A BRIEF CHRONOLOGY OF COLLECTIVISM
by
Eric Samuelson
Attorney At Law
(October 1997)
In July 1953 Professor Colin Clark, an Australian political economist, said that in the British Commonwealth countries and in the United States "academic Marxism -- or crypto-Marxism -- is stronger than ever." E. Merill Root, COLLECTIVISM ON THE CAMPUS 6 (1956). On July 25, 1953, Congressman Reece of Tennessee discussed the ENCYCLOPEDIA OF SOCIAL SCIENCE which had been produced in consecutive volumes during 1930-1935. Alvin Johnson, the editor, stated in PIONEER'S PROGRESS (pp. 310-312) that two of his assistant editors were Socialists and the other a Communist. In the series, described by Reece as "a sort of supreme court of the social sciences," subjects on the left were assigned to leftists while subjects on the right were also assigned primarily to leftists. Root, p. 205.
Pragmatism is now the American way. Mortimer Smith wrote in 1954: "I do not think anyone will challenge the statement that pragmatism has become the official philosophy of public school education; there may be an occasional maverick scattered here and there but the great majority of the professors of education are committed to this philosophy and they transmit it to the future teachers and administrators whom they train to run the American public school system." THE DIMINISHED MIND: A STUDY OF PLANNED MEDIOCRITY IN OUR PUBLIC SCHOOLS 78-79 (1954). The result of pragmatism is ultimately disillusion: "Pragmatism dissolves dogmas into beliefs, eternities and necessities into change and chance, conclusions and finalities into processes. But men have invented philosophy precisely because they find change, chance and process too much for them, and desire infallible security and certainty. Pragmatism is no philosophy for them. It calls for too complete a disillusion." Horace M. Kallen, 12 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 311 (Edwin Seligman Ed. 1934). Among the weaknesses in pragmaticism "is that it tends to produce results that are episodic, intuitive, individualistic and in this sense arbitrary.'" Jerome Frank, AMERICAN LEGAL PHILOSOPHY 4.50 at 468.
In the early 1950s, William H. Whyte, Jr. stated in Fortune: "A very curious thing has been taking place in this country almost without our knowing it. In a country where individualism -- independence and self-reliance -- was the watchword for three centuries the view is now coming to be accepted that the individual himself has no meaning except as a member of a group." Vance Packard, THE HIDDEN PERSUADERS p. 173 (1957).
In 1957 Roscoe Pound wrote: "In the urban industrial society of today a general right to bear efficient arms so as to best resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights." Roscoe Pound, Development of Constitutional Liberty 72 (1957). However, the right of self-preservation is "a fundamental right that has been recognized since time immemorial." Irvin M. Kent, Under the Ninth Amendment What Rights Are the Others Retained By the People?' 29 Fed. B.J. 219, 226 (1970).
Fascism, according to a leading spokesman, Alfredo Rocco, stressed: "(T)he necessity for which the older doctrines makes little allowance, of sacrifice, even up to the total immolation of individuals, in behalf of society . . . For Liberalism (i.e., individualism), the individual is the end and society the means; nor is it conceiveable that the individual, considered in the dignity of an ultimate finality, be lowered to mere instrumentality. For Fascism, society is the end, individuals the means, and its whole life consists in using individuals as instruments for its social ends." Peikoff, p. 17. In 1958 Mussolini was quoted: "The highest personality is that of the Nation . . . The Fascist State, synthesis and unity of all values, interprets, develops and actuates the whole life of the People. . . For Fascism the State is an absolute, in whose presence individuals and groups are relative." Arthur S. Miller, DEMOCRATIC DICTATORSHIP: THE EMERGENT CONSTITUTION OF CONTROL 67 (1981); O. Gierke, NATURAL LAW AND THE THEORY OF SOCIETY 1500 to 1800 (E. Barker trans. 1958).
Conservative thinkers emphasize that some of the constitutional limits placed on government power have been misconstrued as grants of more power to government to restrict the rights of some citizens in favor of others. Burnham has suggested: "Instead of operating as limits on the power of government, they (the first ten amendments) are on occasion accepted as authorizations or grants of additional governmental power over the daily affairs of citizens. The ironic result is that the enforcement of civil rights becomes an instrument not of liberty but of despotism." James Burnham, CONGRESS AND THE AMERICAN TRADITION 73-74 (1959); Melvin J. Thorne, AMERICAN CONSERVATIVE THOUGHT SINCE WORLD WAR II 109 (1990).
In 1959 Justice Samuel H. Hofstadter, a Holmes devotee, eloquently held in New York that "petitioner should be willing to be deprived of his pistol in order to protect his son and the community. Stress of rights must often be balanced by public interest -- even if there results an individual loss." Application of Grauling, 183 N.Y.2d 654, 658 (N.Y. 1959). He then stated that although the right to bear arms is a "precious" one, it no longer applies in a non-frontier society: "But while we are a society still pioneering in the realm of space and spirit, we are no longer a frontier community. The great master of the law correctly observed that 'Most rights are qualified.' (American Bank & Trust Co. v. Federal Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 500, 65 L.Ed. 983), and this right too is subject to regulation." Id.
The paramount principles of communistic and totalitarian jurisprudence include 1) the omnipotence of the state, 2) the insignificance of the individual, and 3) the rule of public policy (which quickly becomes party policy and then the leader's policy in the determination of rights). Dr. Fred Schwartz, YOU CAN TRUST THE COMMUNISTS (TO BE COMMUNISTS) 28 (1960).
Francis Biddle wrote in 1961 that the underlying differences between Holmes and his critics "boiled down to whether or not you believe in absolutes." Francis Biddle, MR. JUSTICE HOLMES, NATURAL LAW AND THE SUPREME COURT 41 (1961).
In 1961 Henry Kissinger wrote: "Pragmatism, at least in its generally accepted forms, produces a tendency to identify a policy issue with the search for empirical data. It sees in consensus a test of validity. Pragmatism is more concerned with method than with judgment. Or, rather, it seeks to reduce judgment to methodology and value to knowledge. The result is a greater concern with the collection of facts than with the interpretation of their significance." THE NECESSITY FOR CHOICE 342 (1961). In California one court in 1961 indicated the fate of natural rights in the Soviet Union: "Natural rights are those which grow out of the nature of man and depend upon his personality and are distinquished from those which are created by positive laws enacted by a duly constituted government to create an orderly civilized society . . . Soviet legal theory denies that natural rights exist and asserts that all 'rights' are grants bestowed by the government upon its citizens." In Re Gogabashvele's Estate, 16 Cal. Rptr. 77, 91 (4th Dist. Ca. 1961).
A professor of English at the University of Chicago summarized the essence of relativism:
"Relativism denies outright that there are any absolute truths, any fixed principles, or any standard beyond what one may consider his convenience. A theory is true only relative to the point of view of the individual, or to the circumstances which prevail at the moment. Truth is forever contingent and evolving, which means, of course, that you can never lay hands on it. Relativism is actually the abdication of truth." Richard M. Weaver, RELATIVISM AND THE CRISIS OF OUR TIMES 4 (1961).
Martin Glasser wrote in 1962: "The 19th century liberal attempted to limit state power and activity and to foster the liberty of the individual." Martin Glasser, "The Judicial Philosophy of Felix Frankfurter," Vol. 1, No. 4, New Individualist Review 29 (Winter 1962). Now it is said: "Liberalism stands for, above all, individual rights and is compatible with a strong state that is supposed to ensure those rights." Joshua Miller, THE RISE AND FALL OF DEMOCRACY IN EARLY AMERICA, 1630-1790 13 (1991).
The U.S. Supreme Court has adopted a policy of due deference to legislation which in reality is a return to the old British parliamentary system without an enforceable written constitution:
In reality this [balancing] approach returns us to the state of legislative supremacy which existed in England and which the Framers were so determined to change once and for all. On the one hand, it denies the judiciary its constitutional power to measure acts of Congress by the standards set down in the Bill of Rights. On the other hand, though apparently reducing judicial powers by saying that acts of Congress may be held unconstitutional only when they are found to have no rational legislative basis, this approach really gives the Court, along with Congress, a greater power, that of overriding the plain commands of the Bill of Rights on a finding of weighty public interest. In effect, it changes the direction of our form of government from a government of limited powers to a government in which Congress may be anything that courts believe to be 'reasonable.'
Hugo Black, "The Bill of Rights and the Federal Government," in THE GREAT RIGHTS 60 (Cahn ed. 1963).
According to Mark DeWolfe Howe, Holme's editor and biographer, the "collectivism and Darwinism" of Holme's in the Common Law "deserve special attention." Howe, Introduction to O. Holmes, THE COMMON LAW (M. Howe, Ed. 1963). More than six decades after his death, he still casts an unequalled legal shadow. His life, too, was most eventful. While a Yankee soldier, Holmes in 1864 was at Fort Stevens while it was under Southern attack. He screamed at a tall civilian peering over the top of the fort to "GET DOWN, YOU DAMNED FOOL!". The civilian was President Lincoln. Since 1892, public employment has been considered a "privilege." The origin of the distinction was a Holme's opinion: "The right-privilege distinction, as it appeared in an early statement by Justice Holmes, has long hampered individuals within the public sector in protecting themselves against arbitrary government action." W. Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439, 1439 (1968); 23 VALPARAISO UNIV. L. REV. 587, 607 (1989); McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892) (policeman had right to talk politics but had no constitutional right to be a policeman). The thesis of Holmes that societies are constantly reinterpreting legal forms to serve new purposes has been labled "evolutionary pragmatism." P. Weiner, EVOLUTION AND THE FOUNDERS OF PRAGMATISM 172 (1949). Holme's idea that legal doctrines evolve in response to changes in the social environment has become virtually a canon of professional faith for American lawyers. E. Levi, AN INTRODUCTION TO LEGAL REASONING 102-104 (1949). The U.T. Law Library (TALLONS) today uses Holmes as its sample name for legal research. Homes had a great formative influence on the thinking of Alger Hiss. In 1929 Felix Frankfurter at Harvard chose Hiss as Holme's law clerk. John Chabot Smith, ALGER HISS: THE TRUE STORY 58 (1976). When the day's work was done, Hiss would read aloud to Holmes. One of the book's was Trotsky's autobiograph which Holmes "detested but read because his Marxist friend Harold J. Laski . . . insisted on it." Id. at 60. Holmes stayed on the U.S. Supreme Court bench until the age of 91. He resigned from the Supreme Court in 1932. Late in Holme's life, Carl Becker, an author of pro-1776 material, visited him. Holmes asked Becker: "Becker, do you love the human race?" The reply was: "I've never discovered anything within myself which you, Mr. Justice, would define as a heart overflowing with human kindness, but I wish them well." Homes retorted: "I don't Becker. God damn them all, I say." Irving Berstein, The Conservative Mr. Justice Holmes, 23 NEW ENGLAND Q. 435, 435-436 (1950). In 1933, Holmes was visited by President-elect Franklin Roosevelt. He found Holmes reading Plato in the Greek language. When asked the reason, Holmes answered, "Why, to improve my mind."
It was said in 1966: "The substance of the matter is that while it is the duty of every institution established under the authority of a Constitution and exercising powers granted by a Constitution, to keep within the limits of those powers, it is the duty of the Courts, from the nature of their function, to say what these limits are. And that is why Courts come to interpret a Constitution. K.C. Wheare, MODERN CONSTITUTIONS, 101 (1966).
Adolfe A. Berle (1895-1971), a key New Deal "braintrust" member, candidly wrote before his death: "This is a report on a revolution. The unique fact is that the revolutionary committee is the Supreme Court of the United States." THE THREE FACES OF POWER vii (1967). Thirty-four states, reacting to Baker v. Carr, by 1967 had called for a constitutional convention. Id. at viii. Berle continued: "The thesis can be briefly stated. Ultimate legislative power in the United States has come to rest in the Supreme Court of the United States." THE THREE FACES OF POWER 3 (1967). In Brown v. Board of Education "the reserve legislative power of the Supreme Court became overt." THE THREE FACES OF POWER 10 (1967); 347 U.S. 483 (1954). The case "pushed judicial legislation into public awareness." THE THREE FACES OF POWER 11 (1967)
In his James Madison Lecture at the New York University Law School, Associate Justice Abe Fortas of the Supreme Court stated on March 29, 1967: "It is fascinating, although disconcerting to some, that the first and fundamental breakthrough in various categories of revolutionary progress has been made by the courts -- and specifically the Supreme Court of the United States." Adolfe A. Berle, THE THREE FACES OF POWER vii (1967).
In 1969 it was said of Justice Jackson: "Justice Jackson saw as clearly as the next the inevitability of a continuing thrust towards centralized power in the constitutional evolution of our Nation. . . He knew that every coercive and centralizing court decision deals a blow, if sometimes only a little blow, first to the ability and then to the will of the democratic process to operate with responsibility and vigor." Potter Stewart, "Robert H. Jackson's Influence on Federal-State Relationships," MR. JUSTICE JACKSON: FOUR LECTURES IN HIS HONOR 84-85 (1969).
In the Spring of 1969, Indiana Law Professor Robert Force foresaw that state charter revision commissions might delete a Bill of Rights using the argument that: "State Bills of Right are obsolete." At that time the notion of using state Bills of Right to safeguard individual rights was said to be "dorment or disappearing rapidly." R. Force, State Bills of Rights, 3 VALPARALSO U.L. REV. 125, 164 (1969).
In 1971 G. Edward White wrote: "Here one finds a disturbing dissonance between Holme's very conspicuous social and professional style and professional success -- it is hard to imagine a life less marred by physical, social or economic deprivations or one marked by a greater length and breadth of acheivement -- and his gloomy musings that the crowd has substantially all there is,' that we all are very near despair,' that men are like flies,' and that man has no more cosmic significance than a baboon or a grain of sand." G. Edward White, The Rise and Fall of Justice Holmes, 39 U. CHICAGO. L. REV. 51, 76 (1971).
Justice William Douglas, dissenting in a 1972 Supreme court opinion, said: "There is no reason why all pistols should not be barred to anyone but the police." Later he added: "But if watering down is the mode of the day, I would prefer to water down the Second Amendment rather than the Fourth Amendment." Adams v. Williams, 407 U.S. 143, 152 (1972).
The lack of prominent "right" Hegelians has hinted at in 1972: "Socialists like Moses Hess, Karl Marx, and Ferdinand Lassale related their philosophies to Hegel in one way or another, just as did liberals like T.H. Green, Bernard Bosanquet and Benedetto Croce, and fascists like Giovanni Gentile; although, interestingly enough, one would be hard-pressed to recall a comparatively prominent conservative thinker who could be termed a Hegelian." Shlomo Avineri, HEGEL'S THEORY OF THE MODERN STATE vii (1972).
Burnham P. Beckwith wrote in 1972: "The retention of democratic ritual under government by experts will facilitate the peaceful and rapid acceptance of government by experts. A very large number of voters will remain unaware of the fundamental change if the old ritual is preserved." GOVERNMENT BY EXPERTS 150 (1972).
Professor Mark Yudolf wrote in 1973: "In a popular play by the French playwright and novelist Albert Camus, a character gleefully defends a law that is so complex that virtually no one can ascribe any meaning to it: 'It's intended to get them used to that touch of obscruity which gives all government regulations their peculiar charm and efficacy. The less these people understand, the better they'll behave.'" M. Yudolf, 51 TEX. L. REV. 885 (1973).
In 1973 the U.S. Supreme Court ruled consistently with an absence of god-given absolutes: "Holme's philosophy manifest itself in the Roe v. Wade decision, in which the right of abortion-on-demand was upheld. This decision was the result of Holme's philosophy taken to its logical conclusion. Without absolutes, who is to say whether or not a fetus should live or die. Man's God-given right to life is ignored." Thomas R. Trueax, Oliver Wendell Holmes, Jr.: Secularizer of American Jurisprudence, THE SIMON GREENLEAF L. REV. 78; Roe v. Wade, 410 U.S. 1113 (1973). Only one absolute remains: "By insisting on absolutes, the Christian base has been eliminated from the law. The only absolute remaining is the insistence that there is no absolute." Id.
In 1974 Saturday Review celebrated the 50th anniversary of education. The leading educator from 1924-1974, according to those educators polled, was John Dewey. The August 10, 1974 issue quoted him: "There is no God and no soul. Hence, there are no needs for the props of traditional religion. With dogma and creed excluded then immutable truth is also dead and buried. There is no room for fixed, natural law or permanent absolutes."A. Ralph Epperson, THE UNSEEN HAND 378 (1985).
Holmes and Charles Pierce "were part of a conceptual revolution in American thought that rejected individualism and shifted toward collectivism in epistemology, science, and law. In The Common Law this revolution was expressed as an attack on a conception of legal rules as private, internal, and subjective. In Pierce's early philosophy this revolution was expressed as an attack on the epistemology of Rene Descartes, the 17th century French philosopher." Holmes, Pierce and Legal Pragmatism, 84 YALE L.J. 1123, 1126 (1975). Holme's (pro government) preference of social over individual interests resulted from his demand for objective legal standards while Pierce's attack on Decartes led him to demand agreement among a community of inquirers as a measure of truth. Id. at 1140.
T. David Horton was quoted in 1975 as noting the failure of law schools to teach students the text of our constitutions:
It has been suggested that we are a nation of constitutional illiterates, and to a degree, I think this is so. The Constitution appears to be a subject that everybody talks about but nobody reads. . . I remember the first of three courses I took in Constitutional Law. I was nearly bounced out for having the temerity to suggest to the Professor that, since this was a course that was labeled Constitutional Law, possibily we ought to read the Constitution. The course that lawyers take today called Constitutional Law, frankly doesn't consist of studying the Constitution. It involves memorizing the catechism -- studying the sophistries -- by which one provision after another of our Constitution is construed out of existence. This is one reason why in our present Constitutional Crisis, we find lawyers among those who are most derelict in failing to advance any remedy to correct the situation. Quoted by Archibald E. Roberts, THE REPUBLIC: DECLINE AND FUTURE PROMISE 69 (Betsy Ross Press 1975).
By the time of the American Bicenntial, Justice Stanley Mosk of the California Supreme Court predicted a trend where state judges recognized interpreting their own constitutions in a way that "neither required nor necessarily prefers (conformity) to the United States Supreme Court's interpretation of the federal constitution." S. MOSK, "The State Courts," AMERICAN LAW: THE THIRD CENTURY 213, 224-225 (B. Swarrtz Ed. 1976).
Dr. Francis Schaeffer wrote in 1976: "We must not think of an overnight change, but rather a subtle trend by the leadership toward a greater control and manipulation of the individual. Of course, some might feel uncomfortable about this increased control and manipulation in a relativistic age, but where would they draw the line? Many who talk of civil liberties are also committed to the concept of the state's responsibility to solve all problems." Schaeffer further added: "At that point the words left or right will make no difference. They are only two roads to the same end. There is no difference between an authoritarian government from the right or left; the results are the same. An elite, an authoritarianism as such, will gradually form on society so that it will not go to chaos. And most people will accept it -- from the desire for personal peace and affluence, from apathy, and from the yearning for order to assure the functioning of some political system, business, and the affairs of daily life. That is just what Rome did with Caesar Augustus." Paul McGuire, WHO WILL RULE THE FUTURE? 36-37 (1991); Vol. 5, How Should We Then Live? 243-244 (1976).
In 1977 it was stated: "For decades now, there have been no positions in the national or local educational lobbies for any but professed liberals." Richard D. Mandell, THE PROFESSOR GAME 44 (1977).
George D. Braden noted in August of 1977 that the Texas Constitution had not been the focus of law courses:
In the law schools themselves future lawyers and judges typically study United States constitutional law. They learn how great and lesser justices of the United States Supreme Court have interpreted the United States Constitution and they dip into the great mass of literature which deals with these subjects. But where are the courses in state constitutional law, where are the twentieth century treatises on state constitutions, and where are the articles explaining them? The answer is that, with very rare exception, they simply do not exist." I THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 5 (1977).
In 1978, Dean Roger C. Cramton described "the ordinary religion of the law school classroom" as "a moral relativism tending towards nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, and individualism tending towards atomism, and a faith in reason and democratic processes tending toward mere crudulity and idolatry." Charles E. Rice, Some Reasons for the Restoration of Natural Law Jurisprudence, 24 WAKE FOREST L. REV. 539 (1989); Cramton, The Ordinary Religion of the Law School Classroom, 29 J. LEGAL ED. 247, 262-263 (1978).
Former Justice Charles G. Douglas opined in 1978: "The fact that law clerks working for state judges have only been taught or are familiar with federal cases brings in a federal bias to the various states as they fan out after graduation from 'federally' oriented law schools. The lack of treatises [or] textbooks developing the rich diversity of state constitutional law developments could be viewed as an attempt to 'nationalize' the law and denigrate the state bench." Douglas, State Judicial Activism -- The New Role for State Bills of Rights, 12 Suffolk U.L. Rev. 1123, 1147 (1978) (emphasis in original).
In 1978 Law professor Miller described the Supreme Court Justices as the "high priesthood," the founders as "saints," the law clerks as "alter boys," law professors and some politicial scientists as "Pharisees" and lawyers as "acolytes." He quoted Justice Jackson: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953); THE SUPREME COURT: MYTH AND REALITY 15 (1978). In America the Jefferson idea was "that government is best that governs least." The prevailing notion, said Miller, in the words of Robert Hutchins, is that "that government is best that governs best." THE SUPREME COURT: MYTH AND REALITY 352 (1978).
Philip Kurland stated in 1978:
The concept of a written constitution is that it defines the authority of government and its limits, that government is the creature of the constitution and cannot do what it does not authorize . . . A priori, such a constitution could only have a fixed and unchanging meaning, if it were to furfill its function. For changed conditions, the instrument itself made provision for amendment which, in accordance with the concept of a written constitution, was expected to be the only form of change. WATERGATE AND THE CONSTITUTION 7 (1978).
In 1979 Professor Arthur S. Miller stated: "Orthodox constitutional theory and doctrine recognize the existence of but two entities; government and the individual person. Nothing intermediate is envisaged. The Constitution limits government in favor of individuals, a notion based on the unstated assumption that individuals live and act as autonomous units." SOCIAL CHANGE AND FUNDAMENTAL LAW 55 (1979). However, said Miller: "But it has become widely recognized in the past few decades that the completely autonomous, 'isolated' individual does not exist as such. The individual spends his life as a member of groups and is significant only as a member of a group." Id. (emphasis in original).
The "unalienable" rights asserted in the Declaration of Independence and added by the first Ten Amendments, have been replaced by the "procedural" rights in the U.S. Constitution. The consequence is that "inalienable" rights can be violated so long as the correct procedure is followed. Herbert Hirsch and Bruce Grube, THE RIGHT OF THE PEOPLE: AN INTRODUCTION TO AMERICAN POLITICS 16 (1980).
Justice Hans A. Linde wrote in 1980: "(I)t is a curious fact that when we speak of individual rights, not only the newspaper reading public but no doubt most members of the legal profession take it for granted that we speak of federal law, pronounced by federal courts. " Justice Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, UNIV. OF BALT. L. REV. 379 (1980). He also noted "while state courts routinely assume their charges to declare individual rights against other individuals or private entities, the curious fact is that they seldom and hesitatantly assume the same responsibility for individual rights against public authority." Id. at 380.
In 1981 Francis Schaeffer defined sociological law as "law that has no fixed base but laws in which a group of people decides what is sociologically good for society at the given moment; and what they arbitrarily decide becomes law." Francis Schaeffer, A CHRISTIAN MANIFESTO 41 (1981). Today we live in a society governed by sociological law which is exactly what Holmes expounded. Thomas R. Trueax, Oliver Wendell Holmes, Jr.: Secularizer of American Jurisprudence, THE SIMON GREENLEAF L. REV. 78.
The courts once were "guardians" of the rights of property rather than defenders of government. Property rights are now largely subordinated to the government. A legal essay stated in 1981 that the scales have turned: "At least it will be only in the extreme case -- one perhaps of very arbitrary, very capricious, very selective government conduct -- that the Court will intervene in favor of the property-rights holder." James L. Oakes, 2nd Circuit Judge, 'Property Rights' in Constitutional Analysis Today, 56 WASH. L. REV. 583, 623 (1981).
It was said in 1982: "It is, by now, a familiar process: people asserting rights in order to extend the power of the state into what once were spheres of freedom." George Will, THE PURSUIT OF VIRTUE AND OTHER TORY NOTIONS 92-93 (1982); Melvin J. Thorne, AMERICAN CONSERVATIVE THOUGHT SINCE WORLD WAR II 110 (1990).
In 1982 Wisconsin Supreme Court Justice Shirley Abrahamson predicted that the 1980s would be "the decade of state courts." S. Abrahamson, Reincarnation of State Courts, 36 S.W. L.J. 961 (1982). In that same year Justice Pollock held: "Although the state constitution may encompass a smaller universe than the federal Constitution, our constellation of rights may be more complete." Right to Choose v. Byrne, 91 N.J. 287, 300, 450 A.2d 925, 931 (1982).
Louisiana Justice James Dennis stated that while respect must be given to decisions of the U.S. Supreme Court, state judges had the right of "independent judgment in construing the constitution adopted" by the people of each state. State v. Hernadez, 410 So. 2d 1382, 1386 (1982).
Judge Marvin O. Teague of the Texas Court of Criminal Appeals stated in 1983: "By its decisions, (the U.S. Supreme Court) appears to be abdicating its position as the role maker and champion of individual rights." Brown v. State, 657 S.W.2d 797, 808 (Tex. Crim. App. 1983) (en banc) (dissenting).
Vermont Justice William C. Hill said in 1983: "We are saying for the first time in many years that our state constitution means something." "Rebirth of Reliance on State Charters," THE NATIONAL LAW JOURNAL 1 (March 12, 1984).
Tennessee Justice Joseph Henry wrote that fundamental rights and liberties do not end with federal law: "If this were not true, the frictions of federalism would be fierce and frustrating and state courts would be reduced to mere conduits through which federal edicts would flow." Miller v. State, 584 S.W.2d 578, 760 (1983).
A survey of Texas appellate decisions from November 1972 through 1982 found that in only one of twenty-five cases was a violation of the Texas Equal Rights Amendment upheld. Rodric B. Schoen, The Texas Equal Rights Amendment After the First Decade: Judicial Developments 1978-1982, 20 HOUSTON. L. REV. 1321, 1368 (1983).
In 1985 Professor Harold Berman wrote that in the past two generations "the public philosophy of America shifted radically from a religious to a secular theory of law, from a moral to a political or instrumental theory, and from a historical to a pragmatic theory." Charles E. Rice, Some Reasons for the Restoration of Natural Law Jurisprudence, 24 WAKE FOREST L. REV. 539, 540 (1989); Berman, The Crisis of Legal Education in America, 26 B.C.L. REV. 347, 348 (1985). The basis for the present legal philosophy is legislative omnipotence: "The triumph of the positivist theory of law -- that law is the will of the lawmaker -- and the decline of rival theories -- the moral theory that law is reason and conscience, and the historical theory that law is an ongoing tradition in which both politics and morality play important parts -- have contributed to the bewilderment of legal education. Skepticism and relativism are widespread..." Id. In both law and medicine pragmatism substituted the "case" system for reasoning from general principles. Arthur Cecil Bining and Philip Shriver Klein, A HISTORY OF THE UNITED STATES 621 (1951). In law schools, students are taught with casebooks rather than treatises. As a result, "law students are taught cases and little else. If the cases got it 'wrong,' it is foolish to expect the hurried practitioner or overburdened judge to undertake original scholarship. Today, it is rare for even the Supreme Court to rely on anything more than its own precedent." 39 CATH. U.L. REV. 1, 18 (1989). The case-method is judicial-opinion centered.
The Supreme Court of Vermont held in 1985: "Since 1970 there have been over 250 cases in which state appellate courts have viewed the scope of rights under state constitutions as broader than those secured by the federal constitution as interpreted by the United States Supreme Court." State v. Jewett, 500 A.2d 233, 234 (Vermont 1985).
It was also stated in 1985: "There is no question that the development of new remedies for state constitutional law must occur in state courts rather than federal courts."). J. Friesen, Recovering Damages for State Bill of Rights Claims, 63 TEX. L. REV. 1269, 1271 (1985).
In 1985 Larry Abraham noted: "We are given the choice between Communism (international socialism) on one end of the spectrum, Nazism (national socialism) on the other end, or Fabian socialism in the middle." Larry Abraham, CALL IT CONSPIRACY 30 (1985).
The result of pragamatism on children has been summarized:
While the youngest mind is taught that their are no absolutes, that no decision is final; that no authority figure except the State has the last word; that everything is equally acceptable; that real objectivity is the absence of any standard of right and wrong; then I contend that these young minds will be learning the ruthlessness which is so prevalent in today's youth and being acted out on all sides in today's society . . . In the Educationists' terminology, the logical consequences of this philosophy, real freedom is achieved only when one is a slave to the state. It is worth mentioning here that democracy is not seen by the educationist as a form of government, but a way of life. It is in reality a socialized society . . . There is something vastly more sinister to be pointed out here than just production of the group mentality. The implication of such a group mind is that the person goes on through life looking to the group to validate all of his decisions. The corollary of this insistence on relating everything to the group, relating from smaller to larger groups, and taking the largest group decision as the ultimate, is that the family is downgraded to just another small group with no special meaning. Thus, all family decisions, especially in the area of values, are open at all times to modification through group dynamics in the classroom, and eventually become of little importance at all to the child. Estalvin Dee Lillywhite, SECRETS THAT EVERY AMERICAN SHOULD KNOW 193-194 (Hawkes Press: 1985).
The antecedent of relativism is the heresy of nominalism: "Nominalism infected the American political character through its agent of relativism." John P. East, THE AMERICAN CONSERVATIVE MOVEMENT 54 (1986).
David Richards wrote to Mike Wallace: "The Texas Supreme Court has recently moved to the forefront among the state courts willing to utilize state constitutional doctrines to preserve and protect our essential liberties." While federal courts are retreating, state justices are taking up the mantle and more closely examining their own state Bill of Rights guarantees. J. Harrington, 17 TEXAS TECH L. REV. 1487, 1495 (1986).
While rights guaranteed by the U.S. Constitution cannot be limited in state constitutions, the Texas high court said in 1986 that "state constitutions can and often do provide additional rights for their citizens." LeCroy v. Harlon, 713 S.W.2d 335, 338 (Tex. 1986). In Texas courts apply "an individual rights perspective," rather than "a societal perspective." J. Harrington, Framing A Texas Bill of Rights Argument, 24 ST. MARY'S L.J. 399, 417 (1993); LeCroy v. Harlon, 713 S.W.2d 335, 342 (Tex. 1986); DuPuy v. Waco, 396 S.W.2d 103, 106 (Tex. (1965).
Arthur S. Miller, late Professor Emeritus of Constitutional Law at George Washington University, and in his day the foremost proponent of "living" constitutions, wrote in 1987: "Today . . . the states exist more as administrative districts for centrally established policies than as sovereign entities." THE SECRET CONSTITUTION AND THE NEED FOR CONSTITUTIONAL CHANGE 119 (1987) He even added: "No reason whatsoever exists for having a political subdivision called Rhode Island or Idaho or even Texas or California." Id. at 123. Miller, whose work was sponsored in part by the Rockefeller Foundation, also said that "a pervasive system of thought control exists in the United States . . . the citizenry is indoctrinated by employment of the mass media and the system of public education . . . people are told what to think about . . . the old order is crumbling . . . Nationalism (love of country) should be seen as a dangerous social disease...A new vision is required to plan and manage the future, a global vision that will transcend national boundaries and eliminate the poison of nationalistic solutions . . . a new Constitution is necessary."
The terms "natural rights" or "the rights of man" have been replaced in this century by "human rights." THE BLACKWELL ENCYCLOPAEDIA OF POLITICAL THOUGHT 222 (David Miller Ed. 1987).
Article I, Section 8 of the Texas Bill of Rights has been distinquished from the First Amendment in the U.S. Constitution. Chief Justice Evans held in 1988:
There is an important distinction between the free speech guarantee of article 1, section 8 of the Texas Constitution and the related, but quite different first amendment provisions of the federal constitution. The Texas Constitution, in positive terms, guarantes that every person has the right to speak, write, or publish their opinion on any subject. The federal constitution, on the other hand, expresses first amendment freedoms in negative terms, simply restricting governmental interference with such freedoms. Thus, the Texas constitutional provision, which is similar to those adopted in 38 other states, affirmatively guarantees that each individual shall have the right of free speech." Jones v. Memorial Hospital System, 746 S.W.2d 891, 893 (Tex. App. Houston [14th Dist.] 1988, no writ).
It was suggested in 1989 that the influences of utilitarianism and legal positivism in America "have produced an ominous shift in the foundation of our legal system." What is emerging is unlimited government without justice: "Ultimately legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just." Charles E. Rice, Some Reasons for the Restoration of Natural Law Jurisprudence, 24 WAKE FOREST L. REV. 539 (1989).
In the Edgewood I opinion, it was stated, for the first time in Texas, that the meaning of constitutional provisions was to be sought "with the understanding that the Constitution was ratified to function as an organic document to govern society and institutions as they evolve through time." Edgewood I.S.D. v. Kirby, 777 S.W.2d 391, 394 (Tex. 1989). This opinion cited no direct precedent and can only be viewed as a forbidden fruit of Miller's "living" constitution view. In 1982, Arthur Selwin Miller had urged the ideology of a "living" Constitution as opposed to what the Founders understood to be a Constitution of fixed principles. A. Miller, TOWARD INCREASED JUDICIAL ACTIVISM: THE POLITICAL ROLE OF THE SUPREME COURT 9 (1982).
Bill Moyers wrote in 1990: "Secrecy is the freedom zealots dream of: no watchman to check the door, no accountant to check the books, no judge to check the law. The secret government has no constitution. The rules it follows are the rules it makes up." Bill Moyers, THE SECRET GOVERNMENT: THE CONSTITUTION IN CRISIS 7 (1990).
It has been noted about individualism as now "taught" in higher education:
It has become practically axiomatic in the academy that one cannot invoke so jaded a notion as individualism without an elaborate garland of reservations, qualifications, and caveats . . . any academic discussion of the subject of individualism is likely to be taken as a red flag by progressive academics for whom individualism is tantamount to racism. Because individualism is widely recognized as one of the bedrocks of Western liberal thought and society, no, as it were, self-respecting (not to say individualistic) academic would dream of taking it 'straight,' of dealing with it on its own terms as an idea that continues to have a profound claim on us morally and intellectually. Individualism in this sense is only slightly less disreputable in the academy these days than than ultimate term of abuse, bourgeois. Roger Kimball, TENURED RADICALS 46-47 (1990) (emphasis in original).
In 1992, in MAKING ELITE LAWYERS, Robert Granfield, a sociologist at the University of Denver, stated that legal education often turns idealists into amoral pragmatists: "A lot of people who go into law school have a strong sense of right and wrong and a belief in moral truths. Those values are destroyed in law school, where students are taught that there is no right and wrong and where such idealistic, big-picture concepts get usurped. They actually come to disdain right-versus-wrong thinking as unprofessional and naive." Ralph Nader and Wesley J. Smith, NO CONTEST 334 (1996).
The fact of "revolution" in law was openly asserted in 1994: "Revolutionary decisions are the result of adjudication where the judge is acting like a legislator, though a legislator of a unique kind.". Indeed, it is contended now that constitutional law in this country has always been revolutionary: "American constitutionalism has always relied upon revolutionary adjudication in interpreting the Constitution." 42 BUFFALO L. REV. 317, 380-381 (1994)
By 1995 it could be stated: "Almost a quarter of Americans work in public schools as students or staff." David Tyack & Larry Cuban, TINKERING TOWARD UTOPIA: A CENTURY OF PUBLIC SCHOOL REFORM 141 (1995).
Throughout the confirmation proceedings for the last two Supreme Court nominees, Holmes was invoked as a model judge. Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 WILL. & MARY L. REV. 19 (1995). Ruth Bader Ginsburg pledged to "continue to try to follow the model Justice Holmes set in holding that duty sacred" (to resist reading personal convictions into the Constitution). Id.
In 1996 the lingering legacy of British Benthamism was described: "If the greatest good for the greatest number meant anything, it was that the interests of society as a whole predominated over those of any single person or group." Daniel Lazare, THE FROZEN REPUBLIC 244 (1996).
In his January 1996 State of the Union speech, President Clinton said the "era of big government is over." Later he would say that instead we were in an era of the volunteering "big citizen." Jeff Gerth, "Smaller Government, More Liabilities," Austin American-Statesman A4 (February 23, 1996).
In his remarks celebrating Texas' 150th birthday Texas Governor George Bush told some 2,000 people gathered at the Capitol: "Texas is still the land of dreamers and doers, of rugged individualists willing to take risks." Peggy Fikac, "2,000 Celebrate Texas' 150th Birthday," Austin American-Statesman B3 (February 20, 1996). The first sentence in Hillary Clinton's 1996 village book was: "Children are not rugged individualists."
Education as we know it may soon be abolished. The plan is based in part on the Russian system of indoctrination (in the mid-1980s education exchange agreements gave the Russian our technology while they explained how to brainwash children). John Loffler, "Beyond Goals 2000: Workers for the 21st Century," Personal Update 2 (May 1997). Diplomas will be replaced by a Certificate of Initial Mastery (CIM). Without a CIM it will be virtually impossible to find work. The NCEE has stated that workers without the certificate "will be condemned to dead-end jobs that leave them in poverty even if they are working." Later it will become illegal to hire anyone without a CIM. The focus will be on livetime learning. The work force in the U.S. will be monitarized by a national computer containing everyone's academic and psychological work profiles. This totalitarian creation, modeled after the Communist Chinese Dangan system, will also include employee career histories. There will be no exception for home schoolers -- all will be forced to participate to get a job. The system is said to be "voluntary" but states will be forced to participate or lose federal funds. The educational agenda is being driven by an interlocking set of laws, government departments and private foundations. Loffler, p. 3.
In 1997 William Greider published his latest book -- One World, Ready or Not. It is a call for still more government intervention with a number of interesting observations: "The deepest social meaning of the global industrial revolution is that people no longer have free choice in the matter of identity. Ready or not, they are already of the world. As producers or consumers, as workers or merchants or investors, they are now bound to distant other through the complex strands of commerce and finance reorganizing the globe as a unified marketplace." In the end nations will lose their rights too: "The capacity of nations to control their own affairs has been checked by finance and eroded by free-roving commerce, but politicians continue to pretend they are in charge." William Greider, ONE WORLD, READY OR NOT 333-334 (1997).
In his exchange with President Clinton, on October 29, 1997, Chinese President Jiang Zemin answered a question about Tiananmen Square by saying pragmatically that "it is relative."
"Remove not the ancient landmark, which thy fathers have set."
-- Proverbs XXII
"A nation of well informed men who have been taught to know and prize the rights which God has given them cannot be enslaved. It is in the region of ignorance that tyranny begins."
-- Ben Franklin
"We can't be so fixated on our desire to preserve the rights of ordinary Americans."
-- President Bill Clinton (USA Today, March 11, 1993, p. 2)
"When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans . . . "
"And so a lot of people say there's too much personal freedom. When personal freedom's being abused, you have to move to limit it. That's what we did in the announcement I made last weekend on the public housing projects, about how we're going to have weapon sweeps and more things like that to try to make people safer in their communities."
-- President Bill Clinton (The Free American, April, 1997, p. 3)
"When a society is perishing, the true advice to give those who would restore it is to recall it to the principles from which it sprang."
-- Pope Leo XIII
"People will not look forward to posterity who never look backwards to their ancestors."
-- Edmund Burke