Thursday, July 31, 2014

Church, State, and Humanity, III: A Fundamental Change in the Idea of the State


Yesterday we looked at the problem of “pseudo virtue,” that is, something that gives someone a feeling of righteousness, but that is contrary to or negates the principles of natural or supernatural law.  “Pseudo virtue” includes “charity” that violates, negates, or rejects justice, and “faith” that contradicts or rejects reason.

In religious society the promotion of pseudo virtue over real virtue is called “modernism,” what Pope Pius X called “the synthesis of all heresies.”  If you think that’s bad, however, the same thing in civil society is called “positivism,” and is at the root of a complete change in our concept of government and sovereignty.  In the U.S., there was a great shift in the basis of government from sovereignty of the people, to sovereignty of the State.

William Winslow Crosskey, possibly the greatest constitutional scholar of the twentieth century, traced this shift in civil society, the State (at least in the United States), to the ongoing power grab by the U.S. Supreme Court.  According to Crosskey in his book, Politics and the Constitution in the History of the United States (1953), the Court used the precedent created in the perfectly correct decision in Marbury v. Madison (5 U.S. 137 (1803)) to begin expanding judicial review far beyond what the framers of the Constitution ever intended.

Initially, in Crosskey’s opinion, this was to preserve the institution of human chattel slavery, an effort that reached its climax (or nadir, if you will) with the Court’s decision in Scott v. Sandford (60 U.S. 393 (1857)).  The slave Dred Scott sued John Sanford (the Court misspelled his name) for his freedom on the grounds that his former owner had taken him to a free state where slavery was illegal, and he was therefore free.

The Court ruled that no human being of African birth or descent could ever be a person as that term is used in the Constitution. As Crosskey commented,

“This, to the present-day mind, seems an unbelievable decision; but to those familiar with the political demands of the South of the time when the decision was rendered, such a tenor in the Court’s holding will not be difficult to credit.  For it was exactly what the South, for a long time, had been demanding.”  (William W. Crosskey, Politics and the Constitution in the History of the United States.  Chicago, Illinois: University of Chicago Press, 1953, 1089)

Of course, Crosskey, writing in the late 1940s and early 1950s, died in 1968.  He did not live to see the Court use similar language to justify Roe v. Wade (410 U.S. 113 (1973)), or change the meaning of Article Three of the Constitution to allow federal courts to hear moot cases whenever they felt like it.

Congress overturned Scott v. Sandford with the Fourteenth Amendment.  In less than a decade, however, the Court nullified the Fourteenth Amendment with its decision in the Slaughterhouse Cases of 1873.

According to Crosskey, the decision in the Slaughterhouse Cases was a deliberate and transparent exercise of what Justice Bryon White would a century later term “raw judicial power” to regain the power that Congress had taken back with the “Reconstruction Amendments.”  As Crosskey commented,

“So, the Court’s opinion in the Slaughter-House Cases was, undoubtedly, most craftily written; written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe.  And the fact that this elaborate preparation was made also means that the majority Justices saw and fully comprehended the possibility of the intermediate, plain, and sensible meaning of the Privileges and Immunities Clause here expounded, to which, indeed, Justice Bradley called attention, in his dissenting opinion.  So, the majority must, as the minority charged, already have determined, if they dared, to destroy this new provision of the Constitution completely.” (Ibid., 1130.)

Constitutionally speaking, the effect of Scott v. Sandford and the Slaughterhouse Cases was to abolish the whole concept of inalienable rights.  Instead of being construed as a grant of rights from the people to the State, the Constitution was now a “living document” by means of which the State picks and chooses what rights to grant to the people, and what those rights mean.

The Constitution was to be reinterpreted according to current conditions, regardless of the intent of the framers.  Human beings are therefore no longer natural persons, that is, by nature, but only as recognized by the State.  The State has become the Hobbesian “Mortall God.” (Thomas Hobbes, Leviathan, II.17.)

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