The View From 1776

The history of the Supreme Court since 1937 is at odds with the intentions of those who wrote the Constitution in 1787.

In Judicial Activism- Part IV, I wrote:

Judicial activism since 1937 is the product of the liberal mindset.  Most people today would be surprised at the favorable reception accorded to socialism in the 1920s and 1930s.  In those days the term socialism was openly, and approvingly, used by most educated Americans.  The secular religion of socialism, now deceptively called liberalism, is driving today’s judicial activism.

In Judicial Activism: Part VIII I summarized the mindset underlying judicial activism:

Liberal-socialism, the American sect of the world religion of socialism, is grounded in the atheistic faith that belief in a transcendent, all-powerful Creator God is an ignorant superstition, a sort of fairy tale concocted to soothe the uneducated masses.  Religion is, in liberal-socialist doctrine, not only ignorance, but a force of social oppression that must be destroyed.  Karl Marx called religion the opium of the masses, devised by the propertied ruling classes to keep the workers subjugated in ignorance.

It follows, in liberal-socialist logic, that, there being no God, man is in charge of the universe.  But, because past religious faith has made most people ignorant, it naturally also follows that only intellectuals, who understand all of this, are able to point the way to society’s earthly salvation. 

Thus a liberal-socialist society is to be ruled by intellectuals, such as the New York Times’s editorial board and anti-American university professors.  Needless to say, these intellectuals are the only ones with sufficient understanding to select appointees to the Federal judiciary, and, of course, those appointees must be atheistic socialists.

Proposition two in the chain of liberal-socialist logic is that the rational mind of man is responsible for everything we see around us and therefore empowered to realign social conditions that are at variance with the intellectuals’ current ideas of social justice. 

Proposition three is that the only things that matter in realigning social conditions are the materialistic factors such as working conditions, living conditions, and income.  From this comes proposition four that social ills, conditions at variance with current ideas of social justice, are caused by unequal distribution of these materialistic factors, most notably income, which affect working and living conditions.

Proposition five is the Marxian and Darwinian doctrine that there is no such thing as human nature.  All things, most especially standards of social belief and behavior, are continually evolving as the external, materialistic conditions of the economy and political regulations change.  As Darwin’s champion Thomas Huxley pictured it, there is no right or wrong, no such thing as sin; there is only the struggle for survival, another term for Darwin’s natural selection as the creator of species.

What has this to do with judicial activism?

First, and most consequentially, it means that there are no independent standards of law against which to measure the constitutionality of laws or human behavior.  As Justice Oliver Wendell Holmes, Jr., notoriously stated it, the law is only the opinion of a judge in a given case.  And in the world of liberal socialism, that means the judge’s opinion of how thing ought to be, regardless of what a statute says or what the law, for centuries, may have been. 

It will be observed that there is an element of circularity in this liberal-socialist scheme, leading to instability, even chaos.  The judge himself is at the mercy of changing external material conditions, as he has no timeless principles of religious morality to circumscribe his opinions.  He is a rudderless ship driven by changing public opinion, whatever may be the latest social-justice issue to capture the enthusiasm of Hollywood, TV, and the print media.  Yesterday’s established principle of law may be overturned without a backward glance.

When no one can be sure of what the law is respecting a given issue, a measure of economic and social paralysis results.  The largest corporations, with teams of the best available lawyers, and assuredly poor individuals, are left to make at best educated guesses about whether policies or conduct will survive the scrutiny of Federal and state judges.

Corporations forego new projects that might have created thousands of new jobs and produced innovative and cheaper products for people, because their lawyers fear potentially ruinous law suits.  Doctors order scores of ferociously expensive tests for patients, even when those tests are unneeded in their best medical judgment, because any pretext can be exploited by attorneys for malpractice awards that will bankrupt the physicians.

The one sure effect of liberal-socialist doctrine applied to the judiciary is diversion of prodigious amounts of money and armies of otherwise useful talent into the ranks of lawyers and accountants.  To this extent, everyone is poorer, both in spirit and in the pocketbook.

For a list of posting on this subject, see Judicial Activism - Summary of Prior Postings.