The Rise of Mechanical Jurisprudence
During the 1930’s, some secularists undertook a campaign to program the judiciary, the Congress, and the public about the constitutionality of New Deal legislation. These social programmers attempted to change justices’ opinions through the inculcation of jurisprudential programming in order to convert susceptible jurists from independent-minded humans into rubberstamping, precedent-following judicial machines who mechanically followed whatever secular social path was set before them. Few scholars have fully acknowledged these programmers’ extensive influence in shaping constitutional law and opinion through such programming of the judicial machines.
Programming jurists with a mechanical mindset was analogous to the educational programming introduced into the public schools by the educator John Dewey. Whereas Dewey applied Darwinian social theory to the field of education, programmers of jurists applied evolutionary theory to constitutional law and found a perceived “gap” between constitutional doctrine created by “conservative” judges and “evolved” American society.
According to Darwinian social theory, the way to achieve social economic goals was through national economic planning such as the programs of the New Deal. Whereas the New Deal is not the issue of concern here, the programming of the judicial machines with social evolutionary theory in order to uphold the New Deal, is. For that programming of jurists with the mechanical, robotic mindset of legal positivism, in which judges march in lockstep with the social program, is still with us, still driving judicial activism that thwarts the will of the people as expressed through their elected representatives and the executive branch.
Many instances abound of a single federal judge overturning statutes of social importance that express the will of the people–laws passed by the people’s elected representatives–on the basis of that judge’s perceived opinion of the United States Constitution. Single judges or single courts declaring that the law of the land cannot be based on the higher moral law similarly persist–an exercise of the judicial positivism that is an outgrowth of social evolution and its parent, secular humanism. No wonder the stakes are so high in the confirmation process for federal judicial nominees! Conservative nominees are often filibustered–because if any adhere to the higher law jurisprudential doctrine, their appointment to the federal bench promises to overturn the rule of the judicial machines, who have risen up in black robes to rule over mere human beings.
Public opinion has been progressively shaped by social programmers who, since the 1930’s, repeatedly told the American people that aiding the community (but only in the collectivist way the social programmers envisioned) was best achieved through “social reform”. The programmers’ goal was to insure the changeability of constitutional doctrine so that the Constitution would accommodate society’s transformation, in addition to meeting the national planning agenda of that day.
Beyond programming the public about government’s relationship to society, liberal programmers sought to transform that relationship through the jurisprudential programming of judges. Whereas society had “evolved”, constitutional doctrine had “lagged behind” the “evolution” of society–so went the social programming code. The “program lag” in the so-called “evolving” Constitution threatened to produce a crisis in 1935, according to this view, when the Supreme Court of the United States confronted the innovations of the New Deal. To change the constitutional program, the programmers sought to translate into effective action the so-called “legal realist” philosophy (which was really legal relativism)–that judges made law in response to their own prejudices and opinions, phrased in terms of the evolutionary theory implicit in the social sciences.
If legal realism was activated as the programming code, judges could be programmed to encourage national evolution by reminding them about the changes that needed to be made to constitutional doctrine–beginning with a broad interpretation of the national government’s power to regulate commerce and to actively promote national economic planning.
The liberal social programmers believed that the United States Constitution should change over time and not remain the same document as that written by the nation’s founders and ratified by the people of the Young Republic. To the programmers, the Constitution’s software should have been changed before the 1930’s, but wasn’t, because the United States had not experienced a social crisis extensive enough to require re-writing of the programming code. The Great Depression, however, provided the conditions and the opportunity to finally rewrite the constitutional software so as to alter the activities of society. But in order to do that, the social programmers first had to program the judicial machines with a social activism safeguarded by the robotic mindset promoted by legal positivism–a jurisprudential philosophy which denied the existence and authority of the transcendent higher law.
The Programmers’ Social Agenda
Jurisprudential liberals (legal “positivists” and legal “realists”), wanted law to be a judge-made philosophy. And the viewpoint they wanted to change, in order to bend judicial activism to advance the secularist agenda, was the outlook of the four conservatives among the nine justices of the United States Supreme Court.
Judges could be persuaded to change their opinion–and such persuasion was the social programmers’ original goal. Anticipating judicial reaction to the New Deal, the social programmers began a campaign to program the public, as well as the judiciary. However, the Supreme Court struck down New Deal legislation. So the social programmers’ decided to try another route other than public policy debate: If the judges wouldn’t listen to the programmers, there was no other alternative–the judges had to be replaced.
Uprising of the Machines
In 1937, President Roosevelt unveiled the Judiciary Reorganization Bill–quite simply, a plan for packing the federal courts, and especially the U. S. Supreme Court. This was a proposal to add judges when old judges refused to retire. The alleged purpose was to facilitate judicial efficiency by assisting the old, supposedly overworked judges– but really, the goal of the “court packing plan” was to replace or offset the conservative judges with those holding legal realist views in step with the social programmers’ vision of what current society should be.
The social programmers’ public policy campaign finally reaped a full harvest with Justice Owen J. Roberts’ eventual defection from the conservative camp to make a five-to-four majority in West Coast Hotel Co. v. Parrish (1937). The success of the New Deal was now assured. From that point on, the 1937 court turned into a “New Deal court”. Broad interpretation of the Commerce Clause and validation of the remaining New Deal programs became the norm. Some “New Deal lawyers” were added to the Court. And the “New Deal” Supreme Court exerted its influence for decades.
The Re-programming of the First Amendment Religion Clauses
Significantly, one of the new Associate Justices appointed to the United States Supreme Court by President Roosevelt in 1937 was Hugo Black of Alabama–the judge who would, with one judicial opinion (Everson v. Board of Education (1947)), write Thomas Jefferson’s phrase “wall of separation between church and state” into First Amendment precedent.
Black set the trend for the judicial machines to follow in the area of church and state.
United States District Judge Brevard Hand of the Southern District of Alabama wrote the following in Jaffree v. Board of School Commissioners of Mobile County, Alabama (1983):
From the beginning of our country, the high and impregnable wall which Mr. Justice Black referred to in Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 513, 91 L.Ed. 711 (1947), was not as high and impregnable as Justice Black’s revisionary literary flourish would lead one to believe.
Black made a key decision: to interpret the Fourteenth Amendment in such a way as to make the Bill of Rights (including the First Amendment) applicable to the states. As Judge Hand wrote in Jaffree:
[I]n Adamson v. California, 332 U.S. 46, 47, 67 S.Ct. 1672, 1673, 91 L.Ed. 1903 (1947), […] Mr. Justice Black concluded that the historical events that culminated in the adoption of the fourteenth amendment demonstrated persuasively that one of the chief objects of the fourteenth amendment was to make the Bill of Rights applicable to the states.
However, Judge Hand said that Justice Black misinterpreted history:
The scholarly analyses of Professors [Charles] Fairman and [Raoul] Berger persuasively show that Mr. Justice Black misread the congressional debate surrounding the passage of the fourteenth amendment when he concluded that Congress intended to incorporate the federal Bill of Rights against the states.
Justice Black set the trend, the programming code, for First Amendment Religion Clause jurisprudence that judicial machines later followed.
Judge Hand said in Jaffree:
There are pebbles on the beach of history from which scholars and judges might attempt to support the conclusions that they are wont to reach. This is what […] the more modern scholars have done in attempting to establish a beachhead, as did Justice Black, that there is a basis for their conclusions that Congress and the people intended to alter the direction of the country by incorporating the first eight amendments to the Constitution. However, in arriving at this conclusion, they, and each of them, have had to revise established principles of constitutional interpretation by the judiciary. Whether the judiciary, inadvertently or eagerly, walked into this trap is not for discussion. The result is that the judiciary has, in fact, amended the Constitution to the consternation of the republic. As Washington pointed out in his Farewell Address, […] this clearly is the avenue by which our government, can and ultimately, will be destroyed. We think we move in the right direction today, but in so doing we are denying to the people their right to express themselves. It is not what we, the judiciary, want, it is what the people want translated into law pursuant to the plan established in the Constitution as the framers intended. This is the bedrock and genius of our republic. The mantle of office gives us no power to fix the moral direction that this nation will take. When we undertake such course we trample upon the law. In such instances the people have a right to complain. The Court loses its respect and our institution is brought low. This misdirection should be cured now before it is too late. We must give no future generation an excuse to use this same tactic to further their ends which they think proper under the then political climate as for instance did Adolph Hitler when he used the court system to further his goals.
Regarding the new interpretation of the First Amendment’s religion clauses, Judge Hand commented in the Jaffree case (note 41):
This Court is confronted with these two additional problems that must be resolved if the appellate courts adhere to their present course of interpreting history as did Mr. Justice Black. [***] A blind adherence to Justice Black’s absolutism will result in an engulfing flood of other cases addressed to the same point raised by intervenors.
Indeed, what followed Justice Black’s Everson opinion was an increasing flood of cases concerning church and state. For example, the pro-evolution opinion of the court in Epperson v. Arkansas, 393 U.S. 97 (1968) was written by a justice who was originally a “New Deal lawyer”, and Justice Hugo Black wrote a concurring opinion; this started the trend toward establishment of exclusively pro-evolution (religious secularist) views in the public schools. Edwards v. Aguillard, 482 U.S. 578 (1987) struck down a Louisiana law that required equal teaching of both evolution and creation science. The Court’s Edwards decision thus allowed the teaching of exclusively evolution but forbade the teaching of an alternative scientific viewpoint.
The programming of the judicial machines in the area of church and state was nearly complete.
Judge Hand noted in Jaffree:
Certainty in the law is important. Yet, a rigid adherence to stare decisis “would leave the resolution of every issue in constitutional law permanently at the mercy of the first Court to face the issue, without regard to the possibility that the relevant case was poorly prepared or that the judgment of the Court was simply ill-considered. The danger is particularly great where the court has moved too far in an activist direction; in such a situation, legislative correction of the error is liable to be virtually impossible.” [***] [citation omitted]
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More than any other provision of the Constitution, the interpretation by the United States Supreme Court of the establishment clause has been steeped in history. This Court’s independent review of the relevant historical documents and its reading of the scholarly analysis convinces it that the United States Supreme Court has erred in its reading of history. [***] [T]his Court is persuaded as was Hamilton that “[e]very breach of the fundamental laws, though dictated by necessity impairs the sacred reverence which ought to be maintained in the breast of the rulers towards the constitution.” [***] [citation omitted]
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The interpretation of the Constitution can be approached from two vantages. First, the Court can attempt to ascertain the intent of the adoptors, and after ascertaining that attempt apply the Constitution as the adoptors intended it to be applied. Second, the Court can treat the Constitution as a living document, chameleon-like in its complexion, which changes to suit the needs of the times and the whims of the interpreters. In the opinion of this Court, the only proper approach is to interpret the Constitution as its drafters and adoptors intended. The Constitution is, after all, the supreme law of the land. It contains provisions for amending it; if the country as a whole decided that the present text of the Constitution no longer satisfied contemporary needs then the only constitutional course is to amend the Constitution by following its formal, mandated procedures. Amendment through judicial fiat is both unconstitutional and illegal. Amendment through judicial fiat breeds disrespect for the law, and it undermines the very basic notion that this country is governed by laws and not by men. [***] [citation omitted]
Let us have faith in the rightness of our charter and the patience to persevere in adhering to its principles. If we do then all will have input into change and not just a few.
An Article III Remedy
Whereas the New Deal might have looked good to some during the 1930’s Great Depression, it left an unfortunate legacy: The social programming of the judicial machines didn’t end with the New Deal. Programming for social purposes increased the boldness of the “legal realists”–adherents to the philosophy that law is formed by judicial beliefs, prejudices, and opinions, and that law can be transformed by changing the opinions of the judicial “lawmakers”. (Though constitutionally, the legislature is the law-making branch of government under the Constitution’s separation of powers doctrine, in fact the new judicial machines performed, for all intents and purposes, as “lawmakers”.)
As educator John Dewey programmed public schoolchildren in order to prepare them to think and function a certain way in society, the secularist programmers taught judges how to render the decisions necessary for the social transformation of society. That paradigm shift in jurisprudential programming away from the higher law jurisprudence of America’s founders constituted a usurpation of the principles inherent in the U.S. Constitution.
To remedy this judicial usurpation, the United States Constitution (Article III, Section 1) has a built-in antidote: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior ….” Some may apply this section to judges who willfully ignore or stray away from the Constitution’s inherent and implicit higher law jurisprudence in order to intrude upon the lawmaking authority of the United States Congress. Also, Article III, Section 2 states: “[…] the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.” (emphasis added). Some may apply this section so as to introduce Congressional legislation that prohibits the Supreme Court from explicitly or implicitly forbidding governmental acknowledgment of God’s sovereignty.
The Link between John Dewey, the Philosophy of Judicial Machines, and the Extreme “Separation of Church and State” Doctrine
Federal District Judge Brevard Hand wrote regarding Dr. Russell Kirk’s testimony in Smith v. Mobile County Board of School Commissioners (1987):
When asked what he found to criticize in secular humanism as he defined it, Dr. Kirk said: “Why, sir? Because it omits what Plato said was the real important thing in all his writings; the doctrine of the soul. We find in secular humanism no recognition of the soul. There is only the human animal–the naked ape, if you will. What really distinguishes us human beings from the brutes is possession of a soul. Thus the development of the spiritual is the highest aim of a good education. That is not taken into account at all by the Secular Humanists. They think of man as a mechanism, a fleshly computer. That is my primary objection.” (Tr. 1397-98).
Earlier in his Smith opinion, Judge Hand summarized Kirk’s testimony as follows:
According to Dr. Russell Kirk, [***] John Dewey’s school of thought may now be adjudged as dominant in educational circles. Dewey was a humanist and was of the opinion that this humanism which he espoused was the religion of the future. (Tr. 1354). Dewey felt that religions existing at that time were outmoded, and that in the future the individual would be classified as little and the society as much. He believed that his religion was primarily concerned with the social order rather than the ordering of the soul. (Tr. 1355).
Dewey contended one should not read books written prior to 1900 because wisdom was new and not old. One should look to the future rather than to the past and hope to work toward an egalitarian society, marked by equality of condition and talent, a universally peaceful society which would guide itself not by old beliefs, but by new ethics derived from modern scientific doctrine in both the biological and physical sciences. He did not feel that society would have to cease to be religious, for he felt that there was a need for a religion in the sense of a set of central moral beliefs of a permanent character, but this religion would be quite different from any religion of the past. These would have to be cast off. (Tr. 1375). Kirk says Dewey also expressed himself that “We must be militant in our new religion.” (Tr. 1377).
It was Dewey and his colleagues who issued the first Humanist Manifesto. (Tr. 1379-80). Dr. Kirk explained that Dewey’s ideas were called instrumentalism and that it looked upon education primarily as an instrument to prepare the way for an egalitarian society in which people will cooperate and in which there will be little challenge or problems. Thus, education would become a social function as contrasted with other ideas that had prevailed. (Tr. 1388). Present day progressive education is an outgrowth of his ideas and is sometimes carried beyond those ideas by its followers. In short, it is an elaborate system of pedagogy, which established a form of learning through personal experience and by classroom activities that simulate adult life. Though this was established in the 20’s and 30’s, it is still often called today the American educationalist empire. (Tr. 1389).
An illustration is the social science disciplines which came into being during the 20’s and were later enlarged upon and given considerable boost by the former president of Harvard, James Bryant Conant, during the 50’s. Social science is viewed as a kind of “omnium-gatherum” in which improved behavior in society is brought about by imposing upon society a new moral pattern. This social science supplanted the former teachings of history and geography. What history and geography is now taught is under this general umbrella of social science. (Tr. 1389-90).
Thus it is no wonder that the Darwinian theory of evolution devalues human life to the merely biological level (ignoring the fact that humans are created in the image of God, which means they possess eternal souls). The evolutionist view undergirds the “secularist” or “liberal” view of education and legal philosophy–which includes using social science to nudge and push society in a certain direction, toward certain social goals desired by the secularist programmers. This is the real driving force behind judicial machines’ court opinions.
Naturally, such a secularist viewpoint is hostile to the Judeo-Christian worldview and to God’s higher moral law. As Judge Hand summarized Kirk’s statement in Smith:
Dr. Kirk defines secular humanism as “… a creed or world view which holds that we have no reason to believe in a creator,” that the world is self existing, that there is no transcendent power at work in the world, that we should not turn to traditional religion for wisdom; rather that we should develop a new ethics and a new method of moral order founded upon the teachings of modern naturalism and physical science.” (Tr. 1372).
This is the same philosophy involved in eighteenth-century deism (the early form of religious secularism) and secularism’s offspring and companion philosophy, the biological theory of evolution, which social programmers transfer to the public policy setting and apply in socially activist ways. A major mechanism for achieving social change while bypassing the people’s elected representatives is for secularists to trailblaze the desired changes through court decisions rendered by judicial machines, programmed by legal positivism to follow the secularist mindset.
As Judge Hand, in Smith, summarized the testimony of another scholar:
[…] R. S. Peters, a noted British philosopher of education […] observed that the American system is that we do not teach religion in public schools, yet we teach Dewey’s philosophy, and that is a religion. [***]
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It is a philosophy that is hostile to established religion because in the establishment of this new church, a very comprehensive system had to be erected that left out the cornerstone of most previous ethical systems: the absolute. [***]
And note: This is religious secularism. As Dr. Kirk noted, Dewey admitted that his social philosophy was intended to be a new religion. Only religions fight to displace other, previously-existing religions in order to establish their new dominance. Therefore, religious secularism’s very tenacity and hostility to Christianity speak volumes about its true identity as a new religion struggling for ascendancy.
In light of that, judicial decisions to bypass or not uphold the Judeo-Christian moral law, while at the same time affirming the legal positivism and evolutionary philosophy of religious secularism, indicate a purpose that is crystal-clear: the establishment of religious secularism as the new government religion, in place of the transcendent higher law doctrine upon which America’s jurisprudence traditionally has been based.