Part III: The Myth of Judicial Supremacy

The Constitution Must Win in 2012!

Dr. Virginia Armstrong, Eagle Forum's Court Watch: Justice James Iredell, one of America's first Supreme Court members, declared that in the new nation's Constitution, "unlimited power . . . was not to be trusted without the most imminent danger, to any man or body of men on earth." This philosophical position, shared by America's Founders, both Federalists and Anti-Federalists, was expressed practically in numerous principles upon which the Framers based the Constitution. Both current political debates and the debates over the Constitution's ratification more than 200 years ago rage over the proper relationship between the three branches of the national government. We have been addressing that relationship, particularly as it involves the judicial branch, in our recent "Court Watch Briefings." We continue that critically important discussion here, not only to fight more effectively for Constitutional supremacy in 2012, but for this position in all the Culture War battles engulfing our nation.

The principles of "separation of powers with checks and balances" describe the relationship among the national government's three branches. These two principles were inseparably connected in the minds of the Framers. John Jay, our first Chief Justice, declared that "In my opinion, these three great departments of sovereignty [i.e., the three branches of the national government] should be forever separated, [i.e., 'separation of powers'], and so distributed as to serve as checks on each other" [i.e., 'checks and balances']." An excellent summary of these positions is offered by historian and attorney, Travis C. Barham: "In sum, separation of powers means that one branch cannot take over all the functions of another, but checks and balances means that each branch must have tools of self defense against the encroachments of the others."

A delicate balance of powers was obviously created by these principles, and one major question raised is: What do these principles generate as the standards for which we Constitutionalists must fight, especially in a pivotal election year such as 2012? Here is a summary of the central tenets of Constitutional theory:

1. The Constitution is, and must be, by definition, the "supreme, fundamental, paramount, permanent" law of the land. No court decision, statutory law, or other form of "law" is either equal to, or superior to, the Constitution.
2. The basic purpose of our Constitution, as of all constitutions, is to provide the stability necessary for our legal system to survive and thrive. Additionally, the Constitution's Preamble lists six specific constitutional purposes, which balance individual liberty with the common good.
3. The provisions of our Constitution have fixed meanings. These meanings can, and must, be determined by careful objective study of such factors as the express language of the text (understood in its original meaning), the context of the provision being interpreted and of the entire document, the intent of the Framers, and the worldview in which the Constitution was embedded by its Framers. Foreign and international law have no force in the interpretation of the U.S. Constitution.
4. The Constitution, properly interpreted, can express the values of only one worldview. It cannot reflect a "pluralism" or "diversity" of worldviews.
5. The worldview in which the Constitution is embedded is the Judeo-Christian worldview. The Constitution's principles and purposes are defined and prioritized by the Judeo-Christian value system. The Constitution cannot survive if it is ripped from its Judeo-Christian moorings.
6. The Constitution embodies a multiplicity of distinct principles to guide our legal system and our culture. These principles include popular sovereignty with representative government, life, liberty, the rule of law, due process of law, equal protection of the laws, and private property/free enterprise. These principles are to be secured by structural principles including federalism and separation of powers.
7. Judges have neither the authority nor the competence to rewrite the Constitution by altering its basic meaning. Judges are governed by the Constitution. They are required to respect their boundaries and give full respect to the Constitution document, the consent of the governed, the other branches of the national government, the state governments, and other societal institutions (e.g., family and church).

These principles should permeate the remainder of the campaigns of 2012. They should be the subject of multiple questions for candidates, the focus of a variety of party resolutions, the central topics of major debates, and the fodder of the of media coverage of the campaign and elections. The theme of our Constitutionalist campaign in 2012 and the Culture War in general is summarized in the opinion of U.S. Supreme Court Justice Curtis in the infamous Dred Scott decision in 1857: "[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we no longer have a Constitution: we are under a government of individual men, . . .a government which is merely an exponent of the . . . opinions of [a] court."

See Also:
The Constitution Must Win in 2012, II.: The Myth of Judicial Supremacy
The 2012 Elections: The Constitution Must Win!

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