Friday, December 23, 2011

Stripping Judiciary Powers

An article in Bloomberg discusses the attitude of several Republican presidential candidates towards the judicial branch of government.

Among these, Newt Gingrich "says as president he would ignore U.S. Supreme Court rulings he dislikes" and Ron Paul "would bar federal judges from hearing many cases involving abortion, same-sex marriage and religion."

(See Bloomberg: Gingrich Leads Revolt Against Judges by Vowing to Ignore Court)

I want to start by looking at what is in fact a major motivator behind many of these claims. There are a great many Christian theocrats - particularly church leaders - who would like to set up an American theocracy. This is a state where religious leaders get to dictate the direction that the country goes. However, the Constitution prohibits this. A lot of judges are doing their job - that is to say, they are upholding the constitution. That blocks these Christian theocrats from setting up a Christian theocracy. So, these Christian theocrats want to get rid of the judges or, at least, strip them from their power to decide issues relevant to the establishment of a Christian theocracy.

Of course they claim that they are seeking to protect the Constitution. It is politically necessary for them to do so. If they were to say, "We want to repeal the religious freedom elements of the First Amendment" - If they stated their true intentions - the American people would soundly reject their program. Consequently, they argue that the establishment of a Christian theocracy is somehow identical to protecting freedom of religion.

It is actually a simple argument to make - and it can be seductive to those who want to believe it. "If we are not permitted to establish a Christian theocracy, then we are not free. The government grants us liberty in practicing our religion. We practice our religion by establishing a Christian theocracy. Therefore, the government grants us the right to establish a Christian theocracy. Any attempt to block this Christian theocracy is a violation of our God-given rights as defined in the Constitution."

However, this argument is as invalid as that of a skinhead caught spray-painting a swastika and "Kill the Jews" on the door of a synagogue saying, "Hey, it's a free country. Don't I have a right to freedom of speech? I'm just expressing my opinion here. If you stop me from doing this then you are violating my right to freedom of speech."

More intelligent, thinking individuals would not be seduced by this type of argument. They recognize that the right to freedom to practice their religion, like the freedom of speech, has its limits. They roughly follow the model that, "Your right to swing your fist ends where my nose begins."

The right to freedom of speech does not grant one the right to express an opinion in spray paint on somebody else's property. The right to freedom of religion does not grant one the right to set up a religious theocracy.

One of the ways that our government is set up to avoid tyranny is by this method that establishes three branches of government, with a system of checks and balances between them. Let any one of them try for tyrannical power, and the others are set up to stand in their way.

Executive tyranny is blocked by the fact that the executive branch must depend on the legislature to pass laws and approve a budget. It is also blocked by a judicial system with the power to declare their tyranny unconstitutional.

A tyrannical legislature depends on an executive branch with the power to veto legislation - which the legislature can override only if it provides a super-majority. Legislative tyranny is also checked and balanced by a judicial that can declare its laws unconstitutional.

A tyrannical judiciary is checked by the fact that judges only have the power to judge cases that are brought before them and are appointed by the executive and legislative branches. Furthermore, the legislative and executive branches can work together to change the Constitution.

There are some who argue that these proposals from Gingrich and other Republican presidential candidates are a part of the system of checks and balances. As such, they do not work against that system.

However, a system of checks and balances requires that no entity be given a trump card that renders another branch totally impotent. An impotent branch of government can offer no checks and can create no balance.

If the executive branch can ignore any judicial decision it does not like invalid, then executive power is unchecked. It is worthless to even take a case to court. No matter what the judge decides, the executive will continue to do what it pleases. Consequently, judicial checks on executive power are eliminated.

Similarly, a law that says that judges may not render an opinion on certain issues is a law that gives unchecked and unbalanced power to the legislative and executive branches on those issues. Where there is no power to review or question, there is no check or balance.

Of course, this is exactly what the Christian theocrats hunger for - the ability to cast aside the first amendment protections against a theocratic government controlled by religious leaders for their own benefit.

It seems only natural for religious leaders to seek more power for themselves. They claim to speak for a God, but they are only human. Let's not forget that the God that they want us to obey is a God that they invented. They invented this God by projecting their own image onto a divine form. The message that they claim comes from God with a command to obey actually comes from them.

They are certainly going to be tempted to invent a God that says that they have the God-given right to rule humanity (in God's service, of course.)

It is an old-fashioned way of thinking. However, this does not mean that it has lost any of its seductive power.

9 comments:

Canadian Atheist said...

Dominionism is alive and well in the U.S. And yet many Americans don't see the danger.

Drake Shelton said...

“There are a great many Christian theocrats - particularly church leaders - who would like to set up an American theocracy.”

>>>The age of fundamentalism is coming to an end and your cousins the Anabaptists are losing popularity. You will have to deal with this in this world so might as well promote the version of Christianity that will preserve freedom the best-Scottish Protestant Presbyterianism. Christ’s kingdom is never going away so you might as well accept it. The Presbyterians are the group that refuted the divine right of kings (Per Lex Rex by Samuel Rutherford) and began the revolution against royalism. Though the French tried in the 16th century, the Romanists slaughtered them all.

“Of course they claim that they are seeking to protect the Constitution.”

>>>Which is goofy I agree with you.
“The right to freedom of religion does not grant one the right to set up a religious theocracy.”

So then why were the states of Connecticut and Massachustes have established Christian state churches decades after the ratification of the first amendment?

“It seems only natural for religious leaders to seek more power for themselves.”

>>>Really, so then why did the religious leaders in Scotland in the 17th century rise up against religious tyrants, change the world, and afterwards give those powers to the state as they set the precedent for separation of powers?
It is my contention that atheism, especially American atheism cannot provide a single theory of ethics to get a single bit of legislation off the ground.

Drake Shelton said...

*Coersion: Where does a government or anyone get the authority to coerce someone else? By what right does a majority coerce a minority? Every time I have asked this of Secularists they just look real funny at me, like they never even thought of that before. This is why social contract demands a unanimous agreement in a body politic. Good luck with that one. No such government exists or ever has existed. If you hold to this theory you must admit that no ACTUAL government rules by right. By what right does a social contract coerce the children of the body politic to contract and surrender their rights? How will the government continue? This is why Christians have historically Baptized their infants because they understand the Patriarchal nature of humanity.

Is the majority decision distinct from common good? If so what is the distinction?

*Body Politic: Social Contract theorists talk about how individual citizens surrender their rights over to a group contract wherein a moral person is created among them. How can the abstract concept of a moral person be produced from sensation? That is, where can I see or touch a moral person? If I cannot then the atheistic theory of empiricism must be abandoned or the moral person theory abandoned, you cannot have it both ways.

*Source of Rights: Do rights derive from the social contract or are they alienated and surrendered to the contract? Rousseau said both. The French Revolution was adamant on inalienable rights so how this works is anyone’s best guess. How can someone surrender over what they only get after the contract has been made?

*The arbitrary nature of rights in social contract theory is exposed in such an example: If the socially contracted moral person added an amendment calling for the extermination of a certain ethnicity, this moral person would not just have the force, BUT THE RIGHT to do so. If not then we must have a different source of rights than a social contract.


*Natural law, universal ethical norms, cannot be deduced or induced from sensation. Sensation would tell us there are no norms for Heraclitus proved that all physical objects are in constant flux, so a fixed norm would ipso facto be impossible. Secondly, induction is a formal fallacy.

*How can America deny in the First Amendment of the Bill of Rights establishment of religion and then assert the God of Nature and the Creator who bequeaths inalienable rights in the Declaration of Independence? When you speak of God and his operations you are establishing a religion. This is contradictory.

Alonzo Fyfe said...

Drake Shelton

In answer to your first comment, you seem to be writing as if I had said that every single religious person favors theocracty.

Against such a claim, it would be relevant to respond that there are some religious groups that do not favor theocracty.

However, my actual claim is that there is a group of religious folks in this country who favor theocracy and are frustrated by having the First Amendment enforced against them.

Against this claim, the demonstration that there are some who do not is irrelevant.

If I were to say, "All swans are white", then revealing a black swan would prove that claim false. If I were to say, "There exist, among swans, some that are white", pointing to a black swan is irrelevant.

Alonzo Fyfe said...

Drake Shelton

As for your second comment, this blog is founded on an ethical system called desirism. It holds that moral facts exist as relationships between malleable desires (those that can be molded through social forces) and other desires.

A virtue is a malleable desire that tends to fulfill other desires - and thus is one that people have reason to promote through social forces.

A vice is a malleable desire that tends to thwart other desires - and thus is one that people have reason to inhibit through social forces.

Desires, by the way, are propositional attitudes. They take the form, "X desires that P". A desire is fulfilled in any state of affairs in which P is true, and thwarted in any state of affairs in which P is false.

I agree that there are problems with other moral theories - from social contract to intrinsic value theories to natural law to consequentialism. I have made some of those criticisms in this blog.

However, that there are problems with all known theories - and even if desirism were to have a fatal flaw - this would not support the conclusion "God did it."

For 300 years, scientists knew that there were some problems with Newton's laws of motion. However, the answer was not "God did it". The answer was Einstein's theory of relativity.

Indeed, of all of the possible answers, the notion of a divine entity with beliefs and desires is among the most problematic, and among the least likely to be true.

Alonzo Fyfe said...

Drake Shelton

How can America deny in the First Amendment of the Bill of Rights establishment of religion and then assert the God of Nature and the Creator who bequeaths inalienable rights in the Declaration of Independence? When you speak of God and his operations you are establishing a religion. This is contradictory.

15 years passed between the signing of the Declaration of Independence and the passage of the Bill of Rights.

Between these two events, the founding fathers had gained a lot of experience in trying to build and hold together a diverse country. They learned a lot of valuable lessons - some of them paid for in blood.

They had fought a war (and worked out the political compromises needed to hold the country together), and suffered through a failed government (the Articles of Confederation).

Yes, the founding fathers created one government based on the Declaration of Independence that had utterly failed. The one we have now is actually, "US Government 2.0".

In their second attempt, they tried to avoid some of their earlier mistakes.

One of those previous mistakes had to do with religious tolerance. They began (as people are prone to do) with their same arrogant religous assumptions. Then, over the next 15 years, they discovered that these types of disagreements are a threat to the nation. They can (as they have in Europe) literally tear a nation apart. So, with the passage of time, they came to the conclusion that it would be a mistake to have the government take sides on religious matters - allowing the government to do this put the country at risk. So, they passed an amendment taking government out of the religion business and giving it to individuals.

Drake Shelton said...

Alonzo,

Thank you for replying.

“In answer to your first comment, you seem to be writing as if I had said that every single religious person favors theocracty.”

>>>Not sure how I implied that. That is why I called the Anabaptists your cousins.

“there are some religious groups that do not favor theocracty.”

>>>>Agreed. The anabaptists. That is why I called them your cousins.

“However, my actual claim is that there is a group of religious folks in this country who favor theocracy and are frustrated by having the First Amendment enforced against them.”

>>>I’m one of them.

“desirism”

>>>Sounds much like psychological hedonism. Will you refuse bitter medicine or a discomforting trip to the dentist to cure your ailment? Will you not suffer the pains of employment? All these do not give pleasure at the moment. If not an immediate desire, maybe then all people always desire or act towards a future pleasure. Clark objects,

“There are many evidences that this is not true. A drunkard may know that guzzling his liquor will make him sick and give him a headache, but he guzzles. He desires the immediate pleasure and sacrifices the pleasure of tomorrow.” (Christian View, pg. 118)

And finally, the definition of pleasure or desire as sensation falls prey to the hundreds of criticisms Clark has made to the entire endeavor of Empiricism. Define sensation; show how sensation produces perception and abstract ideas.


“Desires, by the way, are propositional attitudes. They take the form, "X desires that P".”

>>>So you use the word desire to define desire.

Drake Shelton said...

Alonzo,


“A virtue is a malleable desire that tends to fulfill other desires - and thus is one that people have reason to promote through social forces.”

This falls prey to the problems with Utilitarianism. On your own admission then, the execution and torture of the inferior race gives pleasure to the superior race therefore it is the right thing to do. This theory also caters to totalitarians systems. In utilitarianism, the individual must sacrifice his own interests for the interests of the whole or the state.

Clark summarizes the problem with teleological theories:
“It would be necessary to know not merely the immediate results of a given choice, but the more remote, and the still more remote into an indefinite future. It would be necessary to know the effects of the proposed action on every individual who might possibly be involved. And all these effects in their various degrees would have to be balanced against the same calculations made for each of the other proposed policies. Only after all these calculations had been completed could it be said that such and such ought to be done. But obviously these calculations cannot be completed. Therefore, a teleological system cannot conclude that one action rather than another is a moral obligation.” (Christian View, pg. 124-125)

On your own admission then, the desire to murder the Jews was a virtue because it fulfilled the desire of many Germans and thus was one desire that the people Of Germany had reason to promote through social forces. And they did.

Drake Shelton said...

Alonzo,

“However, that there are problems with all known theories - and even if desirism were to have a fatal flaw - this would not support the conclusion "God did it."”

>>>God did what?

“For 300 years, scientists knew that there were some problems with Newton's laws of motion. ”

>>>Actually Zeno of Elea made the entire enterprise impossible 2400 years ago. The answer is keeping empirical science in the category of operation not demonstration.

“Indeed, of all of the possible answers, the notion of a divine entity with beliefs and desires is among the most problematic, and among the least likely to be true.”

>>>A revealed knowledge is the only answer to the Pre-Socratic era and Zeno, per Augustine’s The Teacher.

“They began (as people are prone to do) with their same arrogant religous assumptions.”

>>>Can you document this?

“They can (as they have in Europe) literally tear a nation apart.”

>>>Religion can tear a nation apart while your pluralistic view by definition tears a nation apart and I noticed that you didn’t even attempt to answer a single objection I made to your view of society. Now that you have rejected the Protestant Reformation, and its establishments, the Roman Catholic Church now dominates your country. Sounds to me like you are indeed enslaved to your Jesuit masters Descartes and Voltaire.

“So, they passed an amendment taking government out of the religion business and giving it to individuals.”

>>>With respect Alonzo you are living in a fantasy. The Roman Catholic church dominates your government and has done so for quite some time. You can never divorce religion from government. It is never going to happen. You might as well support the religion that affords you the most respectable and free society: Scottish Presbyterianism.