The use of judicial power to issue decrees which are contrary to America’s Judeo-Christian heritage, popular will, and foreign to the philosophy or text of the Constitution has resulted from an alien judicial philosophy overwhelming the Constitution’s original and reasonable meaning. This contention was well argued by Dr. John Baker, Visiting Professor at Georgetown Law School, in a presentation at the Family Research Council on November 10.

The philosophy of legal realism, which maintains that law is what judges say it is, made the initial break with historic jurisprudence. It is radically different from the understanding of original constitution, in which judges merely gave opinions, which were enforced, but regarded as legal opinions or legal judgments, not law itself. Originally introduced in the late nineteenth century by the famed jurist Oliver Wendell Holmes, legal realism holds to a positivist view of law, that law is simply what human authority has established, with no natural law behind it.

Baker noted in particular that the legal realist philosophy Holmes advanced at Harvard Law School in the 1890s endeavored to strip law of any reference to morals. In this it was tied to the Darwinism ascendant in that day. The progressive movement of the late nineteenth and early twentieth centuries introduced the idea of the “living constitution,” a term advanced by Woodrow Wilson at the time. Indeed, Baker held that the modern legal profession hates the actually existing constitution, preferring to substitute its own understanding of the 14th Amendment (guaranteeing “liberty” and equal protection of the laws) as a new basis for supreme law. The controlling principle in interpreting this amendment is the idea of victimization as a tool to re-order society, which really introduces a new, and radically different, morality into law. Important in this legal philosophy is the denial of metaphysics. Yet Baker claimed metaphysics is not primarily a matter of religious belief. The heritage of Western philosophy includes not only Biblical revelation, but also the classical tradition of Greece and Rome.

The result of this constitutional history is that the nation gets critical decisions from the Supreme Court based on personal philosophies or intuitions, not law. The Obergefell v. Hodges decision, which imposed same-sex marriage on the nation, was thus based on personal philosophy, not the Constitution. Much weight was given to judicial opinion, even Kennedy’s own recent opinions. Dr. Baker noted such statements in the Obergefell decision as “courts have written a substantial body of law” to indicate that judges indeed conceive of themselves as making, and not merely interpreting, supreme law. The result, he said, is that law, and certainly the Supreme Court’s decisions, have “no grounding in truth.” Precedent does not control decisions which are considered to be landmark cases, rather, “everything is open to question in a landmark case.”

Justice Kennedy believes that he rules with great moral purpose, Baker said, and judges in general care about their place in history, which at the present time is the judgment of the academic world and the legal profession. Baker held that social conservatives lost the Obergefell case when they accepted the term “same-sex marriage,” which implies that there is more than one kind of marriage, and thus that discrimination is being practiced against those who prefer non-traditional kinds of marriage. Since landmark decisions are essentially moral declarations with binding legal force, the decision is “all about persuasion.” And since the Supreme Court majority believes that it rules with great moral purpose, it does not care about contrary conservative opinion, but rather endeavors to educate the public in what it believes is the correct opinion.

Nevertheless, many ordinary Americans continue to resist human constructions of law (positive law) when it contradicts the natural law of the American founding. Baker said that the American Constitution and legal tradition was informed by an Aristotelian understanding justice. This bases society on the family, not the individual. While in other respects radical in his philosophy, the British philosopher David Hume gave expression to a family based understanding of society at the time of the American founding, and this philosophy of natural social relations grounded in custom, Baker said, was quite influential in the formulation of the United States constitution. Although this understanding of society and social relations prevailed for much of America’s constitutional history, what has prevailed with the Supreme Court in recent decades in its decisions relating to sexual relations beginning with the Griswold vs. Connecticut decision (1965, which voided state laws against artificial contraception), and especially in its decisions pertaining to homosexuality, is a radical individualism.

Radical individualism, in turn, is based on the sharp mind/body distinction between the individual and the world advanced by the seventeenth century philosopher Rene Descartes, and further advanced in its moral aspect by Jean Jacques Rousseau. It is opposed to natural moral reasoning, which draws moral truth from the sensible world that we see and hear, and focuses instead on the thoughts and wishes of the individual. People thus see no connection between metaphysics and morality.

The radical court decisions of the late twentieth and early twenty-first centuries concerning sexual morality are the result of this split between the individual and the world. Several points are key in the court’s separation of rights from a common understanding of the good. “Personal autonomy,” which gives a right to choice in sexual matters, derives from the Griswold decision, and was developed by Harvard law professor Lawrence Tribe. It sees marriage as simply an association of two persons, and eroticism, personal expression, and spirituality as more important than children in marriage. It exhibits a “contract theory” understanding of social relations, with individual consent to artificially constructed relations believed to be important, rather than natural relationship. The idea of real personal autonomy and artificially constructed social relations also supports legal pornography, Baker maintained. The appearance of contraceptive pills (in the 1960s) greatly aided this doctrine of personal sexual autonomy, Baker said. Marriage is now understood as “an arrangement with someone who is nice and I can enjoy.” In the contrary Christian vision of marriage, the “love of God the Father for His Son generates the Holy Spirit,” and this is mirrored in the love of a man and a woman generating a child.

We are in a moment of great crisis, Baker said. Today’s advocates of the sexual revolution, or “cultural Marxists,” believe that attacking religion and the family with sex is a way of gaining control of society. Baker sees hope for a change toward a better world in young people engaging it. But like anyone else, or perhaps more so, as they have less memory of traditional morality, young people need to understand that reason, rather than a dogmatic commitment to humanly constructed “rights,” is necessary for the proper ordering of society. Baker noted that students in non-Western societies have much less trouble understanding how the good can be enacted into law, because they are not affected by the Cartesian object/subject split which has held sway in the West for more than 300 years. Overcoming this split will involve talking about duties the individual naturally and reasonably bears toward other people, in other words, emphasizing the virtue of charity. This must be backed up with the real behavior of Christians. “Only Mother Theresa type acts” will change minds, Baker said.