Jim Wallis, Sojourners editor and evangelical progressive, has rightly characterized Republican plans to dismantle the filibuster as “a declaration of religious war.”
But the central issue in this war between the Christian right and the rest of America is not the ultimate confirmation of a handful of reactionary judges. What’s at stake is ownership of the U.S. Constitution: Who controls this 218-year old document and to what end?
Two basic schools of thought exist as to how to interpret the Constitution. One holds that we are ruled by a “living constitution” — one in which legal scholar Ronald Dworkin says “key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules.” The second school applies a “strict constructionist” approach that maintains the Constitution provides a “rule of law” that is to be interpreted literally. As one strict constructionist justice put it: “The constitution that I, Antonin Scalia, interpret and apply is not living, but dead.”
Historically, interpreting the Constitution has been the provenance of judges appointed by the president and confirmed by the Senate. But despite the fact that the majority of federal judges are Republican appointees, the Christian right has deemed the federal courts a bastion of the ungodly. Or, as House Majority Leader Tom DeLay dubbed them, the “left’s last legislative body.”
For DeLay and the Christian right, denaturing the filibuster is the first step toward theocracy. The second is passing the Constitution Restoration Act of 2005, which is being sponsored by six senators and 30 representatives.
The act does three things. First, it prohibits the Supreme Court from ruling against any government official or government body whose actions acknowledge “God as the sovereign source of law, liberty or government.” In other words, enshrine the Ten Commandments in public places. Second, it prohibits federal judges from citing the laws or judicial policies “of any foreign state or international organization or agency.” This is aimed at the likes of Justices Sandra Day O’Connor, Ruth Bader Ginsberg and Anthony M. Kennedy, who have all cited international judicial norms in their rulings. Third, the act provides that any judge who rules in either of these two ways “may be removed upon impeachment and conviction.”
In introducing the act, Sen. Richard Shelby (R‑Ala.) said it was needed to counter the “growing trend in our federal courts … to secularize our system of government and divest morality from our rule of law.”
To sell the idea to the public, the Christian right has gathered under the banner of the Judeo-Christian Council for Constitutional Restoration. The group’s April 7 – 8 conference, “Confronting the Judicial War on Faith,” highlighted a number of Christian right luminaries and elected officials. (DeLay had to bow out to attend the pope’s funeral.)
At the conference, Phyllis Schlafly said Justice Kennedy’s citation of international legal standards in his opinion against executing juveniles was “a good ground for impeachment.”
Christian legal scholar Edwin Vieira disagreed. He said Kennedy should be impeached because his opinion striking down Texas’ sodomy statute “upholds Marxist, Leninist, Satanic principles drawn from foreign law.”
Why stop with impeachment? Vieira invoked Joseph Stalin’s infamous line: “Death solves all problems: no man, no problem.” “It worked very well for him, whenever he ran into difficulty,” Vieira said.
In late April, Janice Rogers Brown, the U.S. Court of Appeals nominee up again after being rejected via filibuster in 2003, told a crowd at a Darien, Conn. country club that at no time since the Civil War has the country been “so bitterly divided.” “It’s not a shooting war, but it is a war,” said Brown. “These are perilous times for people of faith, not in the sense that we are going to lose our lives.”
No, just our Constitution.
Joel Bleifuss, a former director of the Peace Studies Program at the University of Missouri-Columbia, is the editor & publisher of In These Times, where he has worked since October 1986.