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The Guarantee Clause: Congress' Duty to Oppose Theocracy in the United States

[Editor's note: New Gingrich has called for a Federal ban on Sharia law in America.]

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.

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.

__________________________________________________________________

Bill Warner, Director, Center for the Study of Political Islam
 http://www.politicalislam.com/blog/the-guarantee-clause/
copyright (c) CBSX, LLC, politicalislam.com

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

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)

8. Toren, supra, at 371, 372-74, 377-79

9. Ibid, at pp. 378-85

10. See e.g., Alley, Robert S. ed., James Madison on Religious Liberty, pp. 37-94

11. Barron v. City of Baltimore, 32 U.S. 243 (1833)

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

19. See Report of Team B II, supra., pp. 124-25

20. Code of Virginia, 18.2-481 (3)

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/

22. Reynolds, supra.

23. Reynolds, supra., 98 U.S. at 164

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