In earlier issues on relativism we noted that at the heart of the question as to whether there is a set of transcendent absolutes that function as a compass for all people everywhere is man’s view of the nature of man. If man has evolved to where he is from lower forms of animal life, then the only difference between a man and a dog is biological. As we have seen, this was the thesis of Charles Darwin applying Hegel’s dialectical materialism.
The fundamental issue surrounding evolution is whether man is created in the image of God and is thus eternal in nature, or whether he is as temporal as any other form of life. If the material world is the only world, then truth is by definition relative and ethical decisions are made on the basis of a pragmatic sense of what society deems right and wrong at any given moment of time.
In this issue we will explore the implications of this from the perspective of what the framers of our Constitution had in mind and how it is being played out today in the U.S. Supreme Court.
TWO HUNDREDTH BIRTHDAY
The celebration of the 200th birthday of our Constitution has given writers an opportunity to reflect on the relative merits of this venerable document. Time Magazine in its July 6, 1987, issue points out that there have been mere than 10,000 constitutional amendments introduced in Congress since 1789, but only thirty-three proposals have won the necessary approval from two-thirds of both houses of Congress and just twenty-six have passed the final hurdle of adoption by legislatures in three-quarters of the states. Commenting on this, Columbia University law professor Vincent Blasi said, “it’s dangerous to amend the Constitution too much. It won’t have the look of fundamental law.”
It is interesting that even people who deny the existence of transcendent absolutes agree that there is the need for “fundamental law” and that laws which are constantly changing are by definition not “fundamental.” Although the founders of the Massachusetts Bay Colony in the 17th Century thought of their settlement becoming a theocratic commonwealth, the framers of our Constitution did not.
They were, by and large, theists or possibly deists, who agreed that there exists such a thing as “natural law.” But like the philosophers before Hegel, they could not totally agree as to what that law entailed. Thus, instead of going to the Bible and establishing a government patterned after Old Testament Israel, they wrote our current constitution, realizing that further enlightenment might reveal aspects of natural law that they had overlooked.
Natural law is not Biblical law, even though the Apostle Paul said that God wrote this law on the tablets of men’s hearts (cf. Romans 2:14—15).
What this means is, natural law is absolute and transcendent, but because it is written on the hearts of people, it cannot be seen absolutely. It is based on the conviction that there is a God, that He has revealed Truth and that men can agree on the core of what that Truth is even though they may not agree on each and every particular.
Archbishop Fulton J. Sheen drew attention to this fact in his address to the National Prayer Breakfast January 18, 1979, in Washington, D.C.:
Whence come our rights and liberties? Where do we get the right of assembly? Where do I get the right of free speech? Whence comes the right to worship? From the Federal Government? If our rights came from the Federal Government, the Federal Government could take them away. From the Supreme Court? If the Supreme Court gave us our rights and liberties, the Supreme Court could deprive us of our rights and liberties. Our founding fathers had to ask themselves this question when they wrote the Declaration of Independence. They looked across the waters and found one answer, namely, that the rights and liberties come from the will of the majority. They rejected that position, for if our rights and liberties come from the will of the majority, then the majority can take away the rights and liberties from the minority. Furthermore, the majority is the custodian of minority rights. They sought about for some basis and ground of human rights which would make them independent of man and they set it down in the second paragraph of the Declaration of Independence.
“We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness.” Inalienable – they cannot be taken away because they come from God and not from the courts, congresses or majorities. Then, to make it doubly certain, in the Bill of Rights, it was stated that when certain rights are mentioned in the Constitution it must never be assumed that the people have no other rights than those granted by the Constitution.
The current debate surrounding the Constitution, part of which resulted in the U.S. Senate refusing to confirm Judge Robert Bork as an associate justice of the Supreme Court, centers on the question of how we are to view the Constitution. Is it, although flawed because it is founded on natural law, nonetheless based on a set of transcendent absolutes? This was the premise of the framers of the Constitution. Or, is truth relative, making the Constitution nothing mere than a document reflecting the values and opinions of the times in which it was written? This is the view of people like Justices Brennan aid Marshall.
Lino A. Graglia, professor of Constitutional Law at the University of Texas at Austin, points out that this is not a new controversy. It has raised its head in various ways ever since the Constitution was written. An illustration is the “Dred Scott” case in 1857. Graglia says,
The Supreme Court held the Missouri Compromise unconstitutional, and determined that Congress could not prevent the spread of slavery to new territories. There was no basis for this decision in the Constitution; it was simply an unwarranted intervention into political affairs on the part of several justices. The effect of the Dred Scott decision – the Supreme Court’s most significant contribution to American history – was to make a political solution of the slavery question impossible and to make the Civil War inevitable.
Quoting Justice Curtis in his dissenting opinion, Graglia says:
“When 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 have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”
As far as I know, Judge Bork never revealed whether he believes in Absolute Truth. His argument with the Senate had to do with the point Justice Curtis made: is the Constitution to be interpreted according to the fixed rules which govern the interpretation of any document, including the Bible? Bork argued that judges in constitutional cases should interpret the Constitution in accordance with the intent of the framers, those who wrote and ratified it.
On the opposite end of the spectrum is the view of Supreme Court Justice Thurgood Marshall. Speaking before a convention of patent lawyers in Hawaii a little over a year ago, he said the framers “set an unfortunate example” by trading “moral principles for self-interest” in approving a Constitution that was “defective from the start, requiring several amendments, a civil war and momentous social transformation” before human rights were broadly recognized (U.S. News & World Report, May 18, 1987).
What was amazing about Judge Bork’ s hearings before the Senate was the fact that he was arguing that Congress should make law, not the courts. It is the job of the courts to ensure that the laws are properly executed and that they do not violate constitutional rights. You would have thought that the lawmakers would affirm such a view.
Instead, what has happened is, the Senate confirms justices to the court who strike down laws the legislature has made that have nothing to do with the violation of people’s rights as guaranteed in the Constitution – such as capital punishment – and make laws out of issues not guaranteed in the Constitution nor enacted by the legislature – such as abortion.
A JUDICIAL AGENDA
How can such a thing happen? What would motivate men like Senators Kennedy and Metzenbaum to vote against a judge who doesn’t want to legislate and for a judge who does? The answer lies in their view of man, which in turn shapes their social agenda for man’s future. As already discussed, with the surrender of Absolute Truth man becomes the measure of all things. His hope is in his ability to create a society of his own liking unaided by any standard outside of man. This philosophical presupposition unites like-minded people in their common vision, a vision which is both eschatological and utopian (as already noted in the last “Dear Co-Laborer” letter).
You would think that such a lofty and noble view of man would make such people confident of the democratic process. But just the opposite is true. Justice Brennan is quoted as saying that the view, that all matters of substantive policy should be resolved through the majoritarian process, has appeal, but only under some circumstances. And even under optimum conditions it ultimately will not do so. It will not do because the majority is simply not to be trusted.
The Intelligentsia have never trusted the masses any mere than they trust the absolutes of the Bible. The only thing they trust is their vision for the future, no matter the price the present generation has to pay to see it fulfilled. Without the rudder of Biblical Absolutes to guide them their morality is responsible for some of the most hideous crimes ever committed.
Paul Johnson, the British historian, notes that ideas have no value apart from their pragmatic impact on people’s lives. When a utopian vision is forced upon a society without consideration for how it affects individuals, great hurt follows. In the next issue we will further explore this.
Grateful for His Word,