With the Senate confirmation battle looming for the nomination of Judge John Roberts to the Supreme Court, it may be useful to present a highly summarized review of jurisprudential orientations of the high Court since 1787. This will be the first of several postings covering different aspects and different periods in the Court’s history.
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Any review of changing jurisprudential theories in Supreme Court adjudication must be set against the background of the rapid economic and social changes occurring the the United States. The latter obviously influenced the former, if in no other way, by determining the kinds of cases that came before the Court.
The first factor to be noted is that the United States came into being at a pivotal time in Western history. The Constitution was ratified in 1789, the same year that the French Revolution began the process of socialistic corrosion of Western civilization’s foundations of law and order.
Western civilization was grounded in Judeo-Christian traditions of natural law and oriented by the Bible’s commandments to worship only the Lord God and to love your neighbors as you wished to be loved by them. European law was essentially the Roman Empire’s Codex modified by the canon law of the Roman Catholic Church, the only universal organization in Western Europe, and therefore its root source of law and order.
The French Revolution introduced the still advancing forces of atheistic hubris, the headstrong conviction that man alone is the judge of his conduct, that man can shape and bend to his will all that he surveys. This hubristic impetus obviously collided head-on with Judeo-Christian faith in one, unchanging, everlasting God who made the universe and imposed His order upon everything in the universe.
For followers of liberal-socialism, the path toward judicial activism was thus opened in 1789. Sooner or later there had to be a clash.
The second factor, closely related to the first, was the groundbreaking mathematical and scientific work in the 17th century of Galileo, Descartes, Leibniz, and Newton. The technological applications of their analytical work had already been manifested by 1789. Adam Smith, in his famous “Wealth of Nations,” published in 1776, described the enormous increase in output efficiency attained with new machinery and through the division of labor that would eventually create production lines.
It was the scientific and technological revolution that gave major impetus to the French political and philosophical revolution in 1789.
In the fifty years following ratification of our Constitution, the industrial revolution became a dominant factor in economics, politics, and social relations in Europe and the United States. Aggregate wealth of the Western world increased dramatically; average standards of living improved. But all the horrors of workingmen’s lives in crowded city slums, working in dangerous conditions, for very low wages also appeared.
Karl Marx’s answer to these dislocations burst like a cannon shot with his 1848 “Communist Manifesto.” After the end of the Civil War in 1865, American socialists and anarchists picked up the Marxian torch and began a campaign of terror that included mass killing with dynamite and individual assassinations of political and business leaders. In 1901, President William McKinley was shot to death by an anarchist follower of Emma Goldman.
Setting the tone for Senator Kerry’s demand that we not act militarily against Iraq in recent times, world socialist leaders called upon working men to resist mobilization for World War I. American socialists attempted various kinds of sabotage to inhibit our war preparations in 1916 and 1917. Out of this came the ACLU, organized by Crystal Eastman and Roger Baldwin, the latter a follower of terrorist Emma Goldman.
With state and Federal courts sustaining legislative enactments designed to curb or incarcerate socialist and anarchist terrorists, Roger Baldwin and the ACLU conceived the idea of doing an end run around duly elected state legislatures and Congress by getting the courts to redefine the Bill of Rights.
Beginning in the 1920s, judicial activism to promote the cause of socialism against the nation’s founding principles got underway. The atheistic, secular, and materialistic principles of the French Revolution were to replace the God-fearing individual morality of our nation’s Judeo-Christian heritage. In typical socialistic fashion, the intellectuals were to dictate politically correct social justice, and it was to be the courts that would enforce the diktats from ivory-tower sociology departments.
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