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VOL. 9, NO. 11Dec. 13, 2007
The Courts and the Culture War, VII
By Virginia Armstrong, Ph.D., National Chairman

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During this year of 2007, our Briefings and Commentaries have emphasized the weighty obligation which we Americans have of asking tough philosophical questions of judicial nominees, of those responsible for their selection, and of any officials who may influence court decisions. To prepare ourselves for the effective exercise of this duty, we have been ranging across the gamut of general philosophy, legal philosophy, and constitutional philosophy.

We have examined the positions of the two bitter protagonists in America’s Culture War—the positions of the Judeo-Christian worldview and of the Humanistic worldview. Today we conclude this year-long study by looking at the final core issues of constitutional philosophy and some of the questions we can and should ask of nominees and candidates in the critical elections of 2008.

Issue #5: The Purpose(s) of the Constitution (Constitutional Teleology)

What are the purposes, goals, and objectives of the Constitution?

Constitutionalists recognize that the most basic purpose of any constitution is to provide the stability (i.e., certainty, consistency, and continuity in law) necessary for the survival and prosperity of the legal and cultural systems. Additionally, our Constitution has six specific purposes as enumerated in the “Preamble.” The focus is on the common good. These purposes include 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.”

Reconstructionists contend that the ultimate purpose of the Constitution is to promote “personhood” and the “realization of man’s potential and value” as defined by each individual. The Constitution is to be used as a “change agent” morphing America into a new society where the focus is on the individual and minority groups.

Illustration: In this effort to morph the Constitution into an unstable “change agent” in society, America’s law school professors and appellate lawyers are some of the strongest allies of Reconstructionist judges. The move to radically alter the Constitution’s purposes is illustrated in the arguments of law professor Laurence Tribe (an active anti-Judeo-Christian advocate before the Supreme Court). Tribe declares that the judiciary must steer the Constitution in the direction of “the living development of constitutional justice.” Courts must also elaborate an idea of the “human” and of “being.”

A second Reconstructionist law professor, Michael Perry, adds that constitutional interpretation must serve the purpose of forging a “new moral order.” These Reconstructionist phrases have no fixed meanings or roots and can therefore be brandished by Reconstructionist judges in any direction they choose to promote the Humanistic worldview. The Constitution loses.

Questions: If you agree with the Reconstructionist position, then

  • How are purposes such as “the new moral order” to be defined?
  • If judges are to redefine the Constitution’s purposes, from what source(s) are they to obtain their guidelines?
  • If not civil law, who/what agency(ies) are to execute the Constitution’s original purposes, i.e., provide legal stability, care for the common good, etc.?

Issue #6: The Principles of the Constitution (“Constitutional Axiology”)

What are the central principles underlying the Constitution? What values are most crucial to America’s constitutional theory?

Constitutionalists contend that the Constitution embodies a multiplicity of distinct substantive principles: republican self-government, life, liberty, due process of law, equal protection of the laws, and private property/free enterprise, etc. Structural principles designed to protect substantive principles include federalism (division of powers between national and state governments) and separation of powers (distribution of powers among three branches of government at the same level).

Reconstructionists counter that our constitutional system rests on a few vague, fundamental principles and “rights,” generally having no roots in Anglo-American history. Paramount among these “principles” are “freedom,” “equality,” “fairness,” and “constitutional justice.” Rights are created by the government.

Illustration: Reconstructionist judges in Edwards v. Aguillard threw out the Louisiana “balanced treatment” law—a law requiring state schools to teach both creationist and evolutionist theories of origins if either theory were taught. The U. S. Supreme Court declared that “It is equally clear that requiring schools to teach creation science does not advance academic freedom.” Translation: There is more “fairness” and “freedom” (“justice”) in allowing the continued dogmatically exclusivistic teaching of evolutionism only, than in teaching two opposing models. The Constitution loses.

Questions: If you agree with the Reconstructionist position, then

  • How do judges go about the vital task of defining “freedom,” “equality,” etc.?
  • How do judges prioritize values when they conflict with one another?
  • What qualifications do judges possess that render their definitions and priorities superior to the decisions of other government agencies or the people?

In 1983, Harold J. Berman wrote Law and Revolution, a book which the American Bar Association recognized with its SCRIBES Award for the best new book on a legal subject. In this book, Prof. Berman wrote that the Western and American legal tradition is in crisis. This, he said, “is a crisis of the Western legal tradition [which] is not merely a crisis in legal philosophy but . . . in law itself.” He concluded that “the historical soil of the Western legal tradition is being washed away in the twentieth century, and the tradition itself is threatened with collapse.”

Our year-long examination of the white-hot constitutional/judicial front in America’s Culture War reveals that Berman is right—that the very institution of law in America is in danger. Will we allow our legal/constitutional system to continue its precipitate plunge toward collapse, or will we rescue our Constitution and law from this fate? The answer to these questions depends much on our zeal in fighting for the election of Constitutionalist candidates in 2008.


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