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.