A Constitutional Crisis: The Role of the Federal Judiciary in the Transformation and Secularization of America

Copyright © 2013 Warren Lee Grant.

All rights reserved. No part of this book may be used or reproduced by any means, graphic, electronic, or mechanical, including photocopying, recording, taping or by any information storage retrieval system without the written permission of the author except in the case of brief quotations embodied in critical articles and reviews.

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ISBN: 978-1-4497-9068-4 (sc)

ISBN: 978-1-5127-3807-0 (e)

Library of Congress Control Number: 2013907097

WestBow Press rev. date: 4/5/2016

CONTENTS

Preface

Acknowledgments

Introduction

Chapter 1. The Cultural War, the Fourteenth Amendment, and the Federal Judiciary

Chapter 2. The United States Supreme Court, the Constitution, and the Rule of Law

Chapter 3. The Dismantling of Federalism

Chapter 4. Disruption And Breakdown of Personal and Cultural Order

Societal Shift from Transcendent to Secular

The Scientific Revolution and Its Effect

Theory of Evolution and Its Effect

Secular Humanism and Its Effect

Liberalism and Its Effect

How the United States Supreme Court Has Expanded Its Role

Free Speech and Pornography

The Supreme Court's Despiritualization of Public Education

The Growing Loss of Religious Liberty

The Essentials for National Recovery

Chapter 5. The Legal Prescription for the Dehumanization of Man

Chapter 6. Overcoming the Constitutional Crisis

Chapter 7. Grounds for Repealing an Unconstitutional Amendment

APPENDIX I

APPENDIX II

APPENDIX III

Bibliography

To My Lord and Savior, Jesus Christ

The germ of dissolution of our Federal government is in the constitution of the federal judiciary; an irresponsible body working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the states, and 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 tribunal.

---Thomas Jefferson

PREFACE

W hile a law enforcement officer, I studied at Southern Police Institute of the University of Louisville. One of the required courses dealt with constitutional law. We were required to brief law cases and present them orally before the class. From this initial encounter with constitutional law was born a lifelong interest. This interest intensified when I became a Christian and a minister. I became increasingly disturbed by the federal judiciary's de-Christianizing actions. This led me to a deep study of how the United States Supreme Court and the lesser federal courts could rule in one decision after another in a manner contrary to the Constitution and our founding Judeo-Christian order.

I soon discovered that the Fourteenth Amendment was the vehicle employed by the federal judiciary to accomplish its legal, political, and social agendas. A study of the framing of this Amendment by the Thirty-Ninth Congress brought me to a greater understanding of how far federal judges have distanced themselves from the intent of the Framers. They have given new meaning to legal words and phrases well beyond the definitions given by the Framers. They have applied the clauses of the Amendment---the due process clause, specifically---to reach far beyond the limits assigned by those framing the Amendment. This judicial activism is without constitutional warrant and is, therefore, nothing less than open defiance and rebellion against the supreme law of the land by the highest legal tribunals of this nation. If left uncorrected, it holds the potential to bring into existence an America having little resemblance in substance and nature to the America given to us by our forefathers.

With the people is to be found the greatest possible hope for the righting of this grave situation, that the given constitutional order be reestablished by compelling federal judges to return to the confines, limits, and intents of the Constitution as framed. This requires an informed people who understand the nature of the crisis, its consequences for this nation's constitutional order and liberties embodied therein, and the manner in which the crisis can best be solved in order that the government ordained by the Constitution might be restored. Such is the aim of this writing.

May God grant the accomplishment of this purpose for His glory and the well-being of America, for the restoration of the Christian order of our founding, and for the preservation of those inalienable rights and liberties flowing therefrom.

ACKNOWLEDGMENTS

T his writing would not have been possible without the help of a number of constitutional scholars, writers, and historians whose presentations proved invaluable in granting me a better understanding of the subject at hand. I am especially indebted to Robert Bork; Max Boot; Raoul Berger; William E. Nelson; Harold J. Berman; Orestes Brownson; Forrest McDonald; Clarence B. Carson; Eugene W. Hickok, Jr.; Robert Allen Rutland; L. Brent Bozell; Louis Lusky; John W. Whitehead; Mark A. Beliles; Stephen K. McDowell; Russell Kirk; and Richard Weaver. To these men I owe a debt of gratitude.

My deep appreciation is also extended to Mary Foster and Betty Grant, who so graciously and faithfully provided typing and editing services.

INTRODUCTION

F or America, the 1960s were years of turbulence, social upheaval, and cultural transformations, which remain our experience. The unrest of these years found its most visible expression on the campuses of our colleges and universities. Young, impressionable students, emotionally and ideologically charged by their left-leaning, anti-capitalist, America-hating professors, gathered in great demonstrations across the country. Emanating therefrom could be heard the cause for revolution in America. Its design was to overthrow the present order and replace it with one resting on a different ideological footing---one secular, less structured, and more open to expanded liberty and freedom than the traditional system that was deemed too restrictive and out of step with modern understandings of human existence, design, and purpose. This liberalizing movement, however, was out of step with mainstream America, which held more closely to the long-established conservative order. Conservatism acted as a disturbing and frustrating barrier to the swift implementation of the liberal social agenda by way of the democratic processes. A new strategy was needed. It was found in the liberal federal judiciary. It became the willing means to give legal furtherance and establishment to the new-envisioned order. The United States Supreme Court, as the chief federal court, became the spearhead. The decisions of the Justices found their way down to the lesser federal judiciary which joined in moving forward the revolution. Thereby was America set on a course that would move her from those transcendent values, beliefs, and morals of her founding. This movement is yet in process, though slowed somewhat by recent appointments of more conservative-leaning Justices. But this is never a foolproof method for ensuring which way the Justices will rule on a particular matter.

How the U. S. Supreme Court has assumed the power to intervene into those matters reserved by the Constitution to the States, and thereby to transform and secularize America, is the subject of this writing. By the Court's unconstitutional, and thus unlawful, assumption of a power not granted, a most dangerous precedent has been set, one that threatens both the whole American democratic venture and the blessings and liberties that have made this the greatest nation on earth.

This work of transformation and secularization by the federal judiciary, now some fifty years in the making, must be arrested and reversed. The established constitutional order and founding principles of this nation must be recovered. Without such restoration, the future of America is imperiled.

In the chapters that follow, consideration will be given to the U. S. Supreme Court's present-day view of the Constitution, as well as some of the major constitutional, political, social, and cultural consequences produced by the Court's wrongful interpretation and application of the Fourteenth Amendment.

CHAPTER 1

THE CULTURAL WAR, THE FOURTEENTH AMENDMENT, AND THE FEDERAL JUDICIARY

T here rages in America a war of growing proportion, intensity, and hostility. Some call it a cultural war. Within this conflict are the seeds of cultural and national destruction. Os Guinness writes,

. . . [T]he American republic is entering its own time of reckoning, an hour of truth that will not be delayed. It is nearing the climax of a generation-long cultural revolution, or crisis of cultural authority. Under the impact of modernity, the beliefs, ideals, and traditions that have been central to Americans and to American democracy . . . are losing their compelling cultural power. This crisis is not a crisis of legitimacy . . . but a crisis of vitality that goes to the heart of America's character and strength.¹

The Judeo-Christian foundation upon which this nation was founded and rested, as well as its laws and truths that informed and guided her many institutions until recent years, is being dismantled and systematically destroyed. It is imperative to remember this foundation is one of uniqueness, of proven durability, and one producing those blessings most needed by men and their societies and governments. The roots of America's order are deep in Western culture that can be traced back some three thousand years to Mt. Sinai when God gave the Ten Commandments to Moses. From there the roots pass through Jerusalem, then on to Greece, Rome, Britain, and finally to America. The Framers of the Constitution were well acquainted with this history and thereby sought to create a constitution and a government that would be compatible and in keeping with the transcendent covenant and order established by God with the nations. This refers to the doctrine of natural law, the immutable law of God given to men for their guidance and to which they will be held accountable. The Framers succeeded. Benjamin Franklin said, "Our General Convention . . . when it formed the new Federal Constitution, [was] . . . influenced, guided, and governed by that omnipotent and beneficent Ruler in whom all . . . live, and move, and have their being.² Noah Webster also affirmed the role of Christianity in the formulation of the Constitution:

The religion which has introduced civil liberty, is the religion of Christ and his apostles, which enjoins humility, piety, and benevolence; which acknowledges in every person a brother, or a sister, and a citizen with equal rights. This is genuine Christianity, and to this we owe our free constitutions of government.³

There are two principal contenders in this cultural war---those of the orthodox camp and those of the progressive. The orthodox holds with the transcendent, the absoluteness and unchangeableness of God's laws and moral code, and their necessity for the moral and spiritual health, strength, stability, guidance, restraint, peace, unity, and order of our culture. Contrastingly, the progressives have a different source of authority that is drawn from the ideological holdings of modernity. The cleavage between the contestants is not superficial but deep. It comes down to this great question: How shall we as Americans order our lives? To the victor shall go power and dominion, giving it the right to define and control the nature, substance, and direction of present and future America.

A frightening aspect of this cultural battle for America's heart and soul is that the progressives now hold the high ground, controlling the public discourse and policy formulation and direction. Those of the orthodox camp, who are seeking to regain the high ground, manage to win a skirmish here and there; but the progressives have gained the major victories. The battle rages on a number of fronts---television, theater, arts, academia, theology, public education, textbooks, law, political action committees, interest groups, think tanks, and government.

However, there is one progressive group upon which focus must be set---the United States Supreme Court. There is very good reason for such focus. The Supreme Court has become the most powerful instrument for the advancement of the progressive agenda. Those of the progressive camp have found an able, powerful, and willing ally in this Court, as the Justices have found a kinship with the intellectual liberal class. Robert Bork emphasizes this interesting point:

The intellectual class has become liberal, and that fact has heavily influenced the Court's performance. For the past half-century, whenever the Court has departed from the original understanding of the Constitution's principles, it has invariably legislated an item on the modern liberal agenda, never an item on the conservative agenda.⁴

While the progressives may have difficulty in getting their desired legislation through Congress, if at all, not to mention the length of time that may be required to gain successful passage, they have been highly and consistently successful in winning Supreme Court approval and legal incorporation of their ideology.

To understand how all this has come about requires an historical examination of one particular constitutional amendment that has been the means employed by the Supreme Court, not only to push forward the progressive agenda but its own as well. In the course of the Thirty-Ninth Congress, life was given to what would become the Fourteenth Amendment to the United States Constitution. It had as its worthy aim to constitutionalize the Civil Rights Act of 1866 and thereby afford the freed blacks all the protections, privileges, and immunities under law accorded to whites. Some States had established Black Codes that served not only to deny freedmen their fundamental rights guaranteed by the Constitution but also had the effect of returning them to serfdom. These Black Codes were described as being nearly as iniquitous as the old slave codes. It is highly important to note that the Amendment had limited objectives. Senator James F. Wilson said the incorporated Civil Rights Act, which was formulated in 1866 and constitutionalized by the Fourteenth Amendment in 1868, 'does not go one step beyond' protection from discrimination with respect to designated 'immunities,' that 'it is not the object of this bill to establish new rights,' but to declare 'the equality of all citizens in the enjoyment of civil rights and immunities.'⁵

Furthermore, the incorporating Amendment was not designed to impose upon or diminish the plenary rights of the States, that is, those rights reserved exclusively to the States by the Tenth Amendment. They were left free to enact, or not enact, whatever laws they wished within their lawful sovereignty, to establish, or not establish, rights. In all instances, whatever laws they enacted or rights they granted must be available and equal to all citizens within their respective borders, of whatever color or race. Section Five of the Amendment empowers Congress to enact corrective legislation in any State when equality under law has been denied. The Amendment did not grant general legislative powers to Congress to enact at will regulatory measures that would be binding on the States and violative, therefore, of their sovereignty and powers to govern internal matters. So long as equality under law prevailed, there would be no grounds for activation of the requirements of the Fourteenth Amendment against any State. Senator Lyman Trumbell, a member of the Thirty-Ninth Congress, said the Civil Rights Act "will have no operation in any State where the laws are equal, where all persons have the same civil rights without regard to color or race . . ."⁶

In the course of congressional debates, speech after speech paid tribute to State sovereignty and to those powers reserved to the States by the Tenth Amendment. There was no intent by the Framers that the Fourteenth Amendment should incorporate the Bill of Rights, thereby making it applicable to the States. Such would not only have prevented ratification but, additionally, would have been violative of the Tenth Amendment, which reserved to the States all those powers not delegated to the federal government nor prohibited by the Constitution to the States. According to Raoul Berger,

It was not fear of State misgovernment but distrust of the remote federal newcomer that fueled the demand for a federal Bill of Rights which would supply the same protection against the federal government that State Constitutions already provided against the States. This was understood by the framers of the Fourteenth Amendment, and their own attachment to State sovereignty led them to refrain from intruding beyond the ban on discrimination against blacks with respect to certain rights.⁷

It was the opinion of Justice Samuel F. Miller that the Fourteenth Amendment did not include

any purpose to destroy the main features of the general system [of American government]. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States with powers for domestic and local government, including the regulation of civil rights---the rights of person and of property---was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.⁸

The Fourteenth Amendment was designed by the Framers to be limited in function and purpose with specific and narrow applicability. The Amendment did incorporate the Civil Rights Act of 1866 but not the Bill of Rights of 1791.

When in the province of the federal judiciary, specifically the U. S. Supreme Court, the Fourteenth Amendment has undergone radical transformation. The clauses in the Amendment (privileges and immunities, due process, and equal protection) have become in the hands of the Justices a roving commission to unconstitutionally impose their philosophical views and wills upon the States and the American people. Robert Bork, formerly a judge on the U. S. Court of Appeals for the District of Columbia, says the Fourteenth Amendment has become the great engine of judicial power.⁹ By expansive reading of the Amendment, particularly the due process clause, the clear historical meaning of due process has been ignored. Alexander Hamilton clearly defined the nearly universally-accepted meaning of due process when he declared before the New York Assembly in 1787: "The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never refer to an act of the legislature."¹⁰

The Supreme Court Justices, however, have given new and additional meaning to the words due process. They invented what they call substantive due process. This is an unwarranted and illegitimate contrivance by the Justices. In declaring due process to be substantive, the clause became open-ended, thereby allowing the Justices to insert whatever meaning and applicability they desire. By way of this creative adjudication, the Court established new rights not to be found in the four corners of the Constitution. Such action by the Justices does not accord with the fundamental principles of legal interpretation. Justice James Wilson said that [t]he first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.¹¹ Justice Wilson was referring to what is commonly called original understanding. When a case comes before the Justices, by original understanding they should determine the intent and meaning of that framed, and to be thereby guided in arriving at a decision. Robert