol Building was opened for church services on Sunday. President Jefferson attended church there and provided musicians at government expense. He also opened the Treasury and War Department buildings for church services on Sunday and provided federal funds to support missionaries and the construction of churches for Indian reservations.

The Founders were likewise outspoken about the necessary connection of God and good government. They argued for the importance of morality to good citizenship and of religion to morality. John Adams, our second president, warned in 1798: “We have no government armed in power capable of contending in human passions unbridled by morality and religion…. Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.”

Supreme Court Justice James Wilson, a signer of both the Declaration and the Constitution, similarly affirmed: “Human law must rest its authority ultimately upon the authority of that law which is divine…. Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed these two sciences run into each other.”

In sum, the drafters of the Constitution had no intention to separate God from the state. They thought God essential to good government.

Litigating God to Death

Why and how do you think the ACLU and others have been so successful in distorting the actual meaning of the First Amendment?

The ACLU has become such a preeminent lobbyist by means of litigation. It cannot get its unpopular agenda enacted into law through the normal democratic legislative process. Consequently it bypasses the legislative process by seeking out federal judges who share its views and are willing to read their policy preferences into the Constitution. The ACLU is reportedly the most frequent litigant in the U.S. Supreme Court, except for the U.S. government itself. Many federal judges were formerly affiliated with the ACLU. For example, Justice Ruth Ginsberg of the U.S. Supreme Court is a former chief counsel of the ACLU.

Lino Graglia, a professor of constitutional law at the University of Texas Law School says, “It is only a slight exaggeration to say the ACLU never loses in the Supreme Court, even though it does not always win. It either obtains from the Court a policy decision it can obtain in no other way, because opposed by a majority of the American people — for example, a prohibition of prayer in the schools or removal of restrictions on pornography — or it is left where it was to try again in the Court on another day.”

The ACLU is generally careful to file its cases in the districts where there are sympathetic judges. It then uses their favorable decisions, plus a quirk in the Civil Rights attorney fee laws, to bully local government officials in other localities to capitulate to its demands to cease conduct it dislikes.

Moreover, 42 U.S.C. § 1988 generally allows a plaintiff like the ACLU who prevails in civil rights litigation to make the loser pay the plaintiff’s attorney fees. But that law generally excuses the ACLU from paying the winner’s attorney fees when the ACLU loses. The ACLU uses a favorable ruling and the threat of a large attorney fee award of tens or even hundreds of thousands of dollars as a club to threaten local school board members or other local government officials with financial disaster unless they capitulate to its demands.

The ACLU’s rewriting the law through litigation would not be possible if some federal judges were not willing to read their policy preferences into the Constitution. Arguing that the Constitution is a living document that needs to change to meet the times, they become judicial activists. In the last fifty years federal judges have been using new readings of the Constitution to strike down all sorts of state legislation and local practices that previously passed constitutional muster. The Constitution did not change — only the willingness of judges to rewrite it.

James Madison and Thomas Jefferson both warned against interpreting the constitutional language to mean something different from what it originally meant. Madison stated in an 1824 letter to Henry Lee: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”

Jefferson said in an 1823 letter to Supreme Court Justice William Johnson: “On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

Today we have some judges who are not content to interpret the Constitution in the sense in which it was written, but prefer instead to squeeze their preferred meaning out of the “penumbra” of its language. Jefferson prophetically warned us against these judges 180 years ago. In an 1820 letter to William Jarvis he said: “The opinion which gives to judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the legislature and executive also in their spheres, would make the judiciary a despotic branch. [T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy…. The Constitution erected no such single tribunal.”

Today we sit idly by as activists in the federal judiciary amend the Constitution by judicial fiat — in direct violation of its terms.

Yours is not an isolated case. After being sued by the ACLU, Americans United for Separation of Church and State, and the Southern Poverty Law Center, Chief Justice Roy Moore was ordered to remove a depiction of the Ten Commandments he had had erected in the rotunda of Alabama’s state judicial building. Why do organizations like the ACLU so vehemently oppose free speech rights when it comes to speech that has a religious component?

At bottom, the battle to silence speech about God in the public arena is a worldview battle. The battle between moral absolutes and moral relativism is a battle of fundamental worldview assumptions. It is the struggle between theistic views that God is the measure of all things and atheistic views that man is the measure of all things.

Note that neither of these two positions is less faith-based than the other. Both views are religious views, ultimately based on fundamental assumptions about metaphysics, epistemology and ethics that are matters of faith.

Note also that there is no such thing as a neutral position on these issues. For example, by driving God out of school history books, school music programs and school morality teaching, we don’t arrive at a neutral public education. We instead teach the humanistic religious view that man is the measure of all things.

It is never appropriate to silence speech in the public arena about such important issues. That is what makes so ironic the efforts of the ACLU to use the First Amendment to censor speech rather than to protect it.

On June 11, 2002, the United States District Court for the Northern District of Ohio ordered Judge DeWeese to remove the Ten Commandments exhibit from his courtroom. DeWeese appealed the verdict to the United States Court of Appeals for the Sixth Circuit, which heard his case this past October 2003. A final ruling is pending.

© Copyright 2004 Jameson Taylor

Jameson T. Taylor is the author of America's Drug Deal: Vaccines, Abortion and Corruption. He is also a Ph.D. candidate in political philosophy at the Institute of Philosophic Studies of the University of Dallas. Mr. Taylor’s interests include bioethics, personalist philosophy, life and family issues, and American politics. His work has appeared in Catholic Digest, Citizen, HLI Reports, Lay Witness Magazine, and Our Sunday Visitor. His current projects include a book on the theme of community in Pope John Paul II’s The Acting Person.

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