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Wednesday, September 27, 2006


Judge-Made Law

by Thomas E. Brewton

Supreme Court Justice Benjamin Cardozo was a quintessential judicial activist, basing his jurisprudential philosophy on sociology, rather than statute law or legal precedent. From that jurisprudence came the social disintegration of American society in the late 20th century.

In 1932 President Herbert Hoover nominated Benjamin Cardozo to succeed the retiring Supreme Court Justice Oliver Wendell Holmes, Jr. Judge Cardozo was an appropriate choice.

Both he and Justice Holmes, along with Justice Louis Brandeis, were advocates of the new jurisprudential theory that, whenever possible, legal cases should be decided on the basis of what the social-justice principles of socialism envisioned as the appropriate outcome. What the law or legal precedent directed was less important than using the judicial power to reshape society. This necessarily implied antagonism towards both Judeo-Christian principles and English constitutionalism upon which the United States was founded.

These three Justices established the precedents for the 1950s and 1960s Warren Court that ran amok, overturning thousands of years of legal principle and restructuring the legal framework to facilitate the crime wave and moral degradation in the era of the Great Society and student anarchism. Today's legalization of same-sex marriage and aggressive removal of God from public life are just the latest results set in motion by Holmes, Brandeis, and Cardozo.

Justice Cardozo's views closely paralleled those of Justice Holmes, as discussed in "Justice Holmes and Legal Realism:"

-- there is no higher law or natural law, even though natural law was the basis of the Declaration of Independence and the Constitution;

-- Christian morality should be divorced from the law;

-- social order is created in the mind of Self-Sufficient Man via the social sciences;

-- there is no such thing as moral truth; truth is merely the dominant public opinion of the moment; Holmes had no objection if the public were to decide to ditch the Constitution and adopt Soviet communism.

This is, in short, a prescription for totalitarian tyranny. Rulers, and judges, unrestrained by a higher, Divine authority, are free to exercise whatever degree of oppressive power they can get away with, via manipulating public opinion to send mobs into the streets to demand seizure of someone else's property.

The Bill of Rights was intended to protect the rights of individuals against the tyranny of the majority, reflecting Jefferson's words in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights..."

Justice Cardozo's view, set forth in his 1924 "The Growth of the Law," was: "We need have no fear in thus subordinating the individual to the community that great minds and great souls will be without an opportunity to reveal themselves." (page 95)

In that study he makes continual reference to works he regards as definitive in the process of reaching judicial decisions. Dominating his list of authorities are prominent advocates of socialism or pragmatist philosophy: John Dewey, Graham Wallas, Justice Holmes, John Maynard Keynes, William James, Charles Sanders Pierce, Justice Louis Brandeis, and Roscoe Pound.

Cardozo's underlying principle is that sociology is the proper guide to determining the correct aims of political society, and a judge should interpret the law to implement those aims. Sociology was the social science conceptualized by atheistic, materialistic philosopher Auguste Comte as the highest of all the sciences, and the foundation of his Religion of Humanity.

Cardozo writes, "Not logic alone, but logic supplemented by the social sciences becomes the instrument of advance." (page 73) "The apportionment of the relative value of certainty on the one side and justice on the other, of adherence to logic and the advancement of utility, involves an appraisal of the social interest which each is capable of promoting." (page 83) "In the choice of the particular device determining the result – social utility – the mores of the times, objectively determined, may properly turn the scale in favor of one against the other." (page 84) " 'The problem,' in the words of [John] Dewey, 'is one of continuous, vital readaptation.' " (page 85)

In other words, if later Justices believe, for example, that abortion is a social end furthering social justice, they are free to "discover" some sociological principle within the penumbras of the shadows of the Bill of Rights to rationalize it. As in the philosophy of pragmatism, the guiding principle is whatever works to further the ends desired by the practitioner.

"... the estimate of the comparative value of one social interest and another, when they come, two or more of them, into collision, will be shaped for the judge ....... by his experience of life; his understanding of the prevailing canons of justice and morality; his study of the social sciences; .... " (pages 85 - 86)

"What we are seeking is not merely the justice that one receives when his rights and duties are determined by the law as it is; what we are seeking is the justice to which law in its making should conform." (page 87) "The analysis of social interests and their relative importance is one of the clews, then, that the lawyer and the judge must utilize in the solution of their problems." (pages 93 - 94)

"The judge interprets the social conscience, and gives effect to it in the law." (pages 96 - 97) What about the legislative branch? Isn't it uniquely structured to reflect public opinion? Legislators must stand for re-election. Supreme Court Justices are appointed, in effect, for life.

The fundamental flaw in basing legal interpretation upon the atheistic materialism of sociology is that so-called social scientists are defining social aims within a theoretical framework. Since Cardozo's day in the 1920s and 1930s, the result of sociological theory as the guiding light for political decision has been disaster, just as it was in France after the socialist revolution of 1789.

In contrast, the respect for Judeo-Christian principles and long-established tradition that characterized English and early American history produced the greatest degree of political liberty and the highest living standards in world history.
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