Sunday, August 28, 2005

First to Fight for Right and Freedom

Let’s all sing along, shall we?

From the Halls of Montezuma To the Shores of Tripoli We fight our country’s battles On the land as on the sea First to fight for right and freedom And to keep our honor clean We are proud to claim the title of United States Marine

After we declared our independence, we did not have the protection of the British; and we had no effective navy of our own. Sea lanes in the Mediterranean were controlled by pirates along the Barbary Coast — Morocco, Algeria, Tunisia, and Libya. In the Treaty of Tripoli (1796), the United States arranged to pay a yearly tribute for safe passage through the Mediterranean. The pasha of Tripoli raised the amount of the tribute in 1801. President Thomas Jefferson refused to pay. The pasha declared war on the U.S. In 1805, the U.S. Marines stormed the pirate stronghold, and one result was a new verse in the Marine Hymn.

Why am I pestering you about that? Because Article 11 of the Treaty of Tripoli reads thusly:

As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.

The United States was not founded on the Christian religion?

In the spring of 2004, the Constitution Restoration Act was introduced into both Houses of Congress. The House version is designated HR 3799, the Senate version is SR 2082. Drafted by Herbert Titus, the first dean of Pat Robertson’s School of Public Policy, the Act asserts that god is the sovereign source of law. Then it takes one more step.

It is unclear what the Act “restores” because the word “god” does not appear in the Constitution and the omission was deliberate. The real purpose of the Act is nestled inside a single paragraph to be added to Section 1260 of Title 28, Chapter 81, of U.S. law. Read it carefully:

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 element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element’s or officer’s acknowledgment of God as the sovereign source of law, liberty, or government.

The judiciary, of course, is “an element” of federal, state, and local governments; but it is anybody’s guess as to what might demonstrate an acknowledgment of god’s sovereignty. Having posited a vague notion, the Act would limit review of decisions ostensibly based on that notion. Under the heading of Enforcement, the Act states:

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.

The Act does not, in and of itself, spell the end of the separation of church and state; but it is another step in that direction. An earlier version of the Act called for the display of the ten commandments at federal facilities and sought to undermine the separation of powers by exempting such displays from review by federal courts. A third bill, HR 3313, has a similar purpose. If enacted, HR 3313, the Marriage Protection Act, would outlaw federal court review of a fourth bill, the Defense of Marriage Act, which is an attempt to define marriage in putatively “Christian” terms. A revised version of the Senate’s 2004 Restoration bill was referred to the Judiciary Committee a few months ago. is looking for support of the Restoration Act; Alan Keyes has written about the left-wing attack on people of faith. The recent brouhaha over a few judicial nominees wasn’t about the Senate filibuster rule; it was about the claim that Democrats want to keep believers off the bench. Democrats and leftist judges wanted Terri Schiavo to die, remember? Google “constitution restoration act” and you will find many sites arguing that HR 3799 is the most important legislation in fifty years. It will protect us from unelected judges who wantonly abuse their power in pursuit of a secular, atheist state.

What is the opposite of a secular state, if not a sacred state?

Defenders of the Act often cite the references to god in the Declaration of Independence; but of course, the Declaration of Independence is not law. It was written by traitors who took up arms against their government, in part because they didn’t want to be told what religious beliefs they must observe. Defenders of the Act assert that acknowledgment of god as the sovereign source of law is not a legitimate subject for review by federal courts. Atheists, agnostics, members of persecuted religious minorities, and our founding fathers would not agree. The United States may be a Christian nation in the sense that most believers in this country profess some version of Christianity — but only in that sense:

Every new & successful example of a perfect separation between ecclesiastical and civil matters is of importance.
— James Madison

The civil government ... functions with complete success ... by the total separation of the Church from the State.
— James Madison

They [the clergy] believe that any portion of power confided to me, will be exerted in opposition to their schemes. And they believe rightly; for I have sworn upon the altar of god, eternal hostility against every form of tyranny over the mind of man. But this is all they have to fear from me: and enough, too, in their opinion.
— Thomas Jefferson

Christianity neither is, nor ever was a part of the common law.
— Thomas Jefferson

The current administration claims they are not bound by domestic law or international treaties. They claim the authority to hold people without charges, without access to the courts or to an attorney, for life. They have used “extraordinary rendition” to hand prisoners over to torturers in “friendly” regimes. The neo-cons have launched attacks on the Fourth Amendment to the Constitution, the Fifth Amendment, the Sixth, the Eighth. With god on their side, why stop there?