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We the People Court College Curbing the Courts Court Comedy Law Library Resources
VOL. 13, NO. 5June 30, 2011
America's Culture War and How to Fight It: Curbing the Courts

"[T]he discretion of the judge is the first engine of tyranny." So wrote historian Edward Gibbon in his famous history of the Roman Empire. As we Americans prepare to celebrate our nation's birthday, we desperately need to understand the truth of Gibbon's observation as it applies to us. In America today, our Constitution and our culture are being subjugated to this "first engine of tyranny." Reconstructionists (activist/liberal judges advocating the Humanistic worldview) have exercised their discretion in ways we have already discussed in these "Briefings" — to "define and destroy" our core constitutional guarantees and fundamental societal institutions. We must understand — and act upon — the truth that the views and values of our Founding Fathers were diametrically opposed to the views of values of modern Reconstructionist judicial tyranny.

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This tyranny feeds on a radical body of constitutional theory that is ferociously defended by America's Reconstructionist elite — on the bench (both federal and, increasingly, state), in law school faculties, in the media, etc. In this and later "Briefings" we shall examine fundamental features of this body of constitutional theory because we must know the enemy in order to defeat him. We must CURB THE COURTS! We shall also compare and contrast Reconstructionist theory to "Constitutionalist Theory" (the views and values of the Constitution key to the Judeo-Christian worldview as held by our Founding Fathers).

  1. The NATURE of the Constitution: What are the essential qualities of our Constitution? What features make our Constitution a genuine "constitution"?
    1. The Constitutionalist view is expressed by the first great Chief Justice and Founding Father, John Marshall in the case that established judicial review. In Marbury v. Madison (1803), Marshall argued 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 — necessary for any law to be a "constitution" — are fundamentality, supremacy, and permanence. Marshall also used the word "paramount law" to describe the Constitution. The "people" are to make changes to the Constitution only in accordance with Article V of the document itself (the amendment process Article).
    2. The Reconstructionist view advocates a very different perspective. The prolific attorney/law professor, Lawrence 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 Founding Fathers' Constitutionalist philosophy would give us a Constitution that is truly the "Supreme Law." Today's Reconstructionist judges are giving us a tattered document that is subordinate law, if anything at all. The engine of judicial tyranny runs rampant today.

  2. The SOURCES/INTERPRETATION of the Constitution's principles and provisions: Upon what foundation does the Constitution rest, from what sources (origins) did/does the Constitution arise, and what do these truths require of constitutional interpretation today?

    1. Constitutionalists understand that the Constitution arose (and is amended today) through a combination of human and Divine action. In Marbury, John Marshall clearly identified the American people as the supreme human authority over the Constitution. But Founding Father John Adams just as clearly described the essential Divine ingredient in the Constitution's foundation:

      The general principles on which the fathers achieved independence were . . . the general principles of Christianity . . . . Now I will avow that I then believed and now believe that those general principles of Christianity are as eternal as the existence and attributes of God.

    In view of these facts, constitutional interpretation today should view the document's words as having a fixed meaning at the time of their adoption, and these meanings should be implemented today according to Constitutionalist Theory and the Judeo-Christian Worldview. As Thomas Jefferson so aptly declared, "Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction [i.e., interpretation]."

    1. The Reconstructionists' position sharply opposes that of our Founding Fathers. A quintessential example of this fact jumps out of the words of contemporary Reconstructionist legal scholar/law professor, Michael Perry:

      [T]he decisional norms the Court elaborates and enforces . . . are derived not from some authoritative source of value, external to the Court, to which 'the people' subscribe, but from the justices' own values [emphasis added].
      . . . . The old moralities provide no truth about the Constitution [italics added]. The fresh, new moral insights of the courts, insulated from the people, are the seedbed of constitutional interpretation.

Proceeding from these beliefs, Reconstructionists today view constitutional provisions as having only a fluid meaning, with contemporary judges being the oracles who assign their meanings to constitutional words — meanings drawn from the judges' Reconstructionist theories of the Constitution and the Humanist Worldview.

The Founding Fathers' Constitutionalist philosophy would give us a document with fixed provisions interpreted according to the fixed values of the Judeo-Christian Worldview. Reconstructionist judging is giving us a collage of words with fluid meanings to which these judges assign Humanistic meanings. The engine of judicial tyranny runs rampant today.

These various conflicting views of constitutional theory are, like the foundations of many buildings, virtually invisible to both America's leaders and laymen. But, also like the foundations of a building, We Constitutionalists must do all that we can to shore up our Constitutional foundations by CURBING THE COURTS and returning this venerable document to its Constitutionalist/Judeo-Christian basis. Acquiring knowledge for this battle is critical. As we have quoted numerous times From James Madison, "[k]nowledge will forever govern ignorance; and a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

Arm Yourself with the Power of Knowledge by Mastering the Information and Tools Available from the Blackstone Institute:

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