By Virginia C. Armstrong, Ph.D., National Chairman, Eagle Forum's Court Watch
In 1953, newly-elected President Dwight Eisenhower appointed Earl Warren to be the Chief
Justice of the United States. This nomination proved to be the first shot fired in a judicial/constitutional
revolution which continues today. As Robert Bork has stated, "[The Warren Court] stands first and alone
as a legislator of policy, whether the document it purported to apply was the Constitution or a statute. Other
Courts had certainly made policy that was not theirs to make, but the Warren Court so far surpassed the
others as to be different in kind."
The Warren Court (1953-1969) fueled the Culture War into an inferno and then placed the
federal judiciary squarely in the white-hot center of the conflagration. "Impeach Earl Warren" signs
exploded like rockets across the nation as Americans began to realize what was happening. But the courts
and the Constitution have remained at the center of our culture conflict, and much of the Warren
Court's legacy remains in tact.
This year of 2003 is the Fiftieth Anniversary of the Warren Court revolution. Surely there could
be no better observance of this history-changing event than the launching of a counter-revolution to reclaim
America's courts and the Constitution from the constitutional black hole into which the Warren Court first
James Madison, the Father of the Constitution, exhorted us to "arm ourselves with the power that
knowledge gives." Thus, an effective counter-revolution must begin with a correct understanding of the
courts, the Constitution, and the Culture War.
The War today is most visible in the furious debates over various federal court decisions (e.g., the
Pledge of Allegiance decision of last year) and the judicial nominations debates sparked by liberal/activist
Democrats. These battles are fueled by three fundamental, interrelated constitutional/judicial issues. If
all three of these issues are not given proper weight or are not properly related to one another in
constitutional debates and policy decisions, pernicious results can follow. These three issues and the
opposing positions on each are:
- Issue #1: the Constitution: its nature, sources, and interpretation ("interpretivists v.
- Issue #2: the courts: their powers, competence, and relationships to other agencies in
government and society ("restraintists v. activists");
- Issue #3: the consequences that court actions generate for public policy ("conservatives v.
To the Warren Court, radically liberal policy consequences (Issue #3) were most important,
rendering the Court, as a result, radically activist But in the current war over judicial nominations, the
second issue--the courts--often seems to dominate debate. Issue #3--policy consequences--is
downplayed or even dismissed as a legitimate consideration in evaluating judicial nominees.
Supporters of current judicial nominees often assert that an individual is, or should be, a
"restraintist" judge. And they seem to define "restraint" as a commitment to uphold existing U. S.
Supreme Court rulings and to be deferential to the actions of other governmental authorities (e.g.,
Congressional statutes). But much more needs to be understood about the restraint v. activism question
(Issue #2), starting with the relationship of this issue to the Constitution and the principle of "precedent"
(Issue #1). This principle--also referred to as "stare decisis" ("let the decision stand")--requires that cases
today be decided in accordance with past cases of a similar nature (such past cases constituting "precedents"
- The principle of precedent is moored in the English Common Law tradition.. But there are
some vital differences between the American and British systems. England does not have, and
never has had, a single supreme document as its "Constitution." The U. S. has always had such an
organic law. And it is our Constitution which is the ultimate precedent in America--the ultimate
standard against which all law must be measured, including decisions of the Supreme Court and other
A genuine judicial restraintist understands this fundamental fact and the necessity of
evaluating current court decisions, even ones of long-standing ("settled law"), in the light of the
Constitution properly interpreted--not wrongly interpreted as in the Warren Court's constitutional
jurisprudence. As a matter of fact, a "precedent" violative of the Constitution can be argued to not be
truly "law" in the first place.
- The age of a court decision is not necessarily an indicator of its constitutional quality, its
legitimacy, any more than the age of a human being is an indicator of the quality of that person's life.
An often-cited example of this fact is Plessy v. Ferguson (1896), which created the "separate but
equal doctrine" of race relations. Fifth-eight years later, Plessy was over-turned by the Court in
Brown v. Topeka Board of Education (1954), which threw out school segregation. However long a
"precedent" has existed, it should be eliminated if it violates the Constitution.
- Indeed, numerous court decisions/doctrines and other governmental actions have been over-turned by recent Courts. Constitutional scholar, Prof. David O'Brien, reports the following: the
Warren Court over-turned 236 acts (including 45 Supreme Court decisions); the Burger Court over-turned 293 acts including 52 high court rulings; and the Rehnquist Court over-turned 134 actions
between 1986 and 1998, including 30 decisions of the Supremes. "Precedent" obviously has been
no barrier to recent Supreme Court decision-making, especially when it has produced liberal policies
as a consequence.
- Even British jurists recognize the limits of precedent in their system. The high-ranking British
judge, Alfred Lord Denning, argued in 1959 that "If lawyers hold to their precedents too closely,
forgetful of the fundamental principles of truth and justice which they should serve, they may find the
whole edifice comes tumbling around them." In America, the "fundamental principles of truth and
justice" which bind our judges are found in the correct interpretation of the Constitution. Court
decisions to the contrary are Constitutional/judicial policies which are not based on these facts move
America in the dangerous illegitimate.
Constitutional/judicial policies which are not based on these facts move America farther in the dangerous direction of becoming a system of judicial supremacy, not constitutional supremacy. In Part
II. of this study, we shall arm ourselves with additional knowledge with which to dismantle the Warren
- Hear Dr. Virginia Armstrong discuss these issues with Tim Wildmon and Marvin Sanders of
American Family Radio on "Today's Issues." The show will air on Thurs., March 6th at 10:00
- Learn more about these issues and many others by visiting the Blackstone Institute online.
Consult the "Blackstone Bibliography" for a variety of exciting materials with which we can
further arm ourselves to reclaim our courts and our Constitution.
© 2003 by V. C. Armstrong