Nietzsche got it wrong.  God is not dead, but that other mainstay of popular sovereignty and constitutional government in this country, the rule of law, is either finished or on life support.  For decades the finest minds in the law schools and on the bench have argued that several hundred years of legal tradition, in which it was believed that the glory of the law and the Constitution was its fixed nature and that judges should not be in the business of making law, should no longer bind us, and we should wake up to the fact that it ought to be the job of those on the bench to alter the law in the manner they believe best for us.  As Judge (formerly professor) Richard Posner writes in his latest book, arguing for something he calls a “pragmatic approach to adjudication,” judges should simply “try to make the decision that is reasonable in the circumstances, all things considered.”  While judges take an oath to uphold the Constitution, all this means, according to Posner, is that 

The loyalty demanded is to the United States, its form of government, and its accepted official practices, which include loose judicial interpretation of the constitutional text and occasional overruling of decisions interpreting that text.

In a similar vein, Professor Louis Michael Seidman of Georgetown University School of Law has called for scholars and judges, as one reviewer of Seidman’s book put it, to “abandon the notion that constitutional law settled matters” and to see, as Seidman puts it, that the decisions of the federal courts are “worthy of respect not because they are substantively right but because they are (or at least can be) grounded in a method and a culture that encourages uncertainty, ambivalence, and contradiction.”  We should be encouraged to view the work of our courts as “unsettling,” as a means of keeping a “conversation” going, as offering losers in the political processes—such as legislation, elections, or even the drafting of the Constitution and its amendments—a means of continuing participation in the polity, thus contributing to the building of a “healthy political community.”  For Seidman, such a community is not built upon a foundation of stability or precedent; rather, 

Political community is maintained precisely because there is no permanent settlement and, indeed, no exclusive, agreed-upon method for amending temporary settlements.  Instead, the community is built upon an endless battle, with no fixed rules and no hope of final resolution.

It would seem that our federal judges have either been reading or channeling Posner and Seidman, because the latest raft of decisions, particularly the Supreme Court’s recent rulings that consensual homosexual sodomy is constitutionally protected and that the “equal protection” clause of the 14th Amendment permits state universities to give admissions preferences to students based on race, can only be explained as the work of jurists committed to rejecting precedent and implementing their own pragmatic visions for America or their own belief that the Constitution should be twisted lest erstwhile losers feel left out of the “community.”  Professor Seidman and others seem comfortable with “endless battle[s], no fixed rules and no hope of final resolution,” but what he describes, and what has been going on in our courts for the last half-century at least, might better be viewed as a Hobbesian war of all against all.  

Could it be that, somewhere in the middle of the last century, our legal educators, our judges, and perhaps even a majority of our politicians came to the conclusion that Nietzsche was right after all?  Did the horrors of the holocaust, fascism, communism, and the other atrocities of Europe in the 20th century lead too many of our leaders to believe that the Christian moral tradition we inherited from Europe was a sham?  Is that why the courts seemed to undertake a plan to eliminate, root and branch, any traces of that tradition from our public square, our schools, and our courts, so that mandatory prayer and Bible reading was forbidden in public education, crèches could no longer be erected on the village commons, and towns were forced to remove religious symbols from their corporate seals?

It is certainly a part of our nation’s religious tradition (or was, at least, until recently) that true happiness cannot be found here on earth and can only be enjoyed in the life to come by the grace of God, so that our efforts here ought to be devoted to living a life of virtue and charity, the better to hope to secure that grace.  In our early charters, early state constitutions, early laws, and even the decisions of our courts in the first century and a half of our republic, we will find religious tradition in evidence, as well as a recognition that it is the duty of our government to aid in that endeavor.

In its next term, the U.S. Supreme Court may well be poised to rule that the words “under God” in the Pledge of Allegiance and Alabama Chief Justice Roy Moore’s display (recently removed from the rotunda of his building) of a granite monument containing the Ten Commandments violate the Constitution.  Perhaps this will make “losers” in some political battles feel more included in the polity, but it also indicates that the justices of the Supreme Court have abandoned piety, if not their senses.  In Hobbes’ state of nature, anarchy reigned, it was intolerable, and the only way out was for the weak to subordinate themselves to the strong, perhaps in the hope that the strong would be guided by the interests of all, as revealed eventually by a beneficent deity.  This is a hope all but abandoned by too many of our legal theorists.

Justice Scalia hinted in his dissent to the sodomy decision that the Supreme Court had taken sides in the ongoing “culture war,” and Justice Kennedy buttressed his majority opinion in that case by referring to recent developments in Europe.  The Supreme Court, then, may have come full circle; as it abandons our European Christian heritage, it is embracing a radically secular European vision being promoted by Brussels bureaucrats.  Perhaps Nietzsche was right after all.