The Courts and the Culture War, VI
By Virginia Armstrong, Ph.D., National Chairman
The 2007 Term of the U. S. Supreme Court has begun. What will this Term reveal about the constitutional philosophy really held by these nine most powerful judicial supremacists? No national issue is more important (or generally ignored) that that of the Justices' underlying constitutional philosophy. While judges often try to deny holding such a philosophy, we have pointed out many times that such a denial is vacuous indeed. We must be alert to detect the Justices' views on those issues of constitutional theory which we discussed in our last Briefing/Commentary (i.e., views of the nature and sources of the Constitution).
In expanding our understanding of judges' constitutional theories, we enhance our ability to fight for Constitutionalist principles in America's Culture War. We therefore continue here our discussion of Constitutionalist v. Reconstructionists theories by looking at the third and fourth element of these theories. In examining each issue, we shall look at the a definition of the issue, the views of the opposing worldview in this battle, and an illustration of the manifestation of the issue in actual court decisions. We shall conclude with suggested questions related to the issue that should be asked of judicial nominees/candidates and any other officials likely to have influence in courts' handling of our nation's constitutions (state and national).
Issue #3: The Interpretation of the Constitution (Constitutional Epistemology):
What is the nature and content of the standards by which the Constitution is to be interpreted if it is to be the supreme law of the land?
- Constitutionalists assert that the document's words have fixed meaning and are to be interpreted according to long-established and proven rules, which focus on such factors as the express language of the text, the context of the provisions, and the Framers' intent.
- Reconstructionists deny that the Constitution's provisions have fixed meaning. Rather, the meaning is to be derived from such sources as the same political and cultural environment that generates other public policy as interpreted by the judges according to their values.
- Illustration: The Supreme Court has already gone to the most radical degree so far in reaching outside the Constitutional text in cases where Justices refer to foreign and international law in justifying their anti-constitutional positions. In the infamous 2003 decisions in Lawrence v. Texas, the Supremes invalidated the Texas law against sodomy. To do so, the Court declared that "we think [not ‘the Constitution states'] that our laws and traditions [what ‘traditions'?] in the past half century are of most relevance here." Having dismissed centuries of English and American anti-sodomy laws, the Court then took the final plunge into globalism: "[past anti-sodomy decisions] did not take account of other authorities pointing in an opposite [pro-sodomy] direction." (Lawrence, 8-9) These "other sources" have included the European Court of Human Rights and the "Universal Declaration of Human Rights." The Constitution loses.
Issue #4: The Constitution and the Culture: (Constitutional Anthropology)
What societal institutions and government agencies are recognized by the Constitution? What are their roles and relationships to one another under the Constitution? In particular, what is the role of America's courts in interpreting the Constitution and the courts' role vis-à-vis other agencies and institutions composing American society?
- The Constitutionalist position asserts that civil law/government is only one basic societal institution among several (others being the family and church). The judiciary is only one branch of the government and has limited jurisdiction (power). There is to be a balance of power and responsibility among government agencies and societal institutions. The courts are empowered and equipped only to interpret, not make, law.
- The Reconstructionist forces elevate civil law/government above family and church, and the judiciary above other governmental agencies. The national judiciary is superior to other levels of government, and even to the expressed will of the people. The judiciary is, and should be, a legislator and executor, not just an interpreter, of law.
- Illustrations: The Massachusetts Supreme Judicial Court in 2003 required that Massachusetts legalize same-sex marriage. In Goodridge, the Massachusetts Supremes declared that "the government" (not God) creates civil marriage, and that "civil marriage" is "a wholly secular institution."(Goodridge, 7) This decision, following on the heels of the U. S. Supremes' legalization of sodomy in the Lawrence case, clearly reveals how the judicial branch at both levels of government is usurping jurisdiction and over-running the legislative branches of their respective governments as well as the basic societal institution of the family. The Constitution loses.
Questions: Do you consider federal judges' interpretations of the Constitution to be the ultimate "Supreme Law of the Land?"
- If not, what is the Supreme Law?
- If so:
- What powers and protections are left to other government agencies and
societal institutions (e.g., family and church)?
- What authorizes and equips judges to be the "Supreme Law"?
- What reason does America have to continue claiming to be a government
of, by, and for the people?
The Bible reminds us that, "As a man thinketh in his heart, so is he." What will this Court Term reveal about the thoughts of the nine Justices? We must be vigilante to recognize revelations of judicial philosophy and to make them the major issue they should be in the 2008 elections