Christian nationalism, theocracy, and the judicial branch

I'm largely skeptical of claims that the U.S. is devolving into a theocracy. Nevertheless, a few politicos, like Florida's Katherine Harris, wouldn't mind if it turned out that way.

"If you are not electing Christians, tried and true, under public scrutiny and pressure, if you're not electing Christians, then in essence you are going to legislate sin...."

I came across the Harris story after reading Peter's take on "Christian nationalism," decried in a recent book by journalist Michelle Goldberg. According to John W. Dean, Goldberg makes an incendiary claim:

One of the handbooks of the Christian nationalists, which Goldberg found at a convention for home-schoolers, was How to Dethrone the Imperial Judiciary by Edwin Vieira, who has alluded, Goldberg reports, "to Stalin's purges as a way of dealing with liberal judges."

This immediately raised suspicion, so I decided to investigate by using Amazon's "Search Inside the Book" feature.

Now, Vieira is definitely guilty of inflammatory rhetoric, calling justices "pernicious" and "evil," and continually decrying "cultural bolshevism," a historically Nazi epithet used to deride modernism. He's also guilty of tenuous interpretations of Constitutional history and self-contradictory reasoning, as you'll see below.

But I can find no evidence of allusions to "Stalin's purges as a way of dealing with liberal judges." Rather, Vieira's anti-liberal strategy would rely on either court-packing or impeachment. The former, Vieira writes, without a trace of irony, is no "final solution," necessitating impeachment for justices who dare to depart from "higher law."

Defending his proposal, Vieira argues that the "good behavior" standard does not require an impeachment process, since impeachment is requisite only for "high crimes and misdemeanors." He claims that Congress can constitutionally lower the bar and invent a process to remove judges that promote disagreeable judicature, invoking the debate in the Constitutional convention, but with a tenuously narrow reading of the delegates' high view of judicial independence.

Remarkably, Vieira would allow "contemporary social and political standards" to define "good Behaviour," even admitting that "this is an area in which 'the living Constitution' may have some relevance" (p. 300). He then claims, entirely without warrant, that "an absence of 'good Behaviour' must surely include judges' malign, reckless, willfully blind, negligent, or incompetent misinterpretations of the Constitution" (ibid.).

Even if this plan is "premature," Vieira is confident that impeachment is appropriate for the justices who undid Texas' anti-sodomy statutes in Lawrence. Vieira quotes English precedent supporting a definition of "high crimes and misdemeanors" for "misleading their sovereign."

Vieira has a tough time with irony. He rails against the "law profession" for its over-reliance on commentaries, yet founds his arguments on Story's famed commentary on the Constitution, what he calls "pre-Constitutional" necessities, and English common law. (The foreign nature of the latter apparently escapes his attention.) He even complains outright that "commentary reigns supreme" (p. 311). (He reaches the unhinging-point when he argues that modern judicature is "unscientific"--something the founders were entirely unconcerned about.)

Vieira's selective reading of early documents is perfectly exemplified in his treatment of George Mason's suggestion that, concerning (presidential) impeachment, treason and bribery were too narrow. Mason wanted to add "maladministration"--but, as Vieira does not point out, his wording was rejected, and the vaguer concept of "high crimes and misdemeanors" was accepted instead. The arguments were particular to the president, who, as Madison points out, has a four-year term. Whether such logic would apply to the judicial branch simply was not raised in the discussion.

Even if we would grant all of Vieira's claims that impeachment is a valid way to deal with politically inept justices, this is a far cry from calling for kangaroo courts, forced confessions, and the show trials of Stalin's era. Frankly, judicial impeachment--like any other impeachment--is too politically unpalatable, and has been for over a century.

I haven't yet read the entirety of either Goldberg's or Vieira's work, so I can't say with certainty that Goldberg exaggerates Vieira's position or that Vieira isn't an out-and-out extremist. But my initial impressions make me highly suspicious of Goldberg's rabble-rousing.