It occurs to me that the last post was really long. Sorry. Here’s some more on the conse­quences of Positivism.

Constitution. From constituere, to fix or establish. The U.S. Constitution was written as an estab­lishing document. It “fixed” the powers of government. If you read the main body, it presents a list of what the government, be it the Executive, Congress, or the Judiciary, may do. In those places where it prohibits the government from doing something, it is always a narrowing of an earlier grant of authority. Fundamentally, the original Constitution, without the Bill of Rights, is an empow­ering document. It transfers some power from indi­viduals into the Federal government. The Federal government, under this inter­pre­tation, has no power that is not granted by the Constitution. Nowhere does the Constitution grant the Federal government the power to establish an official state church. Therefore, the Federal government has no power to do so. Doing so would be uncon­sti­tu­tional, even without the 1st Amendment.

But the Framers found it difficult to get the Constitution ratified without a Bill of Rights. So they wrote up a list of Amendments which, together, are simply a political tract describing the new government that the Constitution would form. Congress has no power to establish a church. It was a grave error to write the Bill of Rights in the language of law. It was an even graver mistake to incor­porate it bodily into the Constitution.

Expressio unius est exclusio alterius. To express one is to exclude others. If you enumerate rights, you exclude those not enumerated, 9th and 10th Amendments notwith­standing. This wasn’t such a problem in the early (pre-​​Progressivism) days, because the original natural rights philosophy of the Founders dominated Constitutional inter­pre­tation. The document was still funda­men­tally an empow­ering document. It just had some extra descrip­tions attached to it, clar­i­fying the limits of the power granted by the main body.

In come Progressivism and Positivism. Between the 1830s and the 1860s, the dominant philosophy changes. By end of the Civil War, the Constitution is no longer an empow­ering document. It is now a limiting document. Government power to do a thing is assumed, unless the Constitution (or Bill of Rights) removes that power. The philosophy finally consumes the whole of the law in the 1930s, with the packing of the Court.

Today, Positivism instructs that, should Congress and the several States decide that the 1st Amendment prohi­bition on the estab­lishment of religion was, for some reason, no longer conducive to Progressive social goals, they might, presumably with voter approval, repeal it. And in doing so, make the estab­lishment of an official state church Constitutional without any further action. Even though the Constitution does not grant Congress the power to establish a church.

The difference is the source of the government’s power. It no longer comes from indi­viduals, but from the group. Positivism allows the group to remove the legal safe­guards protecting indi­vidual rights. This is, of course, a monstrous abro­gation of indi­vidual rights.

Because Positivism permeates the legal envi­ronment, rein­forced by Progressivist law professors (I often employ the phrase, “liberal peda­gogical hegemony”), there is no legal means by which to mount a prin­cipled challenge to bad law. That is, there is no way to make a legal argument that a law, ruled entirely Constitutional, is nonetheless violative of indi­vidual rights. Until the dominant philosophy changes, this will remain impos­sible. And the philosophy will not change easily. I wonder even if it can change.