Legal Positivism and the Attempt to Remake Reality

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Oliver Wendell Holmes, Jr., circa 1930. Edited...

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Why did the United States Supreme Court reverse over 1500 years of legal tradition and create an almost unlimited right to abortion? Later judicial rulings extended the right through the third trimester of pregnancy if a doctor signed a statement to the effect that a woman’s physical and/or mental health is endangered. Even Western Europeans outside of the U. K. have been shocked by the breadth of U. S. abortion laws.

Why did a California court reverse thousands of years of tradition and support same-sex marriage (later the state legislature made a court ruling unnecessary)? Why did federal judges, who ruled like dictators over broad swaths of the South in the 1960s and 70s, force children to get up at 4 a.m. to go to schools many miles from their neighborhood to achieve “racial balance,” a social engineering scheme that has been a dismal failure?

The arrogance of judges who wish to remake reality in their own image is due, to a large extent, to legal positivism. This holds that law does not gain its legitimacy in being consistent with the natural law, but that laws are simply products of legislative or judicial action. St. Thomas Aquinas‘ eternal law, natural law, and positive law is whittled down to positive law alone. Legal positivism is consistent with the eighteenth century Enlightenment, or Age of Reason, in which Western Europe, and later the United States, believed that man could remake society according to his own reason and will. With the help of science, a new social order, “a new order of the ages” (novus ordo seclorem) would be created, a heaven on earth, would be created as man remakes nature in his own image. As Francis Bacon said in the seventeenth century, man will “hold nature to the rack,” pulling out its secrets, and by dominating nature, create technologies for the comfort of man. Ideologically this idea is opposed to the notion of a set natural law man should follow, either in science or in ethics. But exploiting nature is parasitic on a set order of nature, and thus science cannot fall into total positivism without destroying science. Ethics and law, however, were other matters as the nineteenth century’s machines ground on like clockwork. Man could exploit ethics and law for his own purposes, for reshaping society, and there is no set order of nature that applies to ethics and law. This view was enshrined in the work of U. S. Supreme Court Justice Oliver Wendell Holmes, Jr. (another contribution of New England cultural rot to the ruin of the United States). Holmes was influential in pushing a legal positivist framework that quickly became the dominant framework among U. S. judges–to the point that some liberals were claiming that Judge Clarence Thomas‘ acceptance of natural law disqualified him from serving on the Supreme Court. I wonder what the liberals would say about the noted scholar and judge, John Noonan, who accepts natural law and sits on the Ninth Circuit Court of Appeals. We have seen more than once that the public welfare may call upon the best citizens for their lives.  Justice Holmes was consistent with his positivist framework and appealed to the abstraction of “social welfare” to justify his position. In Buck v. Bell, 274 US200, 1927, Justice Holmes, in his majority opinion concerning the case of a woman ordered to be sterilized for being “feeble minded,” says, “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Holmes’ attempt to justify sterilization appeals to the public good–it is a utilitarian appeal–and utilitarianism only makes sense in a moral and legal world bereft of a concept of natural law. If law is just a positive act of legislatures and judges, then any kind of action by the state can be justified for “social welfare” or “for the public good.” Natural law offers a constraint on the tendency to remake society by getting rid of people that society finds uncomfortable.  But without the restraint of natural law, the state can justify any use of power against individuals or groups as long as it can be justified in terms of the “general welfare.” Note the terminology used by the U. S. Constitution, which is more of an Enlightenment Doctrine than some of its conservative advocates claim. Given the presuppositions of the Enlightenment that were not removed by the latent Christianity of the founding fathers of the United States (and the more active Christianity of others), the turn to legal positivism was a logical turn–but a turn that has led to a further breakdown of American society and the dismantling of the ethics and laws upon which Western Civilization has depended since the rise of Christianity.

The “Naked Public Square” in Fayetteville, North Carolina


First page of Constitution of the United States

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A federal judge has banned Christian prayers from the city council meetings in Fayetteville, North Carolina. Only “non-sectarian prayers” will be allowed. This is the latest sortie in the attempt of the United States government to enforce what the late Father Richard John Neuhaus called “The Naked Public Square.” That term refers to the systematic removal of religion (especially Christianity) from public discourse in the United States. Usually proponents of the naked public square refer to Thomas Jefferson’s referring to a “wall of separation” between church and state. Yet the term “separation of church and state” does not appear in the U.S. Constitution–the First Amendment only forbids the U. S. Congress from establishing a religion and forbids the government from prohibiting the free exercise of religion. It does not even forbid a state from having an established church if that individual state so choose. It took the creative reading of meaning into the First Amendment by members of the Supreme Court and by secularist federal judges to force a so-called “religiously neutral stance” on the American people. Religion is relegated to the private sphere.

Yet no one can remain neutral on religion–as William James pointed out in his famous essay, “The Will to Believe,” “neutrality” is de facto a rejection of religion. Religions claim to have implications for the whole of life, public and private. To privatize religion is to destroy an essential part of religion’s identity. A “neutral stance” of the government is, in effect, an endorsement of practical atheism.

There also can be no such thing as a “nonsectarian prayer.” A prayer to a deity of any kind reflects a bias toward theistic religions such as Judaism, Christianity, and Islam. Theravada Buddhists do not believe in God, or else believe that whether a deity exists is not important to ending desire and suffering. Would not a prayer to a deity oppose their teaching? Atheists would not agree with any kind of prayer. A prayer not using the name of Jesus is nonsectarian; it is biased against Christianity and toward the other two great theistic religions. A removal of a prayer from city council meetings would not help, since this would reflect a bias toward (practical) atheism.

A better solution would be to allow ministers from various faiths to present a prayer or devotional at the city council meeting. A Jewish rabbi or a Muslim Imam could pray to God without invoking the name of Jesus. A Theravada Buddhist could present some sayings of the Buddha about ending desire. A Christian could pray in the name of Jesus. An atheist might present a short meditation on the glory of science. Those in the audience who do not agree with the theology behind a particular prayer or devotional or meditation can surely tolerate it–no one is forcing them to give up their religious beliefs. If I am ever asked to pray publicly, I will pray in accordance with my religion, Christianity. I will end my prayer “in Jesus’ name.” To do otherwise would violate my conscience. A Jewish rabbi who leads a prayer should not be required to use the name of Jesus. A Theravada Buddhist need not make a reference to a deity. That is a solution fair to different religious groups that makes more sense than a “nonsectarian prayer.”


Immigration and Multiculturalism: European Leaders are Wising Up; American Leaders are Not

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Protest by the Tea Parties Against Amnesty and...

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Some European leaders, such as President Sarkozy of France, Prime Minster Cameron of the U.K., and Chancellor Merkel of Germany, have openly stated that “multiculturalism has failed” ( If only the President of the United States or more people in Congress had the courage to say the same thing. It is ironic that those academics and journalists who focus on cultures being irreducibly different also believe that cultures with radically different world views can peacefully co-exist. Until about 1965, the dominant culture of the United States was based on British culture and European Protestant Christianity with an American revivalist flavor. Roman Catholics, such as John F. Kennedy, fit into the general culture because they accepted the notion that the Roman Catholic Church should not be favored over other churches–in addition, Roman Catholics of Irish and European background understood democracy and the freedoms guaranteed by the U. S. Constitution. But after another Lyndon Johnson disaster, the 1965 Immigration Act, which no longer favored European immigration over immigration from other countries, the old Angl0-Protestant culture began to be superseded by a Balkans-like “multicultural” society. Massive immigration, both legal and illegal, has altered the social landscape so rapidly that communities hardly have had time to react. As more immigrants, especially illegal immigrants, come to the country from Mexico and Central and South America, usually from countries that lack a tradition of democracy, millions of people are entering the United States without an adequate knowledge or appreciation of our democratic heritage. While most legal Hispanic immigrants want to learn English (and to give them credit, some illegal immigrants), many illegal immigrants want a permanently separate society in which Spanish is the only language taught in their communities. Local communities, especially in the South, which have been stable for over one hundred years, have turned into unstable gathering points for illegal immigrants where locals who have sacrificed much of their livelihood and lives for the land on which they live feeling unwelcome and driven out.

In addition, millions of unassimilated Muslims have entered the United States. Secular Muslims fit well into a democratic culture; however, Muslims of a fundamentalist bent do not. The seeds for terrorism against the American people are today not as much with Al Qaeda in Afghanistan as in our own local communities. Although many Muslims are not fundamentalist, the United States has failed to take action even when officials knew a threat existed–as was the case in Fort Hood, Texas. The near-open border with Mexico is another place that Islamic terrorists might use as a crossing point. In the meantime, due to the political correctness and multiculturalism of the political left, of academic, and of the media, the United States fails to secure its borders and instead wastes lives, time, effort, and money into foreign wars that only serve to embitter our enemies more than before.

Europe has seen its very culture threatened by multiculturalism and by rapid immigration from non-Western cultures. In addition, some of these immigrants have carried out terrorist attacks against European nations. The European leaders understand that multiculturalism has failed. It will fail in the United States–it is already in the process of failing, as the Mexican illegal immigrants in California who refuse to play the Star Spangled Banner at ball games but instead play the Mexican national anthem with a Mexican flag flying high–witness. The drain of illegal immigrants who are not loyal to the U.S. and who desire the Southwest to be returned to Mexico has wrecked the state budgets of some states. In my home state, Tennessee, TennCare, the state insurance for the poor, was cut drastically when an unelected judge said that benefits had to be given to illegal immigrants. It is sheer madness for a country to allow massive illegal immigration (just what about the word “illegal” does the Left fail to understand?) by people from cultures hostile to the United States or at least not sympathetic to American ideals, to continue in this country. Hopefully soon an American political leader will have the courage to speak out as have the European leaders mentioned above.

O’Donnell is Right on Church and State


Cover of "The Naked Public Square: Religi...

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