Judiciary

Michele Bachmann has made so-called “activist judges” a consistent target of her presidential campaign, dubbing them “black-robed masters” and in last night’s debate she called for Americans to “take the Constitution back” from the courts. Railing against the judiciary is a safe bet for Republicans trying to pander to social conservative voters, but Bachmann’s view of the legal system has come out of her experience as a Religious Right activist and student at Oral Roberts University Law School.

At Oral Roberts, Bachmann worked for Professor John Eidsmoe, and as reported by Ryan Lizza, Eidsmoe taught that when “Biblical law conflicted with American law, Eidsmoe said, O.R.U. students were generally taught that ‘the first thing you should try to do is work through legal means and political means to get it changed.’” Bachmann has consistently trumpeted her work with Eidsmoe, whose legal philosophy has been greatly influenced by Christian Reconstructionist RJ Rushdoony and has urged Christians to promote Biblical law in government.

Today on The Jan Mickelson Show, Bachmann said that her “biblical view of law” molded her view that America needs to disempower the judiciary:

Bachmann: I hold a biblical view of law. If you look at the original constitution and the founding documents of our country, it was clear that the founders wanted to separate power, they wanted to separate the presidency from the Supreme Court and from the Congress, because they thought that the Congress should be the most powerful of all the people’s voices because the people would have the ability to change out the members of the House every two years, originally the state legislatures would chose the Senators and they would have the state’s interest in mind, and the President was meant to execute the laws that Congress would put into place. The courts had a relatively minor function, it was to take current facts and apply it to the law that Congress had passed. So it was really a beautiful system that set up but it’s been distorted since then, and that’s what we need to do, get back to the original view of the Founders because it worked beautifully.

Rep. Trent Franks (R-AZ) appeared on WallBuilders Live today where he joined right-wing historian David Barton and his cohost Rick Green in attacking the judiciary, which Franks called “the biggest threat that we have.” The judiciary has always been a favorite target of conservatives, and recently Republican presidential candidates Rick Perry and Newt Gingrich have declared an all-out assault on the judicial branch. Franks, who is the Co-Chair of Michele Bachmann’s presidential campaign, argued that the courts are trying “inch by inch” to “take away our religious freedom,” and even argued that “if Mr. Obama appoints additional people to the Supreme Court that the Constitution itself will be fundamentally abrogated”:

Franks: I think there is very few things that are a greater threat than the court systems because they are not accountable to any sort of response by the people. It really is the biggest threat that we have. Ultimately, as a people, we only have two opportunities, we have to defend ourselves in courts and the public square vociferously, we have to be strong and not let them inch by inch take away our religious freedom. And secondly, we have to understand that this Constitutional republic that we’ve been given affords us the opportunity to decide what people we put in the White House that chooses the courts, the people in the courts, the judges. Right now I don’t want to sound political but I don’t have any choice. I am convinced that if Mr. Obama appoints additional people to the Supreme Court that the Constitution itself will be fundamentally abrogated, I mean it is that clear to me.

Yesterday Eagle Forum’s Court Watch released yet another attack on “Reconstructionist (i.e., ‘activist/liberal’) judges,” who, they claim, “are leading the assault on America's Judeo-Christian foundations in our nation's Culture War.” Eagle Forum put together a Sample Resolution for members which the group said can be used as a “weapon” in “an election and at other times when petition-type expressions of our views and values are appropriate.” The resolution begins:

WHEREAS, the Constitution of the United States is, and must be, the Supreme Law of the Land, superior to all court decisions;
WHEREAS, the Constitution must be interpreted in the light of its text, constitutional tradition, and its Judeo-Christian foundation;
WHEREAS, the Constitution contains nothing that requires a "wall of separation between church and state";
WHEREAS, a total separation of religion and law/government is impossible;
WHEREAS, the Framers of the Constitution did not intend that a total separation be attempted;
WHEREAS, the English Common Law in which American law is rooted was Christianized;
WHEREAS, the U.S. Supreme Court does not require a total separation between "church and state";
WHEREAS, Reconstructionist (activist/liberal) federal judges have blatantly assaulted these fundamental Constitutional principles and have re-written them under the guise of interpreting them;
AND WHEREAS, We, the people, still possess the ultimate human political power in this nation and have delegated to the President and Congress in the Constitution very broad powers to establish and empower national courts;
BE IT RESOLVED THAT ________ actively supports
1. the Congressional denial of jurisdiction to courts to hear challenges to either the verbal or non-verbal acknowledgement of God — i.e., "God" meaning the Deity central to the Ten Commandments - on public property and in official utterances such as (but not limited to) the Pledge of Allegiance and national motto.
2. Congressional refusal to recognize, fund, or otherwise enforce court decisions that prohibit either the verbal or non-verbal acknowledgement of God — i.e., "God" meaning the Deity central to the Ten Commandments — on public property and in official utterances such as (but not limited to) the Pledge of Allegiance and national motto.

Eagle Forum’s assertion that the Constitution has a “Judeo-Christian foundation” because “the English Common Law in which American law is rooted was Christianized,” appears to challenge the beliefs of Thomas Jefferson, whose “Bill for Establishing Religious Freedom” is widely considered the basis for the First Amendment.

Professor Warren Throckmorton of Grove City College on Tuesday pointed to a letter Thomas Jefferson wrote to Thomas Cooper, in which Jefferson dissects and debunks claims that British common law is based in Christianity. “But Christianity was not introduced till the seventh century; the conversion of the first christian king of the Heptarchy having taken place about the year 598, and that of the last about 686,” Jefferson writes, referring to the common law introduced by the Saxon settlers of England. “Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it.” He goes on to say:

But none of these adopt Christianity as a part of the common law. If, therefore, from the settlement of the Saxons to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians, and if, having their laws from that period to the close of the common law, we are all able to find among them no such act of adoption, we may safely affirm (though contradicted by all the judges and writers on earth) that Christianity neither is, nor ever was a part of the common law.

In fact, Jefferson skewers those in England who tried to implement biblical law, much like many on the Religious Right attempt to do today, arguing that the gospel was “intended by their benevolent author as obligatory only in foro concientiae” (obligations of conscience, not law), and that the Ten Commandments were never incorporated into common law:

In truth, the alliance between Church and State in England has ever made their judges accomplices in the frauds of the clergy; and even bolder than they are. For instead of being contented with these four surreptitious chapters of Exodus, they have taken the whole leap, and declared at once that the whole Bible and Testament in a lump, make a part of the common law; ante 873: the first judicial declaration of which was by this same Sir Matthew Hale. And thus they incorporate into the English code laws made for the Jews alone, and the precepts of the gospel, intended by their benevolent author as obligatory only in foro concientiae; and they arm the whole with the coercions of municipal law. In doing this, too, they have not even used the Connecticut caution of declaring, as is done in their blue laws, that the laws of God shall be the laws of their land, except where their own contradict them; but they swallow the yea and nay together. Finally, in answer to Fortescue Aland’s question why the ten commandments should not now be a part of the common law of England? we may say they are not because they never were made so by legislative authority, the document which has imposed that doubt on him being a manifest forgery.

(cross posted to the People For Blog)

Mat Staver of the ironically named Liberty Counsel has a new video up where he takes credit for the shameful filibuster of Goodwin Liu. That clears up so much.

Was it Mat Staver who "exposed" the "extremism" of this extremely qualified nominee? Was it Mat Staver who convinced every Republican senator but one to ignore Liu's testimony before the Senate Judiciary Committee, his detailed written submissions, and his many articles, all of which disproved the lies being told about him? Was it Mat Staver whose keen legal arguments completely discredited conservative legal figures like Ken Starr, Clint Bolick, Richard Painter, and John Yoo, all of whom were part of the vast network of support Liu received from the nation's legal community across the ideological spectrum?

Yeah, right.

No, it was naked partisan politics at its worst and not Mat Staver that sank Goodwin Liu's nomination.

But the video does raise an interesting question: If Staver knows so much about Goodwin Liu, why does he repeatedly call him "Godwin"? Don't you think he would know the man's name after all of his exhaustive research and outreach to senators?