Raw Judicial Power I: The Assault of Legal Positivism

In 1953 a constitutional scholar named William Winslow Crosskey (1894-1968) who taught at the University of Chicago published a remarkable book with the title, Politics and the Constitution in the History of the United States. (Chicago, Illinois: University of Chicago Press, 1953.) Ordinarily a book on such a subject wouldn't excite too much interest outside the legal community — or inside it, for that matter. The difference was that Crosskey took a "slightly" different view of the U.S. Constitution than that to which lawyers and judges have become accustomed over the past century and a half or so. In contrast to the orientation of much legal thought today, Crosskey went directly contrary to the prevailing concept of "legal positivism."

This requires a little explanation. The traditional western idea of law, as expressed by philosophers such as Mortimer Adler and jurists such as Heinrich Rommen, is that law is based on concepts of right and wrong that are inherent in human beings. This is called "the natural law." The natural law is based on reason and what is discernible about human nature through observation. In this context, what is legal and what is moral are inextricably linked. Natural law philosophers and jurists tie the legitimacy of manmade law to how closely it conforms to human nature. Since conformity with nature is to pursue the good, or "virtue," as Aristotle called it, law must be moral, or it is not valid law.

In contrast, legal positivism is a philosophy of law claiming that, far from being a reflection of transcendent absolute standards valid for every human being, law is only a set of manmade rules that can change as circumstances, needs, or desires change, and are valid only so long as people accept them. There is thus no inherent or necessary connection of human positive law with morality — an essential aspect that all Aristotelian philosophers insist exist for a law to be legitimate; human law cannot go contrary to nature and be considered legitimate, regardless how popular the law or how necessary it seems.

Legal positivism is the basis for the idea of the U.S. Constitution as a "living" document, so that the meanings of the words change as our understanding of the document evolves. There are two justifications for this view. One justification is called the "pragmatic" view. This is that we cannot let presumably outdated or outmoded ideas of the past (such as the concept of inalienable rights of life, liberty and property) bind us and prevent us from setting policies to achieve today's political or economic goals. The other is that the framers of the Constitution were deliberately vague so as to allow broad interpretations to meet modern needs.

Crosskey disagreed with both of these ideas. Consequently, Crosskey's contention that the U.S. Constitution is based on the natural law, and embodies certain absolute principles — as well as a degree of specificity unappreciated by many — was met with what can only be described as outrage. One otherwise liberal lawyer so far forgot his principles as to declare, "Today I join the ranks of the book-burners."

We can therefore understand how legal positivists and liberals would reject Crosskey's work. What is puzzling, however, is that the Pro-Life movement, ostensibly dedicated to preservation of our natural right to life, seems to have rejected it as well.

We don't know if Crosskey was Pro-Life, Pro-Choice, or anything else. We do believe, however, that he would have thought that the understanding of the 14th Amendment embodied in Roe v. Wade was grossly in error. Not coincidentally, Roe v. Wade was based on two cases that Crosskey considered the worst decisions ever made by the Supreme Court of the United States. These were Scott v. Sandford (the Dred Scott Case) in 1857, and the Slaughterhouse Cases in 1873.

Obviously Crosskey, who died in 1968, did not include Roe v. Wade in his book. From his analysis of the Dred Scott case, the 14th Amendment, and the Slaughterhouse Cases, however, we think we have a good idea of what his opinion of the decision would have been — whether or not he believed abortion to be a right.

That is what we hope to cover in this brief blog series, and show how the legal philosophy that led to Roe v. Wade was substantially the same that led to Scott v. Sandford and the Slaughterhouse Cases, and that the three cases combined constitute what amounts to a full frontal attack on the fundamental triad of natural rights that define and protect essential human dignity: life, liberty and property.

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