Graybrook Institute




"How society is to be constituted so that all can attain justice; that is the vexed question." — Alexander Hamilton Stephens

The Vexed Question

By Garry J. Moes

In 1865, Southern congressman and political thinker Alexander Hamilton Stephens wrote, "How society is to be constituted so that all can attain justice; that is the vexed question." The question is becoming more vexing every day as American society increasingly falls under the tyrannical rule of a judicial oligarchy.

How this society is to be constituted was the seminal question at America's inception as its founding document, the Declaration of Independence, was written. It was supposed to be settled in law when America's groundbreaking Constitution was written. It is no coincidence that the latter document (and its counterparts in the several federated states) is called a "constitution."

The very purpose of a constitution is to FIX — against the whims of men and movements and the winds of unproven change in a corrupt world — the fundamental nature and purposes of a society. It identifies a civil North Star from which all aspects of law and social organization are to be measured. It is supposed to be an anchor in the storm and a mooring in the time of tranquility. To use yet another metaphor, it is the surveyor's corner pin which cannot be moved without altering a property's boundaries.

In America's case, our national character was established in our founding documents as a federal, republican society based on the rule of law. Our system of laws was to be one facilitating a liberty that is self-governed under the authority of the revealed eternal will of a Divine Creator who has sovereignly chosen to endow His creatures with certain inalienable rights.

To create and enforce that system of laws, a carefully devised political system was established, laced with checks and balances to prevent the re-establishment of tyranny — indeed, any concentration of power in the hands of a centralized force or in the hands of a democratic majority that might one day lose its moorings in the moral designs of its Creator. Eighteen-century France, in its pursuit of liberty, equality and fraternity, failed to devise similar restraints, and its radical Revolution, unlike America's conservative innovation, immediately devolved into mob rule and a reign of terror.

If there was any weak point in the American system of checks and balances, it seems to have been, as time is now proving, in the constitution of our national judiciary. While it was intended that this judiciary be independent to a large extent — to protect the rule of law against the designs of finite and politically motivated men, that notion was seen to be valid only insofar as this judiciary would be populated by men of true moral wisdom, integrity and commitment to the carefully devised constitution of their society. Instead, the men and women who now hold the public trust as guardians of the rule of law too often have elevated themselves to be arbiters and creators of the law, not its interpreters, following their own notions of what is preferable for a new globalist humanity. To overcome the constraints of the real Constitution, these would-be philosopher-kings have invented the concept that they are the interpreters of a "living" or "dynamic" Constitution. But an ever-changing constitution is no constitution at all — it "constitutes" nothing. Rather, it establishes the rule of men, not the rule of law. It becomes the agent of change, not the restraint against popular political caprice it is supposed to be.

Added to this, in recent times, is the increasingly authoritarian dictatorship of the government's administration and bureaucracy, which now breezily bypasses or arrogantly contravenes the legitimately constituted legislative function and often defies judicial rulings with which it disagrees.

For more than a century, beginning perhaps with jurist Oliver Wendell Holmes Jr. and "educator" John Dewey, a "living" constitution has been the ever-increasing, overarching, overriding necessity for activist judges, authoritarian administrators, bureaucrats, social engineers and unruly citizens who despise the true constitution of our society — those who would rather have a society of utopian, collectivist/socialist, amoral/immoral, pagan, secular, libertine, anarchist, humanist, sentimental, evolutionist, materialist, multicultural, hedonist, pacifist, globalist, modernist, post-modernist, minimalist, deconstructionist ideals and principles —  in short, everything anathema to our intended national character, as envisioned by those who came to this virgin land to build and enjoy God's kingdom in this world.

The invention of imagined clauses and rights and tortured interpretations of our written and established Constitution has become the critical tool of today's social changers — those elitist revolutionaries who have not yet been able to fully overcome the residuals of devotion to the founding political, social and moral principles still lingering in our society and body politic. By divine grace, the original system was so powerful it has yet to be completely defeated on its own merits and by its own rules; it can only be stealthily subverted at its weakest point if its enemies are to prevail. And in recent times, they have been disturbingly successful — so successful, in fact, that we are today on the very verge of losing the glorious system which as protected our lives, liberties, property and happiness so wonderfully these many years.

For this reason, the character of our judiciary and a renewed dedication to the original Constitution must become the highest domestic priority of those who love moral self-government and liberty in this land. If international terrorism is the greatest external threat to our existence, the current assault on Americanism by and through the judiciary and an authoritarian adminstration is the greatest internal threat. The intensity of our war on terror must be matched in every respect in the needed war on judicial and presidential tyranny, with every moral and political effort directed toward its defeat. We have only our nation, our safety, our religion, our future and the future of freedom in the world to lose.

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