VOL. 15, NO. 7

August 27, 2013

Back to the Basics:
Straightening Up America, VI:
America’s Marriage Miasma, Part 2

By Virginia Armstrong, Ph.D., National Chairman

“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.” In our current series of Court Watch Briefings, we have been asking, “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 in “Fiddler,” 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”? It is these thoughts which constitute the theme of most of our current “Court Watch Briefings.”Answering those critical questions in the affirmative, we are going “back to the basics” as a necessary “course correction” if we are to avoid toppling even farther backwards and, instead, stand straight again. We are focusing these studies in the “Basics” on three interrelated sets of truths concerning the Culture War, or War of the Worldviews, engulfing our culture. We are discussing these truths in an intertwined fashion, not attempting to do the impossible — separate one truth from another and discuss each individually. These three “truth sets” are:

  1. America cannot live permanently in a condition of unlimited “pluralism”; Herculean efforts by Humanists/Reconstructionists to convince Americans otherwise have focused on four fundamental social policy areas which, therefore, lie at the white-hot center of the Culture War (evolutionism, abortion, religious liberties, and homosexual rights); attacks in these areas have utilized four constitutional guarantees as their primary weapons (“personhood, life, liberty, and law” as guaranteed in the First and Fourteenth Amendments). [For an extended discussion of these truths, see our “Court Watch Briefings” of 11/3/11 and 5/27/11.]
  2. The effects of the Culture War are now so massive that they threaten our legal system with collapse; this threat is especially clear when we view America through the lens held to our eyes by Harold Berman over thirty years ago, when he analyzed the Western Legal Tradition [we are confining our attention to the Anglo-American portion of that Tradition]; Berman identified six essential characteristics of the Tradition as barely existing now, if at all.  In our “Basics” study, we have so far highlighted two of these qualities.
  3. A third “Basic” is that an effective Constitutionalist counterattack in defense of the “Basics” stated in premises #1 and #2 requires that we defenders become adept in the use of “constitutional and jurisprudential apologetics” in the tradition of Francis Schaeffer, the pre-eminent late-Twentieth Century Christian apologist: we must see our problems as a “totality,” understand the presuppositions of both our Judeo-Christian worldview and the opposing Humanist worldview — especially in the realm of government and law where they “are so open to observation,”  and engage as never before in a robust “constitutional and jurisprudential apologetic” (i.e., declaring and defending the Judeo-Christian worldview as it pertains to the U.S. Constitution and our legal philosophy).

We introduced truth set #3 in our last “Briefing,” set #3 consisting of four “fundamental facts” or “presuppositions,” and we considered the first two “fundamental facts” in this set #3.   These facts/presuppositions are rarely addressed in critical constitutional debates, but they are foundational to the entire Culture War battle. These two facts/presuppositions are:

  1. The paramount necessity facing every legal system is survival.
  2. The survival of every legal system requires that it meet, on an ongoing basis, the standard of the “3 Cs.”

In this “Briefing” we address the third fundamental fact of truth set #3:

Fact #3:   The survival of the American legal system requires that the U.S. Constitution continuously meet the standard of the 3 Cs, especially when judicial decisions about the Constitution are involved. Given Facts #1 and #2, the next logical issue encountered by our Judeo-Christian apologetic concerns the American legal system specifically. How do we ensure (as much as is humanly possible) that our legal system continuously meets the 3 Cs standard? The answer is that the U.S. Constitution, especially as treated in judicial decisions, must manifest certainty, consistency, and continuity. Two sub-points underlie fact #3.

a. The Need for the Constitution A “constitution,” by definition, is “The organic and fundamental law of a nation” (Black’s Law Dictionary). In the first expansive description of the U.S. Constitution, the great Chief Justice John Marshall, declared that the Constitution is the “fundamental, supreme, paramount, permanent” law of the American system (Marbury v. Madison, 1803).  Yet Time magazine in its cover story of July 4, 2011, raised the question, “Does the Constitution Still Matter?” This obviously signals the existence of a sizable and powerful group in America to whom the Constitution does not matter. But any nation must have a “constitution.” No constitution, no nation. The U.S. Constitution must, therefore, be where the 3 Cs are rooted in the American legal system.

b.  The Nature of the Constitution Unfortunately, we must focus our observation of the 3 Cs in American law, not on the Constitution as written, but on judicial decisions interpreting the Constitution (the “power of judicial review”). This is “unfortunate” because Reconstructionist judges have fundamentally altered the nature of the constitutional document. These judges have manipulated judicial review so as to infect America’s legal system with a particularly virulent strain of the “Humpty-Dumpty disease.” The Constitution, in its nature, has become “subordinate/secondary law”; and runaway Humanist/Reconstructionists judges have become the “supreme law of the land.” These are the “supremacist judges” to whom Phyllis Schlafly has called so much insightful attention [e.g., The Supremacists, 2004, 2006]. They have bent America over backwards to the breaking point; and a quick, effective, massive “straightening process” must be undertaken by us Constitutionalists if the “collapse” of the entire legal system” foreseen by Harold Berman is to be avoided.

The power-grab by judicial supremacists, already successful years ago, was described by Cornell Law School Dean William Ray Forrester in 1977: the U.S. Supreme Court has become “[our] governing body in the sense that it makes the basic policy decisions of the nation, selects among the competing values of our society, . . . and chooses the directions [America takes] in political, social, and ethical matters.” [See our “Briefing” of 5/2/11.]  This is truly substitution of the “rule of lawlessness” for the “rule of law.” But unless/until we can “straighten up America” and re-establish the Constitution as the true supreme law of the land, we must focus our analysis of the 3 Cs standard in American law on judicial decisions about the Constitution.

It is at this point that the “divergent results [especially in government and law] of the two worldviews” to which Schaeffer referred are most “open to observation”; and the catastrophic nature of the same-sex marriage decisions, Perry and Windsor, can be more fully measured. These decisions and others of their kind destroy the 3 Cs standard in American law and plunge us into the deadly quicksand of chaos, contradiction, and convolution. Our constitutional guarantees of “liberty” and the rule of “law” as expressed in the First and Fourteenth Amendments are emasculated.  And another of Berman’s characteristics of the Western Legal Tradition [for us, the Anglo-American Legal Tradition] is mortally wounded.  “Law has always trumped Revolution.” But the legal and social upheavals resulting from the Perry-Windsor duo will help reverse our Legal Tradition, for, in these cases, “Revolution trumps Law.” 

This deadly duo of decisions will be our focus in an upcoming “Briefing.” But we cannot conclude here without a preview — an initial answer to the question which this writer hears so often — “how could this happen”? We call on Francis Schaeffer for an explanation, specifically on contemporary Schaefferian scholar, Nancy Pearcey, Director of the Francis Schaeffer Center for Worldview and Culture at Houston Baptist University. Hailed by The Economist as “America’s pre-eminent evangelical Protestant female intellectual,” Pearcey points us to “what Schaeffer called the split view of truth [which] is referred to in academia as the fact/value split” (Total Truth, 2004). Schaeffer’s metaphor pictured us as a society in which the concept of truth has been divided: there is a “lower story” which houses empirical facts known by science, and there is an “upper story” to which moral principles (now redefined as “merely personal feelings and preferences”) have been relegated.

Today’s supremacist judges eagerly embrace academia’s conversion of this upper/lower story split into the “fact/value split.” No self-respecting Reconstructionist judge would base his/her decisions on any grounds other than “facts” (the lower story); “values” (the upper story) are ipso facto excluded as grounds for judicial interpretations of the Constitution.  The Windsor Supreme Court majority thus had the weight of academia behind it in consigning centuries of Western morality’s opposition to homosexuality to the upper story. As Pearcey explains, “the winning strategy [in Windsor] made use of the fact/value split, pitting supposedly objective facts against subjective values.” “Moral views are redefined as private feelings that have no valid role in the public square.” The result? Pearcey’s answer is on point: “the fact/value split functions as a powerful intellectual gatekeeper to disenfranchise targeted groups. Their moral views are redefined as private feelings that have no valid role in the public square.” The “targeted groups” to which she refers include those of us who advocate the Judeo-Christian worldview.

These vital truths and other “Basics” central to straightening up America will be explored in an upcoming “Briefing.” Nancy Pearcey has stated the challenge we face in this manner: “The clash between these two understandings of morality [associated with the fact/value split] will determine whether liberty is gained or lost in the 21st century. It is imperative to reassert the transcendent moral truths that undergird freedom in every society.”

 To be continued . . . . . . .