OK, who isn’t sick of hearing about the depressing case of Roy Moore, the defeated candidate in the recent Alabama special election to fill the Senate seat formerly held by Jeff Sessions? Isn’t one of the best things about 2018 the fact that that business is in the past?

Well, yes, but I am by profession a historian. We historians don’t even start looking at things until they are in the past. So, although it is still far too early to gain any historical perspective on the downfall of Roy Moore, I have a few thoughts as we begin, however prematurely, to look back on it as history.

Maybe Roy Moore was guilty. If so, it’s certainly a good thing he lost. However, the case has some disturbing aspects that may come back to haunt conservatives, even if Moore himself rides off into the sunset.

The first of these is the assumption that accusation equals guilt and the accompanying myth that no woman would ever falsely accuse a man of sexual abuse. In Moore’s case there was no material evidence except what one of the accusers later admitted to having at least enhanced, and even that was not evidence of wrongdoing but only of acquaintance. There hardly could be any material evidence after the passage of nearly half a century. Nor were there any corroborating witnesses. Each of the three accusations was strictly a case of he-said/she-said. That too could hardly be any other way.

Such cases are always hard, all the more when first brought forward 26 to 40 years after the alleged wrongdoing. The public, including Alabama voters, were left to guess, and, not surprisingly, those who disliked Moore’s politics (both positions and style) guessed he was guilty, while those more favorable to him guessed otherwise. I know of no exceptions to that pattern. The difference in the election seems to have been made by those who, until the accusations, had disliked the Democrat more than they disliked Moore. Maybe he was guilty, but the fact that an election was swung by entirely unprovable accusations from the distant past leads me to suspect that in future elections we will see an increase in such accusations, some true, some false.

And while I’m on the subject of things that probably can’t be proven, we can’t prove, and we don’t know, that any of Moore’s accusers were lying. The last thing this country needs now is retaliation against them. It’s lawlessness, and for all we know, it might be piling one grave injustice on top of another.

My second reflection on the Moore case has to do with some of the other reasons that even some conservatives put forward for deciding that Moore was guilty. I saw a number of times in articles, blog posts, and comments the statement that Moore was all the more likely to be guilty because he had already shown himself to have no regard for the law and had been twice removed from the Alabama Supreme Court for his lawlessness. I wondered if some of the people making that charge were aware of the situations for which Moore was removed or whether they were just echoing left-wing denunciations of Moore without knowing the issues involved. This will require a somewhat longer explanation.

Moore was twice forced off the Alabama Supreme Court but not for disobeying the Constitution or any law. The first time, he had placed in the Alabama Supreme Court building a monument displaying the Ten Commandments. A federal district judge, and subsequently a federal appeals court, ordered them removed as violating the First Amendment of the U.S. Constitution. The relevant part of that amendment states, “Congress shall make no law respecting an establishment of religion.” Moore was not Congress. His monument was not a law. And none of the authors or ratifiers of the First Amendment would have imagined the monument constituted an establishment of religion.

In the twentieth century, federal courts decided that some of the restrictions of the Bill of Rights (whichever ones a majority of the justices happened to like at the moment) had been made applicable to the states by the Fourteenth Amendment — specifically its injunctions that no state deprive any citizen of the equal protection of the law, or of the privileges and immunities of U.S. citizenship, or of life, liberty, or property without due process of law. Yet for three quarters of a century after passage of the Fourteenth Amendment, neither its authors or ratifiers, nor their successors in state or federal government, had held that the “Equal Protection” and “Due Process” clauses of the Fourteenth Amendment meant anything more than requiring of the states what the “Equal Protection” and “Due Process” clauses of the Fifth Amendment required of the federal government, and if the Fifth Amendment had contained the substance of the First Amendment, there would have been no point in writing the First. Similarly, neither in 1868, when the Fourteenth Amendment was added to the Constitution, nor for nearly a century afterward, had anyone ever thought to claim that it was among the “privileges and immunities” of a U.S. citizen to prevent his state, or even the federal government, from acknowledging the God of the Bible. Now here’s a thought to hang on to: By no honest interpretation can a text be held to mean something its author or authors manifestly did not intend. So did the Fourteenth Amendment forbid states to put up Ten Commandment monuments? No. Can the courts make laws? No. Can the Supreme Court legitimately change the meaning of the Constitution? No. Now here’s a tricky one: Does the Constitution designate the Supreme Court as the final arbiter of what the Constitution means? No! Read it for yourself. Nothing like that is in there.

So did Roy Moore break a law or violate the Constitution in placing the Ten Commandments monument in the Alabama Supreme Court building? No. Yet when the federal courts ruled against him, and threatened to punish other Alabama officials personally if they did not overthrow him, those officials knuckled under and removed him from office. So, yes, he was removed, but in that episode it was the federal courts that violated law and Constitution, not Roy Moore.

The second time Moore was forced off the Alabama Supreme Court was similar. A federal court decreed that the state of Alabama had to authorize same-sex marriages. Again the grounds was a false interpretation of the Fourteenth Amendment. The authors of the Fourteenth Amendment obviously did not believe it was one of the “privileges and immunities” of a U.S. citizen that a man should marry another man, or a woman another woman. It didn’t mean that when it was written. It hasn’t been amended. The Supreme Court can’t change it. So it doesn’t mean that now. When Moore refused to abide by the ruling, it was he who was faithful to law and Constitution, while the court acted lawlessly and unconstitutionally.

Now, there are those who believe states ought not to be able to have Ten Commandment Monuments in their buildings or that they ought to be compelled to wed men to men and women to women, and of course they’re entitled to their opinions. But if they want to enforce those things on the states in a constitutional way, they need to get the Constitution amended. Those results can be achieved — have been achieved — by judicial fiat, but the problem with that is that those who embrace the judges decrees are really saying they’d rather live under the dictatorship of nine judges than in a republic with a written constitution to which the people have agreed.

And that would be the same thing we’d be saying, perhaps without knowing it, if we fell into the trap of claiming that another reason Moore should have been rejected was that his two removals from office showed that he had no respect for the law or the Constitution. On the contrary, of the judges involved in those cases, he was the only one who did respect law and Constitution. If he didn’t deserve election to the Senate last month, it was because he misused those girls many years ago and then lied about it, not because of the times he was removed from the Alabama Supreme Court. 

My third reflection looking back on the case of Roy Moore is that it may have brought further division among those of us who are committed to the Constitution, to truth, and to eternal values. We who value truth are, it would seem, few enough already. It would be a shame if we turned on each other over this. Let’s be very cautious about attributing vile motives to those who have stood beside us in battle for the right but disagree with us on this matter. Maybe some of your comrades in the cause of truth lack your apparent ability to read truth or falsehood in eyes or voices, or simply have no confidence that such impressions are reliable. That doesn’t mean they are guilty of tribalism or of not caring about character. Or perhaps some of your comrades may be more intuitive and may not have the same instinctive need for logical proof that you do. That doesn’t mean they’ve joined the socialists or the baby-killers.

So as we go forward, let’s be careful about what we accept as proof. Let’s remember there are some things we know and some we can’t know. Let’s stand firm for the Constitution — what it says, not what the judges say it is. And let’s be fair to each other, even when we disagree about the facts of the case at hand.