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Deconstructionism at the Supreme Court

Deconstructionism at the Supreme Court

By Jay Haug
Special to Virtueonline
www.virtueonline.org
June29, 2015

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all."
Through the Looking Glass. Lewis Carroll

"You're going to see a lot of strange things from now on, George." The angel Clarence from "It's a Wonderful Life."

We will all remember this date. June 25, 2015. It will be benchmarked like December 7, 1941, January 22, 1973 and September 11, 2001. If there was any doubt among believing Christians that American culture had turned hostile against both traditional values and Christianity itself, any reluctance to admit reality must now be put away. Marriage, understood for millennia as that between a man and a woman, has been redefined by the Supreme Court. What are we to think?

First, the news is not all good for gay marriage supporters. Despite their rejoicing at the supposed arrival of "marriage equality" and proclaiming the battle "over," neither outcome is likely to be true going forward. Equality is far more than something mandated by law. Gay marriage supporters know this and that is why they are being so aggressive in tracking down, suing and ridiculing those who think differently. But they must face facts too. Resistant hearts and minds were not changed by the Court's decision on Obergerfell et al. v. Hodges. On the contrary, opposition to the Court's action is likely to be hardened, partly because the Court circumvented the process working itself through the state legislatures, partly because of the heavy-handed approach supporters have displayed toward enforcing conformity and partly because this is a decision that runs against widely held Judeo-Christian values.

In fact, the wake of Obergerfell et al. v. Hodges is likely to be turbulent indeed, quite similar to Roe v. Wade. Even liberal Justice Ruth Bader Ginsburg lamented that Roe cut short needed political debate and necessary legislation. The backlash against Roe has been substantial, significantly eroding it over time. The number of Americans who disagree with abortion "at any time for any reason," and consider themselves pro-life are both rising. So with gay marriage, the Court's over-reach is likely to exacerbate the reaction over time, particularly as the next generation of "victims," namely children deprived of a mother and a father begin to come forward to tell their stories.

There will be a lot of time for the church to step back, engage in prayer and dialog about her response to gay marriage being the law of the land. I do not want to engage that process here. What I would like to talk about is the core intellectual problem we face, one that overarches most of the social change issues we face today. It is the pervasive presence of deconstructionism. The Rev. Dick Lucas, longtime rector of St. Helen's Bishopsgate in London used to say that the ideas of the academy today will be will be talked about in the streets fifty years hence. It has all come true. In fact, we are dealing with widespread deconstructionism in the public square, a philosophical force that is as pervasive today as gnosticism was in the 1st and 2nd centuries. Unless we respond to it as the Christian Church did to Gnosticism, and you can see that response in the writings of the Apostles Paul and John, we will not engage the culture as we should. Deconstructionism is not really about policy, theology or culture because it is prior to them all. It serves a valuable purpose for those who wield it, namely to attempt to prevent words or ideas from holding any meaning or truth. Its intent is to cut them all off at the pass by leaving room for nothing but raw political power, ignited by personal stories, divorced from truth.

What is deconstructionism? Here are two definitions. The first is from www.pbs.org.

"A term tied very closely to postmodernism, deconstructionism is a challenge to the attempt to establish any ultimate or secure meaning in a text. Basing itself in language analysis, it seeks to "deconstruct" the ideological biases (gender, racial, economic, political, cultural) and traditional assumptions that infect all histories, as well as philosophical and religious "truths." Deconstructionism is based on the premise that much of human history, in trying to understand, and then define, reality has led to various forms of domination - of nature, of people of color, of the poor, of homosexuals, etc. Like postmodernism, deconstructionism finds concrete experience more valid than abstract ideas and, therefore, refutes any attempts to produce a history, or a truth. In other words, the multiplicities and contingencies of human experience necessarily bring knowledge down to the local and specific level, and challenge the tendency to centralize power through the claims of an ultimate truth which must be accepted or obeyed by all. (Emphasis mine)

Here is another.

A philosophical movement and theory of literary criticism that questions traditional assumptions about certainty, identity, and truth; asserts that words can only refer to other words; and attempts to demonstrate how statements about any text subvert their own meanings. The Free Dictionary (Emphasis mine)

When we enter the political and cultural world, we must understand that deconstructionism is all about power, gaining it, using it and controlling it. As Humpty Dumpty said, "The question is which is to be master, that's all." But to gain that power, deconstructionists and their relatives, revisionists, leftists and radicals, must subvert the meaning of words, the very and only words that can become the basis for living both privately and publicly. The Apostle Paul wrote about this phenomenon, one as old as time.

I Timothy 6: 3-6. These are the things you are to teach and insist on. 3 If anyone teaches otherwise and does not agree to the sound instruction of our Lord Jesus Christ and to godly teaching, 4 they are conceited and understand nothing. They have an unhealthy interest in controversies and quarrels about words that result in envy, strife, malicious talk, evil suspicions 5 and constant friction between people of corrupt mind, who have been robbed of the truth and who think that godliness is a means to financial gain. (Emphasis mine)

The situation Paul spoke to was one where outsiders were undermining "the sound instruction of our Lord Jesus Christ" and replacing it with "quarrels about words." They were replacing the plain understanding of apostolic teaching with speculative or even secret understandings that resulted in division and "robbed" people of "the truth." Their motive according to Paul was certain kind of power, in this case "financial gain." Notice the focus on strife and setting one group against another. Deconstructionism, in its focus on race, gender and other "victim" groups says it is after the overthrow of power. But it is really after its redistribution. Power abhors a vacuum. Deconstructionists either claim power for themselves or attempt to delegitimize other's by either undermining meaning or claiming veto power over the presence of other's authority or truth claim.

We saw this reality in the recent Supreme Court cases. Here are exerpts from Justice Antonin Scalia's dissent in King v. Burwell (Affordable Care Act)

"The Court holds that when the Patient Protection and Affordable Care Act says "Exchange established by the State" it means "Exchange established by the State or the Federal Government." That is of course quite absurd, and the Court's 21 pages of explanation make it no less so...

The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State--which means people who buy health insurance through such an Exchange get no money under §36B. Words no longer have meaning if an Exchange that is not established by a State is "established by the State."... (emphasis mine) Today's interpretation is not merely unnatural; it is unheard of...." Adopting the Court's interpretation means nullifying the term "by the State" not just once, but again and again throughout the Act." (End of quotes from Judge Scalia's dissent.)

When I read this, I asked myself: Where is the American Bar Association? Where is the loyalty to the plain language of a statute? But we are now told these things don't matter because the Supreme Court and the Executive Branch are now only concerned with the "good intentions" of Obamacare and other pieces of legislation. In the two cases on Obamacare, the Court threw aside plain language and declared in 2012 with a nod to the Executive Branch, in effect, "We knew what you meant," and called it a "tax." In the gay marriage case, the Court said, in effect " We know where this is going," and cut short the legislative process. Robert's defense has been that he sees the Court "calling balls and strikes," not seeking to determine the outcome of the game. He claims to not want to save legislators from themselves, yet at the same time he saved Obamacare twice based on its intentions, rather than plain statutory meaning. This is deconstuctionism on steroids.

Roberts defense? "(b) When read in context, the phrase "an Exchange established by the State under [42 U. S. C. §18031]" is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it could also refer to all Exchanges--both State and Federal--for purposes of the tax credits." We can only conclude that the Court deconstructed the plain meaning of a statute to mean something different. Why? Because Congress passed it? Because it is "good" for the people? Is this the reason our president can lie to the American people about "keeping your doctor" and "keeping your coverage" because actual words don't meant anything but just intentions? Does having "a phone and a pen" allow a president to by-pass Congress? When enough people are willing to give people in power a pass on the truth, we have entered an Orwellian world. Perhaps this law of "good intentions" is the reason according to Gallup a significant number of people who say they "don't trust" Hillary Clinton still say they will go ahead and vote for her anyway. Apparently they believe in what she will do for them. Who cares about honesty and trust?

Without belaboring the point, the Supreme Court has become an institution whose purpose is to bail out the political process. It did so based on phony trumped up demand for abortion in Roe v. Wade. It did so in the previous decision on Obamacare by calling it a "tax," a word not mentioned in the ACA. And it did so again in King v. Burwell by contradicting exact language in statutes in order to save the law from revision. Finally, the Court bailed out gay marriage and the necessary work of state legislatures by ending the marriage debate, taking it out of the people's hands, while utterly failing to show a constitutional right to it.

Here is the problem. Contrary to our founders who believed in checks and balances to save us from destroying our republic, our elites in Washington have come to believe in their own genius, in their own ability to see the consequences of their actions down the road. Padded with money and high re-election rates, they are masters of the political universe. Contrast this with James Madison who fashioned the United States Constitution partly to protect Americans from their own government as well as themselves. " If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself. " (Federalist 51) But today, separation of powers and checks and balances are nothing more than quaint relics of the past, easily overcome in order to "get things done." And the ready tool at hand within easy use, received with familiarity by people educated in government schools, is the deconstruction of words, ideas, language and truth.

Justice Kennedy's opinion for the majority in Obergerfell et al. v. Hodges presents four main arguments, beginning with the supposed right of "individual autonomy." Where is this concept in the United States Constitution? It sounds a lot like the "right to privacy" created out of whole cloth by Justice Harry Blackmun in the lead-up to Roe v. Wade. In reality, despite it having no basis in the constitution, no one is suggesting individual autonomy be abrogated nor the freedom to associate with whomever one likes. Most people also believe gays should have many if not all of the legal and visitation rights granted to married couples. But "individual autonomy" is such a vague "right" that it virtually has no meaning at all, except as a cover for a desired legal outcome. What are the limits if any to "marrying the one you love?"

Secondly the Court asserted the "right of two-person unions" and yet applies this right to two people of the same sex. It sweeps aside the historical meaning of the word "union", one which has always understood to mean husband and wife, namely those who have sexual organs capable of producing such a union and that union potentially producing a child. Many a marriage has been annulled throughout history due to lack of such a union. Two men or two women may be capable of a union of heart and mind, but not of body. Thus they are not capable of "union." There was a reason a non-consummated union could be annulled or a non-consummated marriage not be considered a marriage at all.

Gay marriage advocates are correct to point out that gay marriage is not the only thing that has undermined marriage. But those who say gay marriage does not further undermine marriage are also wrong, not least because it entirely changes the meaning of the word "union." What the Supreme Court actually accomplished was the abolition of marriage, at least as a cultural norm by deconstructing the word union into something it has never meant.

The third reason the Supreme Court gives to support gay marriage is that "it safeguards children and families." Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser." Does the Court believe that a legal imprimatur will insure against children of gay parents thinking their families are lesser? Does the Court believe that social acceptance will follow quickly and mitigate against teenage peer pressure and mockery of those with gay parents? Are they sure the loss of the parent of one sex will be no deprivation for a child? Did the court listen to the countless stories of people raised by gay parents who were not happy about that very experience?

The one situation the Court does have in its favor is there is some evidence children adopted by gay parents are better off than remaining orphans. But the cases of choosing between gay adoption or nothing are few and far between.

Finally, the Court asserts, "Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate." On reading this, one fears that marriage, whether by heterosexual or homosexual, has now been placed in the gelding category, where children are secondary in the former case and impossible in the latter case. "Be fruitful and multiply" in some quarters is now being relegated to the place of "a threat to the planet," or an inconvenience to adults more interested in amusing themselves. All this at a time the West is undergoing a population implosion with significant consequences. In fact, a society concerned with the 'right not to propagate" may in the process of writing its own death sentence. In fact, the right "not to procreate" is simply an extension of Roe v. Wade, the right to kill one's unborn child at any stage. Does supporting gay unions commit one also to this view? Is it one of the driving forces behind it? We are not told.

There is something wild, adventurous and creative when the two sides of creation come together in marriage, a man and a woman. That is the way it was intended. It is a sign of procreation, reconciliation and yes, true diversity, something two men or two women can never present to each other or to the world. In man-woman marriage we are presented with "the other," something gay marriage can never match.

Fourthly, the Court appeals to the 14th amendment "due process" clause to say that "same-sex couples are denied benefits afforded opposite sex couples and are barred from exercising a fundamental right." (i.e. to marry) The decision sees the primary expression of this lack of due process as the denial of "benefits." But one does not flow from the other. It is perfectly possible for legislation to be passed, and it has in many states, that would allow all kinds of rights and benefits to any named person. Marriage is not essential for these rights. The reason spousal benefits have been granted historically is because the state had some interest in family welfare, if only to prevent people from becoming financially dependent on it. But the issue of benefits and marriage can easily be separated and in many cases already have been.

Furthermore, the real issue of equality turns on the question of whether two women or two men can legitimately marry, a question that pre-dates America, government and any human right. That answer has always been "no," at least until now. Since individuals are not granted the same rights (benefits) as married people, and if two men or two women cannot by nature marry, then the state has no obligation to treat them the same as married couples.

Having criticized Judge Roberts for his role King v. Burwell, I must (mostly) commend him for his response in his dissent on Obergerfell et al. v. Hodges (Same --Sex Marriage Decision), though his objections are mostly procedural rather than substantive. Please note his lack of trust in "five lawyers" who made this decision. Here are highlights of his dissent.

"Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens--through the democratic process--to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent. The majority expressly disclaims judicial "caution" and omits even a pretense of humility, openly relying on its desire to remake society according to its own "new insight" into the "nature of injustice..." (Note the use of "will." Power really.)

It can be tempting for judges to confuse our own preferences with the requirements of the law...

The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even if history and precedent are not "the end" of these cases,..., I would not "sweep away what has so long been settled" without showing greater respect for all that preceded us. Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (slip op., at 8).

Stripped of its shiny rhetorical gloss, the majority's argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority's position indefensible as a matter of constitutional law.

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after "a quite extensive discussion."

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

If you are among the many Americans--of whatever sexual orientation--who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent."

What can we take away from all of this? A few thoughts.

1.Deconstructionism enthrones personal experience over meaning and truth in such a way as to attempt to trump them. Therefore, the more deconstructionists can bring forth purported "victims" to tell stories to promote "social change", the more change they will bring about. Nationalized healthcare and gay marriage used personal stories to convince those with 'good intentions" that their cause was just, even though the rational case has for both has largely failed. This does not bode well for the future.

2. As Christians and traditionalists, we will fail in our objectives unless more Americans are educated differently and begin to think differently about our problems. We must either radically change the institutions given over to promoting deconstructionism or we must accelerate the founding and funding of alternative educational institutions. The founders, though all were not Christians, read similar great books. They all read Blackstone, Locke and Montesquieu. What are we reading and urging others to read?

3. I have no idea if it is too late or not. That is up to God. It is up to us to do what we can. As Martin Luther said, "Even if I knew that tomorrow the world would go to pieces, I would still plant my apple tree."

Jay Haug is Executive Director of Jacob's Well www.jacobswellhope.com You may contact him at cjcwguy@gmail.com

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