March 25, 2022

In confirmation hearings this week for her elevation to a Supreme Court seat, the highly qualified and well-respected Judge Ketanji Brown Jackson endured vicious attacks from Republicans on the Senate Judiciary Committee, who vow to reject her confirmation despite the fact that her record is stronger than those of recent Republican nominees and that 58% of Americans want her to be confirmed. (In contrast, only 42% of Americans wanted Justice Amy Coney Barrett confirmed.)

Senator Ben Sasse (R-NE) explained: “Judge Jackson has impeccable credentials and a deep knowledge of the law,” but she “refused to embrace” the judicial philosophy of originalism, which would unravel the 1973 Roe v. Wade decision protecting abortion rights, as well as most of the other civil rights protected since the 1950s.

Indeed, the hearings inspired Republicans to challenge many of the civil rights decisions that most Americans believe are settled law, that is, something so deeply woven into our legal system that it is no longer reasonably open to argument. The rights Republicans challenged this week included the right to use birth control, access abortion, marry across racial lines, and marry a same-sex partner.

These rights, which previous Supreme Courts said are guaranteed by our Constitution, are enormously popular. Seventy percent of Americans support same-sex marriage. Eighty-nine percent of Americans in 2012 thought birth control was morally acceptable, and the Centers for Disease Control and Prevention reported that as of 2008, 99% of sexually active American women use birth control in their lifetimes. Even the right to abortion remains popular. According to a 2021 Pew poll, 59% of Americans believe it should be legal in most or all cases.

So how do today’s Republicans square overturning these established rights with the fact that we live in a democracy, in which the majority should rule, so long as it does not crush a minority?

A 2019 speech by then–attorney general William Barr at the University of Notre Dame offers an explanation.

In that speech, Barr presented a profound rewriting of the meaning of American democracy. He argued that by “self-government,” the Framers did not mean the ability of people to vote for representatives of their choice. Rather, he said, they meant individual morality: the ability to govern oneself. And, since people are inherently wicked, that self-government requires the authority of a religion: Christianity.

Barr quoted the leading author of the Constitution, James Madison, to prove his argument. “In the words of Madison,” he said, “‘We have staked our future on the ability of each of us to govern ourselves…’.”

This has been a popular quotation on the political and religious right since the 1950s, and Barr used it to lament how the modern, secular world has removed moral restraints, making Americans unable to tell right from wrong and, in turn, creating “immense suffering, wreckage, and misery.” “Secularists, and their allies among the ‘progressives,’” he said, “have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values.” The law, Barr said, “is being used as a battering ram to break down traditional moral values” through judicial interpretation, and he called for saving America by centering religion.

Madison never actually said the quotation on which Barr based his argument. It’s a fake version of what Madison did say in Federalist #39, in 1788, which was something entirely different. In Federalist #39, Madison explained how the new government, the one under which we still live, worked.

Answering the question of whether the new government the Framers had just proposed would enable people to vote for their representatives, he said yes. “No other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.” Madison said nothing about personal morality when he talked about self-government, though. Instead, he focused on the mechanics of the new national government, explaining that such a government “derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.”

He went on to say (and the capitalization is his, not mine): “It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an [small] proportion [of people], or a favored class of it….”

In his 2019 speech, Barr also expressed concern that people in the United States misunderstood the First Amendment to the Constitution, which expressly forbids the government from establishing a national religion or stopping anyone from worshiping a deity—or not—however they choose. In Barr’s hands, the First Amendment “reflects the Framers’ belief that religion was indispensable to sustaining our free system of government.” To support that argument, he cites a few lines from Madison’s 1785 pamphlet objecting to religious assessments that talk about how Madison defined religion.

In reality, that pamphlet was Madison’s passionate stand against any sort of religious establishment by the government. He explained that what was at stake was not just religion, but also representative government itself. The establishment of religion attacked a fundamental human right—an unalienable right—of conscience. If lawmakers could destroy the right of freedom of conscience, they could destroy all other unalienable rights. Madison warned specifically that they could control the press, abolish trial by jury, take over the executive and judicial powers, take away the right to vote, and set themselves up in power forever.

Madison was on to something when he warned that there was a connection between establishing a religion and destroying American democracy. At the same time Republican lawmakers are now talking about rolling back popular civil rights in order to serve Christianity, they are also taking away the right to vote and appear to be looking to set a minority into power over the majority.

“This is a fight of good versus evil,” Trump’s chief of staff Mark Meadows wrote to Supreme Court Justice Clarence Thomas’s wife, Ginni, on November 24, 2020, in a text about overthrowing the will of the voters after Joe Biden had won the presidential election by more than 7 million votes and by 306 to 232 votes in the Electoral College. Referring to Jesus Christ, Meadows continued: “Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues….”

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Notes:

https://www.washingtonpost.com/politics/2022/03/24/virginia-thomas-mark-meadows-texts/

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https://news.gallup.com/poll/350486/record-high-support-same-sex-marriage.aspx

https://www.politico.com/story/2012/05/poll-9-in-10-say-birth-control-is-ok-076623

https://www.pewresearch.org/fact-tank/2021/05/06/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases/

https://www.guttmacher.org/fact-sheet/contraceptive-use-united-states

https://www.huffpost.com/entry/cruz-loves-god-and-james_b_9142290

https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-law-school-and-de-nicola-center-ethics

https://www.sasse.senate.gov/public/index.cfm/press-releases

https://founders.archives.gov/documents/Madison/01-08-02-0163

https://www.economist.com/graphic-detail/2020/10/12/amy-coney-barrett-is-the-least-popular-supreme-court-nominee-in-recent-history

https://avalon.law.yale.edu/18th_century/fed39.asp