From its founding, America’s legal system was built upon natural law defined by John Quincy Adams as:
“The laws of nature and nature’s God … of course presupposes the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and of governments.”
For America’s first century, Blackstone’s Commentaries on the Law, which reflected God-given natural law, heavily influenced the education of lawyers.
But within a century, academics would begin to undermine this system. Their preference was a legal system based on relativism. Applied to law, it’s called “positivism.”
The five major points of positivism are:
- There are no God-given standards of law relevant to law
- Man is the author of law, not God, and law is determined by the highest-ranking human authority in the state;
- Man and society are evolving. Therefore, law is evolving;
- Through their decisions, judges guide the evolution of law;
- To study the law is to review the decisions of judges.
In the 1870s, Harvard Law School Dean Christopher Columbus Langdell applied the concept of evolution to law. He claimed that laws must evolve, and judges should guide the evolution of law and Constitution. He introduced the study method of case law and referring to judges’ decisions rather than the Constitution.
Langdell’s views rendered irrelevant the original intent of the Founding Fathers, history and precedent. The Founders’ views were considered a hindrance to the evolution of society. Through the next few decades, other law schools adopted the Langdell view of law, and law schools abandoned natural law and Blackstone’s commentaries.
Roscoe Pound, who served as dean of the law schools at Harvard and the University of Nebraska, institutionalized positivism. Discarding natural law, he said, “We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science.” It should be the goal of law, Pound said, to become a sociological force to influence the development of society.
In the 20th century, more and more people who endorsed positivism were placed on the U.S. Supreme Court. Justice Oliver Wendell Holmes also made it his mission to use law to reach “a social end” rather than to rely on natural law.
Going even further, Justice Benjamin Cardozo, appointed in 1932, urged the Supreme Court to engage in blatant judicial activism: to make law from the bench.
Justice Charles Evans Hughes was just as bold, stating: “We are under a Constitution, but the Constitution is what the judges say it is.”
By the 1940s, positivists reached critical mass and began to produce radical societal change. It wasn’t long – 1947, Everson v. Board of Education – before the Supreme Court fabricated a so-called wall of “separation of church and state” – launching an era of hostility and interference by the state with Christianity that continues to this day. Then in 1958, Chief Justice Earl Warren wrote in the Trop v. Dulles decision:
“The [Constitutional] Amendment must draw its meaning from the evolving standards of decency that mark the progress of an evolving society.”
In his 16 years on the High Court, Warren and other justices struck down numerous, long-standing practices, brazenly doing so without any whiff of precedent. America’s highest court had severed any connection between history, precedent and the intent of the Constitution’s framers.
Today, as in earlier times of positivism, the danger of the courts is the writing of laws which are out step with mainstream sentiment of “we the people.” And there is no accountability of judges and justices to the people. The courts have become the oligarchy Thomas Jefferson warned against. The courts have become what George Washington said would be the “customary weapon by which free governments are destroyed.”
One of the many egregious examples of judicial activism was the High Court’s 1973 decision, Roe v. Wade, which legalized abortion on demand. Even high profile supporters of abortion have criticized the lack of sound reasoning in that decision. Supreme Court Justice Ruth Bader Ginsburg, a former attorney with the ACLU – a staunch advocate of abortion – said the “heavy-handed judicial intervention was hard to justify.”
Today, there are still courts and judges which uphold the Constitution and natural law. Those that don’t are susceptible to wild fabrications of new laws and “rights” without precedent or sound justification. As a result, we have a judicial system divided by sharply contrasting worldviews. The die is cast for against court litigants based solely on the approach of the judge(s), which makes for an inconsistent, unbalanced, ineffective judicial system.