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America’s Exceptionalism Chapter 31: Evolving Constitution  Part 1


What we have learned in this book is what America used to be.  We are no longer on the foundation that our Founders laid for us.  We have since the late 1800’s began to lay a ‘new’’ foundation.  That foundation is based on secular humanism instead of the Word of God.  As a Christian nation, which despite all the revisionist historians claims that we are not, we were built on the Word of God.  Our Founders lived by His Word, governed by His Word, educated by His Word and judged by His Word.  That is why America is the greatest nation this world has ever seen.  To attempt to re-establish a foundation different from that would be foolish. Matthew 7: 26 And every one that heareth these sayings of mine, and doeth them not, shall be likened unto a foolish man, which built his house upon the sand:1 Benjamin Franklin stated at the Constitutional Convention:

I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth – that God governs in the affairs of men.  And that if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?

We have been assured, Sir, in the Sacred Writings, that “except the Lord build the house, they labor in vain that build it.”  I firmly believe this; and I also believe that without His concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages.  And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments by Human wisdom and leave it to chance, war and conquest.2 (Emphasis added)

What we are witnessing is a shift from a God centered society to a human centered society.  All of man’s history has proven over and over again that a human centered society always fails.  There are many reasons why, but the most important single reason is that a human based society rejects God.  Our modern justices have over and over taken away our right to govern by God’s principles.  They have even taken away our right to His guidance and influence in our government and schools, which as we have seen was the foundation of our centuries of success.

This human based secular society or ‘relativism’ as some call it has been defined by constitutional scholar and law professor John Eidsmoe as:

  1. There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system.
  2. Since God is not the author of law, the author must be man; in other words, the law is law simply because the highest human authority, the state, has said it is law and is able to back it up.
  3. Since man and society evolve, therefore law must evolve as well.
  4. Judges, through their decisions, guide the evolution of law.
  5. To study law, get at the original sources of law – the decisions of the judges.3

This philosophy came about because a Harvard law school Dean, Christopher Columbus

Langdell, 1870’s, believed that if man evolved as Darwin suggests then man’s laws must too evolve and that judges were to guide that evolution which included the Constitution.  This brought into being students of laws studying judges decisions instead of the Constitution that they are sworn to uphold.

Under this case-law approach the history, precedent, beliefs and views of the Founders are not only irrelevant they are a hindrance to the evolution of society.  Under this system of jurisprudence absolutes become a hindrance as well and by the 1930’s the foundation of American law, Blackstone’s Commentaries on the Law had been all but discarded.  It is believed that Blackstone’s teaching that some rights and wrongs, specifically those dealing with human behavior, never changed was an outdated approach.

Another so-called educator that believed in the ‘evolving Constitution’ was Roscoe Pound.  He helped to influence several schools in that theory as a professor at four different law schools and Dean of the law schools at Harvard and the University of Nebraska.  His vision for law was far from what James Kent the Father of American Jurisprudence’ believed.  Pound explained his view as:

We have. . . the same task in jurisprudence that has been achieved in philosophy, in the natural sciences, and in politics.  We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science.4

Oliver Wendell Holmes, Jr. was appointed to the Supreme Court in 1902 and he followed this approach to law that ignores the Founders original intent.  He spent 30 years on the bench and argued that the Courts decisions should not be based on natural law as the Founders had established but on what society felt was moral at the time.  He stated:

The felt necessities of the time, the prevalent moral and political theories . . . [for] the prejudices which judges share with their fellowmen have had a good deal more to do than the syllogism [legal reasoning process] in determining the rule by which men should be governed.5

Benjamin Cardozo, appointed to the Court in 1932 by President Roosevelt, flat refused to be bound by any concept of fixed right or wrongs.  He stated:

If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist.6

Here is a judge that paid no attention to any law and made them up as he went along ignoring history, ignoring precedent, and ignoring the Founders original intent.  Our Founders never intended for the Courts to make laws, though we have seen many do so and even Justice Sotomayor, who was appointed by Barack Obama, stated on a video tape that the courts do it all the time even though they aren’t supposed to.  Justice Cordozo stated:

I take judge-made law as one of the existing realities of life.7

Chief Justice Charles Evans Hughes who was Chief Justice from 1930-1941 agreed with Cordozo stating:

We are under a Constitution, but the Constitution is what the judges say it is.8

As time went on the more liberal the justices became and it was soon evident that America’s once excellent system of law was a thing of the past.  In the 1958 case of Trop v. Dulles Supreme Court Chief Justice Earl Warren exhibited what was soon to be the standard in American jurisprudence when he stated:

The [Constitutional} Amendment must draw its meaning from the evolving standards of decency that mark the progress of maturing society.9

It is necessary for government to change from time to time and the Founders were well aware of that.  Changing times require amendments to our Constitution but there is a process that was set in place by the Founders to do that.  Samuel Adams explained that in this manner:

The people alone have the incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it.  And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments is several parts of it as from experience has judged necessary.10 (Emphasis added)

The Courts themselves decided that they would change the meaning of the Constitution even though according to Article V of the Constitution states that the proper means to ‘change’ the government is:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several States, shall call a convention for the proposing amendments.

The Courts ignored the rule of law because they don’t like the rule of law and those in power at the time did nothing to stop them.  President Washington warned that we must stick to the directives of the Constitution in making any changes to the Constitution.  In his Farewell Address he warned:

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.  But let there be no changes by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.11

There is no denying that some changes are needed and have been needed.  The problem lies in the fact that the people are to make the changes but they were made by unelected judges who are not accountable to the people.  Our government has become a government of the government instead of ‘we the people’.

Courts were set up to decide the constitutionality of laws passed by Congress according to our Constitution but the courts have stepped outside their bounds and have begun deciding cases where the people have voted a change and the courts have voided that change even though they have no jurisdiction over the vote of the people.  Again, they got away with it because the people in power did nothing to stop them.

The upside down way of jurisprudence has brought some of the most bazaar decisions from the Courts.  It seems that whenever a judge is replaced a new ‘constitutional’ opinion is established.  This makes it very hard to maintain a stable society as what is constitutional today is unconstitutional next week.  Here are some examples:

It is constitutional for congressional chaplains to pray12, but unconstitutional for students to read those prayers.13

It was constitutional to display a crèche and depict the origins of Christmas in 198414, but unconstitutional to do so five years later.15

Volumes can be written concerning the drastic difference in Court decisions today compared to the Founding era.  From the examples above it is obvious that the way it is done today no statute can stand for long as the courts are not capable of a lasting consensus on any issue.

Again we see what our Founders established was better than what we are doing today.  There is no certainty in our justice system and if there is no certainty, there is no justice.  Only if we return to how the Founders designed our legal system will we again see the great justice that America was known for.

End Notes 

  • The Holy Bible: King James Version. electronic ed. of the 1769 edition of the 1611 Authorized Bellingham WA : Logos Research Systems, Inc., 1995, S. Mt 7:26
  • Constitutional Convention. June 28, 1787, in an address by Benjamin Franklin.  James Madison, Notes of Debates in the Federal Convention of 1787 (1787: Athens, OH: Ohio University press, 1966, 1985; NY: W.W. Norton & Co., 1987), pp. 209-210.
  • John Eidsmoe, Christianity and the Constitution (MI: Baker Book House, 1987), p. 394.
  • Columbia Law Review, 8 No. 8, December 1908, p. 609, “Mechanical Jurisprudence” by Roscoe Pound.
  • Oliver Wendell Holmes, Jr. The Common Law (originally published in 1881, reprinted Cambridge, MA: Harvard University Press, 1963), p. 5.
  • Benjamin Cordozo, The Growth of the Law (New Haven: Yale University Press, 1921), p. 49.
  • Benjamin Cordozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 10.
  • Charles Evans Hughes, The Autobiographical Notes of Charles Evans Hughes, David J. Danelski and Joseph S. Tulchin, editors (Cambridge, MA: Harvard University Press, 1973), p. 144, speech at Elmira on May 3, 1907.
  • Trop v. Dulles, 356 U.S. 86, 101 (1958).
  • Samuel Adams, The Writings of Samuel Adams, Harry Alonzo Cushing, editor (New York: G.P. Putnam’s Sons, 1908), Vol. IV, p. 388, to the legislature of Massachusetts on  January 19, 1796.
  • George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (Baltimore: George and Henry S. Keatinge, 1796), p. 22.
  • Marsh v. Chambers, 463 U.S. 783 (1983).
  • State Board of Education v. Board of Education of Netcong, 262 A. 2d. 21 (N.J 1970), cert. denied, 401 U.S. 1013.
  • Lynch v. Donnelly 465 U.S. 668, 669-670 (1985).
  • Allegheny v. American Civil Liberties Union 492 U.S. 573 (1989).

iPatriot Contributers


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