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VOL. 9, NO. 8August 15, 2007
The Courts and the Culture War, V
 
By Virginia Armstrong, Ph.D., National Chairman


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"Dogma [theory] is the most important part of the law, as the architect is the most important person in the building of a house." So declared early Twentieth Century U. S. Supreme Court Justice Oliver Wendell Holmes. In this Briefing and Commentary, we will continue to examine the theoretical foundations of the Culture War engulfing America. We turn our attention today to America's constitutional theory which is, of course, based on the deeper levels of theory that we have addressed in previous issues. This theory occupies Level 3 on the worldview diagram which has been central to all our discussions of the courts and the Culture War. Here we will address the first two of the six major issues of constitutional theory, presenting an explanation of the issue and quotations by advocates of both the Judeo-Christian and Humanistic worldviews. These issues have become increasingly visible, as America's Humanistic judges have become more bold in attacking America's Judeo-Christian foundations.

A. Ontology

1. Explanation

The first issue in constitutional theory is ontology, which addresses the essential qualities of a "constitution." What qualities does a document have to possess to truly be a constitution? Additionally, what is the relationship of the constitution to other laws? What is the "essence" of a constitution?

2. Examples

a. Constitutionalist Theory

The first great Chief Justice, John Marshall, addressed constitutional ontology in the case that established judicial review. In Marbury v. Madison, Justice Marshall argued that constitutional principles "are deemed fundamental . . . and as the authority [i.e., the American people] from which they proceed is supreme, and can seldom act, they are designed to be permanent." Therefore, the essential qualities of the Constitution are fundamentality, supremacy, and permanence. Justice Marshall also uses the word "paramount law" to describe the Constitution. According to the Constitutionalist Theory, only the "people" are to make significant changes to the Constitution in accordance with the Article V amendment process.

b. Reconstructionist Theory

Modern Reconstructionist theory advocates a very different perspective. The prolific attorney, Lawrence Tribe, contends that "[t]he Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices." To Reconstructionists, the Constitution "reflects a set of conflicting ideals and notions. . . ." The Constitution becomes intrinsically no different from, and not superior to, other law — a polemic contrast to the Constitutionalist position.

B. Cosmology

1. Explanation

The second issue is cosmology, the study of origins. Upon what foundation does the Constitution rest, and from what sources (origins) did/does the Constitution arise?

2. Examples

a. Constitutionalist Theory

For Constitutionalists, human action forms the basis of the Constitution. The people of the United States make the laws. In Marbury, John Marshall clearly identifies the American people as the supreme human authority over the Constitution. However, humans must also act according to a higher law. The Supreme Court recognized this fact in an interesting 1931 case, United States v. MacIntosh. The Supreme Court stated, "[w]e are a Christian people according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God."

A Phi Beta Kappa scholar in history, C. Gregg Singer, cogently summarized the Constitution's super-human foundation as follows:

A Christian world and life view furnished the basis for this early political thought which guided the American people for nearly two centuries and whose crowning lay in the writing of the Constitution of 1787. This Christian theism had so permeated the colonial mind that it continued to guide even those who had come to regard the Gospel with indifference or even hostility.

That is, Christian theism was so firmly entrenched in colonial thinking that it continued to guide American constitutional theory, although some individuals were personally opposed to the Christian message.

b. Reconstructionist Theory

The Reconstructionist position holds that there is a supreme authoritative human elite, i.e. judges, especially appellate judges, who, through an evolutionary process, continually revise the Constitution. This elite act on behalf of the people theoretically defines and articulates popular views better than people can do for themselves. Arthur Miller, a well-known law professor and TV commentator, advocates this position in his book. He argues that,

The Justices [of the Supreme Court function] as a de facto Council of Elders [and] may be likened to the oracles of ancient Greece . . .

The constitution is a theological document . . . . [A]nd the Justices are the High Priests who keep it current with each generation of Americans.

The Constitution is always in a state of becoming, always being updated to meet the exigencies faced by successive generations of the American people. Each generation writes its own Constitution.

Candidates for office in the 2008 elections should be closely questioned as to their positions on these issues. Such questioning is one weapon we Constitutionalists can — and must — utilize in the future to reclaim our Constitution!

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