America's Culture War and How to Fight It:
Curbing the Courts, III
"The government of the United States has been emphatically termed a government of laws and not of men,"declared Chief Justice John Marshall. Contemporary constitutional scholar Raoul Berger rightly concludes, "The written Constitution was thus the highest expression of the 'rule of law' . . . ." If properly respected, these principles obliterate the "discretion of the judge," which, as we have seen, is "the first engine of tyranny" (Edward Gibbon's words in his famous history of the Roman Empire).
We Constitutionalists (those who advocate the views and values of our Founding Fathers) must understand these foundational principles as well as the lethal Reconstructionists' theory in order to CURB THE COURTS and REVIVE THE CONSTITUTION! We therefore began a short study of Constitutionalist v. Reconstructionist ideas concerning the Constitution in past issues, and we continue that study here. We shall consider both the Constitutionalist and Reconstructionist positions on two more core concepts of constitutional theory (points # 5 and #6).
- The PURPOSES of the Constitution: What are the purposes, goals, and objectives of the Constitution? And how do these goals/objectives affect the interpretation of the document?
- Constitutionalist theory focuses on the actual written document to determine constitutional purpose. Therefore, declared Justice Arthur Goldberg, "Our sworn duty . . . requires . . . that we read it to effectuate the intent and the purposes of the framers." The drafters specifically wrote the Preamble of the Constitution to express constitutional teleology. The Preamble details the six purposes, to: (1) "form a more perfect union," (2) "establish Justice,"
(3) "insure domestic Tranquility," (4) "provide for the common defence," (5) "promote the general Welfare," and (6) "secure the Blessings of Liberty for ourselves and our Posterity." Emphasis is on the "common good."
Constitutions, since they emerged centuries ago, have been necessary to political systems as a device to provide stability and guidance to the body politic as a rudder does a ship. A political system without a reliable constitution is like a ship without a rudder in very stormy waters. As we have said in other Briefings, our Constitution MUST provide our nation with the "3 Cs" — certainty, consistency, and continuity."
- Reconstructionist Theory argues an opposite position. Lawrence Tribe states that the Constitution is full of holes and gaps. Therefore, the judiciary must steer the Constitution in the direction of "the living development of constitutional justice" and must generate a substantive vision of the needs of human personality.
The emphasis is no longer on the "common good" but on the interests of individuals and minority groups. Correlatively, the judiciary has to reach "into the Constitution's spirit and structure" and from these sources elaborate an idea of the "human" and a concept of "being." Thus, the purposes of constitutional interpretation are promotion of "personhood" and man's potential, as man sees it. Michael Perry adds that constitutional interpretation must forge a "new moral order."
The engine of judicial tyranny runs rampant today!
- The VALUES central to the Constitution: The sixth and final issue in our brief study of opposing constitutional theories is the study of values. What are the key values underlying the Constitution? What principles are most crucial to America's constitutional theory? Are they fixed or fluid values? Both Constitutionalists and Reconstructionists agree that "liberty" is a vital value, but they hold polemic views of the nature and meaning of this value.
- Constitutionalist theory asserts that the Constitution rests upon the values anchored in the purposes of the Constitution and the constitutional text, history, and structure. Thus, values are fixed. A classic clash on the subject of fundamental constitutional values is obvious in the words of Thomas Jefferson and of Justices O'Connor, Kennedy, and Souter regarding liberty and its definition. In 1781, Thomas Jefferson, cited by contemporary separationists as an arch separatist, asserted:
God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed, I tremble for my country when I reflect that God is just: that [H]is justice cannot sleep for ever [sic] . . . .
- Reconstructionist theory argues vigorously for fluid values. In one of their most stunningly dangerous opinions, Justices Kennedy, Souter, and O'Connor reveal a classic Reconstructionist statement, the infamous "mystery passage" in the Casey decisions: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Thus, Reconstructionist theory rejects a fixed meaning for the constitutional text, choosing instead to derive constitutional meaning from the political and cultural environment, values and views of individual federal judges, and other external sources.
The engine of judicial tyranny runs rampant today!
As Chief Justice John Marshall's incisive words began this Briefing, so do they provide a fitting conclusion. Marshall declared in an 1824 opinion that, "Courts are mere instruments of the laws, and can will nothing. . . . Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for giving effect . . . to the will of the law [i.e., the Constitution as the Supreme Law of the Land]." Will we Constitutionalists make this watershed principle a central issue of the upcoming elections? We must, if the Constitution and the culture are to derail the engine of judicial tyranny.
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