The EFM Feature

Since I have a day job that can be incredibly busy, I sometimes struggle for the time to post on EFM. But there is an advantage to this occasional lag: It allows me to step outside the day-to-day (sometimes hour-by-hour) debate and think about the larger trends in play–to ponder some of the larger questions.
And the “larger” question I’ve been pondering of late is this: Why have some elements of the right attacked Governor Romney so viciously? Especially since many of these same people (like the guiding force behind MassResistance) not only don’t support an alternative candidate, they even voted for the Governor in past campaigns when he advanced more liberal views. Why the malice? In fact, this malice extends far beyond the Governor. Since I wrote a response to MassResistance’s attacks, I’ve been bombarded with hate mail, including from people who accuse me of not being a “real” evangelical and not really “caring about life or the family” or this country.
These attacks are interesting considering I spend all day every day working for a pro-life and pro-family legal organization and actually wear the uniform of my country as a member of the U.S. Army Reserves. I would take the attacks personally (and sometimes, I admit, it is hard not to), but I also realize an essential truth. This malice is not about me–and it’s not even about Governor Romney.
Yes, that’s right. The malice really has little or nothing to do with Governor Romney. Instead–and this is vitally important to understand–Governor Romney merely represents the vehicle (a highly public vehicle) for grinding axes within the conservative movement itself.
What do I mean by that? To explain, I have to air a bit of the dirty laundry of the social conservative movement (especially its Christian component). In reality, we are not a “vast right-wing conspiracy.” Rather than working together in a spirit of unity to attack problems that we all agree are real, many Chistian conservatives spend enormous time, energy, and effort determining who is and who is not a “real” conservative and–even worse–arguing who is a “real” Christian. This debate takes place largely outside the sight and hearing of the Christian conservative mainstream (and definitely outside the media’s consciousness), and–consequently–when the debate does see the light of day, it can be both confusing and shocking.
So what is that debate? It is the same debate that surrounded former Alabama Supreme Court justice Roy Moore when he refused to comply with a court ruling ordering a Ten Commandments monument out of the Alabama state courthouse. Virtually every social conservative activist in America agrees that an out-of-control judiciary presents perhaps our most difficult political challenge. Leftist judges are responsible for the horror of abortion-on-demand, for the cleansing of religion from the public square, for same-sex marriage, and even for eroding our warfighting capability in the War on Terror. In accomplishing these ends, these judges typically ignore the original intent of the constitution and often ignore the text itself, writing opinions that would cause America’s founders to spin in their graves and exacting huge social costs on our country.
So what should we do? Roy Moore’s answer was one of bold and startling simplicity: If a court order violates the original intent of the constitution, then ignore it. Defy it. Disobey it. For generations of Christians raised on the intellectual dishonesty and hostility of the contemporary judiciary, Moore’s stance certainly has a certain kind of appeal. When you combine Moore’s actions with the impressive amount of scholarship that can justify his reading of the constitution, then you have the beginnings of a movement.
Countering Moore were the–for lack of a better term–”rule of law” conservatives. Our constitutional argument was (I think) a bit deeper and more credible than Moore’s. While I grant Moore’s points regarding original intent, I also recognize that there is a constitutional structure–a balance of powers–that is every bit (if not more) important to our public life than the interpretation of any given constitutional provision. In other words, if a branch of government behaves unconstitutionally, then there exists a lawful, constitutional method for correcting that branch.
In state constitutional structures, poor judicial decisions can often be overturned by popular vote through the amendment process. Poor decisions regarding statutes can be overturned by revising the statute. In most states, judges can even be voted out of office. Even within the federal system (which provides judges with lifetime job security and renders the constitutional amendment process more difficult), the democratic process has great influence over judicial nominations, with judges being a central issue in every election in my lifetime.
Roy Moore’s problem was that he largely bypassed this scheme of checks and balances through his own act of defiance. In other words, he (ironically enough) violated the constitution to protest a violation of the constitution.
And he failed. Miserably. At the end of the conflict, the Ten Commandments monument that triggered the entire crisis was removed from the Supreme Court building, Roy Moore was removed from office, and (though he became a minor celebrity) he was crushed in the Republican primary when he challenged the sitting governor. Even worse, we are not one step closer to restoring the public acknowledgment of God to our constitutional structure. But he is still a hero to many religious conservatives. A failed hero, but a hero nonetheless.
Fast forwarding to 2003, there were many conservatives who believed that Governor Romney should have taken the Roy Moore approach to the Massachusetts Supreme Court opinion legalizing same-sex marriage. He should have defied it, they say. And in support of that argument, they trot out position papers describing in great detail how the court didn’t have the authority to change Massachusetts marrriage law. For those unschooled in constitutional law (or this debate over tactics), the papers can look quite impressive–leading people to ask, “Did Governor Romney ‘choose’ gay marriage?”
I don’t mind that many conservatives urged such an approach (I think they are wrong, of course). Nor do I mind that they were disappointed when the Governor instead challenged the Supreme Court’s decision through lawful means. What I do mind is that they somehow believe (and argue) that the Governor is not a “real” conservative because he didn’t break the law and follow the failed footsteps of Roy Moore. The absurdity of this argument is made even more obvious by the different outcomes of the Romney and Moore approaches. To refresh:
Roy Moore: Lost his court case, lost his monument, lost his public office, lost his election (in Alabama), now a minor public figure.
Mitt Romney: Succeeded at securing enough signatures to place a constitutional amendment on the ballot, succeeded in forcing the legislature to vote on that amendment, put in place a model for change that has succeeded in 27 other states, became a leading defender of traditional marriage, and is now a leading contender for the Republican presidential nomination.
It is perfectly legitimate to question whether the Governor is a “real” conservative based on his past statements (regarding abortion, for example). He is going to have to answer questions about his change of heart, and he is answering those questions. It is not legitimate to question whether the Governor is a “real” conservative simply because he did not oppose same-sex marriage through unconstituitonal (and failed) tactics. One can be a “real” conservative and still respect the rule of law and choose constitutional means to overcome unconstitutional rulings.

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