The Delinquencies of Juvenile Law: A Natural Law Analysis

• Author: Ellis Washington
• Position: Professor of Law and History Spring Arbor University, U.S.A.
• Pages: 25-52

Page 25

The powers of the Star Chamber were a trifle in comparison with those of our

Juvenile courts.¹

Roscoe Pound

1. Introduction

In November, 1945, Justice Robert Jackson acting as Chief Prosecutor for the United States famously remarked during his Opening Address at the NurembergPage 26Trials that, "The Constitution is not a suicide pact." That said, the juvenile justice system in America by all reasonable accounts has been not only a suicide pact, but a monumental failure as well.² (Gifis, 1984, pp. 523-524)It has neither given help to the troubled youth within its jurisdiction, nor has society received justice or protection from the ever-increasing criminal conduct visited upon them by this seemingly incorrigible, criminal-youth class.³ (Thomas & Bilchik, 1985, pp. 439- 479) Up until the establishment of the juvenile justice system in the early twentieth century, issues of morality and family were the primary domain of the church and other moral-based civic organizations. However, beginning around the 1850s the foundations of societal morality in America began to be directly assaulted and challenged by new academic discoveries in the areas of law, science, philosophy, and education-Immanuel Kant (1724-1804), Frederick Hegel (1770-1831), Friedrich Nietzsche (1844-1900), Martin Heidegger (1889-1976) (philosophy, metaphysics), Jeremy Bentham (1748-1832), John Austin (1790-1859) (law, philosophy), Charles Darwin (1809-1882), Thomas Henry Huxley (1825-1895) (biology), Julian Sorell Huxley (1887-1975) (science; biology, evolution), Karl Marx (1818-1883), Friederich Engels (1820-1895) (economics, political philosophy), Sigmund Freud (1856-1939) Carl Jung (1875-1961) Max Weber (1864-1930) (psychoanalyst, psychology, sociology), Franz Boas (1858-1942), Margaret Mead (1901-1978) (ethnology, cultural anthropology), Charles William Eliot (1834-1926), John Dewey (1859-1952) (education, philosophy), Theodore Roosevelt (1858-1919), Woodrow Wilson (1856-1924) (U.S. presidents), Herbert Croly (1869-1930) (writer, co-founder of The New Republic), Walter Lippmann (1889-1974) (intellectual, writer, reporter, co-founder of The New Republic). These influential people, by the sheer power of their ideas, brought forth scientific, philosophical, political, legal and intellectual suppositions that so challenged the conventional beliefs and morality of their society so as to forever put in doubt what Progressives considered anachronistic notions like God, truth, reality, liberty and Natural Law. "God is dead" and moral relativism was all the rage. By 1900 the ideas of these scientists, educators and intellectuals, were quickly absorbed by the increasingly secular academic community and the political class in their proudPage 27attempts to have their various disciplines stamped with the imprimatur of "science."

By the beginning of the twentieth century, the legal community had exchanged the philosophical foundations it inherited from the English Common Law which presumed a higher authority [God] as the foundation of all legitimate law. Natural Law, a synthesis of legality and morality which America's constitutional Framers borrowed from their English cousins across the Atlantic, the controlling legal philosophy which Thomas Jefferson eloquently defined in the Declaration of Independence as-"...the law of Nature and of Nature's God." By the early 1900s the presumption of an inseparability of law and morality in jurisprudence was replaced by a naturalistic, secular, humanistic philosophy-Positive Law. Legal Positivism, from which Positive Law is derived, is a system or philosophy specifically designed to supersede previous notions of God, theology, metaphysics, or the supernatural. Positive Law is law which is posited or created by and for man apart from any supernatural source. Its credo-He who is sovereign rules! Tragically, this aphorism would serve the totalitarian desires of depraved tyrants from Lenin, Stalin and Mussolini to Franco, Hitler, Mao, Pol Pot and others throughout the twentieth century.

The academy, child activist groups, liberals, Democrats, socialists and progressives armed with this new zeitgeist of the modern, industrial age, believed that science had all the answers to the problems that have plagued mankind since ancient times and that previous reliance in God, religion and metaphysics of past generations in their attempts to understand phenomenon, humanity and the world; (particularly those ideas out of the Judeo-Christian traditions of intellectual thought), were now viewed by these progressive intellectuals of the late nineteenth century as anti- intellectual, medieval, nonrational, backward, superstitious, unenlightened, and anti-progressive.⁴ (Posner, 1999, p. 1638) (Washington, 2002, p. 249)

Furthermore, as the nineteenth century drew to a close, an increasingly activist and conservative Supreme Court that showed little regard to the original intent of the Constitution, stare decisis (judicial precedent), or a proper understanding of Natural Law, began ruling on cases without reliance on the explicit text of thePage 28Constitution. Later called substantive due process,⁵this judge-created doctrine was initially used to strike down governmental regulations in the areas of economics and employment in the early 1900s,⁶ however, by the mid-1940s, substantive due process would be increasingly expanded by the Court, which because of deaths, retirements and President Franklin Delano Roosevelt's Court Packing plan threat of 1937, now much more leftist, socialist activist Court began issuing radical rules in such areas as: church/state relations, freedom of speech, freedom of religion, sexual relationships, and contraceptives. Particularly the Court from 1937-50 and the Warren Court (1953-69) exercised oligarchy-like power to hold consistent majorities on cases that totally reshaped societal morality and structure. Although substantive due process ruled constitutional jurisprudence from the 1900s to the early 1930s, however, soon another, even more sinister judicial doctrine arose, the so-called incorporation doctrine, of the 1930s and 40s, where the Supreme Court applied the Fourteenth Amendment to the states in an effort to bring state law under the Bill of Rights and as a means to justify its scientific rulings rending states rights via the Ninth and Tenth Amendments a deadletter. These cases used a doctrine called "procedural due process."⁷Beginning in the late 1940s activist Courts using the so-called incorporation and procedural due process began applying the Bill of Rights to the states and rather than interpreting the Constitution, the Court began reading their own personal policy preferences into the Constitution. For example, the Court's removal of prayer from the publicPage 29schools,⁸ legalized birth-control for everyone including unmarried minors,⁹legalized abortion on demand,¹⁰ pornography (including the public libraries providing children access to pornography on the internet),¹¹ de facto legalization of homosexuality,¹²severely limited religious freedom of speech,¹³and outlawed the posting of the Ten Commandments in the public schools.¹⁴

Behind these radical court decisions are a cabal of well-organized, well-financed and diverse group of progressive politicians, socialists, fascists, anarchists, communists, atheists, agnostics, secularists, leftist special interest groups, and their supporters which were becoming increasingly hostile to America's traditional notions of family, morality and respect for the historical and substantive influence that Christianity and the church has played in controlling the marketplace of ideas. This concerted, systematic attack on moral foundations of America came to its apotheosis in the early 1960s as the decline of Christianity, morality, and a respect for the rule of law have correlated with the rise of progressivism. The current moral crises endemic in American culture from the pandemic hopelessness and violence of ghetto life in the inner-cities, to the failing public schools, failing test scores and high school seniors that can't even read their diplomas, to the marbled walls of thePage 30Supreme Court that has played an increasingly activist and inimical rule in the coarsening of societal morality by their opinions on freedom of speech and religion, right to privacy, morality, sexual expression and culture-a perverse jurisprudence that seems to relish in denigrating America's historical veneration of the Judeo-Christian traditions, Natural Law and original intent in its laws that presupposed an integration of law and morality.

The establishment of the juvenile justice system in America is but one of many progressive systems initiated by the leviathan state which has usurped power not expressly enumerated to it by the Constitution. The results from establishing the juvenile justice system has been devastating to the family, society, and ironically, to the offending child which progressives say is altruistically all done "in the name of the children." Note some of the tragic effects upon society due in part to the creation of the juvenile justice system in America:

· Increased parent/child alienation (for example, children can now "divorce" their parents) (McBride, 1996, pp. 68-69);

· Breakdown of the tradition family unit;

· An explosion of homelessness-largely middle and upper middle class children aimlessly wandering America's large cities seeking to survive by selling drugs, selling their bodies...