Breaking the Law to Make the Law
Updated: May 11, 2020
This is an excerpt from his best-selling book: Grave Influence: 21 Radicals and Their Worldview Ruling America From the Grave (purchase book here)
Although judges and legal scholars now refer to judges as “making law,” Founding Father and architect of much of early U. S. legal philosophy William Blackstone never believed judges “made law” but that they were to study the U.S. Constitution to “discover” or “apply” the law. About our early leaders’ high esteem of Blackstone’s view, David Barton says:
Numerous early American lawyers, legal scholars, and politicians cited Blackstone’s work as a key legal source.
For example, Blackstone is invoked as an authority in the writings of James Kent, James Wilson, Fisher Ames, Joseph Story, John Adams, Henry Laurens, Thomas Jefferson, John Marshall, James Madison, James Otis and more.
In fact, so strong was its influence in America that Thomas Jefferson once quipped that American lawyers used Blackstone’s [Commentaries] with the same dedication and reverence that Muslims used the Koran.
Although introduced in the nineteenth century, legal positivism began to make real headway when Earl Warren became chief justice of the U.S. Supreme Court. In the 1958 case, Trop vs. Dulles, Warren declared the Eighth Amendment of the U.S. Constitution could not have the same meaning now as it did at the time written. (The amendment reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”) In Trop vs. Dulles, the U.S. State Department had attempted to strip a man of his U.S. citizenship because he deserted the armed forces during World War II. But Trop’s attorneys argued it was “cruel and unusual punishment” to take away his citizenship. Chief Justice Warren agreed, stating “the Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Legal positivism has been racing through court decisions at an ever-increasing pace since the mid-1900s.
The clear implication of legal positivism? Since morals and standards change over time, so does the meaning of the Constitution. Strangely, the Constitution has supposedly become much harder to understand than it once was.
Joseph Story, professor of law at Harvard and associate justice of the U.S. Supreme Court, was a leading constitutional scholar of the nineteenth century. In Commentaries on the Constitution (1833), he advocated interpreting the Constitution according to its plain meaning and the intent of its authors. Story emphasized that the Constitution was deliberately written so as to be understood by the common man:
I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing its powers, by ingenious subtleties and learned doubts. . . . Upon subjects of government; it has always appeared to me that metaphysical refinements are out of place. A constitution of government is addressed to the common sense of the people, and never was designed for trials of logical skill, or visionary speculation.
Compare Story’s eloquent yet humble thinking with the aggressive positivism of Charles Hughes, New York governor and chief justice of the U.S. Supreme Court: “We are under a Constitution, but the Constitution is what the judges say it is.”
In 1985, to illuminate the destructiveness of this view, Edwin Meese, attorney general under then-president Ronald Reagan, delivered a speech to the American Bar Association in which he declared:
It was not long ago when constitutional interpretation was understood to move between the poles of “strict construction” and “loose construction.” Today, it is argued that constitutional interpretation moves between “interpretive review” and “non-interpretive review.” As one observer has pointed out, under the old system the question was how to read the Constitution; under the new approach, the question is whether to read the Constitution. . . . The result is that some judges and academics feel free (to borrow the language of the great New York jurist, Chancellor James Kent) to “roam at large in the trackless fields of their own imaginations.”
In the 1992 U.S. Supreme Court ruling in Planned Parenthood of Southeastern Pennsylvania vs. Casey, Governor of Pennsylvania, Justices Sandra Day O’Connor, Souter, and Kennedy stated in the majority opinion, “At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe and the mystery of human life.”
Dr. James Dobson, president and founder of Focus on the Family, later explained the stunning and dangerous shift brought about by this ruling:
With those words, the Court discarded its historic reliance on “a law beyond the law,” or a transcendent standard. The Founding Fathers based the Constitution on the understanding that human affairs are governed by the moral law of the universe or what they termed “The Law of Nature and of Nature’s God.” That’s why the Declaration of Independence reads, “All men are endowed by their Creator with certain unalienable Rights.”
Human dignity and freedom are precious gifts from God, rather than from government or its leaders. The Creator is also the ultimate definer of right and wrong. But after the Casey decision, this understanding of the moral absolutes was supplanted by “the right to define one’s own concept of existence, of meaning of the universe and the mystery of human life.”
It brings to mind the words of King Solomon, who wrote, “There is a way that seems right to a man, but in the end it leads to death” (Prov. 14:12 NIV).
Columnist John Leo agrees:
This “mystery passage” [as it has become known] can be cited easily next time to justify suicide clinics, gay marriage, polygamy, inter-species marriage [such as marrying one’s dog or cat] or whatever new individual right the court feels like inventing. We are moving firmly into the court’s post-constitutional phase.
Similarly, Chuck Colson noted the mystery passage could mean absolutely anything to a future court, including the right to marry your toaster if you wish.
The seismic shift represented in the Casey decision is how we define reality. The new definition flows from a postmodern philosophy that refuses to acknowledge any absolutes—nothing right, nothing wrong, nothing moral, nothing immoral. Truth does not exist, and there are no absolutes that transcend time or situation. Everything is subject to individual interpretation.
For the U.S. Supreme Court to descend into the abyss of moral relativism is disastrous. The Constitution has been the shield and defender of essential liberties for well over 200 years, based on “The Law of Nature and of Nature’s God.” Now, according to Justice Kennedy and five of his colleagues, its meaning has become no more predictable than the shifting sand of personal opinion.
Liberal elitists attempt to intimidate the American people by telling them they’re not allowed to question the rulings of judges or have an opinion on legal rulings—particularly if they don’t have a law degree. But book sense is not a substitute for common sense. As Vance Havner said, “You don’t have to be listed in ‘Who’s Who’ to know what’s what.” The real bottom line is that liberals don’t want to be held to any standard other than their own mushy amalgamation of sound-bite thinking on issues of epic significance. They don’t want to be accountable to the rule of law—they want to be the law.
Americans should not be silent concerning the laws and court rulings that impact their lives. While judges may wish it, we are not slaves of the black-robed usurpers. Perhaps it is because judges are lawyers—and most lawyers are liberal—that they seem to be so readily capable of ignoring truth, distorting reality, and quickly accepting the fallacies of a postmodern worldview.
The rejection of a fixed moral standard as the basis for law means there is no longer a benchmark by which a society judges good and bad behavior. After the 1962 and 1963 U.S. Supreme Court rulings that outlawed prayer and the Bible in America’s public schools, cheating, stealing, rape, murder, and assault increased dramatically throughout the culture. After the 1980 U.S. Supreme Court ruling outlawing the posting of the Ten Commandments in our nation’s public schools, the increase in deviant behavior rose higher still, and that trend continues to this day.
What’s more, without a fixed moral standard as the basis for law, government has no moral purpose for its existence. According to Romans 13, the God-given purpose of civil government is to protect the righteous and punish the wicked; but without a moral foundation to uphold, defend, and use as the standard by which to judge and punish evil doers, government has nothing to enforce.
The lack of a fixed moral standard as the basis for law means our rights are not God-given but only granted to us by the government. These days, people are dangerously close to accepting the idea that the State grants rights to American citizens. This thinking will lead to calamity. Government is not the god who creates rights. It is merely God’s minister to protect the rights God has given mankind.
Absent a fixed moral standard as the basis for law, “might makes right.” Thus the groundwork is laid for one of two (and possibly both) disastrous ends. Anarchy is one. And that would most likely lead to the second, which is for our nation to be subjected to the feelings, opinions, agenda, and worldview of a small group of immoral, elitist judges who rule from behind the bench or a dictator who rules from behind a gun. Attorney John Whitehead puts it this way:
Those who do not favor taking God’s law as the ultimate standard for civil morality and public justice will be forced to substitute some other criterion of good and evil for it. The civil magistrate cannot function without some ethical guidance, without some standard of good and evil. If that standard is not to be the revealed law of God (which, we must note, was addressed specifically to perennial problems in political morality), then what will it be? In some form or expression it will have to be a law of man (or men)—the standard of self-law or autonomy. And when autonomous laws come to govern a commonwealth, the sword is certainly wielded in vain, for it represents simply the brute force of some men’s will against the will of other men. “Justice” then indeed becomes a verbal cloak for whatever serves the interests of the strongmen in society (whether their strength be that of physical might or of media manipulation). Men will either choose to be governed by God or to be ruled by tyrants.
The loss of a fixed moral standard means Lady Justice is no longer blind, and those who have money and influence have a greater chance of getting what they want—to the detriment and harm of the middle class and the poor. Lacking moral law, man will not be restrained from within, so he must be restrained from without. More intrusive and larger government presence in our lives will be required.
Finally, the loss of a fixed moral standard means injustice will naturally follow, resulting in the unjust suffering and death of many. person” without protection from the more powerful. There is no consideration that God has defined the nature of life, or that freedom should be defined in terms of submission to the commandments of God. Nor are the necessarily destructive and suicidal long-term consequences of such legal thought and practice seriously considered.