Article III, Section 2 and the Wobbly Wall Between Church and State

[Guest guest]

It isn't really about religion at the top levels.

(They certainly don't act religious. In fact they act

more like an Antichrist.) It is about controlling

people, votes, power, money, etc. F.

 

 

http://www.buzzflash.com/farrell/04/08/far04026.html

 

August 2, 2004

 

Article III, Section 2 and the Wobbly Wall Between

Church and State

 

by Maureen Farrell

 

" Whatever else it achieves, the presidential campaign

of 2000 will be remembered as the time in American

politics when the wall separating church and state

began to collapse. " -- New York Times Magazine, Jan.

30, 2000

 

On July 24, The Atlanta Journal-Constitution featured

an article by Jay Bookman that resonated with the same

epiphany-provoking oomph generated nearly two years

ago, when he suggested that the impending war in Iraq

was more about global domination than about UN

resolutions or weapons of mass destruction.

 

This conclusion, unscrupulously mocked by some as

anti-Semitic crazy talk, has since been substantiated

by the likes of veteran journalist Seymour Hersh.

Moreover, six months before the Iraq war started,

Bookman predicted: " Having conquered Iraq, the United

States will create permanent military bases in that

country from which to dominate the Middle East,

including neighboring Iran. " Fourteen projected

military bases and substantial saber rattling later,

Bookman looks like a prophet.

 

This time around, however, he’s not warning about the

looming war in Iraq, but about developments in another

war, the culture war, being waged here at home. The

defeat of the Federal Marriage Amendment banning gay

marriage, it seems, wasn’t accepted graciously by

House leaders, who, citing " an obscure and largely

untested provision " of the U.S. Constitution (Article

III, Section 2) voted 233-194 to pass the Marriage

Protection Act (H.R. 3313), a bill which will prevent

the Supreme Court from considering the

constitutionality of the 1996 Defense of Marriage Act.

 

What does this mean? While discrimination will not be

inserted into the Constitution anytime soon, lawmakers

have a found a way to subvert the usual checks and

balances, while using this provision as battering ram

against constitutional freedoms, civil liberties and

the wall separating church and state.

 

" This bill is a mean-spirited, unconstitutional,

dangerous distraction, " Rep. Jim McGovern said.

" Instead of addressing the real concerns faced by

American families, the leadership of this house has

decided to throw its political base some red meat.

They couldn't amend the Constitution last week, so

they're trying to desecrate and circumvent the

Constitution this week. "

 

Calling it " a power grab of breathtaking consequence, "

Bookman explained:

 

If Congress has the authority to tell the Supreme

Court that certain issues are off-limits, it would

give legislators a free hand to do whatever they

wished, without worrying about whether it violated the

Constitution. The whole idea of a separation of powers

could be rendered null and void if that happened.

 

And unfortunately, it could. The provision in

question, Article III, Section 2, gives the federal

courts the power to decide a broad range of cases,

including challenges to the constitutionality of

federal laws. However, it also grants the courts that

power " with such exceptions, and under such

regulations as the Congress shall make. "

 

Theoretically, that allows Congress to pass a law

-- say, making it a felony to criticize members of

Congress -- and then forbid the courts to review such

a law. It could pass a law making Christianity the

national religion, and bar the courts from hearing a

challenge. It could allow government to tap our phones

without a warrant, or toss dissidents into prison

without trial, and refuse to allow the courts to

intervene.

 

That's why the provision has remained obscure and

largely untested. Previous generations of politicians,

even in the heat of intense battle, have understood

and respected the potential damage it could do. They

saw it as a Pandora's box that once opened could

threaten not just our constitutional liberties but the

whole concept of a balance of powers among the

judicial, legislative and executive branches. [Atlanta

Journal-Constitution]

 

House Minority Leader Nancy Pelosi underscored

Bookman’s concerns. Saying that it would " constitute

the first time in the over 200 years of our country’s

history that Congress has enacted legislation totally

eliminating any federal court from considering the

constitutionality of federal legislation, " she said:

" This bill will impact the very foundation of our

government. It impedes the uniformity of federal law,

it sets a dangerous precedent, and it does grave

damage to the separation of powers. "

 

The New York Times also weighed in, using particularly

strong language. Calling the Marriage Protection Act

" a radical assault on the Constitution, " the Times

deemed it a " radical approach " which " would allow

Congress to revoke the courts' ability to guard

constitutional freedoms of all kinds. " Moreover, the

Times noted the precedent it would set. " And although

gays are the subject of this bill, other minority

groups could easily find themselves the target of

future ones, " the editorial asserted.

 

Rep. Sheila Jackson Lee reminded fellow Congressmen

that had such a law passed in the 1950s, there would

be no Brown v. Board of Education and no desegregation

in public schools. Rep. Carolyn Maloney said the bill

" would deny judicial review to an entire class of

citizens " and " is willing to trample on our

Constitution in order to do so. "

 

Not everyone is inclined to fret about constitutional

freedoms and civil liberties, however. In fact, those

diligently working to transform America into a

Christian nation believe that their Biblical world

view trumps other concerns. In an Oct. 6, 2003 op-ed

in the Washington Times, former Rep. William E.

Dannemeyer openly advocated using this tact. " Congress

should use Article III, Section 2, clause of the U.S.

Constitution to recover what has been stolen, " he

wrote, listing egregious acts such as: " Enacting a

wall of separation between church and state; Banning

nondenominational prayer from public schools; Removing

the Ten Commandments from public school walls; and

Removing God from the Pledge of Allegiance " as primary

transgressions.

 

Not surprisingly, ever since the Washington Post

dubbed George Bush the first U.S. president to become

the Religious Right’s " de facto leader, " the campaign

to topple the wall separating church and state has

gained more momentum than the Road Runner on diet

pills. In February, lawmakers introduced the

Constitutional Restoration Act of 2004 which also says

that the Supreme Court has no jurisdiction over " any

matter " regarding public officials who acknowledge

" God as the sovereign source of law, liberty, or

government. "

 

Heralded as " the most important piece of legislation

in the last fifty years " by conservative radio host

Chuck Baldwin (who also cited Article III, Section 2)

and reminiscent of Judge Antonin Scalia's

Biblically-inspired contention that " government. . .

derives its moral authority from God, " the

Constitution Restoration Act was looked upon less

favorably by a host of others, including former

Christianity Today correspondent Katherine Yurica.

 

Distinguishing between the stated purposes and hidden

realities of the bill, Yurica explained that it is

" drawn broadly and expressly includes the

acknowledgment of God as the sovereign source of law.

.. ., " which could, in the scariest of scenarios, turn

America into a theocracy wherein judges could

" institute biblical punishments without being subject

to review by the Supreme Court or the federal court

system. "

 

Columnist James Heflin also underscored the hidden

subtext:

 

The agenda of these Christians of the Far Right is

brazen and clear. They have turned a zealous minority

into a ruling class once, and they have learned from

that success. This is not a wild-eyed conspiracy

theory; their plans are preached in pulpits weekly,

and have now taken shape as proposed legislation. Look

no further than the recently introduced " Constitution

Restoration Act. " If we do not pay attention to their

manipulation of American democratic processes now that

they have gained remarkable power among Republicans,

the principles of our democracy will eventually be as

distant a memory as the kinder, gentler Southern

Baptist Convention of my childhood. . . .

 

If the Act passes, Iraqis would have stronger

protection from religious extremism than Americans.

It's a change with dramatic consequences, and our

political landscape under Bush is ever more receptive

to such ideas. Roy Moore and his fundamentalist

brothers and sisters have far more in mind. [Valley

Advocate]

 

 

Drafted by Herb Titus (who, in addition to being the

founding dean of Pat Robertson's Regent University Law

School is legal counsel for Judge Roy Moore) the Act

also, as one Internet publication revealed, drew its

inspiration from this obscure provision in the

Constitution. " Supporters of the bill cite Article

III, Section 2 of the U.S. Constitution, which

authorizes Congress to limit the jurisdiction of the

U.S. Supreme Court and other federal courts, " World

Net Daily explained last spring.

 

Not only would the Act bar the Supreme Court from

reviewing cases in which public servants acknowledge

God as the source of law, but it would make judges who

rule on cases such as Judge Moore’s Ten Commandment

debacle vulnerable to impeachment. (Hence, the

Star-Telegraph said it should be named the " Roy Moore

Gets to Flout the Constitution Act. " )

 

But more importantly, notes Heflin, " It is unclear

exactly what actions a public servant could get away

with under the banner of invoking God as the source of

law. " And while visions of Rev. Sun Myung Moon’s

recent Messianic coronation in the U.S. Senate comes

readily to mind, Heflin’s concern is more aptly echoed

in Bookman’s argument that if the Marriage Protection

Act is enacted, Congress (in theory anyway) could

" pass a law making Christianity the national religion,

and bar the courts from hearing a challenge. " Yes,

Virginia, the Religious Right has more than one

theocratic trick up its sleeve.

 

But it’s not just the Marriage Protection Act or the

Constitutional Restoration Act that are raising

eyebrows. Another bill (HR 3920 IH) " to allow Congress

to reverse the judgments of the United States Supreme

Court " is yet one more example of extreme maneuvering.

Not surprisingly, the Christian Coalition actively

supports all three pieces of legislation (Christian

Coalition Washington Weekly Review; " Support The

Senate's 'Marriage Protection Act' " ).

 

So, if Jay Bookman is correct, the movers and shakers

of the Religious Right and their henchmen in the House

of Representatives have crossed the line. " [if]

implemented as House Republicans now intend, it would

have enormous ramifications on the system of

government and concepts of justice that have evolved

over the last 200 years, " Bookman wrote. Rep. Carolyn

Maloney put it bluntly: " The Republican leadership is

trying to use a wedge issue to appeal to right-wing

constituencies in a highly charged election year, and

they are willing to trample on our Constitution. No

issue is ever worth such a price. "

 

And even though the New York Times expressed doubts

that the Senate will go along with the this travesty,

the fact that this bill had widespread support is

alarming in and of itself. " Still, even one house of

Congress backing this sort of assault on the federal

judiciary is an outrage, " the editorial asserted.

 

Outrageous, yes, but not surprising. In March, the

Washington Times reported that House Majority Leader

Tom Delay was about to " announce his own legislative

agenda " in a closed door session. " One goal, he said,

will be to re-establish what he sees as the rightful

role of religion in public places. . . "

 

Rep. Mike Pence, one of the original sponsors of the

Constitutional Restoration Act, was impressed. " What

Tom's doing is pretty refreshing, " he said. Though

" the White House normally sets the agenda, " DeLay's

initiative, Pence mused, " signals the dynamics of the

president's second term, hopefully very different "

(i.e. with an even more pronounced rightward bent).

 

With that in mind, anyone who is even remotely

concerned about the extreme measures the extreme right

( " Vast, Right-Wing Cabal?, " ABC News; " Avenging angel

of the religious right, " Salon; " Reverend Doomsday, "

Rolling Stone) has taken since the 2000 election

should wonder why they were so eager to crown

candidate Bush in the first place.

 

And, more importantly, they should fully consider what

a second Bush term might look like.

 

 

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Maureen Farrell is a writer and media consultant who

specializes in helping other writers get television

and radio exposure.

 

© Copyright 2004, Maureen Farrell