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De Omnibus Dubitandum - Lux Veritas

Monday, October 5, 2015

Judicial Activism Leads to Despotism

By Bob Meyer, on October 4th, 2015

Judicial activism is the outgrowth of a theory of law known as Legal Positivism. It began to take hold after the Civil War when the president of Harvard University, Charles William Eliot, who was an ardent Darwinist, appointed Christopher Columbus Langdell as the first dean of Harvard Law School. Under Langdell’s auspices the theory of evolving rather than fixed standards began to permeate legal theory, displacing Natural Law as the benchmark. The evolving standards concept became pervasive in all aspects of intellectual culture, with change being tantamount to progress. In law, it became the responsibility of judges to guide these changes. The legal positivism theory, that all change equals progress, encompassed what a secular philosopher, Mary Midgley dubbed as the “Escalator Myth”

By the early 20th century we saw this doctrine migrate from the law schools to application in the courts of law. The late Chief Justice Charles Evans Hughs once quipped that

“…we are under a Constitution, but the Constitution is whatever the judges say it is.”

Who needs a Legislature when the courts can do all that, huh? How different from James Madison who reasoned:....To Read More..... 

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