The theocrats' stealth attack on the courts

What do the Ten Commandments, gay marriage and Janet Jackson all have in common?

All three are symbols, for the religious right, of "everything that is wrong with America." The fact that a judge was prevented from having the Ten Commandments placed in an Alabama courthouse; that a Massachusetts court legalized gay marriage, followed by the civil-disobedience action by San Francisco authorities in similarly recognizing such unions; and that Jackson was able to "shock" Super Bowl audiences long ago jaded by half-naked cheerleaders and beer commercials by briefly baring her breast -- all these, according to the folks who want to remake America as a "Christian nation," are clear signs that the nation's moral depravity has gone too far.

And as a troika, they are playing a central role in the campaign by this same faction of the right to radically recast the nation's political landscape, primarily by attacking the power of the courts to shape public policy. They are the noisy cover, as it were, for a stealth attack on the judiciary.

All three symbols were in play recently in a strange speech by Sen. Zell Miller, the Georgia Democrat who is for all real purposes a staunch Republican. Miller stood up to denounce America's social downfall as embodied by the Super Bowl show, citing an Old Testament prophet's warning about decadence, and then launching forth in an attack on the political left, which somehow was responsible for the show:

The culture of far left America was displayed in a startling way during the Super Bowl's now infamous half-time show. A show brought to us courtesy of Value-Les Moonves and the pagan temple of Viacom-Babylon.

I asked the question yesterday, how many of you have ever run over a skunk with your car? I have many times and I can tell you, the stink stays around for a long time. You can take the car through a car wash and it's still there. So the scent of this event will long linger in the nostrils of America.

But Miller's real purpose was to announce what he and other cultural conservatives intend to do about it. And what they intend to do, apparently, is breach the constitutional separation of powers and begin putting severe limitations on the behavior of the nation's judiciary:

The desire and will of this Congress to meaningfully do anything about any of these so-called social issues is nonexistent and embarrassingly disgraceful. The American people are waiting and growing impatient with us. They want something done.

I am pleased to be a co-sponsor of S.J. Res. 26 along with Sen. Allard and others, proposing an amendment to the Constitution of the United States relating to marriage. And S.1558, the Liberties Restoration Act, which declares religious liberty rights in several ways, including the pledge of allegiance and the display of the Ten Commandments. And today I join Sen. Shelby and others with the Constitution Restoration Act of 2004 that limits the jurisdiction of federal courts in certain ways.

In doing so, I stand shoulder to shoulder not only with my Senate co-sponsors and Chief Justice Roy Moore of Alabama but, more importantly, with our Founding Fathers in the conception of religious liberty and the terribly wrong direction our modern judiciary has taken us in.

Just in case there was any misapprehension about the purposes and underlying intent of this legislation, Miller went on to denounce notions of church-state separation, harking to theories promulgated by Christian Reconstructionists that there is no such thing because the words don't appear in the Constitution. [Miller ignores, of course, the frequent appearance of the term in the writings of such founding fathers as James Madison and Thomas Jefferson, the latter of whose famous "Letter to the Danbury Baptists" is credited in court rulings as the clearest example of the founders' intent on this matter.]

And indeed, a good look at the legislation reveals a decidedly Reconstructionist agenda at work. The proposal to pass an amendment outlawing gay marriage has already been well remarked, of course -- indeed, it has drawn the lion's share of debate so far in this campaign. The second piece, the "Religious Liberties Restoration Act," would legalize public display of the Ten Commandments and the use of "one nation under God" in the Pledge of Allegiance.

The third piece -- the Constitution Restoration Act of 2004 -- is the real centerpiece of the program, and is one of the most invidious pieces of legislation to come down the pike in decades.

Here's the core of the would-be law:

Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.

In other words, the law would forbid any court to review cases involving the invocation of God in the courtroom, or the placement therein of the Ten Commandments.

But, like a set of Ginsu knives, that's not all! As this piece from the Fort Worth Star-Telegram explains:

That's sweeping enough, but it doesn't stop there. The bill would declare that federal judges interpreting the Constitution may not rely on anything besides "English constitutional and common law."

Judges, even those on the Supreme Court, could not look to other court rulings, administrative rules, executive orders -- and no foreign law, dadgummit -- though the bill says nothing about reliance on divine inspiration.

Any judge who entertains a legal claim based on a public official's "acknowledgement of God" would be committing an impeachable offense.

Zell Miller, incidentally, is indeed one of the principal sponsors of this bill, but the remainder of the drivers on it are Republican: Alabama's Richard Shelby, Wayne Allard of Colorado, Lindsey Graham of South Carolina, Sam Brownback of Kansas and Jim Inhofe of Oklahoma.

Bringing the courts to heel has long been a pipe dream of the religious right, ever since the days of Brown v. Board of Education and Roe v. Wade. For years, they have complained that "activist courts" have taken over the law of the land and become too involved in shaping public policy --something, they contend, that is strictly the purview of the Congress. At various times, proposals have been floated to pass laws limiting the courts' jurisdictions (one example that springs to mind was the plan by a right-wing Washington legislator in the early 1990s to give the state Legislature the power to overturn court rulings and place severe limits on the courts' purview). Now, it appears they're driving hard to make it a reality.

At least one commentator on the right -- Craige McMillan of the extremist WorldNetDaily -- has recognized the legislation for what it is:

A stealth stake through the Left's heart

McMillan's description makes clear the punitive, even vengeful nature of the legislation. Broaching the separation-of-powers clause is no problem when the courts have gotten too big for their britches:

On its surface, Sens. Shelby and Miller's bill would merely forbid the federal courts from reviewing state court decisions that end up allowing a public acknowledgment of God. How is that possible? Read Article III of the Constitution -- it describes exactly what authority the federal courts have. As my excerpt shows, their area of responsibility is to be regulated and controlled by Congress. Since the federal courts now seem to think they're God, clearly some trimming of their responsibility is in order.

… The beauty of Shelby and Miller's bill is that it exposes any judge who ignores it to impeachment. As the Constitution says, federal judges -- including those on the Supreme Court -- hold their office only during "good behavior." Raping and pillaging America by substituting "international law" for the Constitution, and ignoring congressional limits that have placed certain matters "beyond judicial review" is not good behavior.

The Constitution provides a remedy. I don't know about you, but I'm looking forward to watching my first judicial impeachment (one of my New Year's predictions).

Show trials, anyone?

What's important to remember is just who is driving this agenda: It is not just the typical "religious right" faction of the Republican Party -- the Pat Robertsons and Jerry Falwells -- but the Christian Reconstructionists, or Theocratic Dominionists, as they are sometimes called. (Robertson, it should be noted, is in fact a Dominionist himself.) These are the folks who believe there should be no church-state separation, and who want to see America ruled by "Christian laws." I described them awhile back:

Perhaps the most significant sector of these fundamentalists are the Christian Reconstructionists, whose agenda is openly theocratic. Their stated purpose is to install a "Christian" government that draws its legal foundations from Scripture, not the Constitution. Their radical agenda, however, is endorsed by a broad array of conservative politicians, notably by the powerful Council for National Policy, which boasts a membership from across a range of mainstream conservatism, but which in fact was co-founded by R.J. Rushdoony, one of the leading lights of Reconstructionism.

This sector is gaining increasing significance as a meeting-ground for mainstream conservatism and right-wing extremism precisely because of the emphasis being placed on his own fundamentalist beliefs by President Bush. …

Katherine Yurica has been doing solid work tracking the trail of the Reconstructionists as they have assembled this campaign. An earlier report described Robertson's agenda for attacking the judiciary:

In fact, Robertson went further: he denied that the judiciary is a co-equal branch of the government. Instead, he saw the judiciary as a department of the legislative branch, which he believed was the dominant center of power in the nation. His reasoning went like this: Since Congress has complete authority to establish the lower federal courts and to establish “the appellate jurisdiction of the Supreme Court,” the court system is necessarily subordinate to the legislative. Robertson’s idea was that congress could control the court by using its power to intimidate. For example, he said, “Congress could say ‘There’s a whole class of cases you can’t hear’ and there’s nobody can do anything about it!”

His political plan included two concepts that revamp our government:

First, Americans must be ruled by “godly” men in the legislative branch—not by laws.

Secondly, Congress should limit the power of the courts.

Yurica also has a thorough examination of the Constitution Restoration Act of 2004. And I strongly recommend her piece about George W. Bush's role in the Reconstructionists' game plan, which happens to dovetail neatly into my own concerns about Bush's manipulation of the fundamentalist mindset vis a vis the role of fundamentalist Christianity in any American manifestation of fascism.

[Another terrific resource on this subject is Frederick Clarkson's Christian Reconstructionism: Theocratic Dominionism Gains Influence.]

It's an open question whether the Constitution Restoration Act of 2004 -- an up-is-down, Doublethink title if ever there was one -- will succeed. Because of its radical nature, Democrats should pull out all the stops to ensure it fails, including filibustering it -- if anyone can get their attention. Not only is this a stealth campaign, it has powerful backing, and Republicans control the mechanisms that can bring it to a vote. In an election year, arm-twisting has a special edge, and the GOP leadership may well be able to force it through. It would almost certainly be signed into law by George W. Bush.

Did I happen to mention that this is an important election?

[Cross-posted at The American Street.]