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Slouching Towards a “Living Constitution”
by David N. Bass
24 November 2003Constitution

The "living Constitution" fails to reflect the so-called evolving values of our nation, but establishes an agenda that is deeply steeped in relativism and social Darwinism.


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.

David N. Bass writes for World Newspaper Publishing and has a regular column at AmericanDaily.com, ARationalAdvocate.com, and RenewAmerica.us
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