America's Culture War and How to Fight It:
Curbing the Courts, II
"The Constitution is irrelevant," according to the cover story printed in the July 4th issue of Time magazine. This claim, more popular among Reconstructionist leaders and laymen than many Americans may realize, opens the door to the exercise of "the discretion of the judge." This judicial discretion, as we began demonstrating in our most recent "Court Watch Briefing," is "the first engine of tyranny" (Edward Gibbon's words in his famous history of the Roman Empire).
Judicial discretion/tyranny is a lynchpin of Humanist/Reconstructionist theory about the Constitution. We Constitutionalists (those who advocate the views and values of our Founding Fathers) must understand this pernicious Reconstructionist theory in order to CURB THE COURTS and REVIVE THE CONSTITUTION! We therefore began a short study of Reconstructionist ideas concerning the Constitution in our last issue, and we continue that study here. We shall consider both the Constitutionalist and Reconstructionist positions on two more core concepts of constitutional theory (points # 3 and #4).
- The SOURCES of the Constitution's principles and provisions: What are the origins of the Constitution; what are its foundations — which we must respect and protect today if America is to survive and thrive?
- Constitutionalists understand the fact that the Judeo-Christian worldview is the Constitution's foundation. The Supreme Court recognized this fact, not just in early cases, but in a 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 did not personally accept the spiritual truths of Christianity.
- 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 acting 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, advocated this position in his book. He argued 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.
The Founding Fathers' Constitutionalist philosophy would give us a Constitution whose source is the most complete, consistent and congruent (conforming to reality) worldview in existence. Today's Humanists/Reconstructionists are giving us incomplete, inconsistent, and incongruent sources for the Constitution. The engine of judicial tyranny runs rampant today.
- THE COURTS AND THE CONSTITUTION: What is the nature of judicial power and, especially, the role of the courts concerning the Constitution and the culture?
- Constitutionalists recognize that the courts are, and must be, no more than agents who construe (interpret) the Constitution according to its original meaning. Courts are to exercise judicial restraint and be respectful toward, not reformers of, other agents of government and of the culture in general.
Founding Father Alexander Hamilton in Federalist Number 78 eloquently stated 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 . . . .
Constitutionalists assert that the judiciary is only one governmental branch among three, and the federal level is one level of government among two. Furthermore, civil law/government is one social institution among three-the family and church being two other primary social institutions. And Hamilton concluded his paper with the argument that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents . . . ." Therefore, men must have superior legal skills and knowledge of all the rules and precedents. "[T]here can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges." In order to confine federal judges to these limits,
they are empowered and equipped only to interpret the Constitution and provide narrowly-tailored relief only in concrete cases involving clearly identifiable parties, specific issues, and tangible harm.
- The Reconstructionists' position sharply opposes that of the Founding Fathers.
William Ray Forrester, former Dean of Cornell Law School, illustrates the polarization of current theories about the judicial power. In Reconstructionist theory, the judiciary is supreme over the other branches of the federal government, state governments, and other social institutions. Dean Forrester declared:
[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 Constitutionalist theory of the Founding Fathers would give us constitutional supremacy and the rule of law; contemporary Reconstructionist theories give us judicial supremacy and the rule of the lawless. The engine of judicial tyranny runs rampant today.
The superiority of Constitutionalist theory over Reconstructionist theory is obvious for a people who "wish to be their own Governors," as James Madison described Americans. Measured by the demanding standards of Constitutionalist principles, we must agree with President Calvin Coolidge, who declared in 1926 that, "Those who wish to proceed in that direction [i.e., toward Reconstructionist principles and the idea of an 'irrelevant constitution'] can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers." How well will we Twenty-First Century Constitutionalists fight in today's Culture War to protect and promote the great, well-proven principles of the "Revolutionary Fathers"? The answer is up to us.
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