Rule of Law Chronicles: America’s Shadow Theocrats

Dina Francesca Haynes

APRIL 5, 2023 12:12:05 PM

This article is the first in a series on attacks on the rule of law. The rule of law is a political philosophy premised on the promise that all citizens, leaders, and institutions are accountable to the same laws, guaranteed through processes, practices, and norms that work together to support the equality of all citizens before the law. Governments can elect to shore up their institutions to work toward that promise, or intentionally erode those systems, openly or covertly, to entrench those inequalities, through regressive governance. This series will present themes common to regressive governance, with each thematic introductory article followed by comparative law observations from writers in countries experiencing similar regression.

Theocracy assumes that political leaders are formally operating through divine guidance. In the United States, this is currently not the case. In fact, one of the fundamental principles first enshrined in the Constitution is the Establishment Clause, which demanded a strict separation between church and state. While the United States cannot be formally considered a theocracy, shadow theocrats have infiltrated all systems of law and government and are rapidly regressing the rule of law in the United States.

There is ample evidence that evangelical Christianity, deeply bound up in America’s dark history of slavery, racism, discrimination, and nationalism sanctioned in law, is driving regressive politics in America. Some refer to this manipulation of political processes to secure ideology in law as Christian Nationalism. In the United States, Christian nationalism has a particular history tied to colonialism and dehumanizing the other. Early “settlers” referred to indigenous people as “heathens,” just as slavers often referenced the people they enslaved as “heathens,” dehumanizing those they subordinated, and attempting to justify their actions through religious conversion.

In recent decades, evangelical Christians have made a concerted effort to place their own into all key sectors of politics, law, and the media. The Council for National Policy (CNP) seeks to fuse fundamentalist theology with regular civic life, by reaching into media, state, and federal legislatures, state and federal executive offices, and the judiciary. The owners of Breitbart and the Daily Caller are members, as are leaders of the National Rifle Association (NRA) and the Ku Klux Klan (KKK). Members run affiliated groups that advocate for a modern segregated America “ruled by white people,” and the criminalization of LGBTQ+ people and abortion. Early CNP members included Jerry Falwell, Pat Robertson, Ronald Reagan, and the head of the Federalist Society. Current members include two of the wealthiest families in the world, Koch and DeVos (Secretary of Education under Trump, and CEO of a militant mercenary group). CNP also affiliates with proponents of so called “birthright citizenship,” who hold that America is for “natural born Americans” which is where the nationalism comes in.

Even as international law and human rights law and policy developed globally, and as other regions and countries have adapted  , utilized international and regional human rights mechanisms as guiding legal principles or even incorporated those into their domestic law, the judiciary in the US has reverted to interpreting its Constitution through the narrow lens of a very selectively applied and weaponized type of “originalism,” providing legal support to these shadow theocrats.

Federalism has become central to the new American exceptionalism, and selectively respected by the judiciary. Previously reliable constitutional principles, like preemptionstare decisis, and justiciability have eroded dramatically. The dramatic shift away from understanding the important role of courts in protecting against the tyranny of the majority is particularly concerning.  In Obergefell v Hodges, the Supreme Court identified a substantive due process right to marriage applicable to all, including married same-sex couples. The Obergefell majority acknowledged a core legal principle on which the rule of law is premised: that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Rights, once acknowledged, cannot be merely voted away. Rights can, however, according to the current Court in Dobbs v Jackson Women’s Health Org, be reversed, with some claiming that the right never existed.