Democracy Under Assault
Theopolitics, Incivility and Violence on the Right

Michele Swenson

Constitutional Crisis as Tool to Consolidate Political Power on the Right

The 2000 election fiasco proved an early indicator of political right's willingness to precipitate constitutional crises toward imposition of their agenda and achievement of political domination. The presidential election hung on misleading ballots, disenfranchised voters, the demand to leave votes uncounted, and the effective selection of a president by a 5-4 Supreme Court vote, in contravention of majority vote of the people.

In fact, scrapping the Constitution has been an option eagerly entertained by a spectrum of politcal and religious right voices, the better to achieve political / religious dominion.

Law professor Russell Hittinger is one among many who regard judicial decisions upholding religious, women’s and civil rights "unlivable" for serious Christians. Hittinger argues the "duty not to obey a law if it seriously injures the common good" (narrowly defined). Because the courts have determined the constitutional order for 50 years by legislating from the bench without consent of the governed, such illegitimate rulings should be protested by every means, from altering the jurisdiction of the courts, to civil disobedience of despotic judicial rulings, to outright revolution. In the pamphlet outlining judicial wrongs published by D. James Kennedy’s Coral Ridge Ministries (Are the Courts Out of Control? 1997), Hittinger declared that the responsible thing to do is to advance particular issues for the purpose of promoting a constitutional crisis.

Hittinger dates the regrettable condition of individual rights superseding states’ control of individual behavior to the post-World War II Court’s insertion of itself into state governments’ "culture-forming institutions, including education, religion, marriage and government’s domestic control over matters of life and death." He narrowly interprets the right of privacy upheld in Griswold v. Connecticut (1965) to legalize contraceptive access by married couples as a decision intended to protect marriage. All privacy rights established by Griswold, Eisendstadt (1972) Carey (1977) have been termed by Hittinger a violation of the states’ right to legislate traditional religious morality.

Roe v. Wade, writes Rev. D. James Kennedy, trashed "the scriptural foundation for American life." With the reaffirmation of individual privacy rights in the 1992 Casey decision, ultrarightists took the greatest exception to the Court’s statement: "At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and of the mystery of human life." Chuck Colson blasted this definition of liberty as "radical individualism," naming it a disenfranchisement of "Christians or anyone who adheres to a transcendent moral standard."

Chuck Colson, too, views "biblical traditionalists" abandoned by modern culture and politics. He has questioned whether Christians should have ever agreed to the social contract upon which the United States was founded, a compact based on a small patch of common ground between two distinct and often antagonistic understandings of the world—that of biblical traditionalists and Enlightenment rationalists. Colson asserts that the first view their liberty secured by God, the latter by their status as human beings alone. Therefore, the Christian Church, in some corporate capacity, must decide whether Christians should maintain allegiance to a U.S. government that denies them and their religious beliefs their rightful position of dominance.

Justified subversion of constitutional rights has taken the form of arguing that protecting women’s access to clinics is a violation of "free speech rights" of abortion opponents, whose protests against "bubble" law protections and the Freedom of Access to Clinics Entrance (FACE) Act are "criminalized." Terms like "dignity of life" and "equality under the law" are applied to fetal, not women’s, lives. Commonly, the ultraright contends that the courts have denied protection to "the weak and vulnerable," privatizing matters that should be public, and placing what Hittinger and others call "citizens of rightly formed conscience" in moral crisis. An "ethic of modernity" has been diffused through science and the arts, protests Hittinger.

So, too, are laws protecting the civil rights of homosexuals described as "punishing Christians" for their moral objection to homosexuality. Opposition to such laws is a free speech issue, declared Pat Robertson —the "right to condemn homosexuality as sinful." Defining their enemy as an "amoral, libertarian regime," some ultrarightists refer to themselves as "resident aliens," victims of court dismissal of their religious beliefs, resulting in "frustrated religious patriotism."

The doctrinal father of modern evangelicalism, author of A Christian Manifesto, the late conservative theologian Francis A. Schaeffer (1912-1984) assigned culpability for judicial overstepping to "humanism" and lack of an absolute value system. The "Christian state" as the basis of law established by the founding fathers is ignored by humanists who fail to honor strict construction of the Constitution, said Schaeffer. He asserted a Christian duty to disobey the state: "…to revolt against that which is against the word of God." The world is lost and the twentieth century broken, said Schaeffer—the only salvation, accepting Jesus Christ. Schaeffer objected to Oliver Wendell Holmes’ (Supreme Court 1902-32) practice of "sociologic law," that which is thought to be good for the community at any given moment.


Primed by his religious right mentors to believe their cause divinely ordained, the stage was set for George W. Bush’s full frontal assault on the Constitution from the moment his political minions aligned themselves against a Florida recount in favor of judicial coronation.

Every subsequent event or incident, including the 9/11 violence, has become political opportunity to cement a permanent Republican majority. Karl Rovian strategy defined the war on terror a perpetual war. Crippling checks and balances in favor of unchecked executive privilege has become the rule. Jailing people without accountability; torture and extraordinary rendition; suspension of habeas corpus; spying on Americans; outing a CIA agent; manipulating intelligence and lying to Congress; and intimidation and retaliation against political enemies are the norm.

The Bush administration has promoted the idea of a perpetual war on terrorism toward expansion of presidential powers. A declaration of war justifies the commander-in-chief’s alleged right to "ignore constitutional checks and balances, disregard the Bill of Rights, suspend accountability and concentrate dictatorial powers in his own hands," laments Gary Hart.

Presidential signing statements, pioneered by Judge Samuel Alito to reinforce executive authority, have been freely utilized by George W. Bush, including one he attached to John McCain’s bill banning torture, reserving the right to ignore the law if he wants.

Professor Sandy Levinson observes that to Bush allies, the ‘Republican form of government’ is equivalent to ‘government by the Republican Party.’ Described Scott Horton ("A Constitutional Crisis?" Harper’s Magazine, 7-4-07), the Bush administration formulated two types of justice - for those "against us" and those "with us." In fact, presidential associates have been deemed above the law. When Sara Taylor of the White House staff testified before Congress, she stated that she had taken an oath "to uphold the president" instead of the Constitution.

Special prosecutor Patrick Fitzgerald indicated he thinks Cheney is the force behind the outing of Valerie Plame. Scooter Libby stonewalled to protect Cheney from potential prosecution, and a presidential commutation of sentence appeared to be his reward.

To founding fathers George Mason and James Madison, impeachment is the constitutional remedy for overreaching, i.e., the use of the presidential power to pardon in order to prevent discovery of one’s own guilt.

More than any time in recent history, democracy and the Constitution have been systematically undermined in service of narrow political agendas.