At the Georgetown University Law School commencement on May 24, 2021, guest speaker, U.S. Supreme Court Chief Justice John Roberts, encouraged graduates to resolve disputes through "reason" not "power" and advised them not to bow at the altar of Justice Oliver Wendell Holmes, Jr. (1841-1935).
Not surprisingly, numerous Progressives frowned upon Roberts’ shot at their judicial hero, who served on the nation’s highest court between 1902-1932.
Why is Holmes an icon of the Left?
First and foremost, Holmes rejected the Founding Fathers’ appeal to Natural Law 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, that among them are Life, Liberty and the pursuit of Happiness."
In Holmes’ godless world there can be no natural law, no first principle. "The jurists who believe in natural law," he wrote, "seems to me to be in a naïve sense of mind."
Based on this epistemology, Holmes concluded that absolute truths, and consequently, all religions are illusions. If there is no God, then there is no design, and man cannot really possess objective values.
Hence, there can be no judgments that are universal and necessary; truth is a chimera, merely one’s perception based on one’s abilities.
Holmes also rejected another key article of the Declaration: "That to secure these [unalienable] rights, Governments are instituted among men, deriving their just powers from the consent of the governed."
For Holmes, "rights" do not come from the hand of God, as the Founders believed, but from those people in power thanks to a support of a majority.
Truth is "a majority vote of the nation that could lick all others; not absolutely, but relative for time and place." All ideas, concepts, values are tentative. Yes, law for Holmes is based on power, not reasoning. There is only legal positivism, authority based on force.
Authority is the applied physical force of a majority (in a democracy) or of whatever force dominates society. Public policy is whatever that dominant force wants, even if it is mob violence. Holmes said: "I am so skeptical as to our knowledge about the goodness or badness of laws that I have no practical criticism except what the crowd wants."
In other words, a majority’s feelings determine truth, morals and law. Public policy varies with the tastes of those in power.
In this might-makes-right environment, the survival of minorities depends on the sympathies of the majority. "All that can be expected from modern improvements," Holmes wrote, "is that legislation should easily and quickly, yet not too quickly, modify itself in accordance with the will of the de facto supreme power in the community, and that the spread of an educated sympathy should reduce the sacrifice of minorities to a minimum."
Holmes is also loved by Progressives because the Constitution, in his view, is only an experiment: "the claim of our especial code to respect [the Constitution] is simply that it exists, that it is the one to which we have become accustomed, and not that it represents an eternal principle."
Therefore, the most the Supreme Court can do is predict how tastes will change.
Judicial decisions reflect nothing more than the workings of the moment.
They have no ultimate or absolute value beyond "what is" at any moment in time.
There are no ultimate ends because that would infer an objective norm. Law is only descriptive, it describes what has happened, not what should happen. Seeking precedents in case law is absurd because tastes change as the forces that dominate the social and political environment change.
According to Holmes the "administration of justice" is also a subjective matter. The United States does not have laws governing men, because men govern men.
As one legal realist put it: "Let us banish from our professional tenets the absurd dogma 'a government of laws not of men . . .' there is no place for it in legal science."
If men only avoid committing crimes, it is not because crime is morally wrong but out of fear that those who dominate society will punish them.
Chief Justice Roberts cautioned the Georgetown Law School graduates because he knows Holmes and his followers espouse an ideology of expediency. They are crypto-totalitarians who would sweep the Declaration of Independence and the Constitution into the dustbin of history.
Roberts knows that to prevent a Holmesian dictatorship our judges and elected officials must recognize that government’s powers are limited, and that the method of democracy should be a process by which the executive, legislative and judicial branches of government protect our God-given rights clearly stated in the Declaration of Independence.
George J. Marlin, a former executive director of the Port Authority of New York and New Jersey, is the author of "The American Catholic Voter: Two Hundred Years of Political Impact," and "Christian Persecutions in the Middle East: A 21st Century Tragedy." He is chairman of Aid to the Church in Need-USA. Mr. Marlin also writes for TheCatholicThing.org and the Long Island Business News. Read George J. Marlin's Reports — More Here.
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