Tuesday, April 05, 2005

Theofascism on the march

I never thought I would be posting entries about constitutional law, a topic that I consider intellectually overrated in legal circles as it falls between two stools, being neither policy nor history.
But Congressional Republicans, in addition to encouraging or at least excusing the murder of federal and state judges, as noted in my previous post, are also more mundanely seeking to undermine - or should I say overthrow? - the U.S. constitutional system. If you think that's too extreme, consider that the bill I am about to describe need not be the last step; if they had their way it might simply be the first.
Unsurprisingly, this bill, recently introduced by Brownshirt Brownback and others, has an Orwellian title, the "Constitution Restoration Act of 2005." As Elvis would say, it goes something like this:
Sec. 1260. Matters not reviewable
Notwithstanding any other provision of this chapter, the 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.
Sec. 1370. Matters that the Supreme Court lacks jurisdiction to review
Notwithstanding any other provision of law, the district courts shall not have jurisdiction of a matter if the Supreme Court does not have jurisdiction to review that matter by reason of section 1260 of this title.
To the extent that a justice of the Supreme Court of the United States or any judge of any Federal court engages in any activity that exceeds the jurisdiction of the court of that justice or judge, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act, engaging in that activity shall be deemed to constitute the commission of--
(1) an offense for which the judge may be removed upon impeachment and conviction; and
(2) a breach of the standard of good behavior required by article III, section 1 of the Constitution.

On its face, the provision is narrow. Since no one is going to sue a public official for merely stating his or her opinion that the law comes from God, perhaps this is just about posting the Ten Commandments in courtrooms & such, which one could argue not wholly unreasonably, whether or not convincingly, should either be (a) permitted notwithstanding the First Amendment or (b) considered no big deal in the long run even if inappropriate.
What the bill does, however, is say that arguable First Amendment claims can't be reviewed by any court and that judges who "engage in any activity" involving review shall be impeached forthwith.
So, if this works, why stop here? Why not make all review of laws concerning First Amendment claims, including suing to prevent the establishment of a state religion, impermissible? Or all review of a President's claim of unlimited authority over American citizens as commander in chief? With impeachment the consequence for any attempted review?
Lest I sound too alarmist, I should say that I don't think this will work. The point of real interest is simply that, for the first time in United States history, important political players, who indeed have leadership roles in a party that controls all branches of government, want to destroy the U.S. constitutional system.

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