Alabama Governor to Courts: 'en Garde'

Alabama Gov. Fob James seems an unlikely legal crusader. Unschooled in the law, a politician said to be unsophisticated about the complexities of politics, he nonetheless has embarked on a quixotic quest to reverse legal precedents of 50 years' standing.

His crusade: curbing the power of the federal judiciary. To be sure, the campaign may be akin to tilting at windmills. An army of Ivy-League-trained legal scholars is against him, and most of them consider his views to be arcane.

Still, Governor James has a sincere, winning manner - and a style reminiscent of Alabama's other populist governor, George Wallace. Some analysts say James's message, like Wallace's, may resonate loudly with a certain disgruntled segment of the populace - though he is tapping into frustration with the courts rather than with race.

"I don't think his crusade will result in much change in the federal judiciary," says Charles Haynes, a scholar at the Freedom Forum First Amendment Center in Nashville. "I do think that it will continue to whip up a hostility to what the federal government does, and that may have other, unforeseen consequences."

The governor's dispute with the US Supreme Court and the federal district courts boils down to this: The federal courts have overstepped the boundaries defined by America's founders. The result, says James, is that dozens of judges are setting policy and making laws that should be left to the people and their democratically elected leaders.

Specifically, James is arguing that the states are under no obligation to comply with the Bill of Rights - the first 10 amendments to the US Constitution, most of which guarantee individual freedoms. Legal scholars have long argued that the subsequent 14th Amendment, adopted in 1868, links the states to the Bill of Rights. But James insists that their interpretation is overbroad and wrong: He argues the Bill of Rights' limitations on government apply only to Congress, not to states.

"It gnaws on me," says James, sitting on the edge of his mahogany chair in his state house office. "Supreme Court justices should not rule outside of their legitimate authority."

Fight over 14th Amendment

James's argument seems so "out there" that it has been fodder for late-night TV comedians. But the question of how to interpret the 14th Amendment - and the larger issue of the power of the federal courts - has been a legal sticking point for decades. Conservatives from former Attorney General Edwin Meese to Watergate lawyer Leon Jaworski have at various times voiced some portion of James's argument.

This is not the first time James has lifted a pet issue to the national stage. He attracted attention in 1995 when Alabama became the first state to reintroduce prison chain gangs. Last year, he championed a state judge who posted the Ten Commandments in his courtroom. The governor even threatened to call on the National Guard to protect the Commandments' place on the courtroom wall.

His stances, especially on religious issues, have endeared him to a sizable faction of Alabamans - and many other Southerners. "He's fighting to leave the Commandments in the courthouse. I think he's doing a good job," says Antonio Haseri, waiting for a ride at a downtown bus stop here.

James, his tie pulled loose from his collar and a mischievous glint in his eye, seems not to care if the legal establishment is smirking over his latest cause clbre.

"I want you to know who my advisers are on this issue," says the Republican businessman-turned-politician. "We've got a fellow named Thomas Jefferson. I'm dead serious. We got a fellow named James Madison. Then, ... 'Old Hickory,' Andrew Jackson, was a lawyer. And Abraham Lincoln," he says. "So, until you show me evidence to the contrary relative to what the founders meant the Constitution to be, I'm going to stick with those boys."

James began his public campaign against the judiciary by writing a 34-page letter to a US district judge. In it, he asks Judge Ira DeMent to reverse a decision striking down an Alabama law that would have allowed voluntary prayer in public spaces, including schools.

James argues in the letter that the judge has no jurisdiction in the case because the First Amendment - with its wall of separation between church and state - does not apply to state governments. The Alabama law, he argues, therefore does not need to be in accord with the Bill of Rights. According to James, Alabama, if it wanted to, could draft a law requiring all state citizens to worship in a Baptist church. Any state, too, could limit its citizens' rights to free speech, assembly, or even to bear arms.

Judge DeMent, however, denied James's motion on July 30. Too much legal history and too many precedents by courts with more authority than his run counter to James's argument, the judge wrote in a four-page response.

But the governor says he will not back down. "We'll appeal it. I'm going to take this to the members of Congress and members of the Senate," James says. "I'm going to do everything I can to make this an issue."

It's not clear whether his latest crusade will give James a high status in the wider conservative movement. Certainly, his views may strike a chord with Kansans who are embittered over court-ordered desegregation or with California voters weary of courts striking down their citizen-led ballot initiatives.

Political fallout

Still, James's popularity has dipped in Alabama - though not dramatically - since he began his public campaign against the federal judiciary in June. That fight, coupled with his opposition to giving tax breaks to businesses, has also estranged him from the state's business community. Two GOP businessmen are already floating the possibility of challenging James, should he seek reelection to a third term in 1998.

If he were to win, as expected, he would tie with Wallace as the state's longest-serving governor. He remains popular, political watchers say, by cultivating a folksy appeal. In his latest scrap with state legislators, over the budget, he traversed the state, holding town meetings and dubbing himself the lobbyist for the taxpayers of Alabama.

"Voters have a general feeling that he's straightforward and honest, even if sometimes overly blunt and overly outspoken about things he feels strongly about," says political scientist Bradley Moody at the University of Auburn at Montgomery.

"The governor doesn't mind taking on an unpopular position and trying to sell it to the people," says Jo Bonner, press secretary for US Rep. Sonny Callahan (R) of Alabama, who has worked closely with the governor.

Cases that draw the line between state and federal authority continue to be among the most contentious in the courtroom. "The most difficult issue in American jurisprudence today is the complex issue of federal-state relations," says Roger Pilon of the Center for Constitutional Studies at the Cato Institute in Washington.

Against this backdrop, James vows to continue his crusade. "I'm doing something that I feel is true to my oath of office and very necessary," he says. "It's important to every American citizen if the Constitution means anything."

ABOUT FOB JAMES

* Business experience: Started an athletic equipment business at 28; made a fortune producing barbells.

* Political experience: First elected governor in 1978 as a Democrat. Did not run for reelection in 1982. Ran again for governor in '94, this time as a Republican, winning by 10,000 votes.

* Education: BS, Auburn University, 1955. Played football and made All-American. Played a year of pro ball for the Montreal Alouettes.

* Religious affiliation: Episcopalian.

* Pros and cons: Advocates restrictions on abortion, back-to-basics education, prayer in schools, caps on punitive damages in jury awards. Opposes casino gambling, tax increases for any purpose, same-sex marriage.