Washington's Smackdown: Rule of Law vs Rule by God

by C. Clark Kissinger

No one has ever seen anything quite like it. Republican Senate leaders refused to let Congress recess until the House, which had already adjourned, reassembled to pass the "Terri Schiavo Bill." Members of Congress were hastily flown back to Washington, and the House of Representatives convened in a special session at midnight. The president, who is normally able to sleep soundly through any human disaster from tsunamis to the AIDS epidemic, flew back from the Texas ranch to sign this special piece of "humanitarian" legislation in the middle of the night wearing his PJs.

But this special act of Congress, giving a federal court new jurisdiction to hear yet another appeal on behalf of one severely brain-damaged woman in Florida, was anything but humanitarian. It was a carefully planned frontal assault on what have been basic principles of law up to now. It was about knocking those principles down, and about building public opinion for replacing "the rule of law" with the "higher power" of religious rule, as interpreted and exercised by the political right. And even the mainstream press has been stunned, with the L.A. Times referring to this with words like "attempted coup d'etat."

On one hand, this law claimed to narrowly focus on the fate of one woman. And so it might seem strange, on the surface, to view it as some major power grab. But the powers that Congress and this president claimed to have , their assertion that they could bulldoze over state law, state legal verdicts, constitutional precedents (using the fading life of Terri Schiavo as an excuse!) represented a historic departure from the way state power has been structured and viewed.

This is hardly the first time legal norms and laws have been ignored or applied grossly unequally in the U.S., when the interests of powerful forces demanded it. But rarely has there been such a raw and arrogant dismissal of legal precedent and judicial procedures, with such powerful support from both Congress and the White House. This says a lot about this moment in history, and it says a lot about what is to come.

The hypocrisy of it all was stark. When they have the political power to enact backward new laws locally, everything from teaching "creationism" to kicking people off welfare, reactionaries of all stripes leap to attack the federal government, demanding that "power be returned to the states."

But when things don't go their way in the states, as in the 2000 Florida vote count, then these same forces are perfectly willing to demand just the opposite and impose federal power to overturn local actions.

This time, even some prominent Republicans were shocked by how far it has gone. Charles Fried, President Reagan's solicitor-general, said that Congress and the president had "embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have bemoaned and sought to discipline for decades." Representative Christopher Shays of Connecticut, one of five Republicans voting against the "Terri Schiavo bill," blurted out: "This Republican Party of Lincoln has become a party of theocracy." Douglas Kmiec, a conservative law professor at Pepperdine University and big Bush supporter, put it simply: "It contravenes almost every principle known to constitutional jurisprudence." As indeed it does.

Separation of Powers: Congress--the legislative branch--is supposed to make laws. The courts--the judicial branch--are supposed to interpret how those laws get applied in individual cases. The Supreme Court has long held that Congress may not enact legislation that nullifies, suspends, or reverses a judicial determination in a particular case. In fact, the so-called "Founding Fathers" bragged that the usurpation of judicial power by the legislature would be impossible under the new Constitution because the Congress could not reverse a decision once made in particular case; Congress could only prescribe new laws for the future (see The Federalist, No. 81). Yet reversing a particular decision is exactly what Congress attempted to do in this case.

Equal Protection of the Law: Laws are supposed to apply to everyone, particularly when they pertain to people's rights before the law. But out of 260 million people, this special law was passed setting up a special legal procedure "for the relief of the parents of Theresa Marie Schiavo." The law applies to the Terri Schiavo case alone, and gives one federal district court in Florida special jurisdiction to hear a new lawsuit brought by her parents. This is totally at variance with the principle that laws are to apply equally to everyone.

No Ex Post Facto Laws: A fundamental principle of U.S. law has been the prohibition of "ex post facto" laws. ( Ex post facto means "after the fact.") Laws are supposed to apply from their passage on, not work backward in time to apply to events before they were passed. Yet that is what Congress did here. The "act for the relief of the parents of Terri Schiavo" explicitly does not apply to future such cases in other families. It only applies to Schiavo, whose case has already been fully adjudicated.

Res Judicata ("A Matter Already Decided"): Another major principle of U.S. law is that you cannot keep going back into court to re-litigate an issue over and over again until you get the result you want. Yet that is what the "Terri Schiavo bill" tries to do. It gives a federal district court in Florida the power to reopen and re-litigate the whole case from scratch--this after ten years of litigation with several trips to the Supreme Court along the way. In short, the Christian fascist forces simply don't like what the courts have repeatedly found to be the facts in the case, so they want to have all the previous decisions thrown out and are trying to force the courts to decide the case all over again.

Due Process under the Law: The right not to have her life artificially prolonged belongs to Terri Schiavo alone, under Florida state law. She expressed her wishes in advance of the illness that led to her brain death, and the Florida state courts have acknowledged that those were her wishes and upheld her decision. Now this new legislation would compel Terri Schiavo's body to be artificially maintained based on other people's values and wishes, not hers. The new law would have her basic rights taken away by a new "special process."

Separation of Church and State: Once again, the driving force in all this has been the attempt to impose a particular brand of fundamentalist Christian theology as compulsory public policy. In introducing the bill in the House, the Judiciary Committee Chairman James Sensenbrenner began and ended his speech with references to "Holy Week." Other politicians cited the pope's pronouncement against the Florida court's orders. They even referred to the "Passion of Terri," noting the passage of their bill was on Palm Sunday, as if they were empowering the resurrection of Terri Schiavo.

The Terri Schiavo drama shows just how far the Christian right and their chief spokesperson, President George W. Bush, are willing to go in striking down the rule of law--in order to impose the principles of theocratic rule ("the rule of god").

As Pat Robertson explains in his Answers to Two Hundred of Life's Most Probing Questions, "Government was instituted by God to bring His laws to people and to carry out His will and purposes. . . When the perfect government is established during the Millennium, Jesus Christ will combine in Himself the offices of prophet, priest and king. This will be a perfect theocracy."

Where all this is leading to is increasingly clear.

The campaign to vilify the courts and overturn legal precedent is aimed squarely at creating public opinion to overturn a host of progressive social policies installed over decades. It is aimed at setting the stage for ending filibusters in the Senate and jamming through some of the most Neanderthal judicial appointments made by Bush. And it is aimed at opening the flood-gates to a host of new Constitutional interpretations or amendments (concerning gay marriage, abortion, public display of the ten commandments, flag burning, prayer in the schools, and so on) that would change the very character of public life and enshrine the Christian fascist social agenda in the Constitution for years to come.

But all of those specific objectives are not the whole picture. Because there is something more fundamental and sweeping revealed by their approach to this case: The Christian Right's plans are to replace the concept of "rule of law" by their notion of "rule by god." They are clearly determined to overrule any previous precedent that stands in their way and to impose a form of political rule on society that can only be called "theocracy," and which in practice would mean a modern American form of fascism.

Revolutionary Worker #1273, April 3, 2005, posted at http://www.rwor.org

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