Was Frankenstein Really Uncle Sam?: Notes on the Place of the Declaration.

By Richard J. Rolwing

Chief Justice Marshall said the legislature makes, the executive executes, and judiciary construes the law. James Wilson quoted Francis Bacon two hundred years earlier saying that making law is not for the judges. Chief Justice Hutchinson of Massachusetts in 1767 said that the Judge should never be the Legislator because then the Will of the Judge would be the Law: and this tends to a State of Slavery. Justice Wilson himself said in 1789 that when once it is established that Congress possesses the power to pass an act, our province ends with its construction. . . . The province of the courts is to pass upon the validity of laws, not to make them, and when their validity is established, to declare their meaning and apply their provisions. All else lies beyond their domain (p.379). In 1960, Charles Black confirmed that for the colonists, the function of the Judge was thus placed in sharpest antithesis to that of the Legislator who alone was concerned with what the law ought to be. Washingtons farewell address told the delegates to confine themselves within their respective Constitutional spheres, avoiding in the exercise of powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create . . . a real despotism. In 1926, Justice Brandeis stated, The doctrine of separation of powers was adopted . . . to preclude the exercise of arbitrary power.

• Language: English
• Publisher: Xlibris US
• Release date: Feb 13, 2017
• ISBN: 9781524564148

Richard J. Rolwing

Richard J. Rolwing, a retired theologian, taught philosophy, world religions, Christianity, and politics at small colleges and large universities. He was a supermarket manager, arbitrator, insurance agent, mortgage broker, stockbroker, registered financial planner, and executive VP for several corporations, which drilled oil/gas wells, marketed business equipment internationally, and bought and operated a gold mine in California. He has rehabbed dozens of homes all over his city, spoken before business groups all over his state, and lectured before professional groups all over the nation. He has published four volumes on the philosophy behind the US Constitution. A recent work was Digging Up Darwin in Ohio Without Holding Your Nose.

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Rev. date: 11/23/2016

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TABLE OF CONTENTS

Continuation of Final Essay of Volume XV

Thanks Australia!

Brown vs Board of Ed., 1954

What The Declaration Declared

The Personhood Proclamation

111 Questions on Islam & the West

Fourth of July Comments

Editorial of Columbus Dispatch 7/4/2011

Passport

Ohio Christian Alliance

What Happened to the Signers?

The Crisis of Law

The Declaration’s Relevance

Natural Law & Freedom

What We Are Up Against

Property

You Should Not Tolerate Intolerance.

The Founding Fathers

A Letter to an Editor

Self-Evident

The Same God

Forming a Government

In The Beginning Was Information

No Right to Life?

Wall Street

Islam

Mormonism

Jacques Maritain

Natural Rights

Legality

The God Bit?

Evidence

Fair is Foul and Foul is Fair

Deconstruction

The God-State

Human Life

Senator Eugene McCarthy

Uncle Sam’s Motto

Islam And Violence

Declaration Not Just Dead But Buried

Origins of the American Revolution

Declaration’s Importance

Chesterton

James Madison & Religious Freedom

Water Rights

Right To Bear Arms

Dishonorable

Madison Forgot Himself?

Moral Realism

What We Forgot

Shame

A World Government?

Christianity And Natural Law

Sayyid Qutb

Supreme Court Citations

Relatives of the Declaration

Religious Liberty

American Minute with Bill Federer

The Function of the Declaration

Natural Laws Motivate

Questions About Biblical Origins of America

A Right to Suicide

Founders Not Christian?

Deist?

Small Town Prayer

The Heartbeat Bill

America The Philosophical

John Rawls

Freedom

Religious Freedom

Consent of the Governed

Madison

Endnotes

Continuation of Final Essay of Volume XV

Chief Justice Marshall said the legislature makes, the executive executes, and judiciary construes the law. James Wilson quoted Francis Bacon 200 years earlier saying that making law is not for the judges. Chief Justice Hutchinson of MA in 1767 said that the Judge should never be the Legislator because then the Will of the Judge would be the Law: and this tends to a State of Slavery. Justice Wilson himself said in 1789 When once it is established that Congress possesses the power to pass an act, our province ends with its construction…The province of the courts is to pass upon the validity of laws, not to make them, and when their validity is established, to declare their meaning and apply their provisions. All else lies beyond their domain.(p.379) In 1960 Charles Black confirmed that for the colonists, the function of the Judge was thus placed in sharpest antithesis to that of the Legislator who alone was concerned with what the law ought to be. Washington’s Farewell address told the delegates to confine themselves within their respective Constitutional spheres, avoiding in the exercise of powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create…a real despotism. In 1926 Justice Brandeis stated, The doctrine of separation of powers was adopted…to preclude the exercise of arbitrary power.

And Berger shows us that Madison, the chief architect of the constitution, rejected the replacement of the amendment process by judicial revision as an `assumption of powers never meant to be granted.

Again and again John Marshall [often illegitimately appealed to by contemporary activists] repudiated any intention to lay the predicate for such `extension by construction’. There is not `a syllable uttered by the [his] court’ that `applies to an enlargement of the powers of congress.’ He rejected any imputation that `those powers ought to be enlarged by construction or otherwise.’ He emphasized that `in all reasoning on the word necessary the court does not, in a single instance, claim the aid of a latitudinous or liberal" construction. He branded as a `palpable misrepresentation’ the attribution to the Court of the view of the `necessary and proper clause’ as augmenting those powers, and as one which is to be construed `latitudinously’ or even `liberally.’…Finally, the exercise of the judicial power to decide all questions `arising under the constitution and laws’ of the US cannot be the assertion of a right to change the instrument.’"(p.431)

"In Ogden v. Saunders Marshall stated that the words of the Constitution are not to be `extended to objects not…contemplated by its framers.’ In Gibbons v Ogden he stated that if a word was understood in a certain sense `when the Constitution was framed…The convention must have used it in that sense,’ and it is that sense that is to be given judicial effect,’ In Osborn v. Bank of the USM he stated: `Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature.’– that is, of the `original intention.’ In Providence Bank v. Billings, he stated: `the constitution…was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. [This would deny the Supreme Court from using the Bill of Rights to invalidate state laws.] The interest, wisdom, and justice of the representative body [of the state] and its relation with its constituents furnish the only security…against unwise legislation generally [and presumably, unjust legislation, also]." (P.432)

In a final supplementary note, Berger tells us: "The foregoing pages furnish proof positive, in my judgment, that both the founding Fathers and the framers of the 14th amendment held a narrow view of the judicial role – that of nay-sayer policing the constitutional boundaries, which were to be settled largely by resort to the original intent. And, to borrow from Raymond Aron, these conclusions justify themselves `by the falseness of the [opposing] beliefs.’

If instead a judge resorts to his `individual sense of justice’, Justice Benjamin Cardozo commented, `That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.’ Today the `very notion of the rule of law is at issue,.’ says Mark Tushnet in Legal Realism, Structural Review, and Prophecy in the Univ. Dayton Law Review. Activists forget that the struggle for a written Constitution, as Justice Black noted, `was to make certain that men in power would be governed by law, not the arbitrary fiat of the man or men in power.’ Put differently, we are `to be governed by the same pre-established rules and not by the whims of those charged with executing those rules.’ Pre-established rules serve the requirements of certainty and predictability so that people may conduct themselves accordingly. Catherine Bowen said that `Certainty is so essential to law, that law cannot even be just without it.’ Additionally, such rules deserve respect because they represent wisdom accumulated over the centuries. Activists would brashly toss that wisdom on the scrap heap. Wisdom, wrote Learned Hand, `is to be gained only as we stand upon the shoulders of those who have gone before’; it can be achieved `only by accumulation.’ A wise judge draws upon `the distilled knowledge of many generations of men, each decision based on the experience of those who came before and tested by the experience of those after, and it is wiser than any individual can possibly be.’"(p.467)

Berger ends his summary with an attack on the idea of letting any philosophy have any presence in law and judges’ judgements of it. Philosophy is inadequate and simply confounding. This view reflects the sad state of modern philosophy and the pitiful influence of philosophers. Law, he argues, with the help of others, should come out of common sense and speak only to common sense. But what about a philosophy of common sense?

This is the sixteenth volume of philosophical essays upon the Declaration, and I wrote four volumes of philosophical reflections upon the Constitution. They are all written for the general public and speak to common sense. In fact, the philosophy used, millennial in age, has often been called the philosophy of common sense. One can have and exercise common sense without possessing this philosophical discipline, but such a person never fully realizes just what he is doing, or at least cannot explain it adequately.

I have little disagreement with Berger, although there is a lot of truth which never got out in these discussions. One problem is that these stalwarts continually reveal they are thinking of judges being activist in the choice of policies, or of judges renovating the law, or of changing the original meaning of the Constitution whose formulation in writing fixed it forever until amended. Berger insists that The founders believed in a fixed Constitution of unchanging meaning. In the 18th century Gouverneur Morris said that federal judges will never be so wild, so absurd, or so mad as to pretend that they are superior to the legislative power of America. (p.383) I wish that were true of the 20th century.

Berger even says, And wonder of wonders, Justice Brennan declared `Justices are not platonic guardians appointed to wield authority according to their personal moral predilections.’(p.384) Brennan must have been criticizing those justices with whom he disagreed about something. As Madison put it, `the Constitution can be altered by the same authority only which established it…a regular mode of making proper alteration has been inserted in the Constitution itself." (Ibid.)

Berger says, Judges are not oracles who, indifferent to the passions of the time, divine the true meaning of the Constitution. What a judge is `really discovering’ on his interpretive voyage, correctly observes John Ely, `are his own values.’ But that is always and inevitably true even if his own values are not the only ones `discovered.’ Judging in terms of personal preferences has long been condemned; Blackstone disapproved of judges whose decisions would be regulated `only by their own opinions.’ Marshall declared that `the judicial power is never exercised for the purpose of giving effect to the will of the judge.’ `Under the guise of interpreting the Constitution,’ said Justice Moody, `we must take care that we do not import into the discussion our personal views of what would be wise, just, and fitting rules…and confound them with constitutional limitations.’

Here again the qualities of wise and of fitting are conflated with the quality of just. That is stupid or worse for a judge to do. Judge Posner recently said that `a judge ought not to substitute personal values for those that are part of the text, structure and history of the Constitution.’ Even activists acknowledge the rule, perhaps perceiving that the substitution `of the individual sense of justice…would put an end to the rule of law.’"(p.385) But is there no great tradition of philosophical thought about justice, even if the applications of the philosophy will always involve purely prudential choices?

However much truth and wisdom there is here, we have not found any adequately valid theoretical account of the totality of jurisprudence for judges. Yet Berger says there is a jungle of attempts by activists to provide such. And the biggest difficulty, I feel sure, is the lack of ethical consensus in our society today. Bluntly, it is the ignorance of and disdain for the tradition of natural law upon which the Declaration was based, and the almost total explicit forgetfulness –ignoring -- of the Declaration. Judge Posner has said, `as the courts move deeper into subjects on which there is no ethical consensus, judicial activism in the form attributed to Judge Warren becomes ever more partisan and parochial, lawless, and finally reckless.’(p.397)

But are not Americans bound by loyalty as citizens to continue their original consent to the ethical consensus the Founders framed in the Declaration? Is the Declaration part of our original social contract with each other? If the Declaration can suffer, or deserve, dismissal, why not also the Constitution? So perhaps the biggest question is, can a system of laws even based on a written Constitution endure in an ethical morass? Did our legal system last, endure - faithful to the Constitution - only until this century when the Declaration was explicitly cut loose? Did the ship of state not abandon its anchor? If all the judges shared the same ethics, and all the legislators, too, as the Constitution shared with the Declaration, because it was based on the Declaration, would this whole issue be much smaller? I think so, but we still have no adequate theory.

This long essay has been about, first, Berger’s devastating criticism of judicial activism over the last half century, second, on the issue whether any consciousness higher than that of the law of the Constitution is, or can be made to be, relevant to the Constitution, specifically, whether the Declaration has a superior bearing on the Constitution, and particularly whether the natural law, which is its initial basis, may be and/or should be consulted in judiciary decisions of American courts. Berger has wonderfully and scholarly fulminated against ANY outside or superior-to-the-Constitution reference by American judges judging at least our laws if not just matters of fact. He never understands natural law, and does not grasp that all the judicial activism relying on contemporary values is really an ignorance that both denies any natural law exists and nevertheless attempts to judge our laws in the light of such a thing. Despite my overwhelming agreement with Berger’s criticisms, I keep seeking a fissure somewhere that opens up the area or realm where natural law both operates in judges and has a dominant character.

However, another argument against my preference is recalled by Neil MacCormick’s

The Separation of Law and Morals, a chapter in Robert P. George" s 1992 anthology Natural Law Theory; Contemporary Essays. MacCormick says, A classic example is provided by the framing of the Constitution of the United States. The framers found it necessary to compromise on the issue of slavery, and subsequently judges who themselves held slavery to be abhorrent and unjust nevertheless held also that the duties of their constitutional station required them to administer faithfully the laws regarding slavery. Without a compromise on slavery, the Union would not have been formed. But what the compromise did was precisely to compromise the commitment to justice of those who were personally opposed to slavery as a grave injustice(p.115) He judges, as does Jaffa, that the Constitution compromised with morality or justice because it compromised with the Declaration. An ethical consensus was required for practical cooperation in the framing and the framed, and the founding generation had provided one.

Most judges in the north, but certainly not all, enforced, even if often sluggishly, the federal laws about returning runaway slaves. A big complaint used by the southerners to justify their attempted secession was that northern courts were not really enforcing returns, as today

President Obama’s Justice Department refuses to enforce the Federal Defense of Marriage Act and the requirements for deportation of illegal aliens. Oftentimes in the north local peoples came out and made court efficiency in these issues very difficult. They were often obstructionists. Yes, the Civil War was about slavery, about morality, about justice, and even about racism, and so definitely about the Declaration’s natural law..

The main point I want to highlight here is that not only does MacCormick acknowledge morality as other than law, and capable of qualifying or determining the law’s full character, but he derives, as did Lincoln and the North, or the Union, the immorality, the injustice, of slavery from the natural law in (and beneath) the Declaration of Independence. Like the abolitionists did, he (MacCormick) judges the Constitution by the Declaration. This compromise at the time with immorality which Harry Jaffa has often brought out so well enabled the Constitution and the Union to come into being. Of course, slavery would have and grown far more deeply and widely in American society if the Constitution had not been formed and if the union of the states never became more than a confederated league of states/nations. So the compromise was prudentially wise.

But actually MacCormick’s main point is that law is different from morality. He wants to dispute the famous position of the Roman Cicero, St. Augustine, and St. Thomas that an unjust law is no law at all. He insists it is. So he argues that even though the US Constitution was unjust, at least until 1865 or 1964, it was still law, and still a valid law, and still a real constitution. His point is that an unjust law can still be a law, even if he does not fully reflect on its deficient character which he acknowledges.

So he continues, Yet, if the United States of America have not got a full-blown Constitution, who has? That is, is an immoral constitution not a constitution at all? Just because it does not have the (full?) morally binding character of a just law? "Is the answer that they only got one really in 1865, or in 1954, but perhaps had none at all or, more plausibly, had only a corrupt or substandard one till then (as indeed anti-slavery Americans maintained in the times before the War of 1861-65)?"

But my main point here is that American judges felt constrained, i.e., thought they were legally and rightly bound, to enforce unjust slavery statutes because the judges thought that they, the judges, were legally and rightly, or morally, bound to honor and obey the Constitution which they had sworn to preserve and protect as well as enforce. Such a profound compromise at such a profound time and space has worked havoc in this nation as Lincoln insisted. But somehow the compromise also brought about its own elimination. It was a masterpiece of the art of prudence, actually showing that politics often demands compromise. So you, the reader, could conclude that just because a law is unjust -- contrary to the natural law and/in/beneath the Declaration of Independence – a judge not only need not, but even should not, decide a legal case before him on the basis that the law at point is unjust. It would seem that a major thesis of the National Institute for the Study of the Declaration of Independence, and all of its earlier 15 volumes, is off base and misguided on this matter.

However, Berger has never gone this far or so far, and I do not think he ever raises precisely this issue of what an American judge should have done before 1865, or even what intellectual disciplines he should possess before becoming a judge, even from the very beginning. I knew Uncle Sam was never immaculately conceived but I never focused on the pickle they were in regarding the Constitution’s compromise precisely because of the Declaration. Of course, MacCormick is correct in insisting that morality is not the same as legality, even if that falls far short of describing the entire matter. But at least we do see here very vividly that the Declaration was always relevant for the Constitution, and precisely its notion of natural law or justice, i,e, morality. The northern judges could not have been concerned unless their recognition of the injustice of slavery derived from the natural law in/from Declaration. Their Bible was no sure guide. Bor northern and southern Protestant churches disagreed in their interpretations of the Bible on slavery. Yet, on the other hand, and almost a final hand, our essay on Berger has been focused on the question whether judge should ever have cared, or have ever really cared, ever cared that their job/oath/office required them to comply with and cooperate with a law, a constitution, that was corrupt at least partially, even if the matter or issue was widespread across the nation.

Do I think that the judges should have enforced the runaway slave laws? They probably should have respected their original intention, but at the same time they should have spoken out openly about the injustice of the laws, of the entire economic/social system of slavery, and urged the population to amend the Constitution, even if that would have meant that the judges would have a short life on the bench. When and if they could not recuse themselves, they could have and should have screamed bloody murder out to the public and voters at large. Like the original Framers they carried enormous burdens on their backs.

Berger’s next chapter is on behalf of the singular significance of `Original intention."

I applaud nearly every word of his 26 pages on the topic. Then his next chapter of 20 pages is on Arguments for Judicial Power of Revision.

He says correctly, Where early claims to extra-constitutional power were made in the name of `natural law’ the present fashion is to invoke the `living constitution’ when it it sought to engraft or amputate a limb.(/428) I do not remember him ever digging up early claims invoking the natural law. Such claims could have been made as grounds for requiring amendments to the Constitution rather than judicial activism.

I do not pretend to have any systematic answer YET to the issue at hand, how justice relates to the activity of judges judging in America. But Madison certainly made a point that the consent of the majority of the governed does not insure that justice reigns. For just government the consent of the governed is necessary but not sufficient. A majority can be tyrannical over a minority.

In California recently a judge had the gall to declare unconstitutional a recently passed state constitutional amendment outlawing homosexual `marriage’. His complaint? Essentially, the amendment was unjust to homosexuals.

It is not at all difficult to imagine that coming generations of Americans will pass some new modern constitutional amendments. One of them could follow Aristotle who said no babies born handicapped should be permitted to live. Most such babies today are never permitted to get born, but aborted in utero. One could follow China and forbid having multiple children, fearful that, because conservatives or Catholics or Muslims reproduce generously, they will soon outnumber and be able to outvote those who do not reproduce so. The people could pass an amendment that at least lets older people with big medical problems simply die, if it does not authorize euthanasia.. An amendment could outlaw any moral criticism of homosexuality even by a clergyman or church as a hate crime. One could require that all pharmacists, doctors, and hospitals provide abortions regardless of conscience or suffer fines and prison.

In fact, a majority of Americans could pass a new amendment that formally repudiates the Declaration of Independence as historically irrelevant legally and philosophically, or one that lets the majority of the contemporary voters in a referendum determine what is the justice of the case regarding the preamble of the Constitution’s goal `to establish justice.’

Uncle Sam has never even approached an adequate self-explanation. I suggest that the very reliance which Americans have largely placed in their Christian faith and churches has made up for the profound lack of an adequate philosophical and theoretical analysis of our constitutional structure and the implicit incorporation of, and reliance upon, a natural law system of ethics. In other words, no one is innocent or ignorant of the value called justice.

While studying Berger’s justified diatribe against activist judges I have constantly remembered the movie Judgement at Nuremberg. Nazis decreed that certain sick people should be killed off. A high court judge heard individual cases and usually determined that the defendants should be killed, according to the Nazi law. The high court judge realized finally he had been wrong, but he tried to diminish the evil he had done. He was obeying the law, the legislature. Is it impossible for such to ever happen here? If so, is the only recourse for a just judge to recuse himself from deciding such cases, or even more, resigning from the judiciary?

Temporary or permanent, his actions signify his judgment that the law is unjust. Can he be forbidden by law to make or express his critical judgment regarding justice?

The Declaration was an act of declaring that the existing legal system was unjust and should be overturned and replaced. No judicial child of the Declaration may ever imitate it?

Thanks Australia!

Written by an Australian Dentist

To Kill an American

You probably missed this in the rush of news, but there was actually a report that someone in Pakistan had published in a newspaper, an offer of a reward to anyone who killed an American, any American. So an Australian dentist wrote an editorial the following day to let everyone know what an American is. So they would know when they found one.

"An American is English, or French, or Italian, Irish, German, Spanish, Polish, Russian, or Greek. An American may also be Canadian, Mexican, African, Indian, Chinese, Japanese, Korean, Austrailian, Iranian, Asian, or Arab, or Pakistani or Afghan.

"An American is Christian, or he could be Jewish, or Buddhist, or Muslim. In fact, there are more Muslims in America than in Afghanistan. The only difference is that in America they are free to worship as each of them chooses.

"An American is also free to believe in no religion. For that he will answer only to God, not to the government, or to armed thugs claiming to speak for the government and for God.

"An American lives in the most prosperous land in the history of the world. The root of that prosperity can be found in the Declaration of Independence, which recognizes the God given right of each person to the pursuit of happiness.

"An American is generous. Americans have helped out just about every other nation in the world in their time of need, never asking a thing in return.

"When Afghanistan was over-run by the Soviet army 20 years ago, Americans came with arms and supplies to enable the people to win back their country.

"As of the morning of September 11, Americans had given more than any other nation to the poor in Afghanistan…The national symbol of America, The Statue of Liberty, welcomes your tired and your poor, the wretched refuse of your teeming shores, the homeless, tempest tossed. These in fact are the people who built America.

"Some of them were working in the Twin Towers the morning of 9/11/01 earning a better life for their families. It’s been told that the World Trade Center victims were from at least 30 different countries, cultures, and first languages, including those that aided and abetted the terrorists.

So you can try to kill an American if you must. Hitler did so. So did General Tojo, and Stalin, and Mao Tse-Tung, and other blood-thirsty tyrants in the world. But, in doing so you would just be killing yourself. Because Americans are not a particular people from a particular place. They are the embodiment of the human spirit of freedom. Everyone who holds to that spirit, everywhere, is an American.

The dentist was quite correct in tracing Americans back to the Declaration. It is not our political practice formulated in constitutional procedures, except insofar as it is faithful to the principles of the Declaration, that explains Americans of so many different earthly peoples. It is the Declaration that all men are created equal by God for God., and even while America’s intellectuals consider the Declaration politically incorrect, outmoded, and unscientific, not to say, outrageously absolutist, it is still a shining tower in the dark of all human prejudices.

Brown vs Board of Ed., 1954

The well-known 20th century journalist, Felix Morley was more than a journalist. In 1959 he wrote a very fine book Freedom and Federalism. He toured American history arguing that the desire for centralized power in Washington, and its constant growth, has, from America’s very beginning progressively weakened the lesser governments of states. That way ultimately lies majority rule, political democracy (mob rule), and necessarily, eventually tyranny.

He does not really criticize the 1954 decision as part of that trend, but actually for, he thinks, the wrongness of the decision. The U.S. Supreme Court’s decision was, of course, part of the centralizing trend, called for by some states acting contrary to the Declaration of Independence in segregating schools by race. Many criticized the decision at the time and later because the reasons given for it were so pitiful, even if few have ever argued that it was a bad legal decision. It is hard for any American to think so. The picture of that little black girl needing to be escorted into a public school by the National Guard sent by President Eisenhower said everything which the Declaration expressed even if the Constitution had been muted.

Scholars I respect have strongly criticized that school decision, while admitting that the court reached the right answer. I here summarize and reflect upon Morley’s criticisms of it because he apparently does not think the court did reach the right answer, and he maintained that it affected only the public school systems of Kansas, south Carolina, Virginia, and Delaware.

He recalls that, two years after the decision, 19 Democratic Senators and 77 Democratic Representatives issued the Congressional Manifesto of 3/11/1956, in which they pledged themselves to use all lawful means to reverse the verdict, which they defined as a clear abuse of judicial power…contrary to the Constitution. Morley says a strong legal opinion by no means confined to the south supported their protest.

Morley says the Court assumed too lightly that the 14th Amendment’s assurance of equal protection of the laws is adversely affected by segregation. Furthermore, the Court was in error when it called evidence to the contrary `at best…inconclusive.’¹ But it had to be obvious that whites and blacks were not treated equally by the very act of segregating. Segregation is both a condition achieved and an act of performance. Full equality of schools does not eliminate the white majority’s action of segregating the black minority.

Morley at times compares racially segregated schools with sexually segregated schools. Separating the sexes in schools or anywhere else does not necessarily mean that one sex is treated unequally. That is correct. But whatever the reasons at times for segregating the sexes by laws, as, for example, in rest rooms everywhere, those laws are not made by one sex against another, or by a majority against a minority. Churches have often maintained unisex schools but for psychological, moral, and sociological reasons, as well as educational ones. Besides, racial segregation was not for sociological reasons – to keep out a lower class of people who would lower school achievements. Citizens addicted to the bromide of separate but equal could not really argue that those from black schools were not equal students, even if they were when in fact the black system had seldom ever been maintained equally with the white system.

Morley notes that the same session of Congress which initiated the 14th Amendment simultaneously passed legislation establishing segregated schools in the District of Columbia for the sole use of colored children.’ Moreover, in twelve of the States that ratified the 14th Amendment the same legislatures made provision for segregated schools. Within two years after the adoption of this Amendment two more States, Indiana and Maryland, also established racially separate schools. In seven other states pre-existent segregated schools were maintained after ratification of the 14th Amendment. Clearly the practice was not regarded as unconstitutional, contrary to the 14th Amendment.. And the evidence that changing circumstances has made it so can also be called at best inconclusive."

Yes, the 1954 Court, incapable of recalling and relying on the Declaration, instead relied only on the Constitution as amended the 14th time. Off the top of my mind right now, I suspect that the 1954 Court actually went beyond the Constitution and relied on the natural law as proclaimed by the Declaration – that all men are created equal, and ought to be treated so.².

Second, Morley says, the Court went beyond its proper function, and espoused questionable doctrine, when it said, ‘In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted… That, of course, was not just questionable, it was stupidly said, even if not corruptly or tyrannically meant. All existing law comes to us solely from the past. Judges have to look back. Otherwise they just make up whatever they want. Morley argues they had to go back to 1787 as well as to 1868. If the amendment was irrelevant, so was the Constitution it amended. Actually, considering the decision the Court came to, the judges were actually trying to find something in the Constitution and Amendment to buttress their conviction that racial segregation of public schools was legally unjustified. They were operating under the Declaration’s convictions about morality but it was not politically correct to admit that.

Morley thinks the 1954 decision violated principles of the Constitution and the Amendment, although he does not articulate what those principles are. He even says such a violation was a product of judges proclaiming moral and intellectual relativism. He quotes

Chief Justice Vinson saying on 6/4/1951: Nothing is more certain in modern society than the principle that there are no absolutes…To those who would paralyze our Government in the face of impending threat by encasing it in semantic straightjacket we must replay that all concepts are relative. Morley says Chief Justice Warren talked like this, and back of such talk stands the highly influential pragmatism of Justice Oliver Wendell Holmes, who said, When it comes to the development of a corpus juris, the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions may stand in the way. This, says Morley, is sincere flattery for Rousseau’s assertion that we are all `under the supreme direction of the general will,’ ultimately determined and expressed by a single demagogue-dictator.

Elsewhere Morley takes on Vinson’s silly relativism. It’s self-contradictory, of course.

There are no principles if there are no absolutes. If all concepts are relative in the sense that Vinson meant, then so are all his own concepts. There is nothing certain at all if there are no absolutes. That denial can certainly not be certain. It’s just another proof of the utter philosophical poverty of our judges.

The 1954 decision was an action which did a good thing in outlawing segregation but a bad thing in its legal justification. It did it for the wrong reason, because it could not simply come up with the right reason, because by that time the Court had long forgotten and dismissed the