This is an ideological struggle not of our choosing that attempts to
establish its writ using the putative support of its adherents to
impose their ideas. Of course we object. What has not happened yet
is outright confrontation and the establishment of powerful
boundaries. This has only because we have preferred denial to the
cost of establishing a new paradigm.
From my perspective, they cannot win through. In fact the weight of
secularism is grinding away at their world and the demands of
education is forcibly broadening their perspectives. This has not
prevented atrocity but the pressure of modern media is swamping their
intent and efforts.
The whole issue of Sharia law merely awakens us to the weaknesses of
our own legal system and the unsettled nature of the application of
local community law in particular. One size does not fit all. We
have the same difficulty dealing with rabbinical law. In the end our
state common law must have precedence, but two consenting adults
should technically be allowed to settle certain types of law inside a
code of their choice.
Here is a thoughtful denunciation of such machinations in the USA.
Theocracy is inherently oppressive and contrary to America's core
values. It regards God as the sovereign and source of law. It
therefore places the coercive power of the state--including
interpretation and enforcement of law--in the hands of believers. It
excludes non-believers from the body politic and brings them
suffering. In total contrast, the Declaration of Independence regards
God not as a source of coercive power, but as a guarantor of
inalienable rights including liberty and equality. The Declaration
states that government derives its sovereign authority or "just
powers" not from God, but "from the consent of the
governed." This concept of popular sovereignty is reflected not
only in the preamble of the Constitution, but also in the "Guarantee
Clause" of Article IV, Section 4 which obligates the federal
government to preserve a republican form of government in every
state. The Constitution also precludes theocracy through the First
Amendment's ban on laws respecting establishments of religion or
prohibiting "free exercise" of religious beliefs.
Political Islam or "Islamism" is theocratic. It may be
defined as a belief that Islam should control society and politics,
not simply personal religious life. Accordingly to the eminent
scholar Bernard Lewis, the ideal Islamic polity recognizes God as
sole sovereign and law-giver and assigns believers the task of
spreading His revelation until the entire world accepts it. This is
to be achieved by extending the authority and membership of the
community that follows God's law, the Shariah, which deals with the
acquisition and exercise of power and the duties of ruler and
subject. [1] Accordingly, Shariah is not simply a prescription for
exercising personal belief through activity such as prayer and diet.
It is a system of laws that affects the conduct of both believers and
non- believers in Islamic theocracies. More ominously, expansion of
the community that regards God as sovereign suggests contraction and
disempowerment of the community which does not.
Political Islam therefore challenges the United States
Constitution, particularly its embrace of liberty, equality, and
popular sovereignty. There is concern that this challenge includes
not only violent terrorism but an ideological struggle against
non-Islamic courts and legal systems and the principle that the
people, not God, are the source of political and legal authority
.There is similarly concern that Islamists seek to establish
"functionally Islamic governments" in every nation [2] and
that toward this end, they will create divisive alternative
communities by insinuating Islamic rules of conduct for the temporal
world into courts and other institutions. There is even concern that
Islamism will limit traditional free speech through application of
its restrictions on defamation of religion or blasphemy. [3]
Such concerns have resulted in "anti-shariah legislation"
in various states and subsequent court battles over whether such laws
violate the constitutional rights of Muslims. However, such concerns
raise issues of national importance because efforts to make public
institutions Shariah-compliant may violate not only the First
Amendment's provisions on religion or free speech but also the
Fourteenth Amendment and Article VI of the Constitution. The former
guarantees due process and equal protection; the latter proclaims the
supremacy of federal statutes, treaties and constitutional
provisions. Moreover, Article IV, Section 4 creates an affirmative
federal obligation to guarantee a non-theocratic, "Republican
Form of Government" in every state.
The very essence of republican government is the belief that
sovereignty rests with the people. [4]. Our Constitution is derived
exclusively from the people and alterable only by them through
elected representatives. Similarly, elected representatives and
elected or duly-appointed judges, not religious leaders, enact and
interpret our statutory law. [5] These principles of popular
sovereignty support the Article IV guarantee of republican government
and are related to the concept of equality. Thus, the guarantee
clause would be invoked in the struggle against slavery and in the
post-Civil War struggle to include freed slaves in the body politic.
[6] In this regard, the Fourteenth Amendment guarantee of equal
protection evolved from our concept of republican government, [7] and
a state that denies this fundamental right similarly violates Article
IV, Section 4. The introduction into American courts, of laws or
legal principles derived from a sovereign God or religious texts
cannot be tolerated and the federal government has a clear
responsibility to keep theocracy out of state courts and other public
institutions.
The guarantee clause of Article IV was authored by James Madison
to protect our Republic from the disintegration which would begin if
even one state were to become an enclave of anti-republican
government.[8] While Madison feared the tyranny of unchecked popular
majorities, he also believed that individual states could revert to
monarchal rule.[9] His concern that establishment of anti-republican
principles in one state could eventually threaten the entire nation
remains highly relevant in a contemporary world troubled by Islamists
seeking implementation of Shariah. In fact, the monarchy which
Madison feared was based on the divine right of kings and would have
brought religious principles into any provincial monarchist regime.
Not surprisingly, Madison was also the primary contributor to the
First Amendment's prohibition of an establishment of religion. [10]
This amendment and other provisions of the Bill of Rights were not
initially applied against the states.[11] However, after the
enactment of the Fourteenth Amendment, the First Amendment's
"establishment clause" would eventually become a means of
protecting equality from religious sentiment in state governments and
their local subdivisions.[12] This preserved the republican form of
such governments.
Efforts to bring specific laws or obligations derived from
religious authority into secular government are neither new nor
inconsequential.[13] However, authority to define and prohibit
anti-republican violations lies primarily with Congress, not the
judiciary.[14] After the 1841-42 Dorr Rebellion in Rhode Island, the
Supreme Court held that the enforcement of the guarantee clause
raised political questions not justiciable by the courts.[15]
Accordingly, a dearth of judicial decisions finding establishments of
religion in violation of the guarantee clause does not prevent
Congress from concluding that introduction of religious law
undermines republican government. To the contrary, the Supreme
Court's position that enforcement of the guarantee clause is a
political rather than a judicial decision, obviously places
responsibility on Congress to protect the various freedoms associated
with our democracy. Such freedoms unquestionably include the right to
be free from religious authority that could limit free speech or free
exercise of a different faith, or similarly determine the rights of
parties in court.
Congress has authority under the guarantee clause to curb the
growth of any ideological system that would subvert or destroy
representative government. [16] As defined above, Political Islam
constitutes such a system and promotion of an alternate legal system
based on religious law will eventually divide this nation into
separate communities. Evidence of Islamist intentions to subvert our
society from within and support a theocracy or "global Islamic
state," was introduced in federal court in a relatively recent
terrorism-funding trial .and Islamic extremists have conducted
subversive and terrorist activity on American soil.[17] As a friendly
loan shark is abetted by the violence of local mobsters, non-violent
political activists can benefit from violent terrorism as the
intimidating tactics of the latter make the seeming moderation of the
former more palatable. In other words, "without the climate of
intimidation created by the terrorists, the non-terrorists would be
ignored, not appeased."[18]
There is concern that the ultimate objective of an Islamic state
or nation may be pursued through infiltration of existing state and
federal institutions to create shadow governments. [19] Establishment
of such alternative authorities could be extremely divisive
particularly if they serve communities that follow an alternative
legal system. In this regard, at least one state regards the
formation of "any government" outside of existing lawful
authority as a form of treason. [20]
State courts will only exacerbate the divisive tendencies of religion if they allow religious laws or legal interpretations to determine rights of certain parties such as Muslim husbands accused of spousal rape. [21] The creation however gradual, of alternative legal standards based on religion similarly violates the Fourteenth Amendment as well as Article IV, Section 4.
State courts will only exacerbate the divisive tendencies of religion if they allow religious laws or legal interpretations to determine rights of certain parties such as Muslim husbands accused of spousal rape. [21] The creation however gradual, of alternative legal standards based on religion similarly violates the Fourteenth Amendment as well as Article IV, Section 4.
The United States needs a Congressional resolution declaring all
theocracy to be contrary to the various principles of republican
government set forth in the United States Constitution. The
resolution would similarly declare that religious authority is a
constitutionally prohibited basis for legislation, for the
interpretation of law and for the adoption of any official rule or
policy in all legislatures, courts and agencies of government. Far
from being a radical departure from core values, such a resolution
would give effect to what the founders intended in Article IV,
Section 4. It would maintain our character as a cohesive nation
undivided by theocratic communities which could attain significant
influence in certain states or regions. Criticism that such a
resolution could restrict judicial use of the natural law principles
that built the Anglo-American common law would be meritless. The
principle of popular sovereignty represents a new era of positive law
based on representative government. Such law is derived from secular
needs for criminal codes, commercial codes and the many other
statutes that govern our society.
Apologists for Shariah and Islamism will undoubtedly wave the
banner of religious freedom and denounce such congressional action as
"Islamophobic" and contrary to America's core values.
However, it is surely not "Islamophobic" to oppose all
theocracy particularly since our nation has an equally strong
tradition of preserving the secularism of our public life. The
Supreme Court upheld this tradition in the latter nineteenth century
when a member of the Mormon faith claimed that a divinely-ordained
obligation to practice polygamy exempted him from criminal
responsibility.[22] In holding that religious beliefs may not trump
the application of our criminal law, the Court effectively upheld the
supremacy of our Constitution and prevented religious communities
from becoming enclaves of national disintegration.
The constitutional principles which prevented Mormon polygamy in
the nineteenth century apply equally to Islamist Sharia in the
twenty-first. These principles hold that while Congress or state
legislatures lack power over religious opinion or belief, they remain
free to prohibit practice of religious beliefs which violate social
duties or subvert good order.[23] In other words, religious beliefs
are beyond the reach of government until they are converted into
activity --including conspiracy, criminal solicitation and other
inchoate offenses-- which violate society's laws, regulations or
policies.
A belief that a global state under religious law should replace
the United States Constitution can remain a protected exercise of
religion until it becomes action, agreement, or solicitation of
action to destroy our Republic. Similarly, religious authority or
obligation may not constitutionally override the laws created by
representative government or influence judicial interpretations of
such law. As theocracy contradicts the core values of America's
founding, the insinuation of Shariah similarly subverts republican
government. Accordingly, the time for national action through
Congressional initiative not available to the courts is long overdue.
The author served as a deputy district attorney, police administrator and assistant state attorney general in Colorado. Since retiring, he received a master's degree
in American History from George Mason University, with emphasis on American foreign policy in the Middle East.
1. Lewis, Bernard, The
Crisis of Islam: Holy War and Unholy Terror, pp 7-8
2. McCarthy, Andrew
C., The Grand Jihad: How Islam and the Left Sabotage America, p. 145,
passim
3. Hagmann, Douglas J., "Obama advancing Islamic Sharia Law
Prohibiting Criticism of
Islam,"
http://homelandsecurityus.com/archives/3532
http://homelandsecurityus.com/archives/3532
4. Toren, Jonathan; "Protecting Republican Government from
Itself, The Guarantee Clause of Article IV, Section 4," 2 New
York University Journal of Law and Liberty 371, 372, 387-90; Amar,
Akhil Reed, "The Central Meaning of Republican Government,
Popular Sovereignty, Majority Rule and the Denominator Problem,"
65 U. Colo. L. Rev. 749, 755-764 (1994)
5. See Duncan v. McCall, 139 U.S. 449 (1891) (people are source of
all political power and have right to have it exercised through
elected representatives); See also United States v. Downey, 195 F.
Supp. 581 (S.D. Ill. 1961) (republican form of government includes
right to an independent judiciary whose rules of procedure are made
by duly constituted state officials, not outside authorities) .
6. Amar, supra., at 770-782; See also: Texas v. White, 74 U.S. 700
(1869) (secession viewed as violation of republican government
guaranteed by Article IV)
7. Amar, supra, at 755; See also: Hoxie School District No. 46 of
Lawrence County, Arkansas v. Brewer, 137 F. Supp 364 (E. D. Ark.
1056; aff'd 238 F. 2d 91 (state officials invoked guarantee clause
when threatened during efforts to implement Fourteenth Amendment with
regard to school desegregation)
12. Board of Education of Kiryas Joel Village School District v.
Grumet, 512 U.S. 687 (1994), Engel v. Vitale, 370 U.S. 421 (1962);
Everson v. Board of Education, 330 U.S. 1, 15-16 (1947); See also,
Gelman, Susan and Looper-Friedman, Susan, "Thou Shalt Use the
Equal Protection Clause for Religion Cases (Not Just the
Establishment Clause)." 10 U. Pa.J.Const.L 665;
http://www.law.upenn.edu/journals/conlaw/articles/volume10/issue4/GellmanLooperFriedman10U.Pa.J.Const.L.665%282008%29.pdf
13. See: Reynolds v.
United States, 98 U.S. 145 (1878) (religious duty to practice
polygamy not a defense to charge of bigamy); See also: McCarthy,
supra., at 345 (at taxpayer expense, state of Minnesota established
system of interest free mortgages in accordance with Islamic ban of
usury).
14. State of Ohio ex rel Bryant v. Akron Metro Park District for
Summit County, 281 U.S. 74 (1930); Luther v. Borden, 48 U.S. 1 (1849)
15. Luther v. Borden,
supra.
16. Oil Workers
International Union v. Elliot, 73 F. Supp 942 (N.D. Tex. 1947)
17. See "An Explanatory Memorandum on the General Strategic
Goal for the Group in North America," introduced in United
States v. Holy Land Foundation, Crim No. 3:04-CR-0240-P, United
States District Court for the Northern District of Texas, Dallas
Division, available as Appendix II in Report of Team B II, Shariah:
The Threat to America: An Exercise in Competitive Analysis, An
example of substantial subversive activity specifically, seditious
conspiracy, was established in United States v. Rahman, 189 F. 3d 88
(2nd cir. 1999); substantial terrorist activity against the United
States need not be established in footnotes
18. McCarthy, supra.
pp. 27-28
21.A New Jersey appellate court overturned the ruling of a trial
judge who had declined to issue a restraining order after having
concluded that a Muslim husband did not act with the requisite intent
for sexual assault because of religious belief. Nonetheless, an
excerpt from the appellate decision illustrates the conflict between
religion and law enacted by representative government to criminalize
spousal rape.
http://volokh.com/2010/07/23/cultural-defense-accepted-as-to-nonconsensual-sex-in-new-jersey-trial-court-rejected-on-appeal/
3 comments:
While I agree with the danger of Sharia law eviscerating people's freedoms there is no guarantee they will be protected by a constitutional republic wherein law ostensibly reflects the will of the people. Secular governments can be equally oppressive. Recall that Hitler was elected. Sadly, constitutions, even with a Bill of Rights, have proved ineffective at preventing a tendency toward omnipotent government. Unless and until the recognition that in all human interactions the use of coercion (i.e., the initiation of force) is never legitimate, the likelihood of attaining and maintaining a free and peaceful world will always remain precarious.
The Principle "consent of the governed" from the Declaration of Independence as a basis or proof of just government should be scrutinized closely. Just because people consent, either explicitly or implicitly, doesn't make the government just. Consent for the institution of slavery is found in the Constitution, but this does nothing to legitimize the practice. Legalization, utilization and acceptance (implicit consent) of the evidence of the bankers fraud (Federal Reserve Notes) as a monetary medium does nothing to actually legitimize their usage or prove consent to such a repugnant currency system.
"Consent of the governed" is overated as a proof of just government as these examples show. Government is force. Do you consent?
It seems hypocritical to trash Sharian Theocracy vs WASP Theocracy as being opposite. U.S. was borne out of British theocratic colonies and its WASP mainstream society ruled under that system. Under U.S. republic, WASP theocracy survived and controls government and its society today. Christianity in the U.S. has been known as white nationalism. The author's descriptive analysis of Sharian Theocracy can parallel WASP Christian Theocracy in the U.S.A.
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