GLEN COVE, NY — When Western man stopped believing
in God, he needed an alternative jurisprudence to the Natural Law.
The first and greatest challenge to the Natural Law was positivism. The basic tenet of positivism is that the law is whatever
the sovereign or government says it is. This jurisprudence makes no
distinction based on an objective standard between laws that are just
and unjust, good and bad.
Positivism was the dominant school of jurisprudence in the German
universities throughout the first half of the twentieth century. It
is not surprising, therefore, that when the Nazis planned the Holocaust
they included lawyers to make sure it was legal under German law. Although
positivism lost some of its appeal as a result of the Nazi experience,
it still has defenders in the English universities. The relativist
assumptions on which positivism is based, however, have not lost their
appeal; these assumptions deny any standard for the law more objective
than sheer power.
The dominant school of jurisprudence in twentieth-century America
is probably realism, which is based on the same might-makes-right theory
as positivism. Realism is the school of jurisprudence that holds that
the law is whatever the judges say and people expect the judges to
say. In a famous bar association speech, Justice Oliver Wendell Holmes
said that judges can make the law say whatever they choose. His speech
was important not because he said something no one thought, but because
he said it publicly. Holmes also denied any objective Common Law.
In the 1930s, the Supreme Court adopted Holmes’ view in the
Erie Railroad case. In this case, the Court denied that the same words
in the same English case had the same meaning in every state. In short,
the Court denied that a judge’s ruling has objective meaning.
The result of this relativism is the current debate over whether the
words of the Constitution have any objective meaning. The Natural Law
commands that agreements be preserved. The Natural Law has never required
every court in the nation to correct every injustice it can find. It
does, however, require that all courts rule on arguments before them
One of the functions of the Supreme Court is to construe the Constitution
in appeals from cases arises under the Constitution. Another function
is to construe the Common Law in appeals in cases originating in federal
courts between citizens of different states. The Court has abandoned
the second function by denying an objective common law and has made
the first function its main business.
Some believe that the Constitution is a “living” document
— that its words constantly acquire new and changing meanings. This
form of positivism and realism holds that the Supreme Court is always
right, very much like Mussolini in Fascist legal theory. The words, “No
person shall be deprived of life, liberty, or property without due
process of law,” not only mean that the unborn can be deprived
of life without any process of law but that no legislature, state court,
or Congress can protect the unborn from death. The Supreme Court speaks
and that is the end of the story. This is the essence of positivism,
except the judges replace the sovereign.
The other side of the debate is often called “original intent” or “literalist” jurisprudence.
It holds that the words of the Constitution have one fixed meaning
that does not change. If one of the “eternal, immutable laws
of good and evil” is that agreements should be preserved according
to the original intent of the parties, a proponent of Natural Law must
adopt an original intent jurisprudence in approaching the Constitution.
All questions about the jurisprudence of the Supreme Court boil down
to one: Should one honestly construe words in the knowledge that eventually
one will face the judgment of God, or should one construe words to
achieve whatever one imagines is a good result because might makes
The Confederate Lawyer column is copyright © 2009
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
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