The Danger of Judge Made Law

By Brannon Howse

“At one time the question for America’s judges was how to read the

Constitution; but under today’s liberal, postmodern, man-centered

worldview, the question too often is whether to read the Constitution.

Brannon Howse insightfully documents the tragic consequences that

judicial tyranny, legal positivism, and the humanist worldview are

having upon our faith, family, and freedoms.”

— The Honorable Edwin Meese III, Former Attorney General, Reagan Administration

The course of action by our judiciary is no innocent drift in legal interpretation. The judges’ unconstitutional moves have been calculated by a few to thrust their will upon Americans while the U.S. Congress has been asleep at the switch, seemingly unaware that the legislators’ very reason for existence is being chipped away.

Benjamin Cardozo, appointed to the U.S. Supreme Court in 1932, proudly proclaimed a belief in his right to usurp powers of the U.S. Congress and to violate the check-and-balance separations of the U.S. Constitution: “I take judge-made law as one of the existing realities of life.”1

Cardozo not only held the U.S. Constitution and U.S. Congress in contempt; he saw little purpose for people of faith—which includes most Americans—who want to apply a moral law as foundation for the legal process: “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.”2

Justice Cardozo was not the first to sound this theme. In 1907, Charles Evans Hughes, who would later become chief justice of the U.S. Supreme Court, declared, “We are under a Constitution, but the Constitution is what the judges say it is.”3

Lino Graglia, professor of constitutional law at the University of Texas School of Law, explains the crisis caused when members of the judicial branch make policy:

Judicial usurpation of legislative power has become so common and so complete that the Supreme Court has become our most powerful and important instrument of government in terms of determining the nature and quality of American life.

The result is that the central truth of constitutional law today is that it has nothing to do with the Constitution except that the words “due process” or “equal protection” are almost always used by the judges in stating their conclusions. Not to put too fine a point on it, constitutional law has become a fraud, a cover for a system of government by the majority vote of a nine-person committee of lawyers, unelected and holding office for life. The desirability of this form of government should be the central question in any realistic discussion of judicial review today.4

How can judges fulfill their sworn oath to defend and protect the U.S. Constitution while helping themselves to large portions of unconstitutional power and authority? How can they uphold the U.S. Constitution when they often don’t even consider the Constitution when rendering decisions? Or how can federal judges claim to fulfill their sworn duty when the majority of federal judges have endeavored to replace the U.S. Constitution with a different judicial standard?

The separation of power among the three branches of our government—executive, judicial, and legislative—was designed to safeguard our nation from the very thing we now face: a runaway branch of the government. But make no mistake. The check system is still in place. It just isn’t being used by Congress. Instead, our elected representatives go on allowing judges to enforce their new standard for law.

And exactly what is this new standard?

Secular humanism and its penchant for moral relativism, along with misapplied Darwinism, has now become the postmodern foundation on which America’s courts and law schools are built. Constitutional and legal scholar John Eidsmoe observes: “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.”5

This new legal formulation is known as “legal positivism.” In his book, Christianity and the Constitution, John Eidsmoe reviews the writings of the Critical Legal Studies movement, a group of radical lawyers, law professors, and law students. He summarizes legal positivism with the following points:

•   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 (Note again: 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.6

Another, simpler definition of legal positivism is: moral relativism applied to law. Moral relativism is the belief there is no such thing as moral absolutes—no standard of right or wrong for all
people in all places at all times. At times, moral relativism is also called, simply, pragmatism. Moral relativism is closely tied to situational ethics, the belief that individuals are free to decide for themselves what is best for them to secure the most desirable outcome in any given situation.

Tracing the development of the positivistic approach to law, David Barton notes, “This philosophy of ‘positivism’ was introduced in the 1870s when Harvard Law School Dean Christopher Columbus Langdell (1826–1906) applied Darwin’s premise of evolution to jurisprudence.”7

Langdell’s thought was advanced further by Dean Roscoe Pound and Supreme Court Justice Oliver Wendell Holmes Jr. Holmes argued 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.”8

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.”

Along with millions of babies, matters of decency have also been aborted. Current 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 argued that the legal age for sexual activity should be lowered to twelve years old.⁹ If enough judges agree the age change “is a necessity” based on the perverted “moral and political theories” of Alfred Kinsey, for instance, Americans would have to accept that it would be legal for an adult to have sex with a child of age twelve. Lest you think that too crazy to happen, bear in mind that famed sex researcher Alfred Kinsey actually promoted the idea of adults having sex with children, and there are other forces pushing in similar directions. A University of Minnesota publisher produced a book that discusses the “benefits” of children having sex with adults, and the North American Man/Boy Love Association has promoted this idea for years. These are the kinds of philosophical foundations that are now in play with relativistic judges.

Footnotes:

1 Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 10.

2 Benjamin Cardozo, The Growth of the Law (New Haven; Yale University Press, 1924), 49.

3 Final Report of the Joint Committee on the Organization of Congress, December 1993.

4 Lino A. Graglia, “Judicial Review on the Basis of ‘Regime Principles’: A Prescription for Government by Judges,” South Texas Law Journal, vol. 26, no. 3 (Fall 1985), 435–52, at 446.

5 John Eidsmoe, Christianity and the Constitution (Grand Rapids, MI: Baker Book House, 1987), 391.

6 Ibid., 394.

7 David Barton, Original Intent (Aledo, TX: Wallbuilders, 1996), 228.

8 Oliver Wendell Holmes Jr., “The Law in Science-Science in Law,” Collected Legal Papers (New York: Harcourt, Brace and Company, 1920), 225.
9 Steve Brown, “Fears Grow over Academic Efforts to Normalize Pedophilia,” www.CNSnews.com, July 10, 2003.

By Brannon Howse Email: Brannon@worldviewweekend.com Click here for bio and archived articles