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Tags: Donald Trump | Supreme Court | alabama | moore | strange

Trump and Justice Moore Get It: Nation Meandering

Trump and Justice Moore Get It: Nation Meandering

By    |   Monday, 25 September 2017 02:03 PM

The Republican Senate primary race in Alabama between recently-appointed Sen. Luther Strange, R-Ala., and former Alabama Supreme Court Justice Roy Moore reveals some deep rifts in American culture, and recently offered President Trump, who supports Sen. Strange, an opportunity to illuminate those divisions, divisions which go to the ascendance of political correctness in this country.

It is against that political correctness that President Trump triumphed last year, and the president’s remarks do a fine job of reminding us how and why he won. It wasn’t Russian influence, as Mrs. Clinton and her supporters would like to believe — it was an appeal to American tradition.

At a rally in support of Mr. Strange, the president commented on the NFL football players who decline to stand for the national anthem at the beginning of a game. "Wouldn't you love to see one of these NFL owners, when somebody disrespects our flag, to say, 'Get that son of a b***h off the field right now! He is fired. He's fired!'," Mr. Trump asked his audience. Nobody loves football more than an Alabaman, but they love America more, and the crowd responded with chants of "USA, USA!"

What Mr. Trump was doing in his remarks predictably enraged his usual critics, as he struck at the core of their beliefs. Mr. Trump’s comment also was an exceptionally shrewd attempt to appeal to Justice Moore’s supporters, since the justice had gained fame in Alabama as the "Ten Commandments Judge," one who fought federal court insistence that he remove a display of those venerated religious dictates from his Alabama courtroom.

The federal court had followed (in my view) dubious U.S. Supreme Court precedents that sought wrongly to remove religion from the public square, and that flew in the face of American traditions and values.

As former U.S. Supreme Court Justice Joseph Story wrote in his seminal work on the Constitution in the early 19th century, the framers conceived of the task of government  — even the federal government — as being to secure the foundation for sensible rule by promoting the religious faith of the American people.

Through a series of misguided decisions, our courts and our constitutional scholars, ignoring Story’s and the framers’ traditional understandings, have arrived at a view of the law and the Constitution which privileges individual free expression over the recognition of civil, religious, and moral responsibility, that elevates, in short, rights over duties.

The voters in Alabama’s Senate primary, Mr. Trump (and Justice Moore) understood, are likely to be those most unhappy with this repudiation of traditional values. The president was, by shifting the national discourse away from the football players protest to their demonstration of disrespect for the flag, also, consciously or unconsciously, reminding his audience of the brouhaha in the late-1980s over the U.S. Supreme Court opinion, Texas v. Johnson, 491 U.S. 397 (1989).

That decision had held (again, wrongly in my view) that desecration of the U.S. flag could not be prohibited by law, as it was purportedly a form of free speech protected by the nation’s First Amendment.

That decision, of course, led to an effort to amend the Constitution to pass the so-called "Flag Protection Amendment," which provided, simply, "Congress shall have the power to prohibit the physical desecration of the flag of the United States."

The Amendment, which had the support of a sizable majority of the American people, easily garnered the required two-thirds vote in the U.S. House of Representatives, but failed narrowly in the U.S. Senate, even though it is likely that it would have secured the required vote of three-fourths of the nation’s state legislatures.

Ironically, Sen. Mitch McConnell, R-Ky., now the Senate’s majority leader, and a supporter of Mr. Strange, was one of those who torpedoed the passage of the Flag Protection Amendment, apparently because he believed, as did Mr. Justice Brennan, writing for the majority in Texas v. Johnson, that the flag is best understood as standing for the allowance of acts such as burning or defecating on it. I doubt that Alabama Republican primary voters would agree.

As of this writing, immediately before the primary, Justice Moore leads in the polls, but his possible victory and Mr. Trump’s appeal on behalf of Mr. Strange, both point to a continuing and healthy discussion in the country about what kind of a nation we seek to be.

Both Mr. Trump and Justice Moore have understood that in recent years we have lost our bearings, and strayed from the framers’ design. Whoever wins the Alabama primary, that discussion should and will continue, and perhaps, as Mr. Trump’s appeal demonstrates, we will return to a wiser course.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.

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Both Mr. Trump and Justice Moore have understood that we have lost our bearings, and strayed from the framers’ design. Whoever wins the Alabama primary, that discussion should and will continue, and perhaps, as Mr. Trump’s appeal demonstrates, we will be wiser.
alabama, moore, strange
Monday, 25 September 2017 02:03 PM
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