By Brannon S. Howse

“Twentieth-century jurisprudence is based on a Darwinian worldview. Life evolves, men evolve, society evolves, and therefore laws and the constitution’s meaning evolves and changes with time.” This observation by constitutional and legal scholar John Eidsmoe reflects the modern legal formulation known as “legal positivism.” 

In his book, Christianity and the Constitution, Eidsmoe reviews the writings of the Critical Legal Studies movement—a group of radical lawyers, law professors, and law students—and summarizes legal positivism this way:

• There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system. 

• Since God is not the author of law, the author of law must be man; in other words, law is law simply because the highest human authority, the state, has said it is law and is able to back it up by force. 

• Since man and society evolve, therefore law must evolve as well. 

• Judges, through their decisions, guide the evolution of law (i.e., judges “make law”). 

• To study law, get at the original sources of law, the decisions of judges; hence most law schools today use the “case law” method of teaching law.

Hence, legal positivism is simply moral relativism—the belief that there is no such thing as moral absolutes—applied to the law. According to relativists, there is no standard of right or wrong for all
people in all places at all times. Moral relativism often flies under the more appealing term “pragmatism” and as such is closely tied to situational ethics, the belief that individuals should be free to do whatever seems best to secure the most desirable outcome for themselves in any given situation.

Tracing the development of the positivistic approach to law brings us to the next influencer on our list, Christopher Columbus Langdell. This philosophy of legal positivism was introduced in the 1870s when Harvard Law School Dean Christopher Columbus Langdell (1826–1906) applied Darwin evolution to the law. 

As a result, secular humanism and its penchant for moral relativism—along with Langdell’s misapplied Darwinism—has now become the postmodern foundation on which America’s courts and law schools are built. 

Langdell’s thought was further advanced by Dean Roscoe Pound and Supreme Court Justice Oliver Wendell Holmes, Jr. Holmes was a student of Langdell at Harvard and argued that there is no fixed moral foundation for law: “The felt necessities of the time, the prevalent moral and political theories . . . have a good deal more to do than the syllogism [legal reasoning process] in determining the rules by which men should be governed.”

Did you catch that? The “felt necessities of the time” and “prevalent moral and political theories” should be the basis of the rules by which men are governed. Using the “felt necessities” and “prevalent theories” model, judges can allow just about anything to be legal, depending on whose feelings, morals, and political theories are chosen for reference. 

Guided by this dangerous thinking, we have seen countless abortions performed in America. Even the grisly partial-birth abortion procedure has passed legal muster—a practice the late Senator Daniel Patrick Moynahan called “near infanticide.”

Decency Derailed:

Along with millions of babies, matters of decency have also been aborted. U.S. Supreme Court Justice Ruth Bader Ginsburg, while serving as an attorney for the ACLU in 1977, wrote a paper, entitled “Sex Bias in the U.S. Code,” for the U.S. Commission on Civil Rights. In it, she argues that the legal age for sexual activity should be lowered to twelve years old. If enough judges agree the age change “is a necessity” based on the perverted “moral and political theories” of Alfred Kinsey (Chapter 12), for instance, Americans would have to accept that it would be legal for an adult to have sex with a 12-year-old child. Lest you think that too crazy to happen, bear in mind that Kinsey actually promoted the idea of adults having sex with children, triggering other forces that now push in similar directions. A University of Minnesota publisher produced a book that outlines the “benefits” of children having sex with adults, and the North American Man/Boy Love Association has promoted this idea for years. These kinds of philosophical foundations are now in play with relativistic judges.

Consider the 2003 U.S. Supreme Court ruling in Lawrence vs. Texas. The court struck down the Texas sodomy law and, via the precedent, similar laws in several other states. The effect of the ruling instantly made homosexual sex legal. To arrive at such a ruling, the justices not only ignored the Constitution and the Founders’ intent, but even went so far as to cite the law of another country in support of its decision! Justice Anthony M. Kennedy’s majority opinion cited a 1967 British Parliament vote repealing laws against homosexual acts and a 1981 European Court of Human Rights decision that such laws violated the European Convention on Human Rights.

Ignoring the Constitution and looking to case law—including that of other countries—to justify what our laws don’t permit is the motive behind the case-law philosophy. Not surprisingly, Langdell also pioneered the case-law philosophy. 

Humanistic educator John Dewey similarly believed a strict adherence to the Constitution was an obstacle to the liberal, humanistic, and socialist changes he and many like him desired to accomplish: “The belief in political fixity, of the sanctity of some form of state consecrated by the efforts of our fathers and hallowed by tradition, is one of the stumbling-blocks in the way of orderly and directed change.”

Breaking the Law to Make the Law:

Although judges and legal scholars now refer to judges as “making law,” Founding Father and architect of much of early U. S. legal philosophy William Blackstone never believed judges “made law” but that they were to study the U.S. Constitution to “discover” or “apply” the law. 

In fact, so strong was its influence in America that Thomas Jefferson once quipped that American lawyers used Blackstone’s [Commentaries] with the same dedication and reverence that Muslims used the Koran.

Although introduced in the nineteenth century, legal positivism began to make real headway when Earl Warren became chief justice of the U.S. Supreme Court. In the 1958 case, Trop vs. Dulles, Warren declared the Eighth Amendment of the U.S. Constitution could not have the same meaning now as it did at the time written. (The amendment reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”) In Trop vs. Dulles, the U.S. State Department had attempted to strip a man of his U.S. citizenship because he deserted the armed forces during World War II. But Trop’s attorneys argued it was “cruel and unusual punishment” to take away his citizenship. Chief Justice Warren agreed, stating “the Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Legal positivism has been racing through court decisions at an ever-increasing pace since the mid-1900s. 

The clear implication of legal positivism? Since morals and standards change over time, so does the meaning of the Constitution. Strangely, the Constitution has supposedly become much harder to understand than it once was. 

Joseph Story, professor of law at Harvard and associate justice of the U.S. Supreme Court, was a leading constitutional scholar of the nineteenth century. In Commentaries on the Constitution (1833), he advocated interpreting the Constitution according to its plain meaning and the intent of its authors. Story emphasized that the Constitution was deliberately written so as to be understood by the common man: 

[quote] I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing its powers, by ingenious subtleties and learned doubts. . . . Upon subjects of government; it has always appeared to me that metaphysical refinements are out of place. A constitution of government is addressed to the common sense of the people, and never was designed for trials of logical skill, or visionary speculation. [end quote] 

Compare Story’s eloquent yet humble thinking with the aggressive positivism of Charles Hughes, New York governor and chief justice of the U.S. Supreme Court: “We are under a Constitution, but the Constitution is what the judges say it is.”

Legal Reality:

In 1985, to illuminate the destructiveness of this view, Edwin Meese, attorney general under then-president Ronald Reagan, delivered a speech to the American Bar Association in which he declared:

[quote] It was not long ago when constitutional interpretation was understood to move between the poles of “strict construction” and “loose construction.” Today, it is argued that constitutional interpretation moves between “interpretive review” and “non-interpretive review.” As one observer has pointed out, under the old system the question was how to read the Constitution; under the new approach, the question is whether to read the Constitution. . . . The result is that some judges and academics feel free (to borrow the language of the great New York jurist, Chancellor James Kent) to “roam at large in the trackless fields of their own imaginations.” [end quote] 

In the 1992 U.S. Supreme Court ruling in Planned Parenthood of Southeastern Pennsylvania vs. Casey, Governor of Pennsylvania, Justices Sandra Day O’Connor, Souter, and Kennedy stated in the majority opinion, “At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe and the mystery of human life.”

Human dignity and freedom are precious gifts from God, rather than from government or its leaders. The Creator is also the ultimate definer of right and wrong. But after the Casey decision, this understanding of the moral absolutes was supplanted by “the right to define one’s own concept of existence, of meaning of the universe and the mystery of human life.”

It brings to mind the words of King Solomon, who wrote, “There is a way that seems right to a man, but in the end it leads to death” (Prov. 14:12 NIV).  

Columnist John Leo agrees:

[quote] This “mystery passage” [as it has become known] can be cited easily next time to justify suicide clinics, gay marriage, polygamy, inter-species marriage [such as marrying one’s dog or cat] or whatever new individual right the court feels like inventing. We are moving firmly into the court’s post-constitutional phase. [end quote] 

The seismic shift represented in the Casey decision is how we define reality. The new definition flows from a postmodern philosophy that refuses to acknowledge any absolutes—nothing right, nothing wrong, nothing moral, nothing immoral. Truth does not exist, and there are no absolutes that transcend time or situation. Everything is subject to individual interpretation. 

For the U.S. Supreme Court to descend into the abyss of moral relativism is disastrous. The Constitution has been the shield and defender of essential liberties for well over 200 years, based on “The Law of Nature and of Nature’s God.” Now, according to Justice Kennedy and five of his colleagues, its meaning has become no more predictable than the shifting sand of personal opinion.

Liberal elitists attempt to intimidate the American people by telling them they’re not allowed to question the rulings of judges or have an opinion on legal rulings—particularly if they don’t have a law degree. But book sense is not a substitute for common sense. As Vance Havner said, “You don’t have to be listed in ‘Who’s Who’ to know what’s what.” The real bottom line is that liberals don’t want to be held to any standard other than their own mushy amalgamation of sound-bite thinking on issues of epic significance. They don’t want to be accountable to the rule of law—they want to be the law. 

Americans should not be silent concerning the laws and court rulings that impact their lives. While judges may wish it, we are not slaves of the black-robed usurpers. Perhaps it is because judges are lawyers—and most lawyers are liberal—that they seem to be so readily capable of ignoring truth, distorting reality, and quickly accepting the fallacies of a postmodern worldview.

The rejection of a fixed moral standard as the basis for law means there is no longer a benchmark by which a society judges good and bad behavior. After the 1962 and 1963 U.S. Supreme Court rulings that outlawed prayer and the Bible in America’s public schools, cheating, stealing, rape, murder, and assault increased dramatically throughout the culture. After the 1980 U.S. Supreme Court ruling outlawing the posting of the Ten Commandments in our nation’s public schools, the increase in deviant behavior rose higher still, and that trend continues to this day.

What’s more, without a fixed moral standard as the basis for law, government has no moral purpose for its existence. According to Romans 13, the God-given purpose of civil government is to protect the righteous and punish the wicked; but without a moral foundation to uphold, defend, and use as the standard by which to judge and punish evil doers, government has nothing to enforce.

The lack of a fixed moral standard as the basis for law means our rights are not God-given but only granted to us by government. These days, people are dangerously close to accepting the idea that the state grants rights to American citizens. This thinking will lead to calamity. Government is not the god who creates rights. It is merely God’s minister to protect the rights God has given mankind.

Absent a fixed moral standard as the basis for law, “might makes right.” Thus the groundwork is laid for one of two (and possibly both) disastrous ends. Anarchy is one. And that would most likely lead to the second, which is for our nation to be subjected to the feelings, opinions, agenda, and worldview of a small group of immoral, elitist judges who rule from behind the bench or a dictator who rules from behind a gun. Attorney John Whitehead puts it this way:

[quote] Those who do not favor taking God’s law as the ultimate standard for civil morality and public justice will be forced to substitute some other criterion of good and evil for it. The civil magistrate cannot function without some ethical guidance, without some standard of good and evil. If that standard is not to be the revealed law of God (which, we must note, was addressed specifically to perennial problems in political morality), then what will it be? In some form or expression it will have to be a law of man (or men)—the standard of self-law or autonomy. And when autonomous laws come to govern a commonwealth, the sword is certainly wielded in vain, for it represents simply the brute force of some men’s will against the will of other men. “Justice” then indeed becomes a verbal cloak for whatever serves the interests of the strongmen in society (whether their strength be that of physical might or of media manipulation). Men will either choose to be governed by God or to be ruled by tyrants. [end quote] 

The loss of a fixed moral standard means Lady Justice is no longer blind, and those who have money and influence have a greater chance of getting what they want—to the detriment and harm of the middle class and the poor. Lacking moral law, man will not be restrained from within, so he must be restrained from without. More intrusive and larger government presence in our lives will be required. 

Finally, the loss of a fixed moral standard means injustice will naturally follow, resulting in the unjust suffering and death of many. Gary DeMar outlines the destructive consequences when evolutionary thinking is applied to law and morality:

[quote] Darwinian evolution has placed law in the arena with evolving man. If man has evolved, then the standards primitive man once held must change along with him. When the higher law is abandoned, another law takes its place. The humanistic doctrine of evolution allows man to create for himself the law he believes will most benefit evolving man. Law then is what men or the courts say it is. Wrongs are defined in terms of what hurts man. There is no appeal to a law-order outside man. For example, abortion is made legal because it is convenient for the mother. For some women, having a baby is “harmful” because it restricts their freedom. These women are “wrongfully” curtailed in their desire to live as they wish. Laws are then passed to alleviate the “problem.” The developmental fetus is termed a “non-person” without protection from the more powerful. There is no consideration that God has defined the nature of life, or that freedom should be defined in terms of submission to the commandments of God. Nor are the necessarily destructive and suicidal long-term consequences of such legal thought and practice seriously considered. [end quote] 

The True Purpose of Law:

There are tens of thousands of federal and state laws, many of which lead down the path of socialism and redistribution of wealth. The reason we have so many laws is that we have politicians who don't understand the purpose of the law. 

Frederic Bastiat wrote The Law, first published in 1850, when France was going through one of its many transitions in government. Bastiat proclaims the purpose of the law is to make justice reign or more precisely to eliminate injustice. The law is simply the organization of justice, a collection of people coming together to do as a group what they can do as individuals: protect our life, liberty, and property.  

God is the giver of liberties, and the law its protector. If, on the other hand, government is considered the giver of liberties, the obvious peril is that what the government gives, the government can take away. 

For justice to fully reign we must stop the politicians from making an unjust living for themselves or their special interests through the work of the taxpayers. We must stop politicians from plundering us, as Bastiat describes:

"When a portion of wealth is transferred from the person who owns it—without his consent and without compensation, and whether by force or by fraud—to anyone who does not own it, then I say that property is violated; that an act of plunder is committed."

Bastiat explains two reasons—greed and philanthropy—politicians use law to plunder:     

[quote] You say: “There are persons who have no money,” and you turn to the law. But the law is not a breast that fills itself with milk. Nor are the lacteal veins of the law supplied with milk from a source outside the society. Nothing can enter the public treasury for the benefit of one citizen or one class unless other citizens and other classes have been forced to send it in. If every person draws from the treasury the amount that he has put in it, it is true that the law then plunders nobody. But this procedure does nothing for the persons who have no money. It does not promote equality of income. The law can be an instrument of equalization only as it takes from some persons and gives to other persons. When the law does this, it is an instrument of plunder."

When the law is used to take from one and give to another, this is nothing less than socialism. So, these "do-gooders" use the force of law to steal from one citizen the fruit of his labor in order to give it to others. Some may argue that if we leave the people to themselves some will starve, some will not have clothes, and some will not have adequate healthcare. In reality, however, if the government would get out of the way and fulfill simply its limited purpose, prosperity would be distributed to far more people because the choice would be to either work and eat or not to work and not to eat. [end quote] 

Socialistic laws reward laziness and irresponsibility through our growing welfare state. Bastiat upholds the rightness of keeping government out of wealth control:

[quote] Under such a regime, there would be the most prosperity—and it would be the most equally distributed. As for the sufferings that are inseparable from humanity, no one would even think of accusing the government for them. This is true because, if the force of government were limited to suppressing injustice, then government would be as innocent of these sufferings as it is now innocent of changes in the temperature. [end quote] 

Neither Bastiat nor I argue against generosity, compassion, and charity. Our point is that the purpose of the law is not charity. Charity is the role of individuals, non-profits, ministries, and churches. Were government to stay in its rightful place, the level of prosperity would be so great that charitable organizations would be flush with the resources needed to do necessary good works. 

The true purpose of the law and civil government is to reward those who live rightly and to punish the wicked. In recent years, the purpose of the law has been turned on its head in America as those who are involved in right living are punished through a punitive tax system that rewards with a monthly welfare check, not the workers but those involved in all sorts of irresponsible, destructive, immoral, and often illegal behavior. 

So what would a nation look like that rejected socialism, plunder, and big government for freedom, liberty, and the proper use of the law? Bastiat tells us:

"If a nation were founded on this basis, it seems to me that order would prevail among the people, in thought as well as in deed. It seems to me that such a nation would have the most simple, easy to accept, economical, limited, nonoppressive, just, and enduring government imaginable."

America is the longest standing constitutional republic in the history of the world. Unless we return to the proper, limited, and fundamental purpose of the law, though, our freedoms will not be secure much longer. Today the law is being used to infringe on our God-given rights and to establish Statism, which the American Heritage Dictionary describes as "the practice or doctrine of giving a centralized government control over economic planning and policy."

America has embraced what Alexis de Tocqueville called “soft despotism,” which gives people the illusion that they have control over their government when in reality they have very little. Samuel Gregg explains:

[quote] Tocqueville's vision of “soft-despotism” is thus one of the arrangements that mutually corrupt citizens and the democratic state. Citizens vote for those politicians who promise to use the state to give them whatever they want. The political-class delivers, so long as citizens do whatever it says is necessary to provide for everyone's desires. The “softness” of this despotism consists of people's voluntary surrender of their liberty and their tendency to look habitually to the state for their needs. [end quote]

Tocqueville described the concept this way:

[quote] After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd. [end quote]

Soft despotism often occurs because the people have forgotten—or never were educated—about the true purpose and intent of the law. When a people have become sufficiently ignorant and selfish, they vote for politicians who promise to offer them the government trough. Politicians gladly plunder some for the benefit of their special interest groups and voting blocs, all while taking advantage of constituents’ ignorance and selfishness in order to garner still more power and control by making people more and more dependent upon them and the government. 

Soft despotism is furthered through an incestuous and mutually beneficial relationship between judges and politicians to the detriment of freedom-loving people and their liberty and property. The welfare state in America has gone a long way toward encouraging people to vote themselves a raise by voting for politicians who promise the most government handouts. 

Though never an economist by trade, Langdell and his legal positivism have reached deep into the pockets of most Americans. And we’re all worse off for it. 

Copyright 2009 ©Brannon Howse. This content is for Situation Room members and is not to be duplicated in any form or uploaded to other websites without the express written permission of Brannon Howse or his legally authorized representative.