VOL. 15, NO. 2
March 8, 2013
Back to the Basics: Straightening Up
America, II: Rejecting Supremacist Judges
“How far can you make a man bend over backwards before he breaks?” This anguished cry was heard in one of the most widely acclaimed musical productions of the Twentieth Century, “Fiddler on the Roof.” And it is the thought with which we began our last Court Watch Briefing. We then asked, “Has America bent over backwards too far in its spiritual, moral, and constitutional life — too far from our Constitution and its Judeo-Christian roots?” Are we, like Tevye, on the verge of breaking — at least in the sense of losing our internal vigor and our global power — and in sore need of “a fundamental straightening up process”?
Answering those critical questions in the affirmative, we contemplated how one makes sense of the moral and constitutional cacophony in America today. And make sense of it we must — or lose the Culture War by default. In America’s War of the Worldviews, as in education, “back to the basics” is a fundamental necessity if we are to avoid toppling over backwards and stand straight again. And so, in this and later “Court Watch Briefings,” we shall “go back to the basics” in order to understand the roots of current events and how we can “Straighten Up America” at the foundations.
Just this week, the U. S. Senate cast a significant vote toward “Straightening Up America,” moving us ahead to a resurgence of genuine Constitutionalism in our nation. The Senate refused to ratify the warmed-over nomination by Barack Obama of Caitlin Halligan to the D.C. Circuit Court of Appeals, considered by some to be the second most powerful court in the country. Lacking in judicial experience, Halligan nevertheless has a mile-long record, as the New York Solicitor General, of forcefully advocating anti-constitutionalist positions — positions which would force America to “bend over backwards” even farther away from its roots. Her record reveals support for same-sex marriage, abortion rights, and racial preferences at universities. And she has opposed Second Amendment rights and detention of enemy combatants. These policy and legal views clearly identify Halligan as a spokesman of the Humanist/Reconstructionist side in America’s culture war — opponents of the Constitutionalist position.
Going “Back to the Basics” in “Straightening Up America” and restoring constitutionalism in our land requires the use of many weapons, one of which is securing the appointment to our courts of only those judges who are true Constitutionalists (committed to the Judeo-Christian worldview and the Constitution in its original meanings). The Halligan vote was such a weapon. Furthermore, the Halligan fight reminds us that there is far more at stake than simply one judicial seat. The entire Constitution and culture are under siege.
Indeed, as law professor and award-winning author Harold Berman pointed out thirty years ago in his widely acclaimed book, Law and Revolution, the entire “Western Legal Tradition” is in danger; and America, with its Common Law roots is a huge victim — but not the only one — of Humanist/Reconstructionist forces. Berman argues that the Western legal tradition, essential to all of Western civilization, was characterized by ten qualities, six of which “have been severely weakened in the latter part of the twentieth century, especially in the United States.” To understand the full significance of the Halligan episode, we need to understand the Western legal tradition in panoramic view, and how the appointment of nominees such as Halligan threatens that tradition. We begin here a consideration of Berman’s analysis and examine some of the essential qualities of the tradition which Berman demonstrates has been “severely weakened.”
The first characteristic is that law for centuries has been conceived of as a “body,” a corpus juris, an integrated system, a coherent whole. Now, law is increasingly “treated less and less as a coherent whole, a body, a corpus juris, and more and more as a hodgepodge, a fragmented mass of ad hoc decisions and conflicting rules, united only by common ‘techniques.’” This convoluted change in American law is only to be expected in view of the Reconstructionist theory’s repudiation of the Constitution as America’s supreme, fundamental, permanent law — as the foundation necessary to provide the nation with a coherent body of law, a true “corpus juris.”
The badly deficient “Constitution” given America by Reconstructionism does not and cannot provide the nation with any more than a hodgepodge of fragmented and conflicting decisions and rules. This deficiency is greatly exacerbated by other Reconstructionist premises such as the argument that judges are the source of law. The position of Caitlin Halligan and her Reconstructionist colleagues in supporting abortion illustrates their attack on the U. S Constitution and the Western legal tradition’s concept of law as a “body,” a coherent, integrated whole.
Halligan would have to support the U. S. Supreme Court’s decision in Casey v. Planned Parenthood of Southeastern Pennsylvania. In that extraordinarily egregious ruling, upholding Roe v. Wade, the Court manifested a fragmentation in the views of the various Justices that clearly bespeaks a fragmentation in abortion law. “ . . . a decision to overrule [Roe] should rest on some special reason over and above the belief that a prior case was wrongly decided” was the unbelievable argument made by a three-judge plurality (Justices Kennedy, O’Connor, and Souter). This bulldozed the rule of precedent by annihilating the truth that “right and wrong” must be the foundation of stare decisis, or any other legal standard. Apart from the fundamental ideas that there are a “right and a wrong” and that “right and wrong” have fixed meanings, there is no order to the law or any other institution or thought. R.I.P. the concept of “law” as a genuine “body” of principles and rules; “welcome” to a world of chaos in which judges are supreme.
Where does this leave our Constitution and our culture? Referring again to Prof. Berman’s analysis: “Thus the historical soil of the Western legal tradition (especially the United States) is being washed way in the twentieth century, and the tradition itself is threatened with collapse” (emphasis added). The Halligans of America’s legal elite must be barred from the courts of the land and the tide of Reconstructionist power reversed. WORKING TOGETHER, WE CAN MAKE A DIFFERENCE!