Posted on 11/25/2003 10:07:07 AM PST by presidio9
According to Justice Sandra Day O’Connor, making an “all important good impression” in the international community is more essential to the judiciary than upholding Constitutional law. At an October 28 awards dinner in Atlanta, Justice O’Connor was quoted by the Atlanta Journal-Constitution as citing two recent Supreme Court cases that demonstrate the increased willingness of U.S. courts to take international opinion and law into account in their decisions.
This is nothing new for those who’ve kept up with the antics of our modern day Supreme Court. More and more our courts are stepping away from the Constitution and towards laws that have absolutely no basis in American principles. But where did it all begin?
For the last century the courts have followed this trend: they’ve steadily moved away from a Constitution based on law, toward a Constitution based on relativism. The purpose of this “living Constitution” -- as some have pegged it -- isn’t to improve upon the old one, as some like Justice O’Connor might claim, but to abolish it altogether.
Movement towards the living Constitution isn’t a recent phenomenon. Its roots can be traced back to the late 19th century when certain Supreme Court justices began applying Darwin’s premise of evolution to jurisprudence. This philosophy was pegged as positivism. Its basic tenants declared that since man evolved, his laws must evolve as well. Under positivism, judges were to guide both the evolution of law and the Constitution. Consequently, the views of the Founding Fathers were disregarded as hampering the evolution of society. Every philosophy of law had to be the latest and greatest or else it was junked.
An early subscriber to positivism was Oliver Wendell Holmes, Jr. Holmes was appointed to the Supreme Court in 1902. During his three decades on the Court he argued extensively that decisions should be based upon the “felt necessities of the time” and the “prevalent moral and political theories” instead of natural law and its absolute standards. Holmes claimed that, “[T]he justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end.”
Positivism quickly spread as the 19th century spilled into the 20th. Social evolution, relativistic thinking, and the new “positivistic” view of law were not only making serious inroads among Supreme Court justices, but in academia as well. John Dewey, signer of the 1933 Humanist Manifesto I, wrote in 1927: “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.”
Before long, a small but influential set of Supreme Court justices were routinely disregarding any concept of absolute rights and wrongs. Benjamin Cardozo, appointed to the Supreme Court in 1932, claimed, “If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist.” Charles Evans Hughes, the Supreme Court’s Chief Justice from 1930 to 1941, held a similar view: “We are under a Constitution, but the Constitution is what the judges say it is.”
Those are incredible statements considering the plethora of judicial activism our nation has witnessed lately. According to Cardozo, judges and justices should believe no law exists higher than that of the state. If such law does exist, it should only concern politicians or religious instructors. That philosophy is frightening to say the least. But it exists.
Positivism had gained considerable ground by the mid 20th century. The change from absolute to relativistic thinking was apparent by 1953, when Earl Warren became Chief Justice of the Supreme Court. Ten years later prayer was removed from public schools. A decade after that abortion on demand was legalized. Positivism has definitely done its intended work.
Thankfully, our nation is capable of moving away from this dangerous philosophy. If we return to a system by which “we the people” conduct social corrections as needed (through elections and amendments to the Constitution), and away from a system by which unelected judges are virtually unaccountable to the people, then we’ll see justice truly return to the judiciary. But this task will not be easy. Positivism has made such inroads into the fabric of our nation that it will take serious action to reverse.
The living Constitution comes down to this: It fails to reflect the so-called evolving values of our nation, but establishes an agenda that is deeply steeped in relativism and social Darwinism. Americans overwhelmingly support the Constitution. Why? Because it protects their rights. The living Constitution does not. Since it’s not based on the foundational principles of America -- principles largely based on Christianity -- it can only lead to usurpation of freedom.
It's called morality and virtue. And that is what is lacking today. John Adams said our Constitution was "written for a moral and religious people and is inadequate for the govt of any other." They were also clear about the source of morality - RELIGION. Namely, the Christian religion. Only in Christ is there freedom. Freedom came out of the Christian worldview post-reformation. Before then, there was no true freedom or self-government. Self-government? What's that? Federalism is dead - long live King Federal Govt!
That's right. Bread and Circus mentality. Americans care more about what movie is coming out this weekend than the safety and future of America. They blindly put their trust in our govt - when it should be in God. True freedom does not mean "licentiousness" - it means freedom to do good - pursuit of happiness within moral bounds. Root of problem - no morality.
One of two ways in my opinion: pray or fight. The nation will turn by either an act of God or an act of violence (violence either from an internal revolt or an external takeover). I pray that the nation's morality will change before the latter occurs. A nation that does not respect its own rule of law(the Constitution) or its own sovereignty (not the U.N.) is headed straight for destruction and war of some kind or another.
Something to think about. Given our current USSC, how many of the amendments (excluding the first ten, of course) would we need today?
That is, how many of those issues (slavery, right to vote, taxes, etc.) would have been decided by some emanation in a penumbra, or "due process", or "right to privacy" or some such thing by today's USSC?
I'll say this -- we wouldn't have 27 of them.
Living constitution? Yes, by amendments. That's why they're allowed.
Any reason to consider "substantial effects" any less ephemeral than any of the above?
I agree with what you say, but christ did not say "Go and form states to spread my ideas." I like the idea of enlightened people governing themselves, of course that number would be significantly smaller than 300,000,000. On the history, the middle class or merchants (especially in northern europe) which arose concomitant with the reformation helped the cause of freedom by creating wealth, jobs and independence from the landed leige.
By suggesting that people govern themselves, do you agree that constitutions are not effective in limiting the power of the state?
No I disagree. A constitution is only as good as the leaders who guard it, and the leaders come from among the people in our Republic. Our Constitution was fine for many decades because there was a Christian concensus and the people understood well that freedom and faith were INTIMITELY UNITED. I suggest you read the writings of Alexis de Toqueville who made these observations. The people are ultimately responsible for bad leaders and erosion of freedom. Today, we have many bad leaders, many of whom are Anti-christian bigots and secular humanists. The best safeguard against tyranny is eternal vigilance.
Reading the Humanist Manifesto is just like reading the Communist Manifesto. Reading the magazine The Humanist is like reading "The Communist." (if there was such a rag)
He didn't? You better read the Great Commission - "go forth and disciple all nations..." The pilgrims and puritans took this to heart - that's why they came to this land. Our founders also understood this and that is why our govt is based upon the principles and philosophy of judeo-christianity.
A person with a Christian worldview will favor a government that is favorable to Christian concepts. However, a secular humanist will favor a government that fits his worldview - like Stalin, Hitler, Pol Pot, Castro, Kim Il-Sung.
It really is sad the way some people allow their drug usage to be the dominant influence on their political philosophy.
The constitution was written primarily by diests such as Madison and not christians. You indicate that "Our Constitution was fine for many decades because there was a Christian concensus", but four out of the first five presidents were deists and not christians. Additionally, the constition protected slavery for 85 years; it did not work well for those humans enslaved with its consent. Toqueville's Democracy in America is excellent! Did you happen to see the C-SPAN programs which followed his route a few years back? Toqueville noted that the *voluntarism* (read the near-absence of the state)in America was its greatest strength. I agree that today we have poor leaders, but even Jefferson supported unconstitutional acts such as the Louisanna Purchase (he wrote privately that the constitution should be amended to give Congress that authority).
Respectfully yours,
Brady
I have come to learn that my catholic upbringing left me deficient of actual verse in favor of barfy doctrine. I have a bible here on my desk, would you please tell me where to read the passage you cited?
Learn to debate.
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