Commenting on the must-read Max Blumenthal article in The Nation, in which Blumenthal recounts how his time as a sureptitious attendee to the “Confronting the Judicial War on Faith” conference, Billmon ponders the reasoning behind the “Constitution Restoration Act,” which would
…make it an impeachable offense for a federal judge to hear any complaint that any government agency or official had violated the constitutional separation of church and state.
Now I had thought of this as essentially the “Ten Commandments” bill — a political reponse to 2003′s Christian cause celebre: the showdown over Judge Moore’s 2 1/2 ton statement of courthouse faith. But I also thought it was obvious, even to the wing nuts, that filing the bill was a purely symbolic gesture — a classic example of the kind of “prayer service” Christian conservatives typically get from their allies in Congress — and that the bill itself was going absolutely nowhere, except maybe a file drawer in the Senate Clerk’s office.
But now we’re being told that this feeble excuse for a legislative protest (a kind of written raspberry blown at the Supreme Court) is the primary objective for the Great Conservative Cultural Revolution’s grand offensive.
This seems unlikely. I’m no lawyer, and I’ve never even played one on TV, but it seems to me the chances of this bill passing are still about 1-in-100,000 — even with the religious Red Guard baying down Congress’s neck. And if by some miracle the bill did pass, and Rove swallowed hard and told Shrub to sign it, I suspect the Godless tyrannical judges would quickly find a way to stuff it right back in his face — just as they did with the Schiavo special legislation.
So we’re back to the question I raised in my last post: Are these people simply clueless — a political Children’s Crusade perpetually doomed to be swindled both by their money-grubbing fundraisers and by their “friends” in the GOP? Or is this another clever stratagem — a way of firing up the troops for an assault that will actually be launched on a different objective?
The answer is the latter. Starting in the early 1980s, Jerry Fallwell’s Moral Majority (and those connected) began filing scores of hopeless lawsuits. The idea wasn’t to win – the goal was rather to grab headlines that would fire up the base. One of the key lawyers in this strategy was Michael Farris (a number of Farris’ greatest hits at that URL), whose involvement continues to this day.
No one can claim proprietary ownership to the idea of using the courts to achieve long range constitutional goals. Brown v. Board of Education was basically the final straw in a long campaign by the NAACP to break the back of the federal court system. And it worked. The first suits in those campaigns were doomed to fail for a variety of reasons, but the end goal was finally met.
In 1954, Brown’s essential argument was that the Constitution (with specific regard to the equal protection clause) was meant to be interpreted more broadly – equal protection meant equal protection under one tent, not the legally fictitious ‘separate but equal’ construction. And this interpretation, which C.J. Warren adopted, is entirely plausible – and it would not be questioned by a single Supreme Court jurist today. It’s plausible because our conception of equality finally caught up with the actual meaning of the word as it appears in the Constitution.
But it is also generally understood that the drafters of the 14th Amendment would’ve laughed long and hard if one were to suggest that the 14th Amendment demanded integrated public schools (This is due to a number of factors, chief amongst them was that public schools were not mandatory much less even prevelant in 1868, especially in the south. Also recall that after the civil war, many southern states were bullied into passing the 14th Amendment as a precondition to regaining a congressional voice).
So it’s more than somewhat ironic that the Dominionist Christians have essentially adopted a tactic of the Civil Rights era and perverted it to argue that the Constitution should be interpreted more strictly. Indeed, what they’re actually arguing is that the Supreme Court should be precluded from hearing cases brought forward under the Establishment Clause. The line of cases involved with judicial stripping by Congress is admittedly muddy, but no one has ever had the gall to simply propose that substantive parts of the Constitution should be beyond judicial review. It’s an insane position to take, with zero likelihood of success.
But that doesn’t make it stupid. Because legislation is largely a matter of compromise, setting yourself so far outside the margin, while you have even a modicum of support, is a tactic that, geometrically speaking, pulls the center towards you.
And again, realize that we’re dealing with some long-term thinkers here (even if, for some of them, the rapture is nigh). They’ve got patience and time. And they don’t give a shit about anything else. But the vocal opinion leaders certainly know what they’re doing, especially in calling for the heads of the judiciary (however, they may have finally bit off more than they can chew – the ‘stop the activist judges’ argument isn’t quite as populist as they thought, and apparently still think).
The point is simply that the Jesublicans are more clever than clueless and have been using this tactic for years.
But both traits are necessary for the game to work. You need a liar and a believer. (Homer: “It takes two people to lie, Marge – one to lie and one to listen.”)
The cleverness is rooted to the fact that, unlike civil rights litigation (where the goal was to win), this game relies, nay, depends on losses. Only with legal defeats can you appeal to the basest of Christian instincts – persecution (just ask Mel Gibson, who took this lesson to the bank).
And while it seems a difficult argument to make, that a group comprising 85% of the population is somehow a persecuted minority, it’s one with great appeal and has been used to maximum effect for years, even though it has no basis in fact. Christians in this country have pretty much done whatever they want in the name of their religion provided they don’t impose it on the rest of us, which is what the Establishment Clause is all about.
And so yes, their end goal is to remove judicial review as to all Establishment Clause cases by this Act and I don’t doubt that it’s not a sincere one. But you don’t get there without lots of losses in court. Losses in court produce two things: headlines and judicial targets, and both feed on each other to produce devoted followers… with a hatred of judges and the entire judicial system.
The average evangelist who thinks it’d be a good idea if this country was run by God or those self-ordained by him probably don’t have a clue how legally implausible this is under our Constitution. And that ignorance makes it that much easier to instill in them an antagonistic belief system that can germinate into something else over time. As I noted, they’ve nothing but time.
So on one hand, you really do have to be clueless to believe that this Act has any chance of passing, but you’d have to be pretty clever to snow people into thinking it does.