Slouching Towards a “Living Constitution”

Intellectual Conservative ^ | 24 November 2003 | David N. Bass

[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.

[TexanToTheCore]

"The constitution was written primarily by diests such as Madison and not christians."

Far too much is made of the Deism of our Founding Fathers. Deism was a religious fad that swept through the colonies during the latter half of the 18th century and it died out about 1810. The Deists held to the basic tenor of Christian principle and were frequently devout in their own beliefs. The Founding Fathers were very concerned that American society was and would continue to be Christian as they felt it was the single thing that us allowed the freedom to pursue happiness.

Any reference to our Founding Fathers being atheists, or somehow less that devout is absolute claptrap.

[TexanToTheCore]

Sandra O'Connor should resign. If she is not willing to defend the Constitution, she has no place in any government capacity.

Her position is this:

We shall legislate without the representation of the people.

[dcwusmc]

Actually, I PREFER Rule Five (or POINT five-zero. As modified by Ma. Ma Deuce, that is...) OFT-times I think its invocation is long overdue.

[society-by-contract]

Far too much is made of the Deism of our Founding Fathers. Deism was a religious fad that swept through the colonies during the latter half of the 18th century and it died out about 1810. The Deists held to the basic tenor of Christian principle and were frequently devout in their own beliefs. The Founding Fathers were very concerned that American society was and would continue to be Christian as they felt it was the single thing that us allowed the freedom to pursue happiness. Any reference to our Founding Fathers being atheists, or somehow less that devout is absolute claptrap.

I agree with everything you wrote, except the assumption that The Founding Fathers (I prefer Framers of the Constitution) are monolithic in thier thought. As individuals, I suspect there was some variation in thier ideas.

[AbsoluteJustice]

"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 judicial"

This is all fine and good and even sounds better on paper . If you do not have a Republican party with a backbone or a spine, which is what it is today then judges will continue to be blocked and fillibustered which is in itself unconstitutional. Ahh the mayhem. Maybe if the Republicans would get a spine about them and dump Frist then maybe we can get somewhere.......doubtful though

[Travis McGee]

I hope it never comes to that, but for your 50 to have any deterrent value, the opposition needs to be fully aware of it. That's why I wrote the book.

[presidio9]

Learn to debate

Excuse me? I don't remember talking to you.

[Iconoclast2]

Since only a tiny minority of the Bush appointees are prepared to step outside the prevailing philosophies of the Constitution, and then that few cannot be appointed as "outside the mainstream", I have no idea where your optimism comes from. Our judges are no longer slouching toward a living constitution; they have killed off the old one and dance upon its corpse daily.

Quote of the day (from a U.S. Justice Department brief filed against my clients on 11/3/03):

"The few federal courts to consider the question have found that the Constitution does not afford a fundamental right to acquire, possess, or protect property"

WAKE UP. THINGS ARE WORSE THAN YOU CAN IMAGINE.

[biblewonk]

Slouching Towards a “Living Constitution”

It's not living, it's dead.

[Congressman Billybob]

I wrote this up and published it on FreeRepublic and elsewhere, a month ago. Title of article was "Open Judicial Mouth, Insert Foot." Why'd it take these folks a month to notice the story?

Congressman Billybob

Latest column, "False Reporting on the Medicare Vote," discussion thread. FOR A FREEPER IN CONGRESS, CLICK HERE.

[tacticalogic]

It really is sad the way some people allow their drug usage to be the dominant influence on their political philosophy.

Is it any more encouraging that some allow other people's drug use, either real or imagined, to be the dominant influence in theirs?

[TexanToTheCore]

"I agree with everything you wrote, except the assumption that The Founding Fathers (I prefer Framers of the Constitution) are monolithic in thier thought. As individuals, I suspect there was some variation in thier ideas."

They were not uniform in their beliefs, but this particular piece of claptrap has been misused by so many left wingers that I felt it deserved a definitive reply. One merely has to read the book "The Constitutional Convention" by Boorstine, I think, to understand how disunited they were in their approach to government.

Having said that, the large majority of the Founding Fathers were devout Christians and any representation to the contrary is absolute (again) claptrap.

You may wish to read "The Fourth Great Awakening" by Fogel to understand the defining role Christianity played in our founding. It will leave you stunned.

[You Gotta Be Kidding Me]

"Since only a tiny minority of the Bush appointees are prepared to step outside the prevailing philosophies of the Constitution, and then that few cannot be appointed as "outside the mainstream", I have no idea where your optimism comes from. Our judges are no longer slouching toward a living constitution; they have killed off the old one and dance upon its corpse daily."

I never said President Bush would do it........I said "a President".

I believe that a future President will "reinterpret" judge's rulings, opinions, continued freedom, continued life, etc. and will make them sign on the bottom line, or pay severe penalties.

The Magna Carta involved such a threat of deadly force and it is considered to be an historical moment in the history of freedom. The King signed on the bottom line and he lived.

The day judges face that choice will be a day to watch........and celebrate.

[Apogee]

The constitution was written primarily by diests such as Madison and not christians

Can you prove from his writings, that Madison was a deist?

Be interested in seeing.
Thank You,

[Grit]

bump for later

[Apogee]

Holmes: "It must be found in some help which the law brings toward reaching a social end.”
Cardozo: “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.”

Not very consistent, these guys. Somehow, methinks they do, in fact, consider themselves the ultimate moralists.

[society-by-contract]

You may wish to read "The Fourth Great Awakening" by Fogel to understand the defining role Christianity played in our founding.

The left disgusts me as well. I looked at the website below and am interested if for no other reason than to learn what--'technophysio evolution' --is. Thanks for the lead.

http://www.press.uchicago.edu/cgi-bin/hfs.cgi/00/13873.ctl

[BenLurkin]

Guess I'm not! :^)

[society-by-contract]

Can you prove from his writings, that Madison was a deist?

A damn good question! I am going to Charlottesville for Thanksgiving and taking a sidetrip to Madison's home Mont Pelier in Orange, Virginia, the Friday after Thanksgiving. Do you mind if I wait to respond until after I have made this trip so I can look for books which relate specifically to his ideas on theology? This avoids quick cut and paste junk.