The day after the Supreme Court handed down its Obamacare decision, Rick Joyner wrote, “The decision itself was a shock, but the rationale behind it written by Chief Justice Roberts was even more incomprehensible. No one expected Roberts to side with the liberals on the court, but if he, or any of the other conservatives did one would expect there to be some profound and previously unforeseen wisdom behind it.”

Conservatives see Supreme Court decisions in Constitutional terms. Liberals see those decisions in terms of their current construct of fairness. In other words, Liberals and Conservatives see things in terms of liberal and conservative. Constitutional lawyers do not see the law in those terms. They see things in terms of Positive Law or (rarely) Natural Law. Justice Thomas follows the Constitution under Natural Law. Justice Scalia also follows—to use Judge Bork’s term—“original intent.” We can hope Justice Alito is with this rare pair. Justice Kennedy is a (conservative) legal positivist. As of June 28th, we know that Chief Justice Roberts is solidly a legal positivist—in this case, a wildly liberal one at that.

So what are these two legal systems, why do we need to know about them and why would we run a country with two instead just one?

Natural Law is the law upon which Jefferson wrote the Declaration of Independence and Madison wrote the Constitution for the United States of America. It is the law that governed both sides in the War Between the States. We (America) had a right to separate from the King of England under the “Laws of Nature and of Nature’s God,” Jefferson wrote. Natural Law was a great gift from God given us through the work of Thomas Aquinas some 750 years ago. (English Common Law was adapted from Natural Law.) Natural Law is the specific reason the Declaration and the Constitution worked for a free people. Without it, there must be some sort of king.

Positive legal theory was developed at Harvard College in the late 19th century by Christopher Columbus Langdell. It holds that the legal and moral are completely separate realms. The validity of law is determined by its source and the soundness of the process of its enactment, not by a moral basis. (What could possibly go wrong with that?) Law schools still largely teach the belief that there is a science of law. Langdell was a young Harvard trained New York City lawyer and an agnostic when Charles Darwin wrote his blockbuster book, The Origin of the Species. Langdell correctly saw Darwinism as philosophy, not science and adopted it as his own. He was appointed dean of Harvard Law School in 1870 by the new Harvard President, Charles William Elliot, who was another fan of Darwin. Langdell invented the case method of studying law. Its premise is that students of the law can study appellate decisions and derive from them legal principles which can then be applied to arrive at a CORRECT decision for future cases. So Positive Law is declared to be scientific and free of morality and evolves through the case method. But legal positivism is actually based on the power of position—he who is in charge, makes the law.

As every legal positivist knows, we cannot run the country on two legal systems.  They deny that Natural Law has any standing or validity in America. If we let them continue to have their way, America will cease to be the land of the free.

That last sentence is why we need to know. Our founding and governing documents were designed for a free and virtuous people under a Sovereign God. We are now operating under a system where the rulers make the law. Remember Mr. Rousseau, “We will force you to be free.” Fellow Americans, our Constitution is in shreds. Our gift from Chief Justice Roberts is that we may no longer pretend it is not. We must reclaim our heritage and our Constitution. The constitution must be interpreted under The Law of Nature and Natures God—Natural Law. We cannot wait for reform in our law schools. We must in this election replace President Obama. We must change the makeup of the Congress. We must do it this year with the election of the men and women who will form 2012 Liberty List.

We also must restore our culture from the “values neutral” philosophy to a culture that rewards virtue and morality and we must fundamentally transform the American educational system. We must keep our eyes on the next governments (federal, state and local). We must also commence our work on our American culture and educational system. In the words of the great poet, Henry Wadsworth Longfellow, “Let us, then, be up and doing. . .” And in the words of President G. W. Bush, “We will not tire, we will not falter and we will not fail.

About Richard Johnson

Richard Johnson: a mature Christian who understands the sweep of history, the unique role of America and these times clearly and precisely.
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