Abnormal Interests

First, the proposed bill seeks to limit judicial review in a very important and negative way.

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.

The First Amendment to the Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In my view, the proposed law is a direct attack on the establishment clause. I have absolutely no problems with an "officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government." I think this is a significantly wrong interpretation of the facts of the matter, but if that is their believe let them express it. They are currently protected as long as they do not imply that it is the belief of their agency or office. But no governmental entity should have, support, or encourage such beliefs. That is a violation of the establishment clause and the courts must not be restricted from so finding.

The second focus of the proposed law is as bad if not worse. The follow words are the problem:

. . . acknowledgment of God as the sovereign source of law, liberty, or government.

Our constitution begins with these famous words,

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 people are the "sovereign source of law, liberty (and) government" according to the Constitution and not God or any other god or gods and goddesses. Make no mistake about it, when God is written with a capital letter it is understood in English as meaning the Judaic, Christian god and no other. Neither God nor god is mentioned, even once, in the Constitution. In fact, Patrick Henry chose not to support the Constitution because God (among other things) was not mentioned. The founders omitted "God" from the Constitution by choice not accident. See Dispatches from the Cultural Wars for a clear understanding of the issue of god in the Constitution.

Well what abut the Declaration of Independence? Doesn't it mention God? Yes it does. Here are its opening words.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Note that governments get "their just powers from the consent of the governed" not God. Also, the reference to the "Laws of Nature and of Nature's God" was intended, I believe, to provide a basis for independence separate from the king who ruled by divine right. The people of the new government are put in the place of the King of England. Perhaps more important, Natures God is the deist God who gets the whole thing going and is otherwise uninvolved. Patrick Henry didn't much like this either. In addition, I have not been able to find a single case where the Declaration of Independence was a determining factor in a legal judgment. If you know of one tell me about it.

Finally, the proposed bill has the following language,

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.

Well that may be true enough in the very limited context of "interpreting and applying the Constitution of the United States", but I fear that the authors have a somewhat broader idea in mind. A Leiter Report post by guest blogger Richard Posner had a good discussion on this matter. Both it and the follow-up discussion should be read. Posner give astrong argument against the use of foreign law. At the same time he indicates:

. . . I don't object to all such citations. For example, sometimes foreign law supplies the rule of decision for a case in an American court; or sometimes a foreign judicial opinion contains an interesting argument or datum worth citing with credit to the original.

Treaties were made the law of the land by the Constitution:

Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

And, at least in principle, the interpretation of treaties could well rest on foreign law.

S 520 and H.R. 1070 are part of a whole gambit of actions intended to weaken the judicial branch of the government and there by strengthen the legislative and administrative branches. It has no other purpose and should be soundly defeated.

S. 520 is sponsored by Sen. Richard C. Shelby of Alabama and H.R. 1070 is sponsored by Rep Robert B Aderholt also of Alabama.

The following are cosponsors of the Senate bill:

Sen Brownback, Sam KS
Sen Burr, Richard NC
Sen Craig, Larry E. ID
Sen Lott, Trent MS

The following are cosponsors of the House bill (24 in all):

Rep Bachus, Spencer AL
Rep Barrett, J. Gresham SC
Rep Bishop, Rob UT
Rep Cannon, Chris UT
Rep Cantor, Eric VA
Rep Davis, Jo Ann VA
Rep Everett, Terry AL
Rep Foxx, Virginia NC-5
Rep Goode, Virgil H., Jr. VA
Rep Hall, Ralph M. TX
Rep Herger, Wally CA
Rep Jones, Walter B., Jr. NC
Rep Lewis, Ron KY
Rep McCotter, Thaddeus G. MI
Rep McIntyre, Mike NC
Rep Pence, Mike IN
Rep Pitts, Joseph R. PA
Rep Price, Tom GA
Rep Rogers, Mike D. AL
Rep Ryun, Jim KS
Rep Souder, Mark E. IN
Rep Wamp, Zach TN
Rep Weldon, Dave FL
Rep Wilson, Joe SC

Anyone see a pattern here?