Constitutionalism or Chaos?
By Dave Haigler* – January
2005
There is a strange movement afoot in current right-wing extremism calling itself “Constitutionalism” (more correctly known as “textualism” or “strict constructionism,” according to a Stanford University essay on constitutional theory), and this strange movement is actually a proposal for religious chaos in our judicial system.
So-called “Constitutionalism’s” leading advocate is the right-wing Eagle Forum’s “Court Watch” project. The “Court Watch” newsletter, “2005: Look Down to Look Ahead,” says the federal courts, including the Supreme Court, have no business authoritatively stating what the constitution means. (The constitution is the supreme law of the land with no court interpretation equal to it, and courts cannot go beyond its basic meaning, according to Court Watch’s “Constitutionalist Manifesto.”) It is difficult to overstate how radical this view is, and how out of line it is with our legal heritage.
As I’ve developed in another
article entitled “Conservative
Strict Constructionism Will Backfire,” the
leading case on constitutional law in this country is Marbury v. Madison (1803),
in which the Supreme Court set the precedent for itself
to declare acts of Congress unconstitutional and authoritatively interpret the
constitution. There is no law or essay I can find questioning this
precedent, except for theories like those of Eagle Forum - Court Watch’s
“Constitutionalists.”
Even more disturbing than the “Constitutionalist” dissent from Supreme Court jurisdiction is its prescription for replacing that jurisdiction. Court Watch says the constitution cannot be properly interpreted without the “worldview” of its “Framers,” this “worldview” allegedly is the “Judeo-Christian value system,” and this value system excludes “pluralism” and “diversity.”
Like Dave Barry, I am not making this up. Please, click on the link to Court Watch’s “Constitutionalist Manifesto,” and see for yourself.
Secularists and atheists can have a heyday with this, but even thoughtful Christians such as myself should shudder in horror at it. We Christians – let’s be honest – cannot even decide whether our “Judeo-Christian value system” can help us avoid divorce, in that George Barna’s survey showed born-again Christians divorce as much as non-Christians do. The constitution’s First Amendment says that no one’s religion can be forced upon us by the government, yet Eagle Forum’s un-elected “Constitutionalists” would subject us to constitutional interpretations through the grid of their “Judeo-Christian value system.”
One of the “Judeo-Christian value system’s” greatest defenders was W.A. Criswell, pastor of First Baptist Church, Dallas, for a half-century and president of the Southern Baptist Convention, who defended segregation until 1968, even though a supposedly-liberal Supreme Court declared segregation unconstitutional in Brown v. Board of Education, 347 U.S. 483 (1954). One of the current generation’s greatest defenders of the “Judeo-Christian value system” is Rev. Jerry Falwell of Liberty University in Lynchburg, Va.—whose views are mostly are out of line with mainstream Christianity as well.
Do we want un-elected religious leaders like Dr. Criswell, Dr. Falwell and the Eagle Forum ladies telling us what the constitution means, based on their so-called “Judeo-Christian value system,” or justices appointed by the president and confirmed by the senate, according to the constitution’s own terms, doing so? This is a no-brainer. I don’t know of any non-Christian/Jewish people invoking this “Judeo-Christian value system.” Its defenders don’t advocate mainstream Christian values like loving your neighbor and helping the poor in public policy, instead of things like defending racism until its dying breath. The truth is – this so-called “Judeo-Christian value system” catchphrase is a smokescreen for extremist Republican policies.
The “Judeo-Christian value system” is also no help to interpret the Founding Fathers’ original intent in the constitution, because the concept was not in vogue then. Granted, the Founders were mostly Christians solidly within the Reformation tradition. M. E. Bradford, A Worthy Company. But this catchphrase only came into vogue in the 20th century, and its adherents are heavily influenced by two other 20th century belief systems, “Dispensationalism” and “Fundamentalism” – both of which I’ve critiqued elsewhere, and neither of which existed in the 1780s when the constitution was adopted.
To those who feel I am being too harsh with fellow Christians, I can only say these “Constitutionalists” are leading the sheep astray down a path alien to not only our American heritage but also our Christian heritage.
What can be done about this?
1. If you are a Christian who has not been influenced by this so-called “Constitutionalism,” pray the ones who have will see the light.
2. If you are a Christian who has been influenced by it, consider its bad roots and fruits and broaden your view of Christian ethics in public policy by checking out something like Sojourners. It’s editor, Jim Wallis has a recent book, God’s Politics: Why the Right Gets It Wrong and the Left Doesn’t Get It (HarperSanFrancisco-2005).
3. If you are a secularist or other non-Christian who sees the bad results of “Constitutionalism,” then don’t criticize all Christians for it. Mainstream Christianity has had a very good effect on the world. Don’t attack “religious nuts” or make other shotgun appeals against people of faith. Use this article, and others I’ve written at www.haigler.info/page11.html, to be very precise about what you’re opposing. Don’t make it easy for those still in such error to feel “persecuted for their faith.” Let them know you're opposing them for their error, not for their “standing up for Jesus.”
*Dave Haigler is a lawyer, mediator and NASD arbitrator
practicing in