The Positivist President?

President Obama has just launched an attack upon the Supreme Court justices critical of the constitutionality of a 2,400-page health care bill passed exclusively by Democrats.  Few if any of these Democrats actually read the bill in its entirety before voting for it.  The president nevertheless wonders at how the Supreme Court justices, an "unelected" group of people," might muster the temerity to take such an "unprecedented and extraordinary step" as to "overturn a duly constituted rule of law ... passed by a majority of members in the House and Senate."  I note in passing that the president ordered Holder's Justice Department to cease its defense of the "Don't Ask, Don't Tell" law passed by a bipartisan Congress.

The president's legal theory forms no part of constitutional jurisprudence.  He claims no less than that the Supreme Court has no right or power to review the constitutionality of congressional legislation.  The president's theory is nowhere approved or mentioned in a single state, federal, or Supreme Court case.  It is not once mentioned in the Federalist Papers, a publication explaining the Founders' rationale for the drafting of a new constitution.  James Madison did not once mention the theory in notes taken at the Philadelphia Convention.  It is not taught at any law school in the United States.  It forms no part whatever of American or British jurisprudence.  In fact, it is an invention, a legal fiction, and an assault on the Supreme Court's powers of judicial view established by Supreme Court Justice John Marshall in Marbury v. Madison.

Where to begin?  Well, first, the Supreme Court has been nullifying congressional legislation deemed unconstitutional for more than two hundred years.  It is, therefore, boldly fallacious to suggest that "unelected Supreme Court justices" are now embarking upon an "unprecedented" usurpation of the Constitution.  In fact, it is the people's constitutional right to challenge the constitutionality of congressional legislation.  The Supreme Court, the highest authority on constitutional issues, is vested with the power and obligation to determine the constitutionality of legislation challenged by the people.

The Declaration of Independence expresses the first principles of natural law.  "We hold these truths to be self evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness."  The principle is ancient -- in Caesar's Rome, Jus Gentium, the people's law, and in Great Britain, a Common Law derived from the ancient customs, traditions, and legal precedents of an English-speaking people.  In the Magna Carta Libertatum, The Great Charter of Liberty, the British nobility created the first enduring draft of the American Constitution.  One cannot read the now-ancient British Magna Carta without recalling the meter and power, the plain and enduring grace of the American Constitution's written word.

That said, the president's criticism of the Supreme Court justices does find support in the political doctrine of "Positivism."  The positivist theory, developed in Germany following the First World War, holds that a natural law, or the rule of law, simply does not exist.  The idea that men are endowed by their creator with certain unalienable rights is therefore patently absurd.  "In short, every single tenet of the traditional conception of the rule of law is represented as a metaphysical superstition. ... The law by definition consists exclusively of deliberate commands of a human will."  The legislature is not bound by precedent, by custom or tradition, or by considerations of justice.  As apparently vulgar and irrational as is the positivist theory, Hitler used it to leverage the Nazi Party first to power and then to totalitarian power [1].

In his analysis of the positivist theory, F.A. Hayek writes:

It was consequently here that the ideal of the rule of law was first deprived of real content. The substantive conception of the Rechtsstaat, [a state bound by the rule of law]; which required that the rules of law possess definite properties, was displaced by a purely formal concept which required merely that all action of the state be authorized by the legislature. In short, a "law" was that which merely stated that whatever a certain authority did should be legal. The problem thus became one of mere legality. By the turn of the century it had become accepted doctrine that the "individualist" ideal of the substantive Rechtsstaat was a thing of the past, "vanquished by the creative powers of national and social ideas. ... This new formulation, known as the "pure theory of law" ... signaled the definite eclipse of all traditions of limited government. [2]

The concept of the rule of law and the subordination of central government to the enumerated powers of an American Constitution have created a most prosperous, just, and free United States.  Americans break faith with the Constitution and the tradition of constitutional government only at their peril.  Hayek's magnum opus, The Constitution of Liberty, was written long before America's present constitutional crisis.  Nevertheless, Americans should recall Hayek's warning -- as relevant now as it was then -- and take it to heart, for: 

Only a demagogue can represent as "antidemocratic" the limitations which long-term decisions and the general principles held by the people impose upon the power of temporary majorities. These limitations were conceived to protect the people against those to whom they must give power, and they are the only means by which the people can determine the general character of the order under which they will live.



[1] Hayek, F. A, The Constitution of Liberty: The Definitive Edition (Kindle Locations 9312-9315 et). University of Chicago Press, 1960). Kindle Edition.

[2] Hayek, F. A. (Kindle Locations 9285-9291).