Think of me (and this article) as a canary in a coal mine. I only hope you’ll actually notice — and then do something about it.

In the world of our Founders, freedom was a precious commodity.  In retrospect, this is actually odd.

Our Founders, after all, lived in a largely unpopulated world.  Around the time the United States came into being, the population of New York was 25,000.  Philadelphia was huge at 40,000.  Today, small towns like Hanford, California have more than those numbers.  Where I maintain my criminal defense law office in Fresno, California, we have approximately half a million people.  In 1775, the combined populations of New York, Philadelphia, Boston, Charleston and Newport (all port cities) did not equal 100,000.

So you’d think freedom would be an easy thing to come by.  If things got too bad somewhere, I’d expect you could pick up with a few of your good friends and go look for somewhere else to start a town.  Of course, you might have to contend with “the locals,” by which I mean any Native Americans who may not wish to share space with you.

And yet our Founders became more and more irritated with what, today, would be really minor intrusions into their lives.  General warrants allowed the government to pop into a house at any time to search for such things as “contraband” — products you might have forgotten to pay taxes on when you imported them — and most people didn’t care much for that.  Thus, they passed a Constitution forbidding general warrants.

Today, if an officer wants to come into your house, there are certain requirements that must be met first:

1. He must make sure you’re from a group (e.g., gang members, poor people, non-whites) whose complaints will receive little sympathy from others for illegal governmental intrusions into your home.
2. He must be willing to “testi-lie” that you gave consent for him to enter your home, or that you became hostile and attacked him, forcing him to drag you into the house and subdue you, or some other such poppycock. (“Poppycock,” I think, is our Founders polite way of saying “b.s.”)

Notwithstanding the above, the majority of us really do enjoy a form of freedom from unlawful police intrusions.  Even me, if I would quit complaining about illegal intrusions into my privacy.

The problem is that I believe so long as I’m not killing someone, beating someone, stealing from someone, or breaking some other basic and important law, I should not even have to submit to minimal intrusions.  The nation I was born into mostly believed that, too.  It used to be that until someone committed a crime, the police pretty much ignored them.

My, how times have changed.

Maybe today’s police officers are more often pulled from the ranks of ADHD-afflicted persons (though I’m glad they missed me on that one!), because when things are slow, or they’re bored, or if they just decide they don’t like something about you, you’re going to find your freedom impacted.  It might be temporary, but you will be impacted.

And when that isn’t enough, they’re going to have new ways of getting at you, because our Leaders — who have none of the positive attributes of our Founders — are busily making sure that we are all tracked, all the time.  Every aspect of our lives will be available for inspection.

At the moment, the idea is to collect information about everything you do on the Internet, from whatever device you might use to do it and from any place at which you might do it.  And the logs must be kept for at least two years for the police to review when they feel the need.  Anyone who remembers the FBI’s Carnivore should be concerned about where this could lead.  As technology improves — particularly for predictions based on data-mining — we move farther and farther away from the freedom our Founders enjoyed.

As I said, freedom is like oxygen.  But like miners ignoring the canaries in the mineshaft, by the time enough people realize what’s wrong, it will be too late.

Next up?  RFIDs for everyone!

“Actions that governments take to fight terrorism are totally justified because protecting life is a lot more important than protecting civil liberties.” — Octavia Nasr, Arab View: “Enough, enough” (July 8, 2005) CNN.

To a certain extent, this is an understandable view. If you cannot live, then it matters not whether you could have lived free. And I wouldn’t want anyone to think that I don’t both understand and — again, to a certain extent — agree.

On the other hand, there are limits. Actions taken and legislation passed in the name of “safety” must be measured, thought about, seriously and fully considered.

This is particularly true in America right now. I would suggest that since at least the McCarthy Era, Americans have lived largely free of the types of pressures on civil liberties that make it possible to really appreciate freedom — and to understand what it’s like not to have it. A fish does not realize that it swims in water; we don’t often think about oxygen until something happens to deprive us of it. So it has been with freedom in America; it is no surprise that we don’t understand what it’s like to be without it. Most of us can’t comprehend what it would mean to live without our civil liberties. Certainly there have always been some of us — and not just Libertarians — who have longed for more freedom. But, by and large, America has been a fortunate country, particularly concerning our freedoms.

This has made it difficult, if not impossible, for us to understand what it means to live in a society without civil liberties. No longer can we appreciate the depth of commitment and feeling in the words of Benjamin Franklin when he said:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety. — Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor, November 11, 1755. — The Papers of Benjamin Franklin, (Ed. Leonard W. Labaree 1963) vol. 6, p. 242.

The Founders of our nation understood this. They also understood — in ways we’ve yet to learn — the terror of living in a world where soldiers could take over your home, without warning, at any moment. They lived with searches and seizures that few today see anywhere except on televivion — and even then, it’s clear that we, today usually require warrants (but that’s changing already). They had experienced having their provisions, their food, horses, cattle and other necessities of life, yanked from them without notice. And for those who need more detail to appreciate what they went through — this was before the days of Wal-Mart and Super K-Mart and Save-Mart. These folk didn’t have the luxury of going down to the market to re-stock.

Our forebears fought hard for their liberty. And not just for theirs, but for ours.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. — The Constitution of the United States of America (adopted 1787, ratification completed June 21, 1788).

“Posterity” is a word not much in common usage anymore. It refers to us, the descendants by birth and adoption, of the Founders of this Great Nation. And by “adoption,” I refer to those who have immigrated here and become citizens. You might think that they have adopted America, but it’s really a two-way street; our forebears, through our Constitution, adopted them as well.

I often encourage people to read the Constitution. In the Unspun™ store, it’s possible to buy a bumper-sticker and mousepad I designed which says “Real Patriots Read the Constitution,” with the words set against a background of the American flag. I worry about what our country is becoming, but I’m mostly proud of what we’ve been. That’s why not long ago, I persisted so much on the issue of Club One’s treatment of the American flag. I don’t subscribe to the view that has occasionally been spoken to me: “America, Love It or Leave It.” I like to point out that the proof of my love of America is that I would say, “America: Love It & Fix It.” When you love someone, or something, you work for their betterment; you don’t abandon them.

But what I was saying is that I encourage people to read the Constitution. In the links I provide to it in my various articles, if you hoover over the link, you should see a title pop up that says, “U.S. Constitution: READ IT! IT’S SHORT!” And it is short. Most of us could read it without too much difficulty in one sitting.

And the beauty of that is that we gain a deeper understanding of how freedom is supposed to work. Some of us might stop complaining about how the Courts operate, if we understood how the Founders intended them to operate. Some of us might stop complaining about the fact that the majority doesn’t always “rule” if they understood that it was set up this way deliberately.

But, more importantly, we might gain a deep appreciation for the genius of a people who — in the midst of suffering and oppression greater than we, their Posterity, have ever known — could say, as Patrick Henry did:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death! — Patrick Henry, Speech to Virginia colonists which lead them to join the American Revolution (March 23, 1775) The History Place.

Rob Smith appears to have taken issue with the idea that Newswriter wants to see congressional representatives who aren’t afraid to represent. He opines — a word these days that, thanks to O’Reilly, goes well with “bloviating” — that the call for representatives who aren’t focused on just one voting bloc is a BadThing™. Mr. Smith appears to be unhappy that me and Newswriter believe someone other than christian fundamentalists should be represented by our representatives.

Interestingly, these comments appear at the bottom of a post that discussed the ways in which the Courts of the United States have — rightly — ruled in favor of fundamentalist religious groups. One particular instance I wrote about in that article involved a fundamentalist christian group which sued to stop a school district from teaching students the views of more inclusive religious groups. The Federal Court in that case supported the fundamentalists; not the so-called horror of “liberalism.”

And it was the right decision.

As I pointed out then, it is not the Court’s job to stop fundamentalist christians from trying to run roughshod over the rest of us by controlling our government. It’s only the Court’s job to protect the Constitution. When theocrats actively trample the Constitution in specific ways actionable under that very Constitution, then, and only then, may the Courts act. And so I suggested that the proper approach was for each of you to contact your representative? to tell them how you feel about the christian take-over of our government and how you want to be represented.

As noted above, Newswriter then posted a comment to that post. In her comment, she suggested that the problem was representatives who kowtow to the will of christian extremists — a group which appears to be growing in strength grossly disproportional to its numbers.

Mr. Smith appears to take issue with these ideas.

So what we really need is [sic] Congressmen and Senators that aren’t accoutable [sic] to constituencies. Ones who will stand up and tell their constituencies that they are bigots and idiots and idiots oh and of course, you better re-elect me if you know what’s good for you. — Rob Smith (July 7, 2005) Comment on “Confronting the Judicial War on Faith”

In fact, both me and Newswriter were pointing out that the problem right now is that congressional representatives aren’t accountable to their constituencies, unless “constituencies” means “only those people who have enough voting power to get a representative elected.” Neither did I nor Newswriter suggest that our congressional representatives should tell any voter that they are “bigots and idiots and idiots….” That’s our job; not Congress’.

Part of the problem is this sort of “dialogue” in which Mr. Smith engages us — only it’s more of a monologue, because folk like Mr. Smith don’t want to hear what anyone who doesn’t conform to their belief system has to say. Somehow, a call for inclusiveness is seen by them as exclusive. Suggesting that the rights of everyone be protected is seen as trampling on their rights.

But not everyone in the United States is of the same mind. As already noted, right now, we have congressional representatives who listen to the person with the most money, or the one or two “voting blocs” that they think will help them stay in office. Christian fundamentalists appear to think that’s a GoodThing™ and that it demonstrates a Congress responsive to the will of the People.

Problem is, it’s only the will of some people: the mob with the loudest voices and the hottest torches.

There’s a reason the United States of America was not constituted as a democracy. In a pure democracy, the rights of the few are trampled by the many.

Ironically, if voting studies and polls are accurate at all, right now in America what appears to be “the many” actually is made up of “the few.” It’s just that “the many” can’t get off their lazy asses long enough to vote, or to tell their congressional representatives what they think. Sometimes, that’s just as well, since they also can’t get the other lazy ends of their bodies to think or learn anything such that they could be educated on issues and about the people they’d be voting for as representatives to enact their will — or some reasonable and beneficial compromise — regarding those issues. At any rate, the result is that the few, masquerading as the many, are increasingly derogating the rights of the rest of us.

The distaste that modern Americans have for constitutional principles is nothing short of stunning. Perhaps it’s several decades of “McDonald’s Education.” Not only are too many high school graduates literally unable to read the Constitution, but they’ve been inculcated (not educated) to believe whatever corporations and those who own or financially benefit from them tell them to think.

More and more, that thinking is that “democracy” is a good thing. But, again, there’s a reason our Founders deliberately “crippled” any pure democratic form of government.

Sheep — and human crowds aren’t any smarter, or more independent, however much they like to think they are — are easily lead. When was the last time you heard a sheep stand up and say, “Hey! What’s up here?! I’m being lead about by someone else! I don’t want that!”

Corporations — and now the government as run by the Bush Administration — spend billions of dollars every year on advertising.

Ever wonder why?

Obviously, it works. And the greatest achievement of modern times has been to convince people that what the Constitution stands for is a BadThing™ — while simultaneously convincing them that they are actually defending that Constitution and the principles it intended to enshrine.

My biggest fear is that the battle being waged over the Constitution is virtually already lost. Liberalism — and make no mistake, the Constitution itself was a radically liberal document — is in its last throes.

And, no. I don’t mean that Conservatives get to throw one helluva party in just 12 more years.

It’s now more than three days since the story first broke that Karl Rove was the source for the leak regarding a CIA agent’s identity. And still not a word in the mainstream press. Nothing at CBS; nothing at CNN; nothing at ABC.

If the story were false you’d at least expect some news about that. I mean, come on! Over at ABC “News,” you can learn that McDonald’s is “seeking” designer uniforms. CNN tells us both the “news” — now nearly a week old — that a filibuster “looms” in Supreme Court talk and that Martha Stewart picked up a nickname of “M.Diddy” in prison. CBS brings us the stellar story of a Russian astrologer suing NASA for “ruin[ing] the natural balances of forces in the universe” with one of its space probes.

Whoa! Hold the presses! Where the hell has Unspun™ been lately? We missed all those.

What we didn’t miss, however, is that Karl Rove is apparently implicated as the source of the leak of top secret information that impacts national security.

Want to know more about this story? You’ll have to look at Newsweek, or the foreign press, or bloggers, or some other non-mainstream arena, because you won’t find a hint of the story on any of the main “news” sites. Even in a story about the reporters who are being threatened with jail for having talked to Rove, there’s no mention of Rove.

Maybe you don’t care, folks. Maybe you really don’t. I can’t know. After all, no one’s telling me (and telling me doesn’t help anyway) and so I can’t know whether you care, whether you’re calling your congressional representatives to complain, or what. But can you seriously tell me that a Russian astrologer suing NASA is bigger than this?

The fact that none of the mainstream press is talking about this should have you worried. And it should have you worried even if you think the story is false. After all, this is news! Spare me from M.Diddy. Keep your designer McUniforms. On July 5, 2005, Karl Rove apparently sat down with Chris Matthews of “Hardball.”

No topic is forbidden territory. Rove candidly discusses a wide range of issues: John Bolton’s blocked nomination, the Downing Street memo, the war in Iraq and Sen. Frist’s role as a “valuable ally.” — Transcript of Karl Rove Q & A (July 5, 2005) “Hardball with Chris Matthews” on MSNBC.

Well, almost no topic. You won’t find word-one about the CIA, Valerie Plame, Joseph Wilson, or anything else connected with the news that Karl Rove, in the middle of a war, revealed classified information about a CIA operative whose job involved weapons of mass destruction, in order to punish her husband for refusing to “document” that Iraq was trying to build a nuclear weapon.

Look over at the Huffington Post — goodness! are we really reduced to such sources for the story? — and Lawrence O’Donnell has three questions for Rove’s lawyer.

I’ve got just one for our national news organizations:

Lately, I have been thinking a lot about another aspect of the “debate” over what to do about an out of control judiciary: the “debate” begs the question of whether or not the Judiciary is, in fact, engaged in a War Against People of Faith.

A CNN story I ran across tonight was the final impetus necessary for me to “confront the judicial war on faith” head-on.

We’re hearing more these days about the “fact” that judges hate Jesus’ followers.

Don Feder, a former columnist and media consultant, said judges were participating in a “well-orchestrated attack on our Judeo-Christian heritage.” — Conservatives step up attack on judiciary (April 8, 2005) Reuters via MSNBC.com.

The same story quotes House of Representatives Majority Leader Tom DeLay, speaking to a conference via a videotaped message — he couldn’t be there personally because he was attending the funeral of a popular religious leader — and railing against a “judiciary run amok”:

“Our next step, whatever it is, must be more than rhetoric,” the Texas Republican told the conference, entitled “Confronting the Judicial War on Faith.” — Conservatives step up attack on judiciary (April 8, 2005) Reuters via MSNBC.com (emphasis added).

While Tom DeLay has elsewhere suggested that “judges will answer for their behavior” — a comment that drew a rebuke from Vice-President Dick Cheney — other congressional leaders have suggested that they understand why someone might want to kill a judge. (Gebe Martinez, Republican Senator says judges bring violence on themselves (April 5, 2005) The Houston Chronicle via SmirkingChimp.com.)

Yet an honest look at the Supreme Court of the United States reveals the Court not infrequently upholding the Constitution of the United States in ways that are not unfriendly to religions. I was reminded of this fact recently — and it started me thinking, as I said, about the question-begging nature of the “charges” against the Judiciary — when studying for my upcoming Constitutional Law final examination. Volume I: Multistate Subjects of the Barpassers guide I decided to use for review, at page 4-98, reveals:

EXAMPLE: (Viewpoint discrimination)
In Lamb’s Chapel v Center Moriches Union Free School District (1993), The U.S. Supreme Court held that a school district which permitted after-hours use of school facilities to a wide variety of community groups could not bar a Christian group from showing a film about family life from a Christian perspective. The high court regarded the ban as viewpoint discrimination, since a similar film without a religious viewpoint would have been permitted by school authorities. Similarly, in Rosenberger v Rector and Visitors of the University of Virginia (1995), the high court invalidated (5-4) a University’s refusal to fund a student publication with religious editorial viewpoints where the University funded other publications dealing with religious subjects.

“But that was ten years ago!,” you say. “The courts are no longer as friendly towards religion!”

A federal judge on Thursday blocked a county school system from instituting a health curriculum that includes discussions of homosexuality. — Judge blocks Maryland sex-ed program (May 6, 2005) CNN.

The decision to enjoin the school district from implementing the health curriculum is part of a lawsuit by Citizens for a Responsible Curriclum and a Virginia-based group known as Parents and Friends of Ex-Gays and Gays. The former group was started specifically to oppose the implementation of the health curriculum; the latter is an established group that believes homosexuals can learn to “overcome,” or at least “subdue” their homosexual tendencies and “choose” to be “straight” — just like heterosexuals do. Both groups are comprised by religious fundamentalists.

The CNN story unfortunately doesn’t provide much information. You get the sense that the biggest flaw in the program is that it tells the truth: Some religions support full rights for gays and some — the article cites the Baptists — are “intolerant and Biblically misguided.”

Now these things are, in fact, true. But that isn’t the point. The United States District Court for the District of Maryland, Southern Division, in the opinion by Judge Alexander Williams, Jr., quoted from materials for the Revised Curriculum which the Board of Education of Montgomery County (Maryland) planned to implement:

Myth: Homosexuality is a sin.

Facts: The Bible contains six passages which condemn homosexual behavior. The Bible also contains numerous passages condemning heterosexual behavior. Theologians and Biblical scholars continue to differ on many Biblical interpretations. They agree on one thing, however. Jesus said absolutely nothing at all about homosexuality. Among the many things deemed an abomination are adultery, incest, wearing clothing made from more than one kind of fiber, and ea[t]ing shellfish, like shrimp and lobster.

Religion has often been misused to justify hatred and oppression. Less than half a century ago, Baptist churches (among others) in this country defended racial segregation on the basis that it was condoned by the Bible. Early Christians were not hostile to homosexuals. Intolerance became the dominant attitude only after the Twelfth Century. Today, many people no longer tolerate generalizations about homosexuality as pathology or sin. Few would condemn heterosexuality as immoral — despite the high incidence of rape, incest, child abuse, adultery, family violence, promiscuity, and venereal disease among heterosexuals. Fortunately, many within organized religions are beginning to address the homophobia of the church. The Nation [sic] Council of Churches of Christ, the Union of American Hebrew Congregations, the Unitarian Universalist Association, the Society of Friends (Quakers), and the Universal Fellowship of Metropolitan Community Churches support full civil rights for gay men and lesbians, as they do for everyone else. — Citizens for a Responsible Curriculum v. Montgomery County Public Schools (S.D.Md.May 5, 2005, Civ. A. No. AW-05-1194) 2005 U.S. Dist. LEXIS 8130 at pp. 11-13.

It doesn’t matter here whether the information contained in the program is correct, or not. The fact of the matter is that a public school is no place for a Bible Study — at least not when it’s taught as part of the public school’s own curriculum, by its own teachers. As Judge Williams put it, “[T]he strength [of] Defendants’ substantive theological arguments [is] irrelevant — it is their exclusive nature” that causes the problem. (CRC v. MCPS, supra, at p. 31.)

The Court is extremely troubled by the willingness of Defendants to venture — or perhaps more correctly bound — into the crossroads of controversy where religion, morality, and homosexuality converge. The Court does not understand why it is necessary, in attempting to achieve the goals of advocating tolerance and providing health-related information, Defendants must offer up their opinion on such controversial topics as whether homosexuality is a sin, whether AIDS is God’s judgment on homosexuals, and whether churches that condemn homosexuality are on theologically solid ground. — CRC v. MCPS, supra, at p. 32.

The fundamentalists filing the suit are, without a doubt, bigots. There is no question that their religious views endorse a backward mindset that, frankly, the world could well do without.

But that’s not the point here. The point is that opinions like this — and this opinion is 100% correct on constitutional grounds — are evidence that the courts are not engaged in a War on Faith. A judge engaged in a War on Faith might have said something along the lines of, “The statements contained in the Revised Curriculum, albeit containing references to religious groups and their beliefs, are no more an Establishment of Religion than would be references to religious groups and their beliefs in an historical course on the reign of King Henry VIII of England. Factual comments regarding the contents of the Christian Bible do not constitute an Establishment of Religion anymore than those that might be found in a course on ‘The Bible as Literature.’”

The fact is that Judges and Justices of the courts of the United States, when they properly perform their duties under the Constitution, will sometimes hand down rulings that go against religious fundamentalists and at other times will hand down rulings that favor them. When the rulings go against religious fundamentalists, it’s not because of some Judicial War on Faith; it’s because, sometimes, what religious fundamentalists want is contrary to the Constitution of the United States of America. It’s because the United States of America isn’t a Christian Theocracy, but a pluralistic Republic.

It’s because, as Judge Williams noted,

The Establishment Clause serves to protect the integrity of both the Church and the State by keeping these hallowed institutions at arms length from one another. — CRC v. MCPS, supra, at p. 22 (quoting McCollum v. Bd. of Edc. (1948) 333 U.S. 203, 212).

And the only way the government can be friendly to all religions is for Americans to ensure that it does not become overly-entangled with any of them.

So why not contact your representative today and remind them of that? Let’s put an end to the false rhetoric and hyperbole of the poor “abused and oppressed” fundamentalists — and put a stop to the Fundamentalist War on the Judiciary.

Today, I’m responding to a comment left by Peter Sean Bradley in a discussion that was being carried on following my article While There Are Still Courts.

To get a complete understanding of what I’m replying to, one might want to read at least the last two or three comments to that post. However, many of the points I make here constitute another lesson concerning the proper division (and occasional overlap of) powers of government. For that reason, and because it’s longer than I like for a regular comment, I decided to post this as a free-standing article.

On,and for those who like those things, you get a little taste of Balaam’s Ass at the end.

Jumping to conclusions and making unfounded/unsupported claims is unfortunately starting to become a past-time for Mr. Bradley. Among other things, he accuses me (I guess) of toeing the party line by focusing on Moveon.org position papers and ignoring law review articles. I can honestly say that I’m not sure when I’ve ever read a MoveOn.org position paper. Those guys spam me constantly and I virtually always hit the delete key without reading what they have to say. I will admit that during the Bush campaigns, I watched some of their commercials. No doubt I’ve read some blogs that have depended upon their material. And I know I’ve referred people to the aforementioned commercials. I tend to like to do my own research though, when I can.

Part of that research does sometimes include reading what others have written. As the attorney for whom I work often complains, I probably read too many — not too few, as Mr. Bradley complains — law review articles. I read them on any topic for which I need some background, before digging into the cases to which they refer to see if they really say what the authors of those articles claim they say. (Indeed, one of my clerkships right now is with the James K. and Carol Sellers Herbert Professor of Constitutional Law, working through an article by Brownstein on How Rights Are Infringed and dissecting every case he references, for the sole purpose of providing an analysis of whether each and every case he cites actually says what Brownstein says it says, or not.)

Which is what brings me to my next point: Mr. Bradley, who recommends that I “bone up on Marbury[,]” may wish to do some boning up on Marbury himself. Firstly, he made the claim in his first comment that SCOTUS didn’t meet one year because Congress didn’t fund it. And apparently he supported that proposition by “footnoting” (of sorts) to a set of popular CDs he bought from Barnes & Noble. I suggest Mr. Bradley may be surprised to note the following points:

1. Barnes & Noble CDs are not the most scholarly or reliable works.
2. SCOTUS did, indeed, not meet for a ten-month period starting in 1802 (April 1802 to February 1803, to be exact). The reason was a repeal of the Judiciary Act of 1801, which resulted in a reduction of terms for the Supremes from two terms per year to one per year; the August term was thus cancelled. I suppose a creative thinker could refer to this as a “de-funding,” but technically it was a reorganization.
3. The idea that Marbury announced judicial review, which is not found in the Constitution, is a popular myth, but not accurate. As I noted in one of my earliest and most detailed exegeses of Marbury, “[i]n the battle for ratification of the Constitution itself, Alexander Hamilton, writing in Federalist No. 78, had stated that the constitutional limitations upon the other branches of government were in the safekeeping of the judiciary.” In Federalist No. 78, Hamilton noted,
   

   “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. — The Federalist No. 78: The Judiciary Department, online, (Alexander Hamilton)(MacLean’s Edition/Avalon Project)(italics, except for the words “ex post facto” added).

   Contrary to Mr. Bradley’s dual (but related) claims that I ignored his comments on “checks and balances” and that the Constitution allows the Legislature to check the Judiciary by limiting jurisdiction, the Constitution does no such thing; my quote from Ariens’ article was intended to point out that it was the Court’s duty to be the final arbiter of the Law — indeed, the quoted portion states that very proposition. (To see the quoted portion of Ariens’ article, read the comments which caused me to write this blog entry.)

   Judicial review, as I noted, was not announced out of thin air by the Marshall Court. Popular though this myth may be, the Constitution itself lays out the Court’s power in Article III. The “check” of limiting SCOTUS’ jurisdiction — regarding which Mr. Bradley did not cite authority from either the Constitution or anywhere else — is nowhere to be found in the Constitution. Article I, Section 8, clause 9 comes the closest when it notes that Congress has the power “[t]o constitute Tribunals inferior to the supreme Court.” Nowhere does the Constitution allow that Congress may limit the jurisdiction of the Supreme Court to include anything less than the duties outlined in Article III.

   Further evidence — beyond the Constitution and beyond the explication of it contained in Federalist No. 78 (among others running from 78 through 83) — that judicial review was not plucked out of thin air by the Marshall Court, is found in Ware v. Hylton (1796) 3 U.S. 199, 237 [1 L.Ed. 568, 585], which states
   

   That it is the declared duty of the State Judges to determine any Constitution, or laws of any State, contrary to the treaty (or any other) made under the authority of the United States, null and void. National or Federal Judges are bound by duty and oath to the same conduct.

   This recognition of judicial review of legislative acts at both the State and Federal levels is some five years before the Marbury opinion.

A few less important points (which are less interesting in terms of Marbury — because they have nothing to do with it — but which respond to other points Mr. Bradley’s comment suggested):

Mr. Bradley implies that I have taken the threatening words of some Republicans, which they aimed at the Judiciary, out of context. Yet were the words of Tom DeLay and John Cornyn, among others, those of “a single legislator taken out of context,” neither of them would have taken the step of apologizing for their “inartful” remarks and President Bush himself wouldn’t have distanced himself from their remarks. Furthermore, Justice O’Connor wouldn’t have taken some of the extraordinary measures she’s taken to sit down over tea and talk to congressional representatives. A move that was done partly because judges are receiving increased death threats in the face of a Congress which not only does not speak out against such activities, but encourages such sentiments. Of course, maybe by “echo chamber,” Mr. Bradley meant to refer to Republicans in Congress and their infamous “talking points” papers. Until Mr. Bradley’s comments, though, I was unaware that the Republicans were brazenly distributing judicial threats in the same way they exploited the Terri Schiavo case.

As to Mr. Bradley’s assertions regarding my purported “prejudice” against, and “hatred” of, fundamentals, he complains that I lump all religious conservatives together and erroneously (in his opinion) refer to them all as “fundamentalists.”

Firstly, I deny that I hate fundamentalists; have you not heard the saying, “hate the sin, love the sinner”? I hate what they do.

Secondly, I don’t confuse all little-c christians with fundamentalists. However, I considered that using the more appropriate term, “American Taliban,” would confuse too many people. In terms of the theocratic threat, I see no difference between “evangelicals” of a conservative bent and “fundamentalists” of an extremely-conservative bent. This does not mean I am unaware of their doctrinal differences on other issues, just that those issues are not germane to my comments.

Interestingly, I believe proof that Mr. Bradley rails against a straw man is his question, “[W]hat happened to my point about loose comment about ‘uneducated, easily manipulated white trash’ voters[?]” Until he asked why I had ignored this “loose comment[,]” neither I nor Mr. Bradley had referred to “white trash[.]” I had noted, on the basis of a poll published by ABC News, that “evangelicals largely tend to be poor, uneducated and willing to do whatever one or two charismatic leaders” tell them to do. Somehow, my repeating the results of a poll not created by me is a slam on evangelicals. My re-stating the results of that poll — presumably compiled, by the way, from asking evangelicals about themselves — makes me a bigot.

Next, Mr. Bradley says that only SCOFLA [Supreme Court of Florida] found in favor of Gore during the U.S. Supreme Court’s uncustomary intrusion into political matters — which, incidentally, apparently resulted in a political 5-4 split within the Supreme Court of the United States itself. That may be true (I haven’t researched that issue and can’t right now due to the Damocles’ sword of my Evidence Final), but a) it was a question of the meaning of State law, which is normally the province of a State court to interpret and b) you don’t get any more political than an election. The U.S. Supremes should have abstained, as they usually do when it comes to such issues. (Especially since it was contrary to virtually all the precedent the five-member “majority” normally follows respecting federalism issues.) At any rate, this is a red herring. Whatever result other courts did or did not arrive at themselves is irrelevant to the questions of propriety concerning the actions of the United States Supreme Court.

Lastly, Mr. Bradley takes my comment “Live your religions — if you can —” as an insult. He is not entirely wrong to take it thusly. However, he expands it too far. I do, indeed, believe that most “people of faith” do not and cannot live according to the teachings of Jesus. In fact, I have frequently stated that I think “99.99%” of them do not and cannot. This does not ipso facto mean that I intend to insult all “people of faith” by my comment. I have also said that “If America were truly officially a Big-C-Christian nation, I’d still long for the days of freedom of religion, but I have to agree the world would be a nicer place.”

And, finally, nothing in Mr. Bradley’s response addressed the end of my sentence containing what he suggests is an insult to all Christians — faux and real. The rest of that sentence was “don’t cram [your religions] down our throats as compensation for the fact that your light does not shine before men as an example to be followed.” (Last sentence of While There Are Still Courts.)

Instead of agreeing — as the Founders and pastors, ministers, priests, etc. during the constitution of the United States — that this might be an acceptable path for those who follow specific religions in a pluralistic society, Mr. Bradley skips my point and accuses me of “demonizing.”

Let me say again: Live your religions — if you can. I propose to you that this will not only be completely in keeping with the teachings of Jesus (see Matthew 5:14 and Matthew 22:21), but your example will convert more people to your belief systems than forcing your moral code upon them legislatively.

In the old days, as I understand it, Catholics were fond of saving people’s souls from the eternal fires of hell by torching them in earthly fires when they refused to accept Jesus as their Lord and Savior. Apparently, some have yet to recognize the irony of “saving” people by force. Notwithstanding the irony of killing them before they could agree with John 3:16, according to the “Apostle” Paul — the real source of modern-day Christianity —:

[I]f righteousness could be gained through the law, Christ died for nothing! — Galatians 2:21 (NIV).

We pray and beseech Thee, O L-rd, that the heathen who have perverted the message You gave to Abraham, Isaac and Jacob, will at least listen to their own “Apostle”!

…while there are still courts. Because fundamentalist christians — they often refer to themselves as “evangelical” or “born-again” christians — are anxious to shut down those courts.

Evangelical Christian leaders, who have been working closely with senior Republican lawmakers to place conservative judges in the federal courts, have also been exploring ways to punish sitting jurists and even entire courts viewed as hostile to their cause. — Peter Wallsten, “2 Evangelicals Want to Strip Courts’ Funds” (April 22, 2005) Los Angeles Times via Yahoo! News.

The discussions over this occurred at a meeting last month in Washington, where House Majority Leader Tom DeLay — famous (finally) for his ethics violations — and Senate Majority Leader Bill Frist — famous for his ability to diagnose neurological problems (not formerly his specialty) from years old videotape snippets thanks to messages he’s received from God — spoke to a group of evangelical christians.

An audio recording obtained by the Los Angeles Times features two of the nation’s most influential evangelical leaders, at a private conference with supporters, laying out strategies to rein in judges, such as stripping funding from their courts in an effort to hinder their work. — Peter Wallsten, “2 Evangelicals Want to Strip Courts’ Funds” (April 22, 2005) Los Angeles Times via Yahoo! News.

As Tom DeLay told the group, “We set up the courts. We can unset the courts. We have the power of the purse.” No one even laughed when he added, “We usually only use it to line our own pockets, but we can use it against judges we don’t like.” (Okay, he didn’t say that last part, but he was no doubt thinking it.)

Some of the most amazing parts of the story to me are these:

Both leaders chastised what Perkins termed “squishy” and “weak” Republican senators who have not wholeheartedly endorsed ending Democrats’ power to filibuster judicial nominees. They said these included moderates such as Sens. Olympia J. Snowe and Susan Collins of Maine, Lincoln Chafee of Rhode Island, Arlen Specter of Pennsylvania and Chuck Hagel of Nebraska. They also grumbled that Sens. Mitch McConnell of Kentucky and George Allen of Virginia needed prodding.

“We need to shake these guys up,” Perkins said.

Said Dobson: “Sometimes it’s just amazing to me that they seem to forget how they got here.”

Even Bush was not spared criticism. Dobson and Perkins encouraged their supporters to demand that the president act as aggressively on the judiciary as he has for his Social Security overhaul. — Peter Wallsten, “2 Evangelicals Want to Strip Courts’ Funds” (April 22, 2005) Los Angeles Times via Yahoo! News. (Emphasis added.)

How fanatical are these folks? Not only do the moderates need to be punished, in their opinions, but also President George Bush! We’re not talking about a moderate there! Even people in their own party are just not safe from their fanaticism.

And they’ve become so focused on their own overblown sense that the universe revolves around them, that they accuse even the elected representatives of “forget[ting] how they got here.” (Hint: It was still a democracy when most of these guys ran for office. “They got here” because of votes.)

There’s a lot of noise these days about how politicians couldn’t get elected without evangelical christian support. Yet for all the power they currently wield, they’re actually a minority of the American population. What’s happened is that Americans and their politicians have been hoodwinked into believing nothing can happen without the support of self-important yokels.

Apparently, many politicians are even worse at math than I am. (And I’m not very good at it.) They went from, “Wow, if we could get one more vote, we could win the election” to “the dumbest and most easily tricked voters are the ignorant” to “no one is more ignorant than a christian fundamentalist” to “we can’t win without the christian fundamentalist vote.” Somewhere along the way, someone got twisted around. They went from “if we could get just one more vote” to “we must ignore all the other votes, because we need that one.” And to get that vote, they’ve begun making Faustian deals that threaten us and our constitutional form of government.

Why? Because the “christians” they’re dealing with turn out more often to be little devils bent on establishing their own form of theocracy. It’s no accident that they’re able to vote for the likes of Tom DeLay, Bill Frist and George Bush. (It helps that evangelicals largely tend to be poor, uneducated and willing to do whatever one or two charismatic leaders like Jerry Falwell, Pat Robertson or, maybe, James Dobson, tell them to do.) Take note of the point I made above: Even other Republicans aren’t considered good enough by them. Even other Republicans aren’t safe. What do you think will happen to your church when the fundamentalists have enough power? There’s only one brand of Theocracy in their minds. And that’s the Falwell-Dobson-DeLay brand.

But the truth of the matter is that any political party needs more than just the votes of a few fundamentalists. Remember above when it was “if I could get that one more vote”? From there, as I said, we’ve gone to “no other vote matters but that one.” So all the others get ignored. Sane Christian voices. Sane non-Christian voices. Jews. Educated people. Asians. Mexican-Americans.

It’s time for the rest of us to become a little vocal about this. It’s time to make our voices heard. Call your congressional representatives. I’ve done it. It takes just a few minutes and you should do it each time you hear about something like what I’ve described above.

For the reality is that although they currently have Congress’ ear, they are the minority. Ever noticed how when there’s a crowd around, everyone can be talking normally, but if you want to be heard, you’ll have to talk louder? Unlike them, we don’t have to shout to be heard. There are more of us.

Talk, quietly and sanely, to your congressional representative today.

The Danbury Baptists, a religious minority, were concerned that their religious rights were not adequately protected. They apparently wanted Jefferson to do something about it.

In his response to them, President Jefferson said,

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. — Thomas Jefferson, “Letter to the Danbury Baptists” in Jefferson’s Wall of Separation Letter (March 18, 2005) The U.S. Constitution Online (last visited April 22, 2005)

Thus came into history the famous — or infamous, depending on your views — phrase “wall of separation between church and state.”

But Jefferson was absolutely correct both about the meaning of the First Amendment religious clauses and about the need for such a thing as a “wall of separation.” History is replete with examples of the abuses of religion by governments that were tightly entwined with it. Most famous among the examples are the Inquisition. But innumerable governments, small and large, have utilized religion for centuries to subjugate others, such as Jews, and even to justify murder. England had a merry old time bouncing back and forth from official Catholicism to official Protestantism with concomitant purges along the way. No small part of this highly-religious exercise was because King Henry VIII was a serial monogamist who picked his brides from both trees.

Isn’t it ironic — and telling — that this bastion of faithlessness was responsible for the anti-homosexual Buggery Act of 1533 and the anti-anyone-who-opposes-me Witchcraft Act of 1542? Or that one of Henry VIII’s daughters, Elizabeth I, took religious intolerance to even greater heights. Ah…the Revenge of the Tudors.

But I digress. I am not writing today to bring you a history lesson. We have before us a contemporary example — hence the title, Revenge of the Tudors.

It’s no big secret that I don’t like christians. In fact, for anyone who is confused about the issue, let me flatly state that I hate them with a Passion. (Sorry there, Mel.) However, many folk have mistakenly come to the conclusion that I hate Christians and Christianity. This misunderstanding is one reason I have occasionally abjured Bob Marcotte’s “big C/little c” distinction in favor of my own coinage: neo-Pharisees. The fact of the matter is that I very much like Christians-with-a-Big-C. If America were truly officially a Big-C-Christian nation, I’d still long for the days of freedom of religion, but I have to agree the world would be a nicer place.

Only that ain’t gonna happen. Because 99.99999% of those who claim the label not only are not Christians, but they despise Christians more than I despise christians.

The other thing about christians is that they outnumber Christians by something like a million to one. (Kind of brings to mind Matthew 7:13-14, nu?)

Moreover, I happen to know that there are Christians who are Democrats. And while I admit to my personal difficulty believing that there are Christians in the contemporary Republican Party, I believe it’s entirely possible. After all, not everyone keeps up on politics very well and many people don’t recognize that today’s Republican Party is not what it used to be when I was a Republican.

Today, the Republican Party is raping our nation. Approximately 30 years of planning has paid off: they’ve learned to convince people that what’s really happening isn’t what’s really happening.

And the last peg in their board, so to speak, is to slowly install a de facto theocracy. The best way to ensure eternal victory over the Democrats is to install the Theocrats. For no nation is more arbitrary, capricious, malleable to the will of the rulers, than the nation that allows itself to be ruled by a theocracy. If you think the power of the Constitution is a great thing, well, nothing compares to the rule of God. That’s why christian fundamentalists and religious-tongued politicians are always invoking that “Higher Law.”

And the best part about the rule of God? Since no one can really see him, those who most successfully convince others that they speak for him get to run things. Anyone who opposes them, obviously, opposes God.

Senator Bill Frist — the doctor who proved he spoke for God awhile back by diagnosing Terri Schiavo over a great distance based on nothing more than years-old video snippets that had been carefully selected for repetitive playback on the “news” and his faith in God, and whose name has been floated as a potential Republican candidate for President in 2008 — is set to be a speaker on Justice Sunday, a christian (note the small c!) television and radio broadcast scheduled for April 24, 2005.

The theme of the telecast…is “The Filibuster Against People of Faith.” Its sponsors argue that by blocking judicial nominees who oppose abortion rights on religious and moral grounds, Democrats are effectively discriminating against those nominees.

                                        * * * 

Christian conservatives have also accused Senator John Salazar of Colorado, a Roman Catholic, of tolerating anti-Catholicism from his fellow Democrats who oppose nominees who follow the church’s teachings on abortions. — David D. Kirkpatrick and Sheryl Gay Stolberg, “Frist Draws Criticism From Some Church Leaders” (April 22, 2005) The New York Times.

Why else would anyone oppose the anti-abortion candidates for federal judgeship? It couldn’t possibly be because those Democrats believe in freedom of choice. They must hate people of faith! After all, all people of faith are anti-abortionists who want to overturn Roe v. Wade and do away with judges who support bogus privacy rights! No people of faith support any other position!

Presbyterians — ironically, the church to which Frist belongs — are up in arms. Dr. Bob Edgar, general secretary of the National Council of Churches — in spite of the name, not (yet anyway) an official government department — said,

To say that some group of Christians has a monopoly on the ear of God is especially an outrage to Presbyterians. — David D. Kirkpatrick and Sheryl Gay Stolberg, “Frist Draws Criticism From Some Church Leaders” (April 22, 2005) The New York Times.

The article juxtaposes the differing views of the various religious groups with respect to the abortion issue. It is, after all, primarily (for now, but remember, it is a theocratic movement!) the abortion issue that has fundamentalist theocrats frothing at the mouth over judicial appointments. It may not be clear that the pseudo-issue driving the Republican Party these days is abortion.

My own personal belief is that, as usual, this is really about power. Various administrations of the United States have always had some element of an abuse of power, as those close to the President mis-use their connections to take home some of the spoils. That’s not limited to the Republican Party, either. Yet no administration in history has ever been a blatant about it as the Bush Administration, which has even gone to war for the sole purpose of benefiting oil companies and oil men like themselves. And, as I said above, what better way to gain irrefutable, irrefrangible, irrestible power than to convince others that your power comes direct from God? If they’re successful, the Republican Party could effectively establish a new method for “electing” future religious leaders American Popes Presidents, chosen by Republican leaders, anointed by God (with a little help from Diebold).

There’s exactly one way to defeat this dangerous and evil doctrine. We must recognize what our Founders recognized. God does not have a political party. The voice of God on earth is “heard” only through the mouths of humans and not all humans hear it saying the same things.

It’s time to reinforce the Jeffersonian Wall that separates Church and State.

Hyde’s comments reflect what Democrats have been saying for years about the Clinton impeachment. It will be interesting to see what happens when Hyde’s comments hit the national media. — Andy Shaw, “Clinton impeachment was retaliation for Nixon, says retiring congressman” (April 21, 2005) ABC 7 Chicago.

Abbbbbbb – soooooooo – lutely nothing.

I’ll bet my first year’s salary as an attorney on it.

In fact, I can flat out guarantee it’s not even going to cause my Republican next-door neighbor to blink. Oh, and just to be fair? I’ll probably fall down in shock if one Democrat at the law school does more than shrug their shoulders when they hear the news.