American Legislative Council Address
1995 American Legislative Exchange Council Meeting
August 11, 1995 San Diego, CA
Separation of Powers --
The Cornerstone of American Democracy
Gov. Fob James
I must say it is indeed an honor to be here and to Rep. Perry Hooper, I don't think I have ever had a kinder, more generous introduction than that and I am very grateful and want him to remember those words when we go into the next legislative session. It's true that the good Lord and the people of Alabama saw fit to elect me as a Democrat and as a Republican, and I think they would say and I would say too, ladies and gentlemen, if that doesn't work, we will try something else.
I want to thank Mr. Sam Brunelli for allowing me to come out and inviting me. I had an opportunity to meet with him and talk with him yesterday for a few minutes and he told me of his grass roots experience in Colorado and how he got involved in politics and in the course of things became interested in this organization and moved to Washington. Basically his concept is represented here that real change, if it comes, will come from grass roots America and you represent grass roots America. I indeed agree with him totally on those comments and he got off on another subject that I must confess I totally disagree, he tried to convince me that they play a better brand of football in Colorado than in Alabama, and I can't buy that.
We have 54 of our legislators here, Speaker Jimmy Clark and let me say here in San Diego to you and everyone of them and their wonderful wives and families how much I appreciate the productive session that they have just completed. Historians say it is the most productive legislative session in Alabama since World War II.
That goes to the leadership of the House and the Senate and in particular Speaker Jimmy Clark who combines strong leadership with a knowledge based on scholarship and experience. Last night at dinner, I asked Mr. Speaker when he first came to the Alabama Legislature and he said 1958. So Mr. Speaker let me say to you again how much I do appreciate your stalwart leadership in this past session.
"Time Goes By," that's a song that was popularized in World War II and I think about it often. In this day and time, we don't give sufficient attention to decades and I have just reached my sixth decade. I can remember when I was 30, 40, 50. I just didn't think much about decades. I'm in my sixth decade and looking across this audience and see a lot of folks out there, but I don't see a single lady that I think has passed her fourth decade, a lot of the others have. Let me say to you that this is 1995 and we are in late summer and we are close to the end of a century and that is different. Centuries are a classical way of denoting a classical change and I believe in being an accurate observationist and for a majority of us to say here as we wind down the 20th century we must ask ourselves this question: will we be the first generation of Americans who have lived out the majority of our lives in the 20th century to turn over to our children and grandchildren a 21st century with less freedom and le ss opportunity or will we be the first generation of Americans to have done that? I think not.
I am honored to be part of this 22nd annual meeting because you have been in the forefront of the movement to reaffirm the 10th Amendment to the Constitution, and you espouse the philosophy of Thomas Jefferson, who envisioned in his First Inaugural Address: "A wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement and shall not take from the mouth of labor the bread it has earned."
I recently watched a TV ad announcing the birth of a baby girl, and the fact she will pay in her lifetime over $180,000 interest on the federal debt. She was born a virtual slave to the folly, selfishness and arrogance of her own government. Her future mortgaged to a debt she did not create, and should not, and cannot bear.
Congress from 1962 until 1994 imposed a yoke of debt on the American people which coupled with massive taxation threatens the stability and freedom of American society as we have known it through war and depression, peace and prosperity for almost 200 years.
But, the ballot box is a wonderful instrument for bloodless revolution -- and the 104th Congress, I hope and pray, will indeed fundamentally reverse by statute, by law, existing fiscal and social policy. Be not mislead, that struggle has just begun. However, there remains yet another cancer that has eroded the delicate balance of power between the respective branches of our national government and the government of 50 states. That cancer has its roots in the notion of "Judicial Review," now grown to judicial supremacy, poisoning all segments of public and private endeavor. Make no mistake, the Separation of Powers doctrine, complete and unabridged, is the linchpin of any government of law, but intolerable to a government of men.
The United States Constitution is crystal clear in delineating a separation of powers among the three branches of government. Article 1, Section 2, states, "All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives..."
Article II, Section 1 and Article III, Section 1, vests the executive power in the President and the judicial power in the Supreme Court and whatever other courts the Congress shall establish.
The Tenth Amendment defines the powers of the states, precisely: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Alabama Constitution and most likely your state's constitution reinforces the separation of powers contained in the United States Constitution. Section 43 of Alabama's Constitution reads as follows: "In the government of this state ... the Legislative Department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; and the judicial shall never exercise the executive and legislative powers, or either of them; to the end that it may be a government of laws and not a government of men."
I want you to go back with me, would you go back to 1962 and recall certain orders forced on the American people by the United States Supreme Court -- or by lower Federal courts. Orders formulated in secret without public debate. Orders cloaked in deceitful legalese without statutory or constitutional connection, reason, or citation.
Mr. Schwartz referred to that in his earlier address. Think also in terms in your state how many settlements there have been in the courts, settlements that resulted further in a decree stripping you of resources of your right to make the policy. Some bureaucrat develops a friendly lawsuit, the parties agree, and there is a settlement, there is a decree issued that the Legislature and Congress in reality are stripped of their legitimate authority.
As I begin the recall, court orders since 1962, I ask you to think carefully what public and congressional reaction would have been had these same judicial orders been issued by executive order of any sitting president. Suppose John Kennedy, Lyndon Johnson, Richard Nixon, Gerald Ford, Jimmy Carter, Ronald Reagan, George Bush, or Bill Clinton collectively or individually had ordered the American people:
I say to you that it makes no difference who might have been president. Such orders would have resulted in chaos, massive rebellion, impeachment proceedings at best, trial for treason at worst. Yet the tragic results of an illegal act of the executive, is the same as an illegal act of the judiciary, except there is no recourse at the voting booth to remedy the injustice of judicial fiat. This injustice will be with us whenever the court makes law contrary to an act of Congress or the United States Constitution or any amendment thereof.
Let me make one point clear. The danger I speak to is not about race or theology. It is about law and freedom. An American president proposed and the United States Congress enacted Civil Rights Legislation in 1964 striking down all Jim Crowe Laws and any practice of racial or gender discrimination by law or otherwise. The American people in their hearts and souls so rightly accepted it because they knew it was both constitutionally and morally right. But let me say to you, they will never accept rule by any non-elected tribunal.
Some politicians may take the easy way out in acquiesce to illegal court orders, the final analysis I do not believe the American people will ever do that.
We have been duly warned of this danger. In his Second Farewell Address, George Washington sounded the alarm, I quote: "Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."
Alexander Hamilton saw the danger of an unchecked judiciary when he wrote, "The general liberty of the people can never be endangered from the courts. I mean so long as the judiciary remains truly distinct from both the legislative and executive. For I agree that there is no liberty if the power of judging be not separated from the legislative and executive powers."
The framers would have been familiar with the words of Bishop Hoadly, who in a sermon preached before the King of England in 1717 said, "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly lawgiver, to all intents and purposes, and not the person who first spoke or wrote them."
In 1832, President Andrew Jackson sent a clear message to the courts when he warned, "The authority of the Supreme Court must not be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."
President Abraham Lincoln proved to be the master of nonacquiescence of court orders by his refusal to implement at least three decisions of the courts.
Lincoln, a good country lawyer himself, said that not only were the executive and legislative branches not bound by unconstitutional court decisions, but also the lower courts -- both federal and state -- were free to nonacquiesce.
Now, ladies and gentlemen, I do not know about you, but I met Mr. Washington, and Mr. Jefferson, and Mr. Lincoln and Mr. Madison, Mr. Monroe, old men, Mr. Lincoln, when I was a boy. I don't get out of Alabama much, the Speaker and the Legislature, since I got my old job back, won't let me get away from the Capitol, but in my great state, I haven't met anybody smarter in my mind as Mr. Jefferson, Mr. Lincoln and George Washington. But like I say to you, I am restricted so I know we got a lot of wonderful representatives here from the great commonwealth of Virginia and I need to ask you, I want you to enlighten me a little bit, have you met anybody up there recently in Virginia as smart as Mr. Jefferson? Can I get somebody to tell me who he is or who she is? I want to meet them. It's amazing. Now I know that there are some smart people here from Illinois, the Land of Lincoln. Has anybody met anybody that has the intellectual depth of Mr. Lincoln. I haven't found them in Alabama, have you found them up in Illinois yet? I don't believe I have any takers.
I have experienced first-hand the arrogance of the United States Supreme Court. In 1982, we went into court in Mobile, Alabama, to defend a lawsuit against three school teachers who said, "God is Good. God is Great. Let us thank Him for our food." A brilliant federal judge in Mobile ruled in our favor and said it was not a federal issue. The federal judge was named Brevard Hand. We had in that case, I thought, two of the more brilliant jurists in the country backing us up. One was Sen. Sam Erwin, constitutional lawyer, and the other was Leon Jarworski of Watergate fame. Judge Hand ruled that it was not a federal issue and then he went on to advise the bench, to this effect, "The founding fathers were far wiser than we. They were content to allow the people of the various states to handle these matters as they saw fit, and were patient in permitting the processes of change to develop orderly by established procedure. They were not impatient to bring about a change because we think today that it is the proper course or to set about to justify by misinterpretation the original intent of the framers of the Constitution. If we who today rule, do not follow the teachings of history, surely the very weight of what we are about will bring down the house upon our head, and the public having lost respect in the integrity of the institution will ultimately bring about its change or even its demise." Judge Hand was overruled by the 11th Circuit in Atlanta in 1985. His favorable ruling came down three days before I left office in January of 1983.
June 12, 1995, we witnessed a fresh breeze of judicial integrity in Justice Clarence Thomas' concurrence in the majority opinion of the U.S. Supreme Court in its final resolution of the Kansas City School Case. Reversing all prior rulings and orders of this tragic affair. I quote: "We have permitted the federal courts to exercise virtually unlimited equitable powers to remedy this alleged constitutional violation. The exercise of this authority has trampled upon principles of federalism and the separation of powers and has freed courts to pursue other agendas unrelated to the narrow purpose of precisely remedying a constitutional harm." Justice Clarence Thomas.
And I say to you lawmakers, what has happened to our historic perspective on this issue? I fell into that trap 15 years ago. When I took office, Alabama's prison system and mental health system were under court order. We had a federal judge named Frank Johnson, who you have probably heard of, a brilliant jurist and a man with a wonderful heart. He wanted change made as did I, so in my naiveté and goodwill I said to Judge Johnson, appoint me federal receiver Judge and we will clean things up overnight. And he did. I became the first governor since shortly after the Civil War to hold both federal and state authority relative to a state agency. We were both well intended, but both so wrong. Today when I returned, I find department after department under federal court order and receivers and programs and hundreds of millions of tax dollars ill-spent. There is no end to it. What I believe reinforces a genius of those who wrote the Separation of Powers doctrine. So to the Speaker, who was not in t he Legislature at that time and who I know was setting down in Barbour County watching me as a young governor assumed in concert with federal authority that ominous dictatorship, Mr. Speaker I apologize. I know better today.
Relative to our blindness on the issue, could it be that one of our greatest strengths respectful law and compassion causes us to blindly accept court induced law turned upside down and used against us to achieve social and political agendas as well as to confiscate resources that otherwise would be denied by both statute and constitution and public opinion. The American people have lost the Constitutional struggle since the 1962 prayer decision, but we need not lose the war.
We should, perhaps, heed the words of this century's greatest statesman, Winston Churchill. "In defeat defiance, never, never, never, give up on matters of principle." Sir Winston, born of an American mother, was a child of parliament for over 60 years, and died the only foreigner upon whom was bestowed the gift of American citizenship.
He understood us better than we understand ourselves and his admonition today would most certainly be. All lawmaking powers must rest in the House of Commons. Our House of Commons is the U. S. Congress, and 50 state legislatures.
In the first century of America's history, the views of Washington, Jefferson, and Lincoln prevailed. In the second century of America's history, the views of the opponents of Washington, Jefferson, and Lincoln have prevailed. And the power of the Supreme Court has dominated.
In the third century of America's history, it is time to return to the views of Washington, Jefferson, and Lincoln.
The state legislature should be the political body which decides most of the fundamental issues in American society. After all, the Constitution of the United States of America cannot be changed without the approval of three fourths of the state legislatures. The legislature is that body closest to the people.
The remedy is simple. We do not need constitutional amendments to clutter the sacred document. We need statues and resolutions enacted by Congress, and state legislatures.
As an example, I go to my home state. The Alabama Legislature has toned down in this past session resolutions subject to a referendum vote power of the Alabama Supreme Court. In 1973, they hoodwinked the people in voting for what they called judicial articles, the architect of that was now Sen. Howell Heflin, who was then chief justice of the Alabama Supreme Court. It stripped the Legislature of impeachment powers, this session they put those powers back in the Legislature.
And they passed a statute to become a constitutional amendment that says to this effect, outside of imminent domain, outside of normal tax refunding, outside of statutes and outside of constitution, any attempt at judicial funding by Alabama courts are subject to a majority vote of the Alabama Legislature. How about that! To top all of that off, we have a wonderful circuit judge down in Etowah County, that is Gadsden, Alabama, the ACLU is suing the judge trying to make him take the Ten Commandments off of his wall. He has got a lot of support, my office is supporting him, the legislature is supporting him, you need to keep up with that case, it will probably get to the United States Supreme Court before it is over with. But for purposes here, let me tell you we stand behind Judge Roy Moore and the Ten Commandments in his office because those same Ten Commandments hang in the office building of Justice in the United States Supreme Court.
Relative to separation of powers let me ask you to imagine an act of Congress which read, "Pursuant to Article III, Section 1 and 2 of the U. S. Constitution, no court of the United States shall have jurisdiction to make any decision, or to issue any order which would have the effect of prohibiting prayer in public schools."
Imagine the shock were an American president to soon send the message for non-acquiescence to judicial usurpations as did Jefferson, Jackson and Lincoln. For over three decades, neither Congress nor presidents have honestly, legally, ethically, or politically, resisted political extremism.
Thus, the doctrine of separation of powers.... the cornerstone of liberty, remains in jeopardy.
We have a decision to make! Do we, cast our lot with Washington, Jefferson, Jackson, Lincoln? Or, do we surrender to a modern day class of elitist political judicial activists? That is the question.
I say.... Let the Constitution of the United States of America, the greatest formula for freedom struck off the pen of man since Magna Charta, stand. Our founding fathers spoke so clearly. Yet for too many years we have watched its original meaning erode away.
Let us pay the price so that our descendants can look back on the waning years of the 20th century and remember, "This was the time when the people set their minds and wills to return to the principles that had served them so well for so long."
Thank you ladies and gentlemen. God Bless You.
Carla J. Gilmore
Phone (334) 242-4429. Fax (334) 242-4541.
Governor's Correspondence Office 600 Dexter Avenue. Montgomery, AL 36104.