The Battle over Constitutional Theories in the 2008 Elections

By Virginia Armstrong, Ph.D., National Chairman

Oliver Wendell Holmes, Associate Justice of the U. S. Supreme Court (1902-1932), declared that, "Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house." The theories that Supreme Court justices espouse produce the egregious decisions and doctrines of Reconstructionist cases, including the Roe and Casey decisions which we have been analyzing for several months.

Talking Points

Reconstructionist constitutional theory diametrically opposes Constitutionalist constitutional theory; and we must understand these theories in order to evaluate adequately, not only judicial decisions, but the theories held by candidates in the 2008 elections. Questions of constitutional theories have permeated, not just American law, but American culture in general. Therefore, all patriots need at least a cursory understanding of the opposing constitutional theories in today's Culture War. Three very broad and fundamental issues divide Constitutionalists from Reconstructionists. We shall summarize the three issues and then offer a view of the advocates of each theory concerning these issues.

The Issues

1. The Constitution: Constitutionalists respect the Constitution; Reconstructionists reject the Constitution.

2. The Courts: Constitutionalists advocate restraint by the courts; Reconstructionists advocate rule by the courts.

3. The Cornerstone: Constitutionalists recognize the Judeo-Christian cornerstone of American law and culture; Reconstructionists want to reconstruct American law and culture on a Humanistic cornerstone.

The Advocates

• The Constitution:
  • Constitutionalist Theory:
    Our first great Chief Justice, John Marshall, declared in Marbury v. Madison (1803) that constitutional principles "are deemed fundamental . . . and as the authority [i.e., the American people] from which they proceed is supreme, and can seldom act, they are designed to be permanent." Therefore, the essential qualities of the Constitution are its fundamental nature, supremacy, and permanence. Justice Marshall also uses the phrase "paramount law" to describe the Constitution. According to Constitutionalist Theory, only the "people" are to make significant changes to the Constitution in accordance with the Article V amendment process.

  • Reconstructionist Theory:
    Modern Reconstructionist theory advocates a very different perspective. The prolific attorney, Laurence Tribe, contends that "[t]he Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices." To Reconstructionists, the Constitution "reflects a set of conflicting ideals and notions . . . . " The Constitution becomes intrinsically no different from, and not superior to, other law — a polemic contrast to the Constitutionalist position.

• The Courts:
  • Constitutionalist Theory:
    Alexander Hamilton in Federalist Number 78 eloquently states the Constitutionalist position: "It may truly be said [that the courts] . . . have neither FORCE nor WILL but merely judgment . . . . This simple view of the matter . . . proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two. . . ."

  • Reconstructionist Theory:
    William Ray Forrester, former Dean of Cornell Law School, expressed a radically different view. Declared Forrester, "[The U.S. Supreme Court as an institution] is even more unique and unprecedented than commonly supposed. Indeed, the institution can no longer be described with any accuracy as a court, in the customary sense. Unlike a court, its primary function is not judicial but legislative. It is a governing body in the sense that it makes the basic policy decisions of the nation, selects among the competing values of our society, and administers and executes the directions it chooses in political, social and ethical matters. It has become the major societal agency for reform."

• The Cornerstone:
  • Constitutionalist Theory:
    The U. S. Supreme Court in 1892 (Holy Trinity Church v. U.S.) and 1931 (U.S. v. MacIntosh) described America's legal and cultural cornerstone: "These and many other matters which might be noticed, [i.e., a long list of historical documents, quotes, etc. specifically expressing America's Christian underpinning] add a volume of unofficial declarations to the mass of organized utterances that this is a Christian nation."

  • Reconstructionist Theory:
    Arthur Miller, prominent law professor and TV commentator, pens an extraordinary example of Reconstructionism: "The Justices [of the Supreme Court function] as a de facto Council of Elders [and] may be likened to the oracles of ancient Greece . . . . The Constitution is a theological document. . . . [A]nd the Justices are the High Priests who keep it current with each generation of Americans. . . . The Constitution is always in a state of becoming, always being updated to meet the exigencies faced by successive generations of the American people. Each generation writes its own Constitution.

Questions for Candidates

The polemic differences between these two bodies of constitutional theory generate numerous questions that we need to be asking our candidates for office in these fundamentally important elections of 2008:

• Reconstructionists argue that court opinions and decisions as old as 1803 are "out-dated, useless, etc." Do you agree? Why or why not?
• What is/are the source(s) to which an interpreter should refer in determining the meanings of Constitutional words and phrases?
• Is the judiciary intended to be the "weakest branch of government"? If not, what should be its relationship to the other two branches?
• Are there problems with the Supreme Court's being the agency described by William Forrester and Arthur Miller? If so, what are some of the worst problems?

Alfred Lord Denning, a top-ranking British jurist in the Twentieth Century, declared that "We have already strayed too far from the faith of our fathers. Let us return to it for it is the only thing that can save us." Constitutionalist theory is based on this Judeo-Christian "faith of our fathers." Will we Twenty-First Century American Constitutionalists fight for this faith in the 2008 elections? The answer is up to us.

[by permission] Eagle Forum's Court Watch - July 25, 2008

Why Ramos and Compean are STILL in Prison

Appeals Court Upholds Prison for Border Agents Ramos and Compean

San Antonio - A federal appeals court refused Monday to throw out lengthy prison sentences for two jailed U.S. Border Patrol agents convicted of shooting an unarmed illegal immigrant and lying about it.

The 5th U.S. Circuit Court of Appeals in New Orleans upheld most of the convictions against former agents Ignacio Ramos and Jose Alonso Compean.

By Elizabeth White, AP - via CNSNews.com - July 28, 2008

[So, why are Ramos and Compean STILL in prison? Well, it's YOUR FAULT, Mr. and Mrs. America, for failing to protest with a hue and cry loud enough that the anti-American elitists could not fail to understand that we, the people, have had enough of their ruling us and our country. Justice and freedom must be upheld, and that will NEVER happen while apathetic, lazy, uninformed Americans sit still for tyranny! - ed.]

Well, then, the courts be damned

City Prayer Policy Upheld - TRI IN THE NEWS

From The Freelance Star
Original article available here.

Fredericksburg City Council can keep Jesus Christ out of its prayers.

The 4th Circuit U.S. Court of Appeals yesterday upheld the city's right to start its meetings with nonsectarian prayers.

Retired Supreme Court Justice Sandra Day O'Connor sat on the three-judge panel hearing the case and wrote the opinion.

"She didn't feel my rights were being violated, but my rights are definitely being violated," said City Councilman Hashmel Turner, who filed the case. "It removed an opportunity for me to pray in the manner of my conviction and my belief."

Turner, a Baptist minister, sued fellow council members after the council adopted the policy in 2005. A resident's complaint about Turner's prayers and a threatened lawsuit prompted the city to change its policy.

Mayor Tom Tomzak said he personally respects Turner's right to pray in the name of Jesus Christ but that pragmatics overruled.

He and other council members simply wanted to protect the city from lawsuits, Tomzak said.

But he'd hoped the appeals court would offer a different opinion.

"I was hoping for more clarity," Tomzak said. "We need clarity on this, religion is such an important part of community life."

Lawyers from the Charlottesville-based Rutherford Institute filed suit for Turner and plan to appeal the case to the U.S. Supreme Court, said John Whitehead, the institute's director. The city is represented for free by the Hunton & Williams law firm and the People for the United Way Foundation.

"Religion is not the important issue in this case," Whitehead said. "The important issue is if the government has the right to decide who can speak in their meetings."

Turner's attorneys argued prayers held to open City Council meetings are not government speech and so are protected from free speech restrictions.

They also argued that because the council allows prayers which reference "Almighty God" and "Heavenly Father," getting rid of "Jesus Christ" equals discrimination, Whitehead said.

In the opinion, O'Connor wrote, "We hold that Fredericksburg's prayer policy does not violate Turner's Free Speech and Free Exercise rights."

She wrote that the city's policy makes the prayers more inclusive and does not violate Turner's First Amendment rights to free speech.

Whitehead said he didn't know how long it will be before lawyers are ready to take the case to the U.S. Supreme Court, but he said there was "a good chance" the case will be heard, with four conservatives and "a swing vote" on the bench.

"I don't believe the last say-so in the matter should be left up to Justice O'Connor, so I intend on going ahead to the Supreme Court," Turner said.

Rutherford Institute press release - July 24, 2008

Constitutional Confusion

Every president, every senator, every member of Congress and every Supreme Court justice takes an oath to uphold the Constitution of the United States.

The way some of them behave, though, you have to wonder if they’ve ever read it.

Members of all three branches of our government should do some light reading this summer, and refresh themselves on their proper roles. After all, you can’t uphold what you don’t understand. ...

By Ed Feulner - July 22, 2008 - CNSNews.com

Judicial Supremacy Strikes in Oklahoma

by Phyllis Schlafly, June 18, 2008

The elected representatives in Oklahoma passed a law to stem the tide of illegal aliens and, faster than you can say "judicial supremacy," a federal judge blocked its enforcement. The court suspended key sections of the law even before it was due to take effect on July 1.

The Oklahoma Taxpayer and Citizen Protection Act was designed to prevent illegal aliens from taking jobs from Americans and from evading taxes by working in the underground economy.

The Oklahoma law passed the State Legislature by overwhelming bipartisan veto-proof majorities (88-9 in the House, 41-1 in the Senate) and was signed by the Democratic Governor. Public opinion polls reported that the law enjoys 88 percent public approval, and it was recognized as a model for other states to copy.

The law required employers who have contracts with the state of Oklahoma to use the Oklahoma Status Verification System to verify the legal status of their employees. The law expanded the definition of "discrimination" to include firing an American while retaining an illegal as an employee.

The penalty for violating this law was requiring the employer to withhold state taxes in a manner to ensure that Oklahoma would receive all proper employment taxes, including taxes for those employees who are not legally in this country. Oklahoma should certainly be able to protect itself against the non-payment by illegals of taxes that Americans pay as a matter of course.

Even though the new Oklahoma law didn't go into effect, it is credited with reducing Oklahoma unemployment significantly below the national average. The bill's sponsor, State Rep. Randy Terrill, said, "Oklahoma is no longer OK for illegal aliens."

The big national news this month is the Department of Labor announcement that U.S. unemployment has surged to 5.5 percent, the sharpest monthly spike in 22 years. The unemployment figures are particularly painful for teenagers; only about one-third of 16- to 19-year-olds are likely to get summer jobs.

The employment picture in Oklahoma is quite different: Oklahoma's unemployment rate is now only 3.1 percent and dropping. That's because after the Citizen Protection Act was passed a year ago, illegal aliens began leaving the state.

The lawsuit to overturn the Oklahoma statute was brought by the leading trade group for large corporations profiting from hiring illegal aliens at the expense of American citizens. The name of the case is Chamber of Commerce of the United States v. Brad Henry.

The judge granted standing to the Chamber of Commerce to sue even though it had not been hurt one iota by the law that had not yet taken effect. The judge, in effect, legislated from the bench by blocking the statute from taking effect, so all its benefits may never be known.

The judge accepted the Chamber's argument that Congress has preempted state laws by federal statutes about immigration. But we all know that the federal government is incapable or unwilling to carry out the necessary enforcement of existing laws that the American people deserve to have enforced.

There is even a federal law called the Tax Injunction Act that prohibits federal courts from interfering with state taxation. The court sidestepped that law, declaring that the federal court could interfere because the Oklahoma statute is more like a regulation than a tax.

Across the country, 43 states have passed more than 182 immigration-related laws. Several leading decisions, such as the federal decision reviewing the ordinance passed in Valley Park, Missouri, have upheld the laws against challenges.

Taxes and jobs are not the only reasons why states need to protect their citizens against illegal aliens. Rep. Terrill says, "Our Bureau of Narcotics here in Oklahoma estimates that something in excess of 40 percent of the drug trafficking through Oklahoma is directly attributable to our illegal alien problem."

The courts should not be interfering with legislative remedies to protect American citizens from losing their jobs to illegal aliens who may not even be paying taxes on their wages. And we certainly should not tolerate drug trafficking coming in from Mexico.

Overturning the massive votes in the Oklahoma legislature and the will of the people makes this new decision one more example of how the courts are trying to make themselves an elite branch of government whose every pronouncement is accepted as "the law of the land." It's time for Americans to rise up and reject the rule of judges and return to rule by our elected representatives.

Congress can and should withdraw jurisdiction from federal courts to interfere with prudent attempts by states to protect their governments and lawful residents. Congress could simply amend the Tax Injunction Act to clarify that federal courts lack authority to entertain any challenge to a state law that involves the collection of taxes from illegal aliens.

Read this article online: http://www.eagleforum.org/column/2008/june08/08-06-18.html

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[by permission]

Read Phyllis Schlafly's other columns here.

The Marriage Chaos Begins

Washington, D.C. - May 30, 2008 - New York Governor David Paterson (D) released a memo to state agencies arbitrarily and unilaterally instructing them to recognize "same-sex marriages" performed in other states and other countries in which they are considered legal. Recently, the California Supreme Court overruled a voter-approved statute protecting marriage, essentially opening the floodgates against marriage as between one man and one woman.

Matt Barber, Policy Director for Cultural Issues with Concerned Women for America (CWA), said, "The Marriage Chaos has begun. On the wings of supreme judicial activism in California, we're entering into an era of lawlessness and elitist rule, by the very few over the many, the likes of which we've rarely seen in this nation. The people must take back this great Republic.

"First, every state in the union must pass a constitutional amendment protecting the sanctity of marriage as between one man and one woman. Second, steps must be taken to pass a federal constitutional marriage amendment protecting same. And third, those who love liberty in both California and New York should immediately mobilize and vote against the retention of the four renegade Supreme Court judges in California and impeach New York Governor David Paterson respectively.

"We the people" are not left without recourse. Politicians and judicial activists across the country need to be reined in and made to understand that they will not be allowed to disregard the will of the people and the rule of law and create newfangled 'constitutional rights' out of thin-air," concluded Barber.

For Information Contact:
Natalie Bell
(202) 488-7000
media.cwfa.org

[press release]

Stunning Victory Against Judicial Supremacy

by Phyllis Schlafly - May 21, 2008

The media have been telling us to watch the gun-control case now before the U.S. Supreme Court, where we await a decision about Americans' Second Amendment rights. But the Second Circuit Court of Appeals just handed down an equally important gun decision that has additional implications against judicial supremacy.

The Second Circuit, which convenes in New York City, shot down the liberals' longtime dream of achieving gun control by suing gun manufacturers for crimes committed by firearms. In a remarkable decision, this federal appellate court dismissed City of New York v. Beretta U.S.A. Corp. (pdf) and protected gun corporations against frivolous lawsuits in state and federal courts.

The lawsuit was brought by the City of New York in order to seek control over gun suppliers. At stake was not merely money but also whether the liberals would obtain from judicial activists the gun control which the liberals could not get from legislatures.

This decision provides a roadmap for how Congress should withdraw jurisdiction from judicial supremacists in other fields, too. The Second Circuit decision is a sweeping affirmation of Congress's power to stop future and pending lawsuits in federal and state courts.

This ruling broke an alarming trend of judicial supremacy and stopped outrageous lawsuits that tried to impede the sale of guns because of illegal acts committed by New York City residents and others. Billionaire Mayor Michael Bloomberg was left empty-handed in his attempt to sue businesses concerning crimes committed by residents of his city.

The lawsuit cited the harm from gun sales while ignoring evidence that the benefits far outweigh the harm. The trial court sided with Bloomberg, but the appellate court said "no" and put an end to the nonsense.

Congress had legislated the basis for this decision by passing the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005. The PLCAA protects against a "qualified civil liability action," defined broadly to include almost any lawsuit brought against a gun manufacturer or seller based on "the criminal or unlawful misuse" of a firearm distributed in interstate commerce. On the day it was signed into law by President Bush, gun manufacturers moved to dismiss this case, and the Second Circuit has now enforced the law.

The appellate court rejected an argument that this law denied access to the courts. New York City can and does sue all the time, but Congress properly rejected the ridiculous notion that the city could sue businesses over a typically beneficial product that was later used illegally.

Should General Motors and Ford be held liable for crimes committed by drunk drivers, or baseball bat suppliers be sued for criminal beatings inflicted with their products? Of course not, and it was an outrage that courts even entertained such actions against gun manufacturers and suppliers.

If Congress had not effectively withdrawn jurisdiction, gun manufacturers would be reluctant to produce guns and many might go out of business. This intimidation would deter the lawful sale of guns.

That's exactly what the gun-control advocates have long wanted: legislation from the bench that they could not persuade real legislatures to pass. A majority of legislators, who are elected, see the absurdity of gun control and recognize the valuable self-defense function of guns.

The role of judges should be (as Chief Justice Roberts repeated in his confirmation hearings) like that of baseball umpires: calling the balls and strikes, but not changing how many strikes constitute a strike-out. Judges should interpret ambiguous laws fairly but not legislate from the bench.

Gun control has become so unpopular that not even the Democratic presidential candidates dare brag about their views. Instead the anti-gun crowd hopes to get what it wants from supremacist judges.

The misuse of the courts to obtain a result contrary to the will of the American people should not be allowed on other vital issues. Congress should also take away from judges issues such as the Pledge of Allegiance, the Ten Commandments, the Boy Scouts, and the definition of marriage.

Take another example. Federal courts should not entertain lawsuits by illegal aliens against local ordinances that enforce our immigration laws.

This refreshing gun decision by the Second Circuit signals the way for Congress to return the judiciary to its proper place in our constitutional separation of powers system. In the previous Congress, the House did pass bills to curb court mischief about the Pledge of Allegiance and the definition of marriage, and now it's time for the Senate to step up to the plate and take action against judicial supremacists.

Read this article online: http://www.eagleforum.org/column/2008/may08/08-05-21.html

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[by permission]

Read Phyllis Schlafly's other columns here.

California Court Creates Right to Same-Sex Marriage

The California Supreme Court issued a ruling Thursday that puts homosexual marriage back in the political spotlight.

In a 4-3 decision, the justices legalized same-sex marriage in the nation's most populous state--nullifying the state's law limiting marriage to one man and one woman and the 2000 referendum upon which it was based. ...more

By Pete Winn - CNSNews.com Senior Staff Writer - May 16, 2008