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.
- Kevin Gutzman, “Bong Hits Case Denies Constitutional Law,” Human Events, 07/11/2007, http://www.humanevents.com/article.php?id=21474
- 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/
- Tom Delay, Washington Times interview, 4/13/2005
- Candidate Questionnaire Item 20, Conservative Caucus, http://www.conservativeusa.org/candqest2008.htm
- Thanksgiving Family Forum, 11/19/2011, Des Moines, Iowa.
- “About Sir William Blackstone,” Alliance Defense Fund, 12/1/2011, http://www.alliancedefensefund.org/Home/ADFContent?cid=3149
- 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
- “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/