Worshipping at the Temple of Law

RED STATE.ORG ^ | DECEMBER 5, 2004 | THOMAS

[CHARLITE]

Arguably the nastiest thing that happens to law students -- other than making them into lawyers -- is teaching them that law is simply politics by other means.

You don't have to subscribe to the (blatantly obvious) position that Roe v. Wade, for example, no matter your politics, was an exercise in raw judicial politics; and once you see how that sausage is made, it is terribly difficult to look at any judicial decision of the twentieth century and see a process any different than a legislative accomplishment.

Teaching law students this is very bad for two reasons: First, it takes that cute, wide-eyed innocence we all have about Law in this country and turns it into ruthless calculations of power and its accumulation. (If you think that's too much, you've never listened to first year law students' talk of Saving the world become talk of Changing the world. The first is silly innocence; the latter is merely silly.) Second, it achieves this perverse alchemy in the very group of people we least want exercising the reins of power, right before we give them the power to subpoena the entire Ford file on the Explorer.

Let's not lie: This is a bad thing. It takes what is ideally a neutral arbiter of disputes and turns it into a tool to address whatever goals and grievances its practitioners and creators might have. It perverts and twists society, and distorts the natural role that the non-political things play -- societies, associations, churches, friendships, culture, and even peer pressure -- and not only subordinates their functions to the power of a group of men and women in really out of date black dresses, but also bends their missions and day-today existence. (On the chance that seems a bit exaggerated, consider how many churches have been torn over Roe v. Wade.)

That's why it's so very important to undo the damage -- the "progress" -- of the last hundred or so years, and make the bandage stick. (Mandatory note: Yes, I like Brown v. Board of Education's result, and loathe the openly legislative reasoning. Yes, the Incorporation Doctrine should be abolished.)

We will never completely undo the regulatory state. We will never completely undo the welfare state. Conservatives realized that about ten years ago. What we can do is cut the knees out from under them, so that at best, they're propped up on an arm each.

This is why electing Bush was so terribly important, domestically. This is the great chance to make Article III less of a rogue force, and more in line with its Constitutional limitations. Those far-ultra-crazy-out-of-the-mainstream-right-fascist judges (most of whom are of course slightly milquetoast Republicans) whom Bush has been appointing, and whom the Donks have been stalling, matter.

Christmas time is upon us, and it won't be until the next Congress is sworn in that we can do much about this. But getting Bush's judges confirmed is something that all Republicans should care about: Are you opposed to legalized-by-judicial-fiat abortion? Legalized-by-Platonic-Philosopher King gay marriage? In favor of restoring, to some extent, the balance of power between the dual sovereigns of the States and the Federal Government? Minimizing the power of the Federal Government? Oppose affirmative action as an unconstitutional racial spoils system? Believe that legal decisions in Europe should have no binding effect on us? Believe, simply, that only those branches of government directly or indirectly elected by the People should be sovereign? Believe, even more simply, that Judges should judge, not rule?

This is our time, ladies and gentlemen. The Left is gearing up for a dog fight. RedState will be in the mix, very soon. And you'll be able to help. And your help will be needed.

Stay tuned.

[Ed Current]

Mandatory note: Yes, I like Brown v. Board of Education's result, and loathe the openly legislative reasoning. Yes, the Incorporation Doctrine should be abolished

Here is someone else who agrees with you:

Issues & Views: The <i>Brown v. Board of Education</i> Fraud

What is the principle you might ask? Brown v. Board of Education, arguably one of the most famous cases of the 20th century, is the reason. Ms. Taylor, let me be clear, as a law scholar, writer and lecturer, I have studied this opinion in great detail and even more importantly, I have studied the constitutional law and legal history behind this decision and have come to the following conclusions about this most noted case:

1. There is not a single judicial precedent in the entire Brown opinion.
2. The Brown opinion was based on the political pressures of the day, not on universal principles like the Rule of Law, Natural Law, morality, equality, justice, truth.
3. The Brown opinion was based on the false social science of racial relativism (all people are equal no matter what they do) and radical liberalism (separation of morality from public policy). The Court even cited what later proved to be the flawed scientific research of Dr. Kenneth Clark and Dr. Mamie Phipps Clark, the famous sociologist team that studied at Howard and received their Ph.D's from Columbia University. Their studies centered on color and how black children favored white dolls as the prettiest as evidence of self-hatred in the black community due to America's history of racial segregation in society. Their research on color and dolls was critical in persuading the Court to adopt the then radical public policy remedy of racial integration of the public schools in America.
4. The Brown opinion was founded on purely Positive Law grounds (secular, man-made law) rather than on Natural Law (morality/legality integrated out of the Judeo-Christian tradition) or on constitutional grounds (particularly the 5th Amendment Due Process Clause, 14th Amendment Privileges and Immunities and Equal Protection Clauses).
5. The Court refused to utilize any of the arguments the Abolitionists had used for over a century because their ideas were based on morality and affirmed the dignity of all God's creation–including black people. The Court thought that the Abolitionist's reasoning about black people being equal to white people on Natural Law, moral, religious or humanitarian grounds as fanatical, provincial and unsophisticated.
6. The Court used humanistic and New Age language, like this: segregation in education must end in America because to keep segregated schools based on race would "hurt the feelings" of "Negroes" and their "self-esteem" and "educational success" would be hindered. In one telling passage the Court quoted from the researcher's brief which was included in the arguments the NAACP presented to the Court: "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . ."

-- Ellis Washington, J.D., is Adjunct Professor of Business Law and Contracts at Davenport University, Dearborn, Michigan.