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.
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