When Bill O’Reilly says Fox News is not conservative, he may have in mind John Gibson, who came from MSNBC. He has his own Fox show, “Big Story,” but recently filled in for O’Reilly and treated conservative professor and noted author David Lowenthal in an unfair and unbalanced way. The issue was the so-called Ten Commandments monument that Alabama Chief Justice Roy Moore refused to move from his courthouse.
I say “so-called” because one of the noteworthy omissions from many stories about the case is that the monument also bears the phrase, “Laws of Nature and of Nature’s God,” from the Declaration of Independence; our National Motto, “In God We Trust”; the “One Nation Under God” reference from the Pledge of Allegiance; and “So help me God” from the Judiciary Act of 1789, which established a federal court system and describes the oath of office taken by Supreme Court Justices. The oath refers to upholding the constitution of the United States and ends with those words seeking God’s help.
The Constitution is the key to the case. Gibson said Moore was a rabble-rouser defying higher court rulings. But Lowenthal noted that the federal courts have no jurisdiction over Alabama in this kind of matter. “How can you defend what he’s doing?” Gibson thundered. “The defiance of judicial orders is undermining the authority of his very position.” Lowenthal replied that, “You’re assuming the thing to be contested. Which is that the federal judiciary has jurisdiction over this matter.” Gibson interrupted Lowenthal at about that point to go to his other guest, a liberal professor who agreed entirely with Gibson.
Lowenthal could have enlightened Gibson and the Fox audience. A professor emeritus of political science at Boston College, his book, Present Dangers (Spence Publishing Company), is an excellent examination of First Amendment issues. He virtually pleaded for the opportunity to make his case. “If you would let me simply explain?” Lowenthal told Gibson. “It’s a simple basic point. Must Alabama bow down to the federal judiciary? Every justice and every federal employee is sworn to uphold the Constitution, not the Supreme Court’s interpretation of the Constitution.”
Gibson claimed to really be on Moore’s side and that he believed the Constitution allowed such a monument. Yet he didn’t want to understand why their ordered removal was the unlawful and unconstitutional act.
In an interview, Lowenthal explained that, contrary to Gibson’s claim, it isn’t Moore who is defying the law, it is the federal court. Lowenthal compared Moore’s position to a soldier who receives an illegal order and is bound by his oath to disobey it. The second point, which Lowenthal was not allowed to make on the show, is that the First Amendment prohibition against establishing religion was designed by the founders to make sure that Congress didn’t establish a national religion or church like they have in England. He said it has nothing to do with states displaying the Ten Commandments, and any ruling to the contrary employs “fancy footwork” rather than relying on the actual text of the Constitution. Lowenthal says that when the First Amendment was ratified about half the states had their own official churches or religion.
Lowenthal said he had never thought Gibson was going to treat him in such an insulting manner. “If I had thought he was going to do anything like that, I just wouldn’t have appeared,” he said.
If a federal judge has the jurisdiction and authority to order that monument out of the Alabama courthouse, consider what might happen to the Supreme Court chamber in Pennsylvania, a state founded by William Penn as a haven of religious freedom. Visitors can see a beautiful religious mural in the courtroom of its Supreme Court that shows Moses receiving the Ten Commandments, and they are listed. Another shows Jesus giving the Beatitudes, and they are listed as well. Other murals depict William Blackstone and his commentaries.
It is possible that a federal judge could order Pennsylvania to rip down those murals, based on the fiction that the U.S. Constitution somehow prohibits their display. But it should be obvious to John Gibson and any American with an understanding of the Constitution and U.S. history that such an order would be unlawful and unconstitutional on its face and should be resisted.
If it isn’t obvious to Gibson, he should invite Professor Lowenthal on his “Big Story” show to explain it. Gibson owes Lowenthal a “fair and balanced” opportunity to explain the facts, the law and the Constitution. This time, Mr. Gibson, listen and learn.