The "T" word leads to mistakes . . .

The debate over theocracy is heating up -- and not just in the blogosphere. It's reached the point where the Philadelphia Inquirer's Dick Polman now puts it on the front page of the Sunday paper, in a column titled "Right risks a backlash from fears of theocracy." He's even cited a "conservative" Tennessee blogger with a name I've never heard before (but who probably has a brother named Homer):

Glenn Simpson, a Tennessee law professor who runs the conservative Instapundit blog, wrote recently: "The Republicans' weakness is that people worry that they're the party of Jerry Falwell and Pat Robertson. They tried, successfully, to convince people otherwise in the last election, but they're now acting in ways that are giving those fears new life."

Those fears are reflected in the latest Gallup poll, which reports that, by a 2-1 ratio, Americans now say that the religious right has too much influence on the Bush administration. This poll, conducted immediately after the Schiavo case, contrasts sharply with surveys conducted between 2001 and 2003, when sentiment about the religious right's influence was evenly split.

So it's noteworthy that Bush, in his press conference Thursday night, took issue with religious-right orthodoxy. Christian leaders implied a week ago that those who seek to block Bush's court nominees are not "people of faith." But Bush said, "I don't ascribe a person's opposing my nominations to an issue of faith," and he added that he opposed any religious tests: "If you choose not to worship, you're equally as patriotic as somebody who does worship."

No Christian leaders took issue with Bush. But they do expect fealty from the GOP.

In the words of conservative Christian strategist Gary Bauer: "We are now at such a crucial time in the culture war. The Left is in full screaming mode, and they are counting on Republican knees to buckle, as they have so many times in the past." He said it's critical to overhaul a judiciary "that is replacing our Judeo-Christian heritage with moral relativism."

The obvious name error above illustrates a key distinction between blogging and print journalism. If I inadvertently misnamed someone (as I have before), I'd either correct it outright, or apologize in an update to the same post. In print journalism, any such corrections or apologies have to come later. And that must be infinitely more painful than a correction in an update to a post.

But what about theocracy? It's a scary word, and I think it's intended to scare people. If it's misused, who is going to correct its misuse? I'm a little concerned that "theocrat" might degenerate the way the word "racist" degenerated -- until at last it has no meaning at all. When this happens (as for example it did when the word "racist" came to mean things like opposition to affirmative action quotas), then the real theocrats can breathe easy -- just as David Duke must have loved being lumped in with Ward Connerly.

The problem is that there are real theocrats. Assorted "Dominionist" and "Reconstructionist" crackpots like Terry, Robertson and Kennedy really do want to rule the United States in the name of God, and say so. Yet they do not control the White House, and any suggestion that they do is politically charged rhetoric coming from the other side. It's like the old boy crying wolf syndrome. Yell enough about theocrats, call any religious conservative a theocrat, and then who will listen when a real theocrat comes along?

For me, the problem is compounded by an inability to find a precise definition of theocracy. Here's Wikipedia's:

Theocracy is a form of government in which a religion and the government are allied.

The word "theocracy" comes from the Greek theos which means "god," and kratein which means "to rule." Hence, theocracy literally means "rule by god."

In the most common usage of the term theocracy, in which some civil rulers are identical with some leaders of the dominant religion (e.g. the Byzantine emperor as head of the Church), governmental policies are either identical with or strongly influenced by the principles of a religion (often the majority religion), and typically, the government claims to rule on behalf of God or a higher power, as specified by the local religion. However, unlike other forms of government, a theocracy can be unique in that the administrative hierarchy of government is often identical with the administrative hierarchy of a religion. This distinguishes a theocracy from forms of governments which have a state religion or from traditional monarchies in which the head of state claims that his or her authority comes from God.

A more literal term for what is commonly meant by "theocracy" is "ecclesiocracy," which denotes the rule of a religious leader or body in the name of God, as opposed to the literal rule of God.

Loosely speaking, theocracy is taken to mean religious rule. But what exactly is that? Rule by the religious? We've had plenty of religious presidents -- far more religious than President Bush. Was the United States a theocracy? I don't think so, and I don't see how any country with a Constitution like we have, coupled with the First Amendment guarantee of free exercise of religion (AND a prohibition on establishment of religion) could ever become a theocracy in the legal sense. For starters, free exercise means precisely that. The government simply cannot tell anyone what, how, or whether to worship god, gods, which god, or whether there are gods. Nor can it tell anyone not to. It cannot make laws "respecting an establishment of religion." Probably can't disrespect establishments either. It just doesn't have religious power, and no matter who is elected, it cannot get this power unless some drastic change were to take place.

Let's assume, as an unlikely worst case scenario, the election of a genuine theocrat as president of the United States. Following his oath of office, what exactly could a President Randall Terry do? Order the Justice Department to round up "secular atheists" and religious heretics? I don't see how. The power isn't there for him to do that. I suspect he'd have to be content with largely meaningless gestures, like censoring references to sex out of pamphlets handed out in government offices. Even if the man wanted to impose what he considered "religious laws" such as the death penalty for homosexuals and Sabbath breakers, he couldn't do it. First, he'd have to first get these laws through both houses of Congress. How?

Then the crazed religious laws would have to survive the Supreme Court. It's tough to imagine that happening. (The most I can see coming out of that court would be a reversal of Roe v. Wade, but is abortion becoming a state issue once again really theocracy?)

I think that the theocrats know that the first thing they'd have to do would be a preemptive strike against the Supreme Court, and I don't mean getting more conservatives appointed.

Might the Constitution Restoration Act be this preemptive strike? It might be, and I think it's a fair question. Might even be a litmus test. A showdown.

The idea of the CRA is to restrict jurisdiction of courts over certain matters in order to stop "judicial tyranny." It is argued that the courts should be subordinate to the Congress and the Executive branch, and that the Constitution gives Congress the power to limit federal appellate jurisdiction.

While this wasn't much stressed in my Constitutional Law class, a plain reading of the Constitution certainly allows Congress to limit jurisdiction of the courts. To a certain extent only.

Here's Article III:

Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (Emphasis supplied.)

The plain language makes clear that if a state (or the United States) is a party, then Congress is without power to limit the Supreme Court's original jurisdiction. While statutes have interpreted the "state shall be a party" phrase as meaning only disputes between two states, the plain language does not; instead the phrase "a state shall be party" is used.

Let's assume that the Constitution Restoration Act (which I have criticized before as unconstitutional) is passed, and later someone sues the state or federal government (or a government official) in any of the myriad disputes over religion.

Here's the key provision of the CRA:

...[T]he 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 entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.'.
That is in clear conflict with the "original jurisdiction" language of the United States Constitution.

While I refuse -- so far -- to take the CRA seriously (because my experience tells me that political common sense will prevail), this bill is being taken seriously by many, many people. If a majority of Republicans vote for it so that it is actually passed, the ensuing debate about "theocracy" will make the Terri Schiavo case look like nothing. The Republican Party will then appear to many (including many Republicans) to have actually become the party of theocracy. (At the very least, it will be seen as far too close for comfort.)

This view from John Cole (via Andrew Sullivan) typifies the current early stages of such thinking:

I fully expect to be told I am getting 'worked up over nothing,' that these 'are just a small portion of conservatives,' and that 'everyone has a right to be heard.' Whatever. These aren't your average every day pople who just want to practice their religion freely. We are talking about a coalition of proselytizing zealots who want to control government, codify their religous outlook, and most of all, who want to control you.

No. We aren't talking about the Taliban or the radical mullahs in Saudi Arabia. They aren't stoning people, or throwing homosexuals off of towers. A pretty peculiar yardstick to measure your behavior with, though- "Hey- we're not as bad as the Taliban!" I feel better now.

I am particularly dismayed by the people who want to pooh-pooh these groups, claiming they are just a fringe element that should be ignored. Many want us to believe that all of these groups are individual actors- even people like Jay, who can clearly recognize the political ties between George Soros, Media Matters, America Coming Together, etc., but wants to pretend there is not a coordinated effort to impose a specific brand of Christianity on everyone.

Andrew Sullivan is sometimes over the top in his rhetoric, but he has an excuse- he is homosexual. They are gunning for him, first. You and I are phase two. We ignore these folks and abandon Andrew at our own peril, and if we do not confront these people, you can kiss goodbye the coalition that has swept Republicans into power.

When faced with a choice of this loose-knit coalition of frauds, bigots, hucksters, and letting the 'evil' loony left in charge, well, suddenly MoveOn doesn't seem that damned scary anymore, particularly when you consider how marginalized the Cynthia McKinney crowd is. They may tax the hell out of me and leave us with an impotent foreign policy, but I can count on them staying out of my bedroom, my science classes, my pharmacy, my marriage, and my Doctor's office.

Go ahead- force me to make a choice.

In the context of the Constitution Restoration Act, Cole's view has to be seen as a mere tip of the iceberg.

Returning to FDR, I hope it will not be forgotten that back in the 1930s, the Supreme Court was declaring one New Deal bill after another unconstitutional. The president, obviously believing quite strongly that he was dealing with an "activist" Supreme Court, tried to rein them in with the court-packing plan which Congress failed to pass. Following this fiasco, FDR got his way because the Court caved, and the bills he ramrodded through dramatically increased the power of the federal government. Correct me if I am wrong, but it seems to me that it is the pliant, post-packing-plan court which is often considered to have laid the groundwork for what is now called the "out of control" judiciary.

In declaring FDR's previously unconstitutional laws constitutional, the Court is often cast as having "rewritten" the Constitution. Did they? Or should the blame lie with Congress? It strikes me as more than a little disingenuous to maintain that by upholding unconstitutional legislation, the court behaved in a tyrannical manner.

Considering this history of rubberstamping Congressional and executive tyranny, I don't see how eliminating judicial review would eliminate tyranny. If anything, it would give tyrants (especially tyrants in Congress) a freer hand than ever before.

Let's take the non-religious example of McCain-Feingold. I think it's blatantly unconstitutional. Yet Congress passed it and the president signed it. It survived constitutional scrutiny in the Supreme Court, but barely. 5-4. Eliminating judicial review would take away the only safeguard we've got.

And if we return to the worst case scenario -- of genuine theocracy -- I think eliminating judicial review for matters of religion would similarly take away the only safeguard we've got.

What if the Constitution Restoration Act is a genuine theocratic threat? As I pointed out in another post, it favors some religious views at the expense of others, while selectively prohibiting the Supreme Court from intervening.

Will anyone notice? Or will it be lost in a sea of rhetorical hyperbole, where every Republican proposal is labeled a form of "theocracy" and reasonable people are called theocrats?

MORE: The point I was trying to make about the judiciary is made and amplified upon at Pete Guither's Drug War Rant:

I see the Constitution Restoration Act as, at least partially, an attack on the Judiciary. As a drug policy reformer, the Judiciary is generally my friend -- maybe not a best friend, but certainly a better friend than the executive or legislative branches.

Certainly, there are judicial decisions with which I have vehemently disagreed. I've felt all along that the courts have allowed the destruction of the fourth amendment to go way too far. But it wasn't the courts that conducted the offensive searches or passed the bad laws -- the courts simply didn't go far enough in stopping the Executive and Legislative branches who were violating our rights.

The courts have not passed a single law that restricts our rights, nor have they conducted a search of our cars or locked us up for possessing a plant. Those things have been done by our elected representatives. All the Judiciary is able to do is act to restrict laws or actions initiated by another branch. They cannot really create.

Where but the courts can we go if (to give just one recent example) this latest Drug War atrocity is passed?

If the courts are the last defense against growing totalitarianism (and I think a good argument can be made that they are), it strikes me that weakening them is profoundly dangerous.

Consider James Madison's definition of tyranny as the "concentration of all powers judicial, legislative, and executive, in one body." The argument made by the proponents of the CRA is that the courts are tyrannical because they have "legislated from the bench." While it is true that too many courts have usurped legislative functions, don't things like mandatory 10 year sentences usurp the judicial function? There's a certain give and take, and in the normal course of things, legislatures are generally more able to pass laws overruling court decisions they don't like than are courts to undermine legislation.

In theory, all three branches are supposed to bow to the Constitution. But in practice, it is the judicial branch which has intervened when the other two branches violate the Constitution. Take that away, and what recourse is there if the legislature passes blatantly unconstitutional laws? Civil disobedience? Armed citizens militias?

The Constitution Restoration Act attempts to restrict the jurisdiction of the court in an unprecedented (and in my view unconstitutional) manner. It's very bad business.

I think it should be renamed the Clintons Restoration Act.

UPDATE: Via Glenn Reynolds, here's Joe Gandelman on Pat Robertson's remark that federal judges are worse than al Qaida terrorists:

This kind of verbal overkill stops political debate cold. So Robertson now says our judges are in some ways worse than terrorists. Why? Because they don't rule the way HE wants. And Republicans (rightfully) complained about some of the verbal excesses of Michael Moore?

What happens to a tent when a skunk sprays in the tent? The tent smells. And some people leave the tent.

Others hold their nose. That's why so many libertarians are having trouble breathing.

To use another analogy, what happens to the people who don't believe in rocking the boat when others rock it?

UPDATE (05/03/05): The Inquirer has corrected the "Simpson" error, which was graciously acknowledged by Glenn, er, Reynolds. I must have missed that in yesterday's hard copy. If so, my apologies, and I promise to look harder the next time.

MORE: The problem is, the Simpson fallout damage had already been done -- before the Inquirer's retraction!

FINAL NOTE: The retraction appeared under "Clearing the Record" on page A-2 in the hard copy edition of the Monday May 2 Inquirer. The reason I missed it is that Dick Polman's column for May 2 appeared right on the front page, with no mention of the "incorrect name" error.

(I guess that must mean that the error was the Inquirer's -- and not Dick Polman's. Either that or he didn't want to call attention to his error on the front page -- for which I can hardly blame him.)

posted by Eric on 05.01.05 at 12:51 PM







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Two appalling bills, two great posts. At least one person favors a society where adults can be adults and parents are responsible... I realize that the hysteria surrounding what we call "children" is so impenetrable that some will continue to... [Read More]
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"Classical Values" blog has an excellent article on the "threat" of theocracy looming over us. Gives historical background and Constitutional context. Excellent read. [Read More]
Tracked on May 3, 2005 6:53 AM



Comments

Thoughtful and provacative piece- something I appear incapable of with my current shrill tone.

John Cole   ·  May 1, 2005 1:43 PM

If the CRA passes, what I'll have to say (and what many others will say) would make your post look almost wishy-washy!

Thanks for coming.

Eric Scheie   ·  May 1, 2005 1:51 PM

Theocracy (Gk. theokrati/a) was coined by Flavius Josephus, the great Jewish historian and general of the 1st century CE who flourished under Vespasian.

The term was coined in book two of his defense of the Jews, 'Against Apion' (Apion being a Greek gramamrian and teacher of rhetoric in the reign of Claudius most famous today for what we call antisemitism).

The passage in which the term appeared was a description of the original Jewish state under Moses. The term, in fact, only ever appeared again in Greek twice in quotations of this passage. Here's William Whiston's translation of the relevant passage:

Now there are innumerable differences in the particular customs and laws that are among all mankind, which a man may briefly reduce under the following heads: Some legislators have permitted their governments to be under monarchies, others put them under oligarchies, and others under a republican form; but our legislator had no regard to any of these forms, but he ordained our government to be what, by a strained expression, may be termed a Theocracy, 4 by ascribing the authority and the power to God, and by persuading all the people to have a regard to him, as the author of all the good things that were enjoyed either in common by all mankind, or by each one in particular, and of all that they themselves obtained by praying to him in their greatest difficulties.

It's important to remember as the editor of that text stresses that Josephus is attempting to make explain Judaism to pagans.

The term was picked up by the French in the 17th century (the standard French dictionary, le Petit Robert, dates this usage to 1679) to describe a form of government administered by priests but whose authority was thought to emanate directly from the divine. Sometimes, it adds, this representative is considered a god incarnate. The example given is Tibet.

By extension, le Petit Robert adds, a theocracy may consist of a regime or a church in which priests enjoy an important political role.

I understand the power of metaphor, but also how easily metaphor is either perverted into a reductio ad hitlerum or weakened till neither the metaphor nor the original concept from which it is born retain the precision or power it once did.

Dennis   ·  May 1, 2005 4:44 PM

Thanks Dennis. That was informative. I didn't know Josephus invented the word. And of course by the time the French got hold of the word, they used it with an anti-clerical slant. And thus the word has been utilized ever since, with a negative connotation.

Kind of interesting. From Josephus to the French in one giant leap. Speaking of cultures in counterpoint.

Mara Schiffren   ·  May 1, 2005 5:53 PM

Spit out the KoolAid.

Wake the fuck up

www.theocracywatch.org

Jay   ·  May 2, 2005 11:21 AM

You're right Dennis, there's a lot of reductio ad hitlerum going around. As we all know, only Christians (never Muslims) can be theocrats.

And Hitler was a devout theocrat!

Eric Scheie   ·  May 2, 2005 11:50 AM

So I guess we should just relax and let Pat Robertson and the Family Values Coalition have their way. Are you f---ing retarded?

Instafaggot   ·  May 9, 2005 7:51 AM

Thoughtful and provacative my ass. I guess they'll kill you last.

Instafaggot   ·  May 9, 2005 7:52 AM

Hey that last one rhymes!

Kewl!

But I think it's insensitive to call people retarded. It's not a choice, you know....

Eric Scheie   ·  May 9, 2005 10:43 AM

Sorry, but Pat Robertson called and asked me to delete your comment. I pleaded with him and finally he agreed to allow me just to censor the "f" word. He does call the shots around here, and I don't want to lose my right wing funding. Hope you understand.

Eric Scheie   ·  May 9, 2005 10:49 AM

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