America was founded upon the principles of Natural Law. The Progressives led us into the realms of Legal Positivism. The vast government apparatus they have constructed has progressed into a dystopian fantasy land beyond law where faceless bureaucrats in an alphabet soup of departments create regulations with the force of law from thin air. Such is the journey from tyranny to tyranny in ten generations. Such is the journey from law to anti-law.
We built this Republic on the foundation of Natural Law:
The opening sentence of the Declaration of Independence is unarguably the most famous. Countless American students have memorized it, regurgitated it for exams, and many can still recite it many years later.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
While many will point to this preamble as a statement of why the Declaration was made few in our present generation can define what Thomas Jefferson was referring to, which was a common term and a common understanding at the time of its composition, “the Laws of Nature and of Nature’s God.”
In his book, The Five Thousand Year Leap, by Dr. W. Cleon Skousen,he points out that “…the debates in the Constitutional Convention and the writings of the Founders reflect a far broader knowledge of religious, political, historical, economic, and philosophical studies.” He also states, “The thinking of Polybius, Cicero, Thomas Hooker, Coke, Montesquieu, Blackstone, John Locke, and [mc_name name=’Rep. Adam Smith (D-WA)’ chamber=’house’ mcid=’S000510′ ] salt-and-peppered their writings and their conversations. They were also careful students of the Bible, especially the Old Testament, and even though some did not belong to any Christian denomination, the teachings of Jesus were held in universal, respect and admiration.”
The ancient Roman Cicero was a victim of turbulent power politics and eventually killed for writing against the dictatorship of Caesar, but in his writings On the Republic and On the Laws he spoke about Natural Law. He spoke of it as True Law or Right Law. “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting;…It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people…one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is God, over us all, for he is the author of this law,…”
Introduced in 1766, Blackstone’s became the law book of the Founding Fathers. In fact, political scientists have shown that Blackstone was one of two most frequently invoked political authorities of the Founders. Like Cicero more than a thousand years before Blackstone recognized Natural Law as the sure foundation of human society when he stated, “Upon these two foundations, the law of nature and the law of revelation (the law of nature’s God), depend all the human laws; that is to say, no human laws should be suffered to contradict these.”
In essence what all this means is that there are laws greater than any laws man can make therefore there are areas which are beyond legislation. In America we attempted to safeguard those areas such as individual liberty, personal freedom, and economic opportunity with a constitution. This Constitution was written to limit the power of government to those powers and only those powers which had been specifically delegated to it.
The final amendment in the Bill of Rights reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” It would be hard to be more clear. However this amendment has been interpreted into irrelevancy as the Progressives made their long march to power.
The Progressives nudged us into Legal Positivism:
Throughout the last twenty five years if we spoke of “the laws of nature” many Americans would think we are speaking of doing whatever comes naturally as typified in the saying, “If it feels good do it.” Most seem not to consider the relevance or even the existence of absolute truth or God’s Law.
To the leaders of today and the compliant populace they and their government controlled schools have indoctrinated man’s law as supreme. The epitome of this is extolled in the belief in a “Living Constitution.” One in which everything is constantly evolving, and where people, legislatures, and courts do not seem to be concerned with a constitution meant to limit the power of government. Instead they say relevance and necessity drives them to interpret a constitution which empowers government to do anything it decides is necessary.
This brings us to the legal philosophy which undergirds this assault upon traditional American law: Legal Positivism.
This legal philosophy posits that law consists exclusively of that which is created and directed by the human will. In other words with the limiting guide of Natural Law removed the appropriateness of government action becomes a question of mere legality. Anything which has become law is acceptable. The Final Solution of the Third Reich was legal. The purges of Stalin were legal.
As one German professor intellectually paving the way for the Nazi dictatorship stated in his analysis of the death of limited government after World War One, “fundamentally irretrievable liberty of the individual … gradually recedes into the background and the liberty of the social collective occupies the front of the stage.” He further notes that this change in the emphasis of freedom from the individual to the collective signaled the “emancipation od democratism from liberalism.” Remember that in this context Liberalism had its original meaning, which is advocating liberty, and not its corrupted American meaning, advocating for exactly what the good professor was describing.
This newly liberated democracy equates the state with the legal code. Whatever the majority decides is legal is right. This leads inevitably to the position that there are no limits to the power of the legislator. There are no natural rights and no fundamental and inviolable liberties.
Turning traditional reasoning on its head the proponents of Legal Positivism advanced the position that when a state is bound by law it is an unfree prisoner of the law. They reasoned that in order for a state to act with true justice it must be free of the law. Since personal freedom and the rule of law are inseparable as Legal Positivism overtakes a state, personal freedom becomes progressively more proscribed until the individual is enmeshed in a bewildering web of laws.
By the end of the twentieth century America was tangled in law after law. The Federal laws alone fill more volumes than anyone could carry: libraries full of laws written by lawyers often weighing out the gnat while swallowing the camel. There were laws about this and laws about that until finally there were laws about everything. Until even those we have elected to protect and defend the Constitution believe, as one Congressman said, “The Federal Government can do most anything in this country.”
Today we are entering the rule of Anti-Law.
With the prevalence of omnibus bills numbering thousands of pages written to read like telephone books with addendums and commentaries in insurance speak, the legislature has abdicated its power to bureaucrats who fill in the blanks.
The situation is typified by statements by some of the leaders of the post-constitutional Obama Congress. From the former Speaker of the House [mc_name name=’Rep. Nancy Pelosi (D-CA)’ chamber=’house’ mcid=’P000197′ ]’s famous, “We’ve got to pass the bill to find out what’s in the bill,” to perpetual incumbent Congressman Conyers outburst, “I love these members, they get up and say, ‘Read the bill.’ What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?”
The philosophical position of the rule of bureaucracy has been best stated by Soviet political theorists attempting to explain and justify that great prison of nations: the USSR. One put it this way, “Since it is impossible to distinguish between laws and administrative regulations, this contrast is a mere fiction of bourgeois theory and practice.” Perhaps the best description of the Soviet position is from another Russian, “What distinguishes the Soviet system from all other despotic governments is that … it represents an attempt to found the state on principles which are the opposite of those of the rule of law .. and it has evolved a theory which exempts the rulers from every obligation or limitation.”
Or as a Communist Theorist summed it up, “The fundamental principle of our legislation and our private laws, which the bourgeois theorist will never recognize is: everything is prohibited which is not specifically permitted.”
Here we are in a land strangled by regulation. Our elected officials pass laws they don’t read about things they don’t understand and unelected bureaucrats fill in the gaps. As can be seen in the IRS scandal they see themselves as above the law and there seems to be no way to make them accountable. Like a runaway train involved in a slow motion wreck the citizens stand helplessly by as our nation implodes. We can vote for one of the parties of power; however, they are merely two heads on the same bird of prey. No matter which one is in power the government grows and grows.
How do we end this death spiral? How did Washington, Jefferson, and Adams do it? We started with the Declaration of Independence so we might as well end there,
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 these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness.
These were dangerous words then, and they are dangerous words now. Let each citizen swear to do and be whatever is necessary to preserve, protect, and defend the Constitution. God bless America.
Keep the faith. Keep the peace. We shall overcome.
Dr. Owens teaches History, Political Science, and Religion. He is the Historian of the Future @ http://drrobertowens.com © 2014 Contact Dr. Owens [email protected] Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens