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Cardinal Kasper’s Challenge Distracts from the Real Problem

As the Synod of Bishops on the Family convenes this week, the Catholic Church has a heaven-sent opportunity to atone for one of the biggest failures in modern ecclesiastical history and in so doing to take a major step in resuscitating the Christian faith in the daily lives of millions of people.

The provocative challenge of Cardinal Walter Kasper highlights one of the Church’s (and the churches’) most spectacular lapses in judgment: the refusal to contest the “abolition of marriage” (in Maggie Gallagher’s phrase) that was effected by “no-fault” divorce.

Yet as currently framed, the debate over Cardinal Kasper’s proposals stunningly misses the point. By casting the debate in terms of admitting divorced and remarried persons to communion, the Church appears determined once again to avoid confronting the central evil of the Divorce Revolution, the evil that still taints the Church, along with the family and civic life, and one no stable civilization can tolerate. This is involuntary divorce and the injustice committed against the forcibly divorced or innocent spouse, along with his or her children.

The Cardinal makes no distinction between a spouse who abandons the marriage, commits adultery, divorces unilaterally without recognized grounds (“no-fault”), or otherwise violates the marriage covenant in legally recognized ways, and a spouse who is the victim of such deeds. To treat the sinner and the sinned against as if they are the same is to deny the very concept of justice and to place the Church and other institutions on the side of injustice.

This willful neglect of justice in adjudicating divorce—not the dissolution of households per se—was the vitiating outrage of “no-fault” divorce. By not challenging the state’s claim that it may dissolve marriages without any consideration for the consequences or injustices inflicted on the forcibly divorced, the Church followed the state into the realm of amorality, a realm suited to the aggrandizement of institutional power but fundamentally antithetical to both the Gospel and a free society.

Since this fateful decision, the oxymoron of “no-fault” justice has been gradually poisoning both our culture and the fundamental institutions of our civilization, starting with the family, passing through the Church, and extending to the state machinery, such as the judiciary. Divorce-without-consequences is exacting a devastating toll on our children, our social order, our economic solvency, and our constitutional rights. It has led directly to explosions in cohabitation, illegitimacy, welfare, and crime and to demands for same-sex marriage.

No public debate preceded this ethical bombshell in the 1970s, and none has taken place since. Legislators “were not responding to widespread public pressure but rather acceding to the well-orchestrated lobbying of a few activists,” writes Bryce Christensen. Critically, these are the same sexual ideologues who have since expanded their campaign into a much broader agenda of sexual radicalism: same-sex marriage, abortion-on-demand, sex education, women in combat, homosexuals in the military, Obamacare, and more. Feminists were drafting no-fault divorce laws in the 1940s, which the National Association of Women Lawyers now describes as “the greatest project NAWL has ever undertaken.”

The result effectively abolished marriage as a legal contract. Today it is not possible to form a binding agreement to create a family.

The new laws did not stop at removing the requirement of citing grounds for a divorce, to allow divorce by mutual consent, as deceptively advertised at the time. Instead they created unilateral and involuntary divorce, so that one spouse may dissolve a marriage without any agreement or fault by the other. Moreover, the spouse who abrogates the marriage contract incurs no liability for the costs or consequences, creating a unique and unprecedented legal anomaly. “In all other areas of contract law those who break a contract are expected to compensate their partner,” writes Robert Whelan of London’s Institute of Economic Affairs, “but under a system of ‘no fault’ divorce, this essential element of contract law is abrogated.”

The result was to unleash precisely the moral and social chaos that it is the role of the family to control, and powerful interests were not slow to capitalize. Legal practitioners immediately began encouraging business by taking the side of the violator. Attorney Steven Varnis points out that “the law generally supports the spouse seeking the divorce, even if that spouse was the wrongdoer.” “No-fault” did not remove fault, therefore; it simply allowed government officials to redefine it however they pleased and to treat legally unimpeachable citizens as malefactors. “According to therapeutic precepts, the fault for marital breakup must be shared, even when one spouse unilaterally seeks a divorce,” observes Barbara Whitehead in The Divorce Culture. “Many husbands and wives who did not seek or want divorce were stunned to learn … that they were equally ‘at fault’ in the dissolution of their marriages.”

The judiciary was expanded from its traditional role of punishing crime or tort to refereeing private family life and punishing personal imperfections. One could now be summoned to court without having committed any legal infraction; the verdict was pre-determined; and one could be punished for things that were not illegal. Lawmakers created an “automatic outcome,” writes Judy Parejko, author of Stolen Vows. “A defendant is automatically found ‘guilty’ of irreconcilable differences and is not allowed a defense.”

Though marriage is a civil matter, the logic quickly extended into the criminal, including a presumption of guilt against the involuntarily divorced spouse (“defendant”). Yet formal due process protections of criminal proceedings did not apply, so forcibly divorced spouses became quasi-criminals not for recognized criminal acts but for failing or refusing to cooperate with the divorce by continuing to claim the protections and prerogatives of family life: living in the common home, possessing the common property, or—most vexing of all—parenting the common children.

Following from this are the horrendous civil liberties violations and flagrant invasions of family and individual privacy that are now routine in family courts. A personalized criminal code is legislated by the judge around the forcibly divorced spouse, controlling their association with their children, movements, and finances. Unauthorized contact with their children can be punished with arrest. Involuntarily divorced parents are arrested for running into their children in public, making unauthorized telephone calls, and sending unauthorized birthday cards.

Cardinal Kasper’s agenda ignores all this and will certainly make it worse. Indeed, what he is demanding is a kind of no-fault church discipline, which will debase the Eucharist and church membership, just as no-fault divorce has already debased marriage and the secular justice system, by allowing clergy to redefine sin and cheapen repentance: “If a divorced and remarried person is truly sorry that he or she failed in the first marriage … can we refuse him or her the sacrament of penance and communion?” But sincere repentance requires an effort to rectify the harm caused by one’s sin. Does the Cardinal’s definition of “truly sorry” entail undertaking to compensate one’s former spouse for being summarily evicted from his or her home, or deprived of his children, or serving jail time for unauthorized parenting or trumped-up accusations of “child abuse” or “domestic violence” that are now routine in divorce proceedings? Does it include compensating one’s children for depriving them of a father throughout their childhood? These are the realities of modern divorce, not the sanitized understanding being presented by the Cardinal.

But perhaps the most explosive question: Why is the Church not willing to sort out the difference, both in its doctrine and in each individual case? Is it because the distinction between justice and injustice—central to the Gospel itself—would force the Church to confront the injustices perpetrated by a state that has dangerously overstepped its authority and the Church’s own failure to act as the society’s conscience on a matter involving its own ministry?

For the Church is simply following the politicians. In contrast with same-sex marriage, abortion, and pornography, politicians and even self-described “pro-family” groups studiously avoid challenging divorce laws. “Opposing gay marriage or gays in the military is for Republicans an easy, juicy, risk-free issue,” Gallagher writes. “The message [is] that at all costs we should keep divorce off the political agenda.” The exception proves the rule. When Pope John Paul II spoke out in January 2002—calling divorce a “festering wound” with “devastating consequences that spread in society like the plague”—he was attacked not only from the left but also by conservatives like Tunku Varadarajan in the Wall Street Journal.

Likewise, this power grab by ideologues and state functionaries at the expense of the family and private sphere of life was met by the churches with silence. Here is a sacrament consecrated by the Church, vowed before God and witnessed by the congregation. The state comes along and simply tears it up, and the Church mounts no serious response.

In the showdown that never took place over sexual morality and the supervision of private family life, this was the moment the two jurisdictions were forced into a direct confrontation and the state simply and decisively told the Church who is boss. From the moment that the Church failed to inform the state that it could not simply countermand God’s covenant governing the family, the Church has been little more than an ornament in marriage and therefore in the lives of most people.

Marriage is today the most critical interface of church and state. Whoso controls marriage governs society, not least because it becomes “the hand that rocks the cradle.”

This rivalry is not apparent in the terms by which marriage is contracted and consecrated. Here church and state cooperate quite effortlessly: a ceremony, a signature.

Where the power struggle ensues is in the terms by which a marriage can be dissolved, and it was the Divorce Revolution that precipitated the battle that the Church refused to fight. The Church, along with its Protestant counterparts, ceded to the state the authority to dissolve marriages at its own pleasure and on its own terms and to erect a regime of governmental micromanagement over the private lives of the contracted parties, innocent as well as guilty—all without scrutiny or objection by these churches who consecrated the supposedly sacred union.

Far from upholding a sacred covenant, the churches, both Catholic and Protestant, are thus parties to a fraudulent contract. They have allowed their marriage ministry to become a bait-and-switch, luring unsuspecting parties into a supposedly binding and lifelong union, where they are then sitting ducks for state functionaries to come along and simply tear up the covenant and seize control over their lives and children. And the state tears up not only the secular contract, but the covenant between the spouses, the congregation, and God. The state’s edict countermands the churches’ covenant and with it the churches’ entire authority. With the churches’ acquiescence, the state’s officials put God in His place.

However impeccable the churches’ doctrine, and whatever verbal lamentations they have expressed over divorce “culture,” what the churches have not done is resist the state’s claim to monopoly control over the terms of divorce and to supervise the private lives of the forcibly divorced: the churches have never raised their voices against the state’s usurpation of power; they have never defended innocent victims of the unilateral divorce injustice or interposed themselves between the state and innocent spouses; they have never challenged state functionaries taking the homes and children of innocent people; they have never gone to court to see that justice is done to the involuntarily divorced; they have never campaigned to change the laws governing divorce or prevent the enactment of more; and they have never even discussed the possibility of threatening to not consecrate marriage covenants until the state stops unilaterally tearing them up.

This is demanding a lot from the churches and all of us. But less existential confrontations with the state faced churchmen like Ambrose and Becket and Fisher, and nothing less is required if the churches expect to withstand the crisis posed not only by figures like Cardinal Kasper but also the larger radical sexual regime: same-sex marriage, abortion-on-demand, sex education, Obamacare, plus the creeping criminalization of parents and others who dissent, including ordinary Christians.

Divorce is where Christians can and must draw a line and launch a vigorous counterattack that will enlist stakeholders from secular society: ordinary citizens who can at last be brought to realize why the Church and God must have a central place in both our public and private lives if we are to have any private lives at all.

Stephen BaskervilleStephen Baskerville is IAI’s Senior Fellow in Political Science and Human Rights. He is Associate Professor of Government at Patrick Henry College and Research Fellow at the Howard Center for Family, Religion, and Society and at the Independent Institute.

This article was originally published on Crisis Magazine.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

Puerile Sexologists – Part 1

Only mature people can grasp the whole of the complex and multilevel experience of desire, sex, and love. In Brazil, however, most opinion-makers are not up to that task.

“Ripeness is all.”  Shakespeare

In almost everything that I read and hear about sex, desire, and love, there reigns the grossest and most puerile lack of distinction between the most divers experiences associated with those words, which are often taken as synonyms.

On its most immediate and physiological level, desire is a purely internal phenomenon, produced by hormonal chemistry and having no defined object, being able, for that very reason, to be then projected onto any object, real or imaginary. It is a sheer physiological urge, a “desire for orgasm” that emerges without the need for an external exciting stimulus and can be satisfied through simple mechanical friction of male or female genitals.

Quite different is the desire aroused by the direct or indirect sight of an object, that is, a desirable body. Invariably, in that case, the rousing factor is some secondary sexual feature to which the desiring subject is particularly attracted: breasts, buttocks, legs, eyes, and so on. This is the level that technically corresponds to the scholastic notion of concupiscentia. The sexually suggestive remarks young men who loiter about the streets make about women who walk by are an encyclopedia of verbal expressions that manifest this kind of desire.

On a third level, desire is not aroused by any prominent physical feature, but by an overall, undefined, and non-located impression of beauty and charm, almost like a magic aura surrounding the desired object.

The next level is when we fall in love with someone or lose our heart to someone. It is the level characterized by that coup de foudre that turns our object of desire into an obsessive and irreplaceable presence in our mind. This emotion is filled with ambiguities. It brings with itself anxiety, fear of rejection, and triggers a number of psychological defense mechanisms against potential frustration.

Once those ambiguities are overcome, the initial loving attachment may crystallize into a conjugal dream, which is the longing to have our beloved one with us forever. On this level, desire takes on characteristics of a moral value, destined to manifest itself in the common acceptance of sacrifices for the sake of mutual benefit, of raising a family, of taking social responsibilities, and so on and so forth. The greater or lesser resistance of a couple against difficulties can lead to results ranging from the raising of a stable family to a whole variety of conjugal disasters.

However, true and genuine love, in the fullest sense of the word, can only emerge at the summit of the conjugal experience, with all of its ambiguities. True love is the firm, constant, and irrevocable impulse to sacrifice everything for the good of our beloved, to forgive always and unconditionally our beloved’s faults and sins, to protect the person we love from all evil and sadness, even at the risk of our own life, and to maintain that person on our side as our most valuable possession, not only during this earthly existence, but for all eternity.

Each one of those levels encompasses and transcends the previous one, and only those who go to the next stage are able to understand what was at stake in the previous stage.

It is obvious that only the person who has gone through all the stages is qualified to reach an objective and comprehensive view of human being’s sexual experience, which other people can only see in a partial and subjective— and not rarely solipsistic— way, determined by their fixation at a stage that refuses to go away.

Unfortunately, that is the case of the majority of the media or academic opinion-makers in Brazil, who kindly offer to shape other people’s sexual lives according to the measure of their own existential underdevelopment.

Many are not satisfied with that and turn their own atrophied conscience into a criterion of morality, based upon which they judge and condemn what they cannot understand. Those are the people I call “puerile sexologists:” those atrophied souls that want to tailor other people’s sexual lives to conform to the mold of their own immaturity.

Olavo de Carvalho is the President of The Inter-American Institute and Distinguished Senior Fellow in Philosophy, Political Science, and the Humanities.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute. This article was translated from the Portuguese by Alessandro Cota. Originally published in Diário do Comércio on June 23, 2015.

Dr. Gina Loudon interviews Dr. Judith Reisman on sexual education and the poisoning of the American mind

The left is poisoning the minds of America’s children. Dr. Gina Loudon interviews Dr. Judith Reisman on her debunking of Alfred Kinsey’s research, sex education in America, and the sexualizing of a culture.

 

Stephen Baskerville is interviewed on the war against fathers in the court system

US News Director Robert O’Hara interviews IAI’S fellow and professor from Patrick Henry College, Stephen Baskerville on the topic of fathers’ rights and the crisis in the American family courts.

 

The Conservative Elites Are Unwittingly Aiding the Far Left in Destroying America and Putting the Final Nail in Our Coffin.

This article, published nationally under the title “History and the Judiciary” in many venues as one of the late Paul Weyrich’s syndicated columns, including TownHall.com, WorldNetDaily, NewsWithViews, Orthodoxy Today, and RenewAmerica, then widely reposted and distributed on other websites and republished in WND’s Whistleblower magazine, was ghost-written by John Haskins at Weyrich’s request near the end of his long career as a major architect of the “Reagan revolution” and the modern conservative movement.  (The first paragraph and several edits later in the text are Weyrich’s.)

Paul M. Weyrich
August 2,  2008

I am neither an attorney nor an expert in Constitutional law. Others have been good enough to say I am a good strategist. If so, then I would like to share my perspective of the current state of the judiciary. I have listened as a debate is occurring over the proper powers of the courts and the tendency of some Americans to cede to the advocates of unrestrained judicial power victories to which they are not entitled.

I am occasionally referred to as a “founder of the modern conservative movement.” Such an honor places upon me and others to whom such a description applies a special duty to warn our fellow citizens. Americans today are witnesses to the realization of the great fear of our Founding Fathers: the passing away of government “of the people, by the people, for the people,” as President Abraham Lincoln stated, in the United States of America. With respect to the courts, we need a revival of the rule of law based upon the constitutional principles laid down by those who founded this nation.

Our forefathers gave their lives to liberate us from the rule of a British Parliament unelected by the American colonists:

Governments are instituted among Men, deriving their just powers from the consent of the governed…. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government…. (Emphasis added.)

The grand formalities of American election rituals hide a glaring fact: Americans can no longer claim that we are our own rulers in every circumstance in which we are empowered to be. Regardless of our votes, the defining judgments in our collective and personal destinies often are made by persons whom the American people have not elected to rule.

We gave judges their robes and gavels so that they might resolve specific disputes between specific plaintiffs and defendants. We never gave them authority to issue commands to our elected lawmakers, forcing us down roads which we have not chosen to travel. Judges have no constitutional authority to make laws or to amend our national and state constitutions. They have no authority to redefine words and concepts in our laws to mean what they and their ideological partisans wish for them to mean.

To Americans of previous generations this was obvious and fundamental. But for many in America today, this is meaningless, a mere technicality: judges are supreme because, well, because they just are.

When several judges opined that there ought to be no more prayer in American schools, lawyers, politicians and journalists told us that after three centuries of prayer in our schools, judges had suddenly “outlawed” it. Court opinions interpreting law and social custom magically became the law itself.

After three centuries of Americans exercising their right to control their communities as citizens and to keep pornography out of public view, several judges opined that the Founding Fathers had given pornographers a right to pollute us and our children, a right that does not exist in the United States Constitution. They put us on a course that has almost obliterated the ideal of fidelity of body, mind, imagination and the heart, upon which marriage, family and child-rearing are built.

Nevertheless, lawyers, journalists and politicians announced that this opinion was to be the new law though it had no basis in the Constitution or in any law authorized by the American people via their chosen lawmakers.

Likewise, judges — acting on behalf of a tiny, anti-constitutional, self-styled cultural “elite” dedicated to turning America into an ideological utopia — opined that the American people may neither protect children from violent murder in their mother’s womb, nor outlaw sodomy, nor restrict their civic blessing upon marriage to nature’s definition of it, nor ensure that parentless children are placed with parents as nature defines them: one father and one mother.

Nor should I forget to mention judicial disregard for centuries of customary, legal and constitutional protection of private property in order to provide legal sanction for powerful, corrupt politicians lusting after other men’s land or buildings. “Take what you please,” they said, in essence. And this was now “the law.” One hand washes the other.

Many of us received in shock and sadness the Goodridge v. the Department of Public Health of Massachusetts opinion on homosexual marriage. But why do self-styled “conservatives,” lawyers, politician and pundits among them, spread the assertion that judges have powers that the American people have never given them?

The truth is that the ruthlessly enforced illusion of judicial supremacy did not merely empower judges and disenfranchise the American people.  It made journalists, lawyers and clever politicians more influential culturally.  Most, after all, are of the same ideological bent as many judges. And those who were not, the “conservatives,” played within the new rules: judges’ opinions are “the law” in the United States of America.

If Americans paid attention, understood what is at stake and agreed upon the solution, their long-term strategy would require:

  • a string of primary victories by candidates who fully grasp the fact that judges have no authority to change our laws and who aggressively will oppose all claims to the contrary;
  • an unbroken series of triumphs by such constitutionalist candidates in general elections, year after year;
  • an unbroken series of nominations of judges who will interpret the law and will reject the noxious and absurd myth that previous court opinions are “the law of the land”; (Presidents Ronald W. Reagan and George H. W. Bush gave us activists such as Sandra Day O’Connor, Anthony Kennedy and David Souter!);
  • an unbroken series of Senate confirmations of originalist judges;
  • unwavering constitutionalism by originalist judges in their years on the bench, withstanding daily assault by infuriated cultural “elites” who grew accustomed to using legally void and impotent court opinions as bulldozers to deceive and enslave Americans via a-moral, anti-constitutional and increasingly tyrannical judicial delusions.

 

Not a single signer of the Constitution (or of the Declaration of Independence) would have taken seriously the purportedly “conservative” view today that to restrain judges we need to replace them through attrition over decades.

That view, in my opinion, guarantees a victory of the far left because it implies that the judicial branch is the final authority on the law.

In his book and British Broadcasting Corporation series Civilization, historian Sir Kenneth Clarke noted that after the dissolution of the Roman Empire, scattered pockets of normalcy continued for a surprisingly long time. How will we know, living in such “pockets of normalcy,” when our republic has collapsed? Has it already? Are we prisoners who still think themselves free?

For the sake of this republic I urge my friends, fellow leaders and Americans emphatically to repudiate the devastating myth that judges have the power to make and redefine our laws. We should do so rapidly and forcefully before our republic is replaced by the irresistible tyranny of men and women who believe that nihilist elites should make the rules and pass them to judges for formal announcement when the time is ripe for the latest step into the post-rule of law, post-moral abyss. Otherwise our “conservatism” will continue to be merely the rearguard for subtle left-wing revolution.

The tragedy of how we have reached this point: in our desire for social acceptance and respectability among the anti-constitutional, anti-rule of law, anti-Christian, anti-family nihilist left, “conservative” elites have abandoned the core principles of our Constitution. We have flouted the warnings of the likes of Thomas Jefferson, who wrote:

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. …The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”

Alexander Hamilton was perhaps the strongest advocate of “judicial review” — the right of judges to opine on our Constitution. But an opinion on the meaning of the Constitution is merely an advisory opinion to the legislative and executive branches of government. Not even Hamilton imagined that the right to opine is a power to rule. Courts, he pointed out, intentionally have been given no means of enforcing their opinions, noting that the executive and legislative branches are not compelled to obey false or dubious opinions. Therefore, he wrote:

“The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. … [T]he judiciary …has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will….

Abraham Lincoln acknowledged that court opinions were binding upon the specific parties involved and “entitled to very high respect and consideration…by all other departments of the government.” But like the Founding Fathers, he utterly rejected the myth that judges’ opinions are the law of the land:

“If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”

In the last century cultural elites created an illusion of judicial power that would be unrecognizable to earlier Americans, lawyers and laymen. After the American Revolution, the framers of the Constitution rejected any judicial authority over the other branches of government.

I fear the conservative elites are putting the final nail in our coffin. I know these men. They mean well. They are not pursuing their view out of malice. They believe what they are doing is right. Nor do I associate myself with some of their critics who often are accusatory, judgmental and angry. I look at results, and it seems to me that proponents of the status quo are allowing the legal profession and the courts to impose moral and civil codes which cannot pass federal and state legislatures. They foolishly are handing absolute power to anti-Judeo-Christian, anti-family ideologues.

This is where the trajectory of the post-constitutional pragmatism undergirding the “conservative revolution” has taken us. The story is not yet complete, but if we continue on this trajectory we may reach the point of tyranny and persecution. History reveals this to be true.

Many of those with whom I have worked for years unwittingly are aiding the far left in the destruction of America. It is time for our presidents, governors, legislatures and prominent citizens to call the bluff of impotent judges as Jefferson did and to ask them, as President Andrew Jackson did, how they will enforce their impotent opinions. The myth of judicial supremacy cannot justify governors violating state and federal constitutions, their oaths of office and the sovereignty of the American people. Look at the way so-called gay marriage has been imposed by judicial fiat, running ruthlessly over elected legislatures and the will of the people.

The Massachusetts Constitution contains the quintessential statement of the American form of government:

“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature….” (Part the First, Article XX.)

“[T]he people…are not controllable by any other laws than those to which their constitutional representative body have given their consent.” (Part the First, Article X.)

“The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” (Part the First, Article XXX.)

“All the laws which have heretofore been adopted, used and approved …shall still remain and be in full force, until altered or repealed by the legislature ….” (Part the Second, Article VI.)

Americans must debunk the Orwellian lie that has obliterated self-government in the United States and acknowledge Lincoln’s words at Gettysburg in 1863:

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure…. It is for us the living…to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.

18John Haskins is IAI’s Senior Fellow for the Public Understanding of the Law, Propaganda, and Cultural Revolution.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

No More Striking Down Constitutions

Conservatives contemplating George Bush’s judicial legacy — and his bizarre vision of Harriet Miers among the nine highest potentates in the democratic world — should expect no counter-revolution. True, he promised constitutionalist judges. But talking constitutionalism (like talking Christianity) is easy.

Our governing elite punishes unvarnished clarity about our Constitution. Intellectual honesty, for lawyers, schoolteachers, psychologists, professors and actors, is costly. Most lie low or join the enforcers. Surely even Roberts, Scalia, and Alito see the gap between them and the Founding Fathers, for whom precedent was impotent against the Constitution.

Absurd though it is, only “constitutional” conservatives honor precedent. The Liberal “mainstream” savors precedents they’ve shot down — or will next chance. Their favorite rulings violate centuries of precedent. But the obvious is hard to see, especially as monumental, abstract questions are addressed in isolation from thoughts of personal advancement. The realm of the mind and methodology that do this are not the pragmatic part that wins court cases, campaigns, and useful friendships. The former withers when neglected for the latter. Even “all star” conservative constitutionalists steer a careful course between the Constitution and what the establishment will tolerate.

Righteous refinement obliges conservatives (holy and secular) to treat these points as uncouth. They are not. They address why Republicans are winning elections and “conservatives” are losing the Culture War, waiting for strict constructionists to fix everything. If we want to preserve for our children what was handed to us we’ll need to stop describing things in grays that are actually black and white.

Let’s drop the talking points about “conservative,” “constructionist” and “originalist” nominees. Such language obscures what’s going on. These nuances are a polite way of pretending that the mainstream in law and government interprets the Constitution differently than we do. No. They are oblivious to the actual content of the Constitution, or they are anti-constitutional. A polite term would be “post-constitutional.”

If Ginsburg, Souter, and friends have a “theory” of constitutional interpretation, they’re keeping it to themselves. When they shake the foundations of the earth from their bench it is neither theory, nor constitutional, nor interpretation. They are, wrote Jonah Goldberg after one heinous ruling, “making it up as they go along.”

We could also call this school of jurisprudence “striking down the Constitution.” “Interpreting” is not “striking down.” Opposite concepts. Conservatives desperately need to call things what they are.

While we’re at it, Roe v. Wade is not “bad law” or “settled law” or any other kind of law. It’s a court opinion on one case. Calling it “law” is a way of reassuring Chuck Schumer that he is a direct spiritual descendant of the Founding Fathers and Justice Thomas is not.

Signers of the Declaration and the Constitution and justices until FDR’s time would cringe to hear constitutionalists call rulings “law” — binding though illegal. Citizens and officials are to reject unconstitutional rulings. Jefferson, Madison, and Lincoln did, citing their sworn oath. It is no accident that judges have no army.

If constitutions count, homosexual marriage remains illegal in Massachusetts. John Adams’s constitution says explicitly the people are “not bound” by any law not ratified by their Legislature. Four Boston judges struck down a constitution that stood in their way — one they’ve sworn to uphold. The word “treason” comes to mind — a strong word that Liberals would use lustily if they could, but then the Left is all about winning and conservatives are about slowing them down.

Has “conservative” governor Mitt Romney refused to enforce a ruling dissenting justices and Harvard law professors say is bogus? His oath compels him to refuse the court its pleasure. He pleads impotence. Do constitutionalists demand that the outlaw justices resign? Silence. Or Romney? No, they fancy him in the White House. At what point will “constitutionalists” stop siding with the establishment against the Constitution?

CONSERVATIVES JUST don’t get it. In a republic judges don’t get to make laws and others are sworn to stop them when they try. Yet we speak as if this is splitting hairs. Jefferson wrote that an unconstitutional ruling is null and void. What part of “void” can’t we understand? Why are “conservative” presidents, governors, legislatures, mayors, sheriffs and school committees siding with Laurence Tribe against Jefferson and Lincoln?

Law schools haven’t taught the Constitution for years. They teach precedent. Conservatives dignify mockery of the Constitution by pretending it’s a matter of dueling legal theories. “We respectfully disagree with the court’s interpretation…”

No. That ain’t interpretation. “Impeachable” is what it is — prestigious degrees notwithstanding. Respect swindlers in high places?

Subjecting Americans to foreign laws, as our Supremes have proudly done, is an impeachable act. That needs no debate and should have been unanimously stated by respectable conservatives when the Supremes announced that we are under nihilist European rulers whom we did not elect and cannot impeach.

We need no nuanced legal taxonomy to tell the White House what we expect in our judges. There’s an oath involved in the job. “Support and defend” does not mean “subvert and pretend.” If that excludes everyone in what liberals call the “mainstream,” fine. If the mainstream is post-constitutional we’ll take someone outside the mainstream.

Lifelong legal conformists need not apply. We want someone who can read the instruction book and for whom a solemn oath does not expire when their fanny hits the bench.

18 John Haskins is IAI’s Senior Fellow for the Public Understanding of Law, Propaganda and Cultural Revolution..

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.