Has change in a worldview, changed
the court?
This article was published originally
in Southern Partisan Vol. XXI, Oct. 2001
When asked what form of government
had been agreed upon and adopted by the Constitutional
Convention in Philadelphia, Benjamin Franklin is
reported to have replied, "a republic…if
you can keep it." In determining what he might
have meant by the second part of that phrase, it
is helpful to examine the words of John Adams when
commenting upon the utility of the same document.
Adams said, "This Constitution was intended
for a moral and religious people, it is wholly
inadequate for the governance of any other."
If the institutions of government
do not seem to be working properly; if the " Blessings
of liberty" are not being preserved by this
generation for the benefit of posterity; if the "union’’ is
becoming less rather than more " perfect";
if "justice" seems less " established";
if our "domestic" affairs are less "tranquil";
if our defense is less "provided for",
then perhaps we need to examine our situation in
light of Adams prescription that we need to be
a "moral and religious people". What
did he mean and how does his comment relate to
the role of the judiciary? Do the courts need to
reflect moral and religious values in carrying
out their mission? If Ben Franklin were here today,
would he congratulate us on our success in keeping
the republic we inherited?
The men who adopted the Declaration
of Independence and who drafted the Constitution
shared a worldview primarily based on the doctrines
of Christianity. This worldview acknowledged the
fallen nature of man and his proclivity towards
evil actions and usurpations. This view also included
the understanding that what was true about man’s
nature individually was also true collectively.
That is to say, if government’s powers were
not limited and enumerated, those in power would
tend to use their authority to aggrandize their
own power and influence to the detriment of the
people’s liberty. They recognized, therefore,
the need to establish an orderly system of government
that would take into account the truth of Lord
Acton’s famous admonition that, "…power
corrupts; and absolute power corrupts absolutely".
After significant debate, both public
and private, the system settled upon was one that
recognized and took into account this Christian
worldview. The separation of powers among the three
branches of the federal government, along with
certain checks and balances on the actions of each,
was designed to allow each branch to hold the others
accountable to their constitutional mandate. This
system of institutional restraint had the preferred
effect of encouraging the selfrestraint of each
branch.
Since the Constitution itself claims
to be the supreme law of the land, all branches
of government –President, Congress and the
Supreme Court are subordinate to it. In cases where
laws enacted by Congress or state legislatures
have been inconsistent with the Constitution, we
have traditionally looked to the judiciary, particularly
the Supreme Court, for application of the Supremacy
Clause. Judicial review, although not explicitly
called for in the constitution was recognized as
implicitly required by the Supremacy clause itself.
For example, Oliver Ellsworth of Connecticut, who
later went on to become chief justice of the Supreme
Court, declared on January 7, 1788, in a speech
before the Connecticut state convention:
This Constitution defines the extent
of the powers of the general government. If the
legislature should at any time overleap their limits,
the judicial department is a constitutional check.
If the United States go beyond their powers, if
they make a law which the constitution does not
authorize, it is void, and the judicial power,
the national judges, who to secure their impartiality
are to be made independent, will declare it to
be void. On the other hand, if the states go beyond
their limits, if they make a law which is an usurpation
upon the general government, the law is void, and
upright and independent judges will declare it
to be so.
While setting forth and defending
the necessity of judicial review, it is interesting
that Ellsworth rests the success of such a system
on the necessity for judges to be "upright".
This word is laden with the overtones of worldview.
Where do we find the standards for uprightness?
Where is "upright" defined? Although
I am confident that the vast majority of those
gathering to hear his address that cold January
day in Connecticut understood what he meant, I
am much less sure today that our culture could
agree on what "upright" means to us.
In a culture where "is" doesn’t
mean "is", "sex" doesn’t
really mean "sex", and "lies" are
not really "lies" if they are about the
sex life of the chief executive, how do we agree
on the moral values that should be used by our
judges?
As individuals, our worldview will
dictate the values that we consider essential and
worthy of emulation. The same is true for a people,
a culture, a country. The worldview in America
has been gradually shifting away from the Christian
worldview of the founders. Even men who profess
to be Christians have often espoused policies that
are antithetical to those that would be recognizable
to the founders. This shift away from a biblical
worldview has had its effect upon the Supreme Court’s
view of its own role and authority. By the 1930s,
for example, this shift was so pronounced that
Chief Justice Charles Evans Hughes, a practicing
Baptist, was comfortable in characterizing the
Supreme Court as a " continuous constitutional
convention".
The willingness of the people of
America and of the coequal branches of government
to accept the concept of judicial lawmaking has
given the court a wide latitude in its ability
to make decisions that have far reaching and significant
effects on American society. Justice William Brennan,
who served on the court from 1956 to 1990 as one
of the twentieth century’s most influential
justices, stated in a 1995 speech that the Supreme
Court Justices "…are the last word on
the meaning of the Constitution…" Perhaps
one of the most blatant examples of the disappearance
of selfrestraint on the part of the Supreme Court
was in 1958, in the case of Cooper v. Aaron, when
it claimed that its interpretations were as much
a part of the Supreme Law of the Land as the specific
statements of the Constitution, treaties, and laws
passed by Congress.
The decisions of the Supreme Court
since that time have shown little inclination on
the part of the Court to adopt any form of selfrestraint
on its power, authority and reach. Neither the
President nor the Congress has shown much inclination
to institutionally restrain the Court. The Court
has clearly, and erroneously, claimed that its
rulings are supreme, equal to the Constitution.
All this has occurred contemporaneous with a cultural
drift away from the biblical underpinnings that
Adams and Franklin declared to be necessary for
the preservation of republican constitutional govern
ment.
If constitutional government is
to be preserved then, it is up to the citizens to
understand the Constitution and to seriously participate
in the civic life of the country, electing
representatives who evidence that they are cognizant
of, and committed to, its underlying biblical principles.
The Constitution is not a sacred document. But
it was based on one. Americans need to understand
and apply the doctrines of the one to peaceably
enjoy the " Blessings" that the other
seeks to preserve.
by Michael A. Peroutka
