1918-2018: 100 Years of Unnatural Law of Justice Oliver Wendell Holmes

By Washington, Ellis | Faulkner Law Review, Fall 2017 | Go to article overview

1918-2018: 100 Years of Unnatural Law of Justice Oliver Wendell Holmes


Washington, Ellis, Faulkner Law Review


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)

I. 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. …

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