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VOL. 12, NO. 9November 17, 2010
Our Dying Constitution — and How to Revive It, IV

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With the nail-biting, pivotal 2010 elections behind us, we look ahead to a bitter series of more battles and an increased need for the education of our Constitutionalist troops, especially in preparation for the 2012 elections. The eyes of both the public and politicians are currently on the executive and legislative branches. This is understandable; but we must never lose sight of the fact that America's judges, led by the U.S. Supreme Court, have seized the over-riding power in our country. As Senator Sam Ervin said in 1981, " . . . the people of our land are being ruled by the transitory personal notions of Justices who occupy for a fleeting moment of history seats on the Supreme Court bench rather than by the enduring precepts of the Constitution." Thus, concluded Ervin, "the Constitution is dead."

This disastrous state of affairs was feared by many of our nation's Founders and was prophesied in a most profound manner over 200 years ago by Thomas Jefferson, who declared:

The germ of dissolution of our federal government is in . . . the federal judiciary; an irresponsible body (for impeachment is hardly a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow; and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States."

It is imperative, therefore that we "Revive the Constitution!" if America is to survive. And we have determined that revival and survival require judges to interpret our Constitution so that our legal system is characterized by the "three C's" — certainty, consistency, and continuity (these are described in recent issues of our "Court Watch Briefings"). These three qualities are emphasized in the work of the preeminent British legal scholar, H. L. A. Hart of Oxford University (Hart is known as the "Father of Neo-analytic" or "Linguistic" "Jurisprudence," and has been cited in at least three different U.S. Supreme Court cases). But Humanist/Reconstructionist judges in contemporary American constitutional law are fiercely committed to their worldview agenda. This judicial agenda afflicts America with chaos, not certainty, contradiction, not consistency, and convolution, not continuity — a recipe for legal and cultural disaster.

To return the three C's to our legal system and maintain them, America must have Constitutionalist judges committed to the three C's. Unless this is achieved, whatever successes we may experience with executive and legislative branch actions are severely threatened by the ever-looming possibility of judicial invalidation of those actions.

The three C's are especially critical in court decisions concerning the fundamental policy areas of our culture — religious liberties, evolutionism v. creationism, life, and homosexual rights/marriage. Therefore, these "social issues" MUST be given a top priority again in our nation's political and legal debates and decisions. The necessity of returning much more focus to these social issues in the days and months ahead is essential to (1) the Constitution, (2) the entire legal system, and (3) the culture as a whole.

  1. The Constitution has been severely shaken by judicial decisions attacking the three C's. The four core guarantees of our Constitution are the recognition of personhood, and the rights to life, liberty, and due process of law (i.e., the rule of law). Courts' social policy decisions have struck at each of these guarantees. For example, decisions allowing governmental recognition of evolutionism only to the exclusion of any consideration of scientific creationism reduce man from a "person" to a mere "animal." Rulings granting women the "constitutional right" to an abortion destroy human life. Homosexual rights decisions defining a "homosexual union" as a constitutional right mock the Constitution's guarantee of "liberty." And religious freedom decisions banning public acknowledgements of God strike at both the free exercise rights of orthodox religious believers and their very core beliefs which include the mandate to share their faith in their society.
  2. Our legal system is "having its historical soil washed away" and is "threatened with collapse" (Harold J. Berman in Law and Revolution) by judges' war on the three C's. This is a central point made in Professor H. L.A. Hart's model of a legal system — a mature legal system must, by definition, manifest and maintain the three C's. But American judges' social policy decisions, as we have said, more than any other type of decisions, wage war on the three Cs. To put the point differently, a legal system can survive and thrive only if its core guarantees are given verbal expression and provided a system to protect them. This verbal expression and this protection system are core concerns of our U.S. Constitution. To the degree that our U.S. Constitution is undermined, so is our entire American legal system.
  3. Finally, judicial war against the three C's endangers the entire culture. Humanist/Reconstructionist court decisions crushing the three C's have undermined all the basic institutions of our society — the individual, the family, the church, and the state. The individual person as a special creation of God has been bashed by evolution-only rulings. The family has been slammed by the courts' homosexual rights/marriage decisions. The church has been battered by decisions outlawing public acknowledgements of God (the recitation of the Pledge of Allegiance, Ten Commandments displays, etc.). And civil law/government — the "legal system" we have just discussed — has been radically transformed in every aspect (its foundations, powers, structures, etc.). Author John Gray, writing in 1993 on British culture and "post-liberalism," decried the "fragmentation of British culture." He also most accurately — and sadly — noted that
    We see the same somber development on a vast scale in the United States, which appears to be sliding inexorably away from being a civil society whose institutions express a common cultural inheritance to being an enfeebled polity whose institutions are captured by a host of warring minorities, . . . .

    The source of this culture disintegration? Robert Bork rightly identifies the culprit as the U.S. Supreme Court which, "[is bringing] itself and the entire concept of the rule of law into disrepute. It . . . weakens both political authority and the possibility of a common culture." Thus, as we Constitutionalists wage war against illegitimate power in the executive and legislative branches, may we do so with one hand, while battling with the other against the Constitution's worst enemy — the courts. As Thanksgiving approaches, may we be especially committed to the truth uttered by Alfred Lord Denning, England's second-ranking judicial official in 1953: "If religion perishes in the land, truth and justice will also. We have already strayed too far from the faith of our fathers [Denning is clearly referring to Christianity]. Let us return to it, for it is the only thing that can save us." Then and only then can we Revive the Constitution!

    Court Watch Wishes You and Yours a Most Blessed Thanksgiving!
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