Inherent Theocracy? A Newly Revitalized Constitutional Trojan Horse

18th January, 2012

by David Trillo, guest writer

Newt Gingrich’s flamboyant suggestions that the Executive Branch should merely ignore Supreme Court rulings at will and legally threaten judges who dare to uphold Constitutional freedom7 might be the hottest news in recent weeks.  The under-reported truth, however, is that ideas like his are far from unique within the far right today.

Like shady insurance companies looking for every diabolical way to deny claims on what appear to be good indemnity policies, power-hungry politicians and special interest groups have been hatching ingenious schemes to evade or strip away the Constitution’s protection of individual rights almost since the day it was ratified.

Let’s take an extended look at this multi-partite war against the Constitution.

One early tactic that some within today’s far right have resuscitated is the claim that state governments don’t have to honor the Bill of Rights1.  Another tactic, championed by presidential candidate Michele Bachmann, is to take away the court’s jurisdiction2 over their pet agenda issues.  The Conservative Caucus would combine both tactics4.

A far more dangerous tactic that is rising in popularity is to claim that the federal and Supreme Courts should not have the power to overturn unconstitutional laws at all3.  For politicians who claim to care so much about the Constitution, many of them are intent on rendering it mostly or completely toothless and powerless.

The ultimate objective, for most, is the imposition of some degree of theocracy or religion-run government similar to Iran – something that the Constitution expressly forbids.

But there’s another tactic, one which shoplifts the belief in natural law held by many of our nation’s founders, and deviously transforms the concept of natural, inherent, unenumerated rights into an implied or inherent recognition of theocracy.

The founders who played the most influential roles in designing the Constitution did believe in natural, unalienable rights.  Admittedly, those rights were honored very imperfectly at that time, such as those of slaves and women, but lofty abstract ideals that are put to paper ahead of their time have a way of not being well put into practice.  Concerned nonetheless that the government might someday interpret an itemized Bill of Rights to be a license to step on rights that weren’t explicitly listed, however, they included the Ninth Amendment – the founders’ way of reminding us that, where rights are concerned, what you see are not all the rights we get.  Natural rights are covered, too.

To get to the point, I must undertake a thumbnail review of Constitutional concepts and a small but vitally necessary side trip.

The Constitution depends upon implied and inherent powers.  Inherent powers are powers that the federal government must have in order to carry out the functions delegated to it by the Constitution.  Their existence are unstated but are assumed to be obvious – why would the founders delegate a function to the federal government without granting it the powers to perform that function?

The right to privacy, so violently reviled by many on the far right, is an example of an obvious, natural right that happens to be an inherent Constitutional right. Think for a moment – if no right to privacy existed, why would the Fourth Amendment be necessary?  Why all the concern about search warrants and probable cause?

If the founders didn’t believe in a natural and inherent right to privacy, we would have needed no Fourth Amendment to clearly spell out the narrow and specific situations in which government could breach our personal spaces.  The government could just say “hey, we can come in your home any time that we want, for any reason, because you have no right to privacy.”  Without a right to privacy, the Fourth Amendment makes no sense.

So, how do we get from what looks like a broad interpretation of Ninth Amendment rights to a theocracy?

The trick is hidden in the concept of “natural law.”

Natural law sounds like a secular concept, something that can be discovered by observation and tested by experience and effects.  Natural law, as the term implies, is inherent in nature, and therefore would seem to be amenable to scientific investigation and rational inquiry.

But to some, especially in the Religious Right, “natural law” is more of a theological term than a scientific term.  The Christian God, it is asserted, created nature and all within it, and He created the laws that govern nature.  It follows that any implementation of “natural law” is in fact an implementation of “God’s Law” – as defined by their theological doctrines.

At the Thanksgiving Family Forum, a recent Republican presidential candidate forum held at a Des Moines, Iowa church, this concept appeared in the assertions made by most of the candidates: “we are endowed by our Creator with certain unalienable rights.”5

They went on to tie the identity of this Creator to the “Judeo-Christian” faith, with candidate Rick Santorum asserting that “the law is a teacher” and “the laws of this country should comport with that moral vision.”  He furthermore implied that imposing religious law was a proper role for the federal government.  Michele Bachmann said that “government is on [God’s] shoulders,” adding that “He created every aspect of life, and He has something to say about every aspect of life.”

Candidate Ron Paul was the only candidate present who explicitly warned that it wasn’t the job of government to impose religious values or engineer the culture.   (Unfortunately, Ron Paul later endorsed one of the other dangerous subversions of the Constitution as a remedy for Roe v. Wade – removing the jurisdiction of the federal courts to overturn unconstitutional laws.  In other words, “let’s break the system so that we don’t have to abide by the Constitution if we don’t want to.”)

Candidates Mitt Romney and Jon Huntsman did not attend.

This idea of “inherent theocracy” is insidious because those who espouse this view are more likely to appear serious about other Constitutional protections, vigorously opposing attempts by the federal government to track, monitor, and spy on American citizens as a whole.  They can be quite serious about the Fourth Amendment, and many oppose the Patriot Act.

By outward appearances, they take most Constitutional rights quite seriously.  But in this view, all Constitutional rights, no matter how vigorously proclaimed, must surrender to the higher theocratic law.

For example, Religious Right group Alliance Defense Fund excerpts Sir William Blackstone, and summarizes thusly:  “[T]he basis upon which English Common Law sits is a higher law, the law written by God and found in His scriptures. Because of this, man has no authority to write a law that contradicts God’s law.”6

It’s comforting to know that the Creator gave us certain unalienable rights.  It’s less comforting to know, however, that this insistence isn’t really about protecting our unalienable rights.  It’s more focused upon identifying which rights “our Creator” says we must never be allowed to have, i.e., any rights that go against the theological doctrines of the inherent, unstated official national religion.

A clear example of this concept comes from a web article at Reclaiming America for Christ (formerly Reclaiming Oklahoma for Christ): “First, there can be no law contrary to God’s law (the Laws of Nature and Nature’s God).”8 It then proceeds right into a glaring contradiction: “Second, no law can be contrary to the Constitution.”  The contradiction goes away, in their minds, because they regard theocratic law to be higher than the Constitution.

The modern far right has conceived a highly diversified battery of tactics aimed at seeing to it that the Constitution’s protections of rights and liberties are somehow not applicable when claimed by people or groups that live outside the religious doctrines of certain political leaders and organizations.  Expect several of these tactics to be used together, if that’s what it takes to elevate government power over Constitutionally guaranteed human rights.

In all fairness, the Inherent Theocracy isn’t the most dangerous of the popular anti-Constitutional tactics.  Rejected Supreme Court nominee Robert Bork’s one-time idea, that Congress should be able to overturn Supreme Court rulings by simple majority vote, is vastly more dangerous.

But we can certainly trust that the Inherent Theocracy theory would see to it that the rights of minorities and religious “non-conformists” would enjoy no protection by the Constitution when these rights run contrary to religious law.  And, as history shows, the definition of “religious non-conformist” would quickly expand to include everyone – including other Christians – whose theological stances differ from those in power.

References:

  1. Kevin Gutzman, “Bong Hits Case Denies Constitutional Law,” Human Events, 07/11/2007, http://www.humanevents.com/article.php?id=21474
  2. Jennifer Jacobs, “Quotes: Michele Bachmann in her own words on marriage, judges, a stolen election,” Des Moines Register, 4/11/2011, http://blogs.desmoinesregister.com/dmr/index.php/2011/04/11/quotes-michele-bachmann-in-her-own-words-on-marriage-judges-abortion/
  3. Tom Delay, Washington Times interview, 4/13/2005, http://www.washingtontimes.com/news/2005/apr/13/20050413-111439-5048r/?page=7
  4. Candidate Questionnaire Item 20, Conservative Caucus, http://www.conservativeusa.org/candqest2008.htm
  5. Thanksgiving Family Forum, 11/19/2011, Des Moines, Iowa.
  6. “About Sir William Blackstone,” Alliance Defense Fund, 12/1/2011, http://www.alliancedefensefund.org/Home/ADFContent?cid=3149
  7. Shannon McCaffrey, “Gingrich assails judges as he courts conservatives”, Associated Press, 12/19/2011, http://www.chicagotribune.com/news/chi-ap-us-gingrich-judges,0,415215.story
  8. “Yes, I am an Ideologue if you mean Biblical Values and Constitutional Liberty”, Reclaiming America for Christ web site, 12/24/2011, http://reclaimamericaforchrist.org/yes-i-am-an-ideologue-if-you-mean-biblical-values-and-constitutional-liberty-2/
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School Vouchers, Parental Rights Movements Face Conflicting Interests

14th September, 2011

By David Trillo, guest writer

To many ardent church-state separation activists, and I am definitely ardent, opposition to tax-funded school vouchers for religious or parochial schools approaches an article of faith.  Separationists argue that tax aid to religious schools is a plain, flagrant violation of the First Amendment’s Establishment Clause, and may violate state and federal laws by funding institutions that practice religious or other forms of discrimination.

Voucher supporters tend to view such prohibitions as discriminatory against religion or violations of parental rights.

On August 12, Denver District Court Judge Michael Martinez saw the Douglas County Choice Scholarship Program through separationists’ eyes, ruling it unconstitutional.  The school district intends to appeal.

These surface issues that typically make the news, however, miss most of the action that raises deeper concern.  As is often the case when a political movement that normally tries to limit individual liberty takes sides with a “rights” cause, the explanation for the seemingly conflicting ideals begs an investigation.

School vouchers are often portrayed in the guise of parental rights.  The right of parents to direct the upbringing of their children has been the subject of ballot initiatives in several states as well as favorable Supreme Court rulings1, 2 that paved legal precedent for Constitutionally protecting a wide variety of unenumerated rights, including the divisive right to an abortion.

An amendment to the Constitution that reads, in part, “The liberty of parents to direct the upbringing and education of their children is a fundamental right1” looks like something that I could vigorously support.  An amendment that emphatically locks the government out of our family lives would appear to be a powerfully progressive tool.

Yet many of such an amendment’s strongest supporters come from Religious Right groups that openly express legislative goals such as “protecting marriage,” “strengthening the traditional family,” and “policy issues relevant to families from a foundation firmly established in a biblical worldview3” – words that clearly imply a governmental role in shaping and engineering family life.

If that puzzles you, the mystery will begin to disappear when we explore exactly what sort of tool its Religious Right advocates see in it.

A clue appears in a Focus on the Family web article4 that criticizes the American Library Association while downplaying Banned Books Week.  A quick guide5 page to parental rights articles at citizenlink.org links to it as well as to other pages, most of which object to various sexual issues.

One of the “parental rights” that it alleges is the right to “challenge,” i.e., request the removal of library books that a parent finds objectionable.  Dr. Albert Mohler, president of Southern Baptist Theological Seminary, echoes this view, implying that public libraries somehow violate parental rights7 when they carry books that some parents find objectionable.

That raises a question.  If other parents demand that the library affords their children maximum access to the same kind of information, who wins?  Religious Right groups appear to believe that the parents demanding the limitations should win.

In addition, the Focus Citizen Link article4 asserts that parents should use their rights to demand that libraries carry, for example, anti-gay materials to balance out perceived pro-gay books.  (That sounds a lot like the old broadcast Fairness Doctrine.)  Ironically, the American Civil Liberties Union has recently sued a Missouri school district for censoring gay-supportive Web sites while allowing anti-gay sites13 – a policy supported by many “parental rights” advocates, at least as indicated by comments on accompanying news stories.

Another clue appears in a Parentalrights.org news alert concerning California Senate Bill 48, which involves teaching about the contributions of gay and lesbian Americans.  While the organization’s demand for parental opt-out rights appears sincere, it notes that, in the absence of an opt-out right, “there is no lesser recourse available than to change the entire curriculum for all.6”

Citizen Link is more audacious, asserting that “same-sex marriage laws have directly undermined parental rights” by encouraging class discussion of “controversial sexual topics.10”  (That’s quite an about-face from Religious Right groups’ stances on teaching Intelligent Design alongside evolution, advocated on the grounds that schools should “teach the controversy.”)  Apparently, even other citizens’ marriage choices must step aside to prevent sparking classroom discussions that some parents would rather avoid.

There are, undoubtedly, millions of well-meaning Christian parents who sincerely want nothing more than a right to excuse their children from certain curriculum content.  But as evidenced above, some Religious Right groups view parental rights as a tool to deprive everyone’s children access to information that socially conservative parents find objectionable.  They envision a world in which the rights of “conservative” parents trump intellectual freedom, and can demand removal of “objectionable” library materials despite the wishes and rights of other parents who want no such limitation8.

But that is a recurring pattern in far right vernacular, where the words “rights” and “freedom” translate more accurately into “power.”

As I already mentioned, a Constitutional parental rights amendment feels very appealing to me.  But when you realize that Religious Right groups generally consider Antonin Scalia to be a model Supreme Court judge, and it was that same Antonin Scalia who opined that parents have no court-enforceable right to direct their children’s upbringing12 (Troxel v. Granville, 2000)11, I have some doubts whether “conservative” politicians would return me the favor if my parental stances clashed with their government policies.

What raises my suspicions is the fact that most high-profile parental rights advocates appear to assume that their primary beneficiaries are always conservative religious parents.

Parentalrights.org vigorously opposes the U.N. Convention on the Rights of the Child; one of their specific objections reads, “Children would have the ability to choose their own religion while parents would only have the authority to give their children advice about religion.9”

It is odd that granting this right to a child would be objectionable; what if the child in question wanted to become a Christian, yet had stridently anti-religious parents?  Or in this time of fear of “Sharia Law,” what if a child of Muslims wanted to become a Christian?  Would they still side with the parents’ rights?  Or would the child’s religious freedom suddenly be worth defending?  The objection makes sense, however, if it is assumed that the parents who would enjoy these rights are always conservative Christian parents.

It’s also odd that Religious Right groups appear to support near-absolute parental rights, in light of their oft-stated desire to protect children and safeguard their innocence – almost a children’s-rights view in itself.  Again, it all makes perfect sense if it is assumed that only religious or social conservatives are morally qualified to be trusted with parental rights and act in the best interest of children.

This brings me back to school vouchers.  It’s curious, again, that Religious Right groups that support strong parental rights would also support government vouchers for private or religious schools, since many of these schools require, as a condition of admission, that parents surrender most or all of their rights while children are in the school’s custody.  Isn’t that exactly what they were fighting against?

The school voucher and parental rights arguments put forth today are undeveloped, founded in inconsistent and contradictory premises, and are therefore difficult to put together into a coherent ideological or political model.  Implementing either vouchers or parental rights amendments now would certainly have many consequences that their proponents never intended – or might even deeply regret.

To the eyes of a fair and impartial federal judge, a Parental Rights Amendment would not deliver what many of its backers think it would.  Moreover, parental rights are not, in themselves, adversarial in nature to children’s rights.  In the hands of a judge appointed because of his or her sympathy to Religious Right causes, however, the new amendment could likely be applied pursuant to its evident intent which – as often seems to happen – appears to be quite opposite what its enticing words say.

The puzzle pieces, as they seem to fit, tell me that “Parental rights” are apparently intended to mean “special powers for socially conservative parents.”  And school vouchers are merely a temporary shelter from public schools that are considered hostile to faith.  If unrestricted school vouchers for religious schools became freely available, I doubt that the campaigns to stock public school boards with “conservatives” would stop.  Efforts to elect Religious Right majorities to school boards would continue unabated.

On the other hand, if you’re one of the millions who merely want the government to butt out of your parenting, then you might in fact have more in common with me: I share that goal of limiting the government’s involvement in our personal living choices as well.

References:

  1. Parentalrights.org, The Annotated [Parental Rights] Amendment, http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={E7900CE9-7AE0-47B3-81F6-CC16B7CAA8A0}
  2. Parentalrights.org,  Parental Rights Doctrine, http://parentalrights.org/index.asp?Type=B_BASIC&SEC={3051ABFF-B614-46E4-A2FB-0561A425335A}
  3. About Us, Citizen Link, a Focus on the Family affiliate, citizenlink.org, http://www.citizenlink.com/about-us/
  4. Citizen Link, “The Truth About Banned Books Week,” Citizen Link, a Focus on the Family affiliate, citizenlink.org, http://www.citizenlink.com/2010/09/28/the-truth-about-banned-books-week/
  5. Citizen Link, “Quick Guide: Articles on Parental Rights in Schools,” Citizen Link, a Focus on the Family affiliate, citizenlink.org, http://www.citizenlink.com/2011/04/28/quick-guide-articles-on-parental-rights-in-schools/
  6. Parentalrights.org,  “Whatever Schools Teach, Parents Have No Rights,” http://parentalrights.org/index.asp?Type=B_BASIC&SEC={9B1459E6-8710-4884-B9E7-C4D53CE8278B}
  7. Dr. Albert Mohler, “Banned Book Week – Parenting at the Mercy of the Local Librarian,” albertmohler.com, http://www.albertmohler.com/2009/10/01/banned-book-week-%E2%80%93-parenting-at-the-mercy-of-the-local-librarian/
  8. Alysse ElHage, “The ‘Right’ to Read: Should Intellectual Freedom Trump Parental Rights in Libraries?,” North Carolina Family Policy Council, http://www.ncfpc.org/FNC/0811SF.html
  9. Parentalrights.org, “20 Things You Need to Know about the UN Convention on the Rights of the Child,” http://www.parentalrights.org/vertical/Sites/%7BC49108C5-0630-467E-9B9B-B1FA31A72320%7D/uploads/%7BD9F69482-C92B-4BB2-A291-06CBA2B9CF69%7D.PDF
  10. Candi Cushman, “Parental-Rights Backlash Is Brewing,” Citizen Link, http://www.citizenlink.com/2010/04/26/parental-rights-backlash-is-brewing/
  11. Troxel v. Granville (2000), Supreme Court of the United States, http://www.law.cornell.edu/supct/html/99-138.ZS.html
  12. Antonin Scalia, Troxel v. Granville (2000), Supreme Court of the United States, http://www.law.cornell.edu/supct/html/99-138.ZD1.html
  13. Suzanne Ito, “ACLU Sues Missouri School District for Illegally Censoring LGBT Websites,” aclu.org, http://www.aclu.org/blog/free-speech-lgbt-rights/aclu-sues-missouri-school-district-illegally-censoring-lgbt-websites
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Religious Right Offensive on Public Education in Texas

15th February, 2010

Citizens Project has been following the dangerous extremism on the Texas Board of Education over the last several months. It exploded in the national press yesterday with this cover story in The New York Times Magazine.

The injection of partisan politics into education went so far that at one point another Republican board member burst out in seemingly embarrassed exasperation, “Guys, you’re rewriting history now!”

Citizens Project will keep monitoring local schools to prevent this from happening here. Please let us know if you hear of any inappropriate politicizing we should be aware of.

Thanks to our friends at the Texas Freedom Network for fighting the Texas takeover.

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