|VOL. 12, NO. 8||October 1, 2010|
Our Dying Constitution — and How to Revive It, III
With barely one month remaining before the pivotal elections of 2010, economic policy continues to attract more attention than any other issue area. But the most critical issue in this elections — as in American politics and law in general — is the continuous dying process of our venerable Constitution and how we can — MUST — revive it. This issue of constitutional health and survival is gaining more prominence in the public eye, and Court Watch shall continue to focus on Reviving the Constitution! in this series of "Court Watch Briefings."
The usurpation of this power [to amend the Constitution] by Supreme Court Justices does not prove that the Constitution is a living instrument of government. On the contrary, it proves that the Constitution is dead, and that the people of our land are being ruled by the transitory personal notions of Justices who occupy for a fleeting moment of history seats on the Supreme Court bench rather than by the enduring precepts of the Constitution. [emphasis added]
In order to revive the Constitution, we must understand as much as possible about the nature and exercise of the "enduring precepts of the Constitution" and how they are being tossed aside like straw in a windstorm by the "transitory notions of Justices who occupy for a fleeting moment of history seats on the Supreme Court Bench." A firm foundation for our understanding is provided by the preeminent British legal scholar, H.L.A. Hart of Oxford University (Hart is known as the "Father of Neo-analytic" or "Linguistic" "Jurisprudence," and has been cited in at least three different U. S. Supreme Court cases).
In the mid-Twentieth Century, Hart designed a model of a "legal system"; and this model can be applied by us to guide us in our fight to revive our American constitution. In the simplest terms, Hart's model reveals that there are critical characteristics which any legal system must embody if it is necessary to survive and thrive. These critical characteristics we can describe as the "three Cs" — certainty, consistency, and continuity. These three Cs are the focus of Talking Point #1 of the "Fundamental Four" facts which we described in our last "Court Watch Briefing" as truth statements essential to reviving our Constitution.
"Certainty" means that laws (or court decisions) can be objectively and clearly understood. If a body of court decisions considered authoritative at any one point in time contains uncertain decisions, "chaos," not "certainty," marks the system.
"Consistency" means that no individual judicial decision should contain one portion that conflicts with another portion. Similarly, judicial decisions at a particular point in time should not contradict one another. If either condition exists, "contradiction," not "consistency" plagues the legal system.
The critical characteristic of "continuity" requires that a legal system must consist of continuous judicial decisions. That is, current decisions must be consistent with past decisions unless there is authoritative, compelling reason for change in the decisions (the most important reasons being that the U. S. Constitution demands the change). If continuity is not maintained, the legal system will suffer from "convolution."
In upcoming issues of our "Court Watch Briefings," we shall examine the judicial attack on the three Cs and the Constitution. And in the immediate future, we should use these three markers as additional means of evaluating the views and actions of candidates in the 2010 elections. If our Constitution suffers long enough and badly enough from a loss of the three Cs, we will, to use Professor Hart's terms, deteriorate from a mature/healthy system to a primitive/moribund system. The long-term result? Daniel Webster prophesied the sad but predictable result:
. . . if these columns [of American constitutional liberty] fall, they will be raised not again. Like the Colosseum and Parthenon, they will be destined to a mournful and melancholy immortality. bitterer tears, however, will flow over them than ever were shed over the monuments of Roman or Grecian art; for they will be the monuments of a more glorious edifice than Greece or Rome ever was — the edifice of constitutional American liberty.
EVERY AMERICAN PATRIOT SHOULD — AND CAN — UNDERSTAND AND EFFECTIVELY FIGHT TO REVIVE THE CONSTITUTION. SOUND INTIMIDATING? THE BLACKSTONE INSTITUTE CAN HELP! Available online or directly from Blackstone are educational weapons to start you on your mission. (Each of the following can be studied individually or in groups.) These weapons include: