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VOL. 12, NO. 5June 29, 2010
The Kagan Nomination to the Supreme Court:
A Battle over Constitutional Theories


The battle has begun over the nomination of Elena Kagan to the U. S. Supreme Court. At the same time, the current Court is handing down its final decisions for the 2009 Term. One decision just released, Hastings Christian Fellowship v. Martinez, illustrates how deeply the Court is enmeshed in America's Culture War and how a slim five-member majority is willing to side with the anti-constitutional, anti-Judeo-Christian foundations of America in this War. In Martinez, two of the Court's Catholic Justices and the Court's two Jewish Justices upheld the Hastings College of Law University of California in the law school's refusal to extend official recognition to the student chapter of the Christian Legal Society. The majority reasoned (?) that CLS was discriminatory (i.e., anti-homosexual) because CLS required members to accept and live by the belief that marriage between a man and a woman is the only relationship in which sexual activity should occur. The Court's other four Catholic members voted for CLS. (The addition of Elena Kagan, a Jew, to the Court would create the unprecedented situation of America's having a Supreme Court without any Protestant members.)

The Kagan nomination, viewed in the light of decisions such as Martinez, assumes its true proportions as another critical battle in the Culture War over which worldview/constitutional theory will prevail in America. America's cornerstone, the Judeo-Christian worldview is represented in American law by "Constitutionalist judges" (i.e., conservative/restraints). The attacking Humanistic worldview is represented by "Reconstructionist Judges" (i.e., activist/liberal judges).

Reconstructionist constitutional theory diametrically opposes Constitutionalist constitutional theory; and we must understand these theories in order to evaluate adequately, not only judicial nominations, but the entire range of policies and actions concerning the Constitution and the courts. Questions of constitutional theories have permeated, not just American law, but American culture in general. Therefore, all patriots need at least a cursory understanding of the opposing constitutional theories in today's Culture War. Three very broad and fundamental issues divide Constitutionalists from Reconstructionists. We shall summarize the three issues and then offer a view of the advocates of each theory concerning these issues.


The Issues

  1. The Constitution: Constitutionalists respect the Constitution;
    Reconstructionists reject the Constitution.

  2. The Courts: Constitutionalists advocate restraint by the courts;
    Reconstructionists advocate rule by the courts.

  3. The Cornerstone: Constitutionalists recognize the Judeo-Christian
    cornerstone of American law and culture; Reconstructionists want to reconstruct American law and culture on a Humanistic cornerstone.


The Advocates

  • The Constitution:

    • Constitutionalist Theory:
      Our first great Chief Justice, John Marshall, declared in Marbury v. Madison (1803) 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 its fundamental nature, supremacy, and permanence. Justice Marshall also uses the phrase "paramount law" to describe the Constitution. According to Constitutionalist Theory, only the "people" are to make significant changes to the Constitution in accordance with the Article V amendment process.

    • Reconstructionist Theory:
      Modern Reconstructionist theory advocates a very different perspective. The prolific attorney, Laurence 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.


  • The Courts:

    • Constitutionalist Theory:
      Alexander Hamilton in Federalist Number 78 eloquently states the Constitutionalist position: "It may truly be said [that the courts] . . . have neither FORCE nor WILL but merely judgment . . . . This simple view of the matter . . . proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.. . ."

    • Reconstructionist Theory:
      William Ray Forrester, former Dean of Cornell Law School, expressed a radically different view. Declared Forrester, "[The U.S. Supreme Court as an institution] is even more unique and unprecedented than commonly supposed. Indeed, the institution can no longer be described with any accuracy as a court, in the customary sense. Unlike a court, its primary function is not judicial but legislative. It is a governing body in the sense that it makes the basic policy decisions of the nation, selects among the competing values of our society, and administers and executes the directions it chooses in political, social and ethical matters. It has become the major societal agency for reform."


  • The Cornerstone:

    • Constitutionalist Theory: The U. S. Supreme Court in 1892 (Holy Trinity Church v. U.S.) and 1931 (U.S. v. MacIntosh) described America's legal and cultural cornerstone: "These and many other matters which might be noticed, [i.e., a long list of historical documents, quotes, etc. specifically expressing America's Christian underpinning] add a volume of unofficial declarations to the mass of organized utterances that this is a Christian nation."

    • Reconstructionist Theory:
      Arthur Miller, prominent law professor and TV commentator, pens an extraordinary example of Reconstructionism: "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."

    Alfred Lord Denning, a top-ranking British jurist in the Twentieth Century, declared that "We have already strayed too far from the faith of our fathers. Let us return to it for it is the only thing that can save us." Constitutionalist theory is based on this Judeo-Christian "faith of our fathers." Will we American Constitutionalists fight for this faith in the Twentieth Century? The answer is up to us.

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