In time of war the law falls silent.
—Marcus Tullius Cicero, 52 BC
W
HEN
I
ARRIVED
AT THE OFFICE
on January 3, all my things had been installed in a partner’s office about the size of the tenement in which my Irish grandfather had raised his five children. It had a spectacular view over New York harbor to Governors Island, and a massive antique partner’s desk. Otherwise, things were the same: the same backlog of “pink slip” telephone messages from clients with urgent problems, the same queue of junior lawyers looking for a few moments of my time, the same parade of e-mails flashing on the screen and demanding attention, and the same stack of documents waiting to be read and marked up.
Later that day one of the senior partners invited me to his office to sign the partnership agreement; he handed it to me folded open to the signature page. Thinking this could perhaps be one last test of my diligence, I demurred, suggesting that it was unprofessional for a lawyer to sign a contract that he had not read. The older man laughed and noted that for 126 years every new partner had signed the agreement without reading it first, but if I wished to be the first to decline to do so, that was my prerogative. I signed.
The main moment of ritual for new partners occurred at the first weekly partners’ lunch of the new year. The chairman greeted each new partner by name, and each was welcomed by genuinely warm applause. Every person there understood what each new partner had gone through to reach that moment. The real thrill for me, I admit, was the year-end financial report delivered at the lunch. Although the trade press was full of rumors about how much the partners of RCD&S earned in a year, the associates really didn’t know. After lunch, those of us who had just made partner knew. Let’s just say we were not disappointed. I remember wishing that afternoon that there was someone I could tell. My parents, my father in particular, would have been awestruck and enormously proud. Under the terms of our confidentiality obligations, I couldn’t tell Emilie unless I married her.
Three weeks later, Sanjay came over to the apartment to watch Sarah Palin’s inauguration with Emilie and me. Palin mounted the steps of the Capitol building as one of the most powerful presidents in US history. She enjoyed a filibuster-proof sixty-eight Republicans in
the Senate, and a large majority in the House. Martial law had been in
effect for over five months, and not since the Civil War had the federal government wielded as much power with as little legal restraint.
The former newsreader who mounted the podium that day could only rarely craft a coherent sentence on her own, but she was very good at reading words written by others:
Six months ago, our nation endured the worst attack in its proud history, far worse than Pearl Harbor, far worse than 9/11. Almost seven thousand godfearing innocents were slaughtered right here in the homeland. Seven thousand Americans going about their daily activities—working, eating, praying—obliterated in an instant by radical Islamic foreigners, most of whom had been welcomed to this country and invited to share our freedoms. Like so many of you, I have prayed long and hard about this tragedy. How did our Lord, who so loves America and its people—who established this Christian Nation to do His will on Earth—how did He allow this terrible thing to happen? What did we do wrong? We know His justice is perfect and His mercy is without limit. So we know this was a punishment we deserved. But for what?
I think, my fellow Americans, we all, deep in our hearts, know the answer. The Bible tells us of so many instances where God’s people have strayed from His path, where the people have lived godless lives, and where His retribution is swift and just. God’s justice is an eternal truth. Do we think because the pages of the calendar have turned, because we live in a twenty-first-century age of technological wonders, that somehow these eternal and universal truths do not apply?
Emilie interrupted, “Wait a minute, is she saying that we got 9/11 and 7/22 because we deserved it? That it was God’s just punishment for gays and abortion and all the stuff they don’t like?”
“Yes, exactly,” answered Sanjay. “That’s nothing new. Remember Columbine? The Speaker of the House, Tom DeLay, suggested that one of the causes of the Columbine massacre was the teaching of the theory of evolution.”
Palin continued.
My fellow Americans, the fact is that some of you did fall into the illusion that God’s eternal truths no longer apply. Yes, many of us did indeed believe that we could ignore God, turn our backs on Jesus His only son, disobey His commandments and somehow escape His justice. Well, those who believed these things have been proved wrong. With 9/11 God in His mercy gave this great country a call—a call to turn back from the mass slaughter of innocent children in the womb, to turn back from adultery and sexual license, to turn back from tolerating the terrible sin of sodomy, to turn back from the illusion that a culture could be built on a foundation of human desires and laws made without reference to the one and only eternal lawgiver. And what did we do? Did we heed His warning? We did nothing. We not only failed to answer God’s call, but our federal courts prevented us from doing God’s will. They decided that the commandments of God could not even be displayed in public. They decided that our citizens could not pray in schools and other public places. They decided that practicing evil was a right, nothing more than an “alternative lifestyle.” They decided that our leaders and public officials could not follow the dictates of their faith in performing their public service.
A few brave citizens foresaw the peril to the nation. They preached that God’s justice would follow. They begged their fellow citizens to study our history and to reconnect with the essence of this country as a nation born in godliness and dedicated to establishing on this Earth a commonwealth governed by His laws. They cried out against the savagery of abortion, the horrifying attack on the fundamental institution of marriage, the tolerance—even the celebration—of deviant sexuality. But like the prophets of old, their words were not heeded. In retrospect, the result was inevitable.
So this I pledge to you. My administration will fight the terrorist threat with all the means at our disposal. But we will also attack the root cause of our present peril by answering your call to return this nation to a godly path.
At this point the usual decorum associated with an inaugural ceremony was cast aside as scores of congressmen leapt to their feet, hooting and hollering as if their team had just scored a touchdown. The vast crowd on the mall erupted and refused to quiet down for a full five minutes. Palin assumed what the press called her Joan of Arc face, a carefully practiced blend of stoic determination mixed with the smug satisfaction of a woman remembering moments of intimacy with the divine. The television focused in on the more liberal members of the Supreme Court squirming uneasily in their seats as the ovation refused to abate. Palin made no effort to interrupt. Only when the crowd went completely silent did the president continue.
Now, my friends, the remarkable thing is that this does not require a revolution. No. It does not require anything remarkable or radical or new. For just over 220 years ago God gave us our beloved Constitution containing the perfect recipe to build a nation under God. So all we need, my fellow Americans, is to return to our roots. We need to embrace our Constitution and restore it to its place as the foundation for all our laws. That is why, tomorrow, my administration will send up here, to Capitol Hill, the Constitution Restoration Act, which came so near to passage in 2004 and 2005 and was originally conceived by one of our most brilliant jurists, Roy Moore.
The crowd that was gathered on the mall roared its approval. I could not believe my ears. Roy Moore was a state court judge from Alabama who had become a hero to the evangelical movement by refusing to obey a federal court order to remove a stone carving of the Ten Commandments from his courtroom. He had been described as many things but never before as a “brilliant jurist.” Sanjay looked grim.
This legislation will restore God to His rightful place as the sole and sovereign source of law, liberty, and government in America. Any federal judge who acts contrary to this truth will be impeached. And no one will again surrender the sovereignty of America—no international organization, no UN, no bizarre group of atheist dictators—will again dictate to the people of America what they can or cannot do. We answer to God and to the Constitution and not to the UN.
Again the crowd erupted. “The fucking black helicopter crowd,” said Emilie.
And finally, this brilliant piece of legislation will fulfill the promise of Article III of the Constitution by exercising Congress’s right to deny the Supreme Court the power to review laws that liberal judges just don’t like. In America, under America’s Constitution, the states are sovereign.
She looked up, departing from the script, adding helpfully, “That means they’re in charge.”
And if a state in this Union wants to allow prayer in its schools, wants to recognize and embrace its Christian heritage, wants to save the lives of innocent babies, wants to protect the sanctity of marriage—well, that’s what the state will do, and after next week, after our new Congress acts, no liberal judge will again defeat the will of the people.
The president was interrupted by another ten minutes of tumultuous applause and cheering. It took me some time to absorb what she had said.
“San, do you know what’s she talking about?”
“Yes. It’s not complicated. The bill purports to deny jurisdiction to the federal courts on all separation of church and state issues. Denying God as the source of “law, liberty, and government” is an impeachable offense. And there is the oddly xenophobic provision prohibiting federal courts from considering or enforcing treaties or ‘foreign laws.’ ”
“They can’t do that.”
“You are the lawyer, G, but I think perhaps they can. They argue that Article III of the Constitution allows Congress to make exceptions to the Supreme Court’s appellate jurisdiction, which is true, and that by extension this means that Congress can deny jurisdiction to federal district courts for any matter as to which the Supreme Court lacks appellate jurisdiction. If this argument is accepted by the current Supreme Court, then it will be the law of the land.”
I was incredulous. “That’s ridiculous. The Constitution specifically grants to the federal courts original jurisdiction on all matters arising under the Constitution. If it didn’t, it would mean, in effect, that on church-state separation issues the individual states are not subject to the Bill of Rights. They could pass laws abridging freedom of speech. There would be no enforcement of the establishment clause or of privacy rights. It might mean that states could require school prayer, criminalize homosexuality, outlaw abortion—all of it.”
“I think,” said San, “that is precisely the idea.”
“Where did this come from?” asked Emilie. “I’ve never heard of such a thing. I mean, why didn’t someone do something?”
Sanjay allowed himself a raised eyebrow. “This very same law was introduced to Congress in both 2004 and 2005. The 2004 national platform of the Republican Party pledged support for it. It is nothing new.”
“Fuck,” said Emilie.
The speech only got worse.
My fellow Americans, we are a nation at war. And many other times when our nation has been at war, we have done what we needed to do to protect our people. Well, my friends, I swear that this president will do nothing less. I will do what our Founding Fathers did in time of peril, what Abraham Lincoln did when faced with the breakup of our sacred union, what our leaders did in 1917 when faced with the dangers of world war. We are introducing tomorrow the Defense of Freedom Act, modeled on legislation enacted by the Founding Fathers in 1798 and the variations on those laws that protected the country in the Civil War and First World War. It sounds complicated, but it’s just common sense. If an alien—that means someone who is not an American—is suspected of terrorism or other activities that pose a threat to our great country, then the president will have the power to imprison or deport the person. Common sense. If someone publishes scandalous or malicious lies designed to hurt our nation and help our terrorist enemies, or advocates treason or insurrection against our sacred Constitution, it’s a crime. Common sense. And nothing that hasn’t been done before. I repeat, nothing that hasn’t been done before. My fellow Americans—you are going to hear a lot of talk from the liberal elites about civil liberties. You will hear lies and taunts about dictatorship. Well, just remember this. What we are doing is no more than our Founding Fathers did, than Abraham Lincoln did, than Woodrow Wilson did. If you think they were dictators, well then—go ahead and believe our critics. But if you think they were patriots, then have confidence that what we are doing is right, is Constitutional, and is necessary to protect you and your families.
I will not record the rest of the speech. It’s here in Adam’s file, and I am suddenly seized by curiosity about whether the version now carried on the Purity Web is the same. I doubt it. Very few historical documents appear on the Web unedited. History has been scrubbed clean of the awkward, the untidy, and the un-Christian. I know that the Constitution Restoration Act is now taught as a seminal moment in the development of the Christian Nation, but I wonder about Sarah Palin’s modern version of the Alien and Sedition Acts. I suspect that that is viewed as a nasty bit of history completely unnecessary to an understanding of the Christian Nation movement.
President Palin’s legislative agenda was enacted within weeks of the inauguration. The opposition party launched a spirited but fruitless fight, but when it became clear that the Constitution Restoration Act and the Defense of Freedom Act were going to become law, the national mood turned to accommodation. No one wanted to hear, and certainly did not want to believe, that these two pieces of legislation put the country on the road to some kind of authoritarianism. The price of civic illiteracy was now being paid in full. Few Americans understood the basic features of the Constitution or had the patience to follow arguments about the meaning and effect of these bills. If they trusted President Palin, if they were afraid of another terrorist attack, or if they took their lead from their preacher on Sunday morning, then they most likely accepted that these new laws were in the national interest. Even many people distrustful of Palin and her ultimate intentions were inclined to dismiss the critics as alarmist and simply hope for the best.