1918-2018: 100 YEARS OF UNNATURAL LAW OF JUSTICE OLIVER WENDELL HOLMES.

• Author: Washington, Ellis
• Position: Symposium on Executive Power

TABLE OF CONTENTS I. PROLOGUE TO THE PROGRESSIVE REVOLUTION IN AMERICAN JURISPRUDENCE A. Professor Cass Sunstein on J.B. Thayer--Holmes' intellectual mentor B. Judge Richard A. Posner and 'The American Nietzsche' II. CRITICISMS OF JUSTICE HOLMES A. Professor Albert Alschuler's Dissent B. Professor Allan Bloom Inside the Pagan Arena C. Contriving a Demigod: Holmes vs. Picasso III. ANALYSIS OF HOLMES' NATURAL LAW A. Observations 1. Strawman No. 1--The Lovelorn Knight 2. Strawman No. 2--Demand for the Superlative: The Hegel-Holmes Dialectic 3. Strawman No. 3--Truth isn V Absolute B. Neo-sophism in Hamlet and Holmes C. Unnatural Law Jurisprudence and the Foundations of the Progressive Revolution IV. EPILOGUE: WILL THE ASCENT OF PRESIDENT DONALD J. TRUMP BE THE DECONSTRUCTION OF UNNATURAL LAW? A new untruth is better than an old truth. (1)

Laurence Tribe, America's leading liberal constitutional lawyer, argued in the Harvard Law Review in 1978 that religious views were inherently superstitious and hence less legitimate than "secular" ones. (2)

[To Justice Holmes] law was simply an embodiment of the ends and purposes of a society at a given point in its history. (3)

1. PROLOGUE TO THE PROGRESSIVE REVOLUTION IN AMERICAN JURISPRUDENCE

   The essential intent of this Article is quite simple. I will endeavor to provide a succinct, dispassionate, and historical critique of the greatest Progressive jurist in American jurisprudence, Justice Oliver Wendell Holmes (1841-1935). Holmes' iconic 1918 law review article Natural Law--in conjunction with his even more iconic 1897 Article, The Path of Law--almost singlehandedly caused a paradigm shift in the history of American constitutional law and jurisprudence. The new jurisprudence replaced the existing natural law worldview, which was based on natural nights, the God of the Bible, morality, and First Principles, as expressly founded by America's constitutional Framers and generally embraced by political conservatives in modern times, with a positive law jurisprudence established in legal positivism, Hegelian dialectical materialism, and Darwinian Evolution-Atheism. (4) Holmes' positive law jurisprudence has since been embraced and promoted by atheists, humanists, socialists, liberals, progressives, and a multitude of other ideologies on the political left, who since the 1960s have instituted a Socialist-Progressive worldview and have exercised a progressive, intellectual hegemony over all K-12 schools, colleges, universities, and virtually all law schools. (5)

   Furthermore, I intend to give an apologetic on what I believe natural law to be, (6) or how Jefferson famously defined it in the Declaration of Independence, "the law of Nature and of Nature's God," (7) and how in modern times natural law's integration of legality and morality must be reinstated, used, and taught again in our educational systems at every level--K-12, college, university, law schools, graduate schools--and respected in our courtrooms to regain the original intent of America's constitutional Framers. If the U.S. Constitution is to ever be redeemed from our present deconstructive "constitutional crisis" under an evolution-atheist and progressive worldview, then natural law and natural rights must be returned to predominance in all constitutional decision-making.

   I refer to the year 1860 as Year One of the Progressive Revolution. In that year, Cultural Marxism and Evolution-Atheism morphed together to systematically infect every institution in American society, including all Judeo-Christian traditions and institutions that established Western civilization, via the Communist-Progressive establishment and the Democrat Party. (8) Historically, I now consider the year 1860 as the advent of evolution-atheism chronicled in the publication of Charles Darwin's On the Origin of Species, which was quickly adopted by many the European and American academic class. (9) Liberals, progressives, humanists, atheists, even Communists, anarchists, and totalitarians, accepted the unproven suppositions of evolution. They assumed evolution would put the death knell in the heart of the Judeo-Christian worldview, its institutions and churches, and finally deconstruct its moral influence over society it held for 2,000 years. (10) In other words, what I call the Progressive Revolution was actually a secular humanist counter-reformation or post-Enlightenment revolution for all those humanists in America and European society who felt (justly or not) that they had been held prisoner by 4,000 years of the so-called Judeo-Christian worldview dominating what Holmes called the "marketplace of ideas." (11)

   Indeed, Oliver Wendell Holmes was a leading intellectual figure at the advent of the Progressive Age. He was the apotheosis of evolution-atheism during the Age of Darwin's evolution-atheism revolution, which is inseparable from the unnatural law jurisprudence of Holmes. But as a practicing New England Unitarian how did Holmes become so radicalized, so hostile to the God of his fathers? Many theorize that Holmes was physically and psychologically traumatized by his involvement as a thricewounded soldier in the Civil War. (12) His experiences may have transformed his moral and jurisprudential worldview. Holmes was the son of a Victorian-era Renaissance man, Oliver Wendell Holmes, Sr. (1809-1894), who was a medical doctor, lawyer, poet, writer, philosopher, and polymath, as well as being a central figure in Boston medical, intellectual and literary circles. (13) His mother, Amelia Lee Jackson (1818-1888), was a prominent abolitionist whose genealogy was also connected to blue-blooded New England aristocracy, including family friends such as Henry James Sr., Ralph Waldo Emerson, Longfellow, James Russel Lowell, William Dean Howells, and Charles Eliot Norton. (14) With the publication of his magnum opus The Common Law in 1881, Holmes established a reputation as a legal intellectual. (15) That reputation grew as Holmes almost single-handedly began transforming American legal thinking away from the formalism of natural law (promoted by America's first law school at Harvard and its dean during that era, Christopher Columbus Langdell), and toward legal realism, legal positivism, and a progressive worldview. (16) Holmes clearly declared his original intent in the opening lines of The Common Law: "The life of the law has not been logic; it has been experience." (17)

   Holmes' legal worldview mandated a form of moral skepticism and evolution-atheism--both of which possessed an irrational, militant hatred toward the normative worldview of natural law and natural rights, which was the original jurisprudence of the constitutional Framers and the original political philosophy of America's founding documents, including the Declaration of Independence, the Constitution, and the Bill of Rights. (18) Justice Holmes' virtual one-man Progressive Revolution marked a momentous change in the history of American constitutional law and jurisprudence. (19) President Theodore Roosevelt, America's first Progressive executive, chose Holmes as his first Court appointment in 1902. (20) Holmes served on the Supreme Court until 1932; his term was during the Lochner era (1897-1937), the forty-year period which legal historians consider were last gasps of natural law jurisprudence in America. (21)

   Like the German literary movement of early Romanticism Sturm und Drang (storm and stress), which created a new literary tradition based on an existential polarity of stress and tension, American society underwent tremendous philosophical and political upheavals in constitutional law between 1880 and 1940. (22) During these sixty years, intellectuals, politicians, and the courts mandated a militant progressive paradigm into law. (23) This paradigm deconstructed the former natural law worldview (the politico-legal foundation of America's Judeo-Christian tradition which had existed since the arrival of the Pilgrims and Puritans of the early 1600s) along with natural law's equally troublesome morality-legality synthesis. (24) The new paradigm replaced natural law's integration of law and morality with legal positivism and positive law's separation (or deconstruction) of law and morality. (25) For example, Holmes' dissent in Abrams v. United States, one of his many well-known verdicts, demonstrates an aggressive unnatural law jurisprudence. (26) In this dissent, Holmes Darwinian jurisprudence considered the United States Constitution as "an experiment, as all life is an experiment" and thought that, as a result, "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death." (27)

   During his tenure on the Supreme Court, Holmes systematically reinforced policies for government control of economic regulation, and he supported an expansive, new interpretation of freedom of speech under the First Amendment. (28) These judicial views, in addition to his idiosyncratic temperament and writing bravura, endeared him to supporters of progressive politics and socialist jurisprudence, (29) notwithstanding Holmes' profound skepticism of and disagreement with progressive politics. (30) His evolution-atheism and progressive jurisprudence defined the Progressive Age while transforming American jurisprudence. (31) His views influenced much of American legal thinking covering the first half of the twentieth century. (32) Furthermore, The Journal of Legal Studies acknowledges Holmes as one of the three most cited American legal scholars of the twentieth century. (33)

   Holmes' views, together with judicial majorities, finally broke the loyalist-liberal-atheist existential battle to undermine natural law jurisprudence. (34) In 1937, President Franklin Delano Roosevelt's Judicial Reorganization Act (i.e., FDR's court-packing plan), or the infamous "switch in time save nine," caused two previous conservative constitutionalists...