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Vol. XVI • 1994

Evolution and Legal Standards
Joseph Sobran

A recent news story mentioned the "evolving standards" of - I don't remember what. The Supreme Court, maybe. Or was it Western civilization?

How, I wonder, can a standard "evolve"? How, for example, can the meaning of the Constitution, except by amendment, change? Or how can what was wrong yesterday become right today?

G. K. Chesterton observed that an evolving yardstick - one whose length kept changing - would be pretty useless for purposes of measuring. If our standard of good keeps changing, he asked, how can we decide whether a given change is an improvement?

We think human sacrifice was a bad thing. But the Aztecs saw nothing wrong with it. People can get used to nearly anything, as long as everyone else in their society accepts it as normal and natural. In the same way, Americans today are used to things their ancestors would have regarded as evil and tyrannical. Younger Americans, who have grown up with legal abortion and omnipotent government, are learning to accept these things as traditional.

Only three decades ago, liberals used to cite the moral object lesson of "good Germans" - obedient, law-abiding German citizens who failed to protest Nazi tyranny and defended mass murder at the Nuremberg trials on grounds that they were only following lawful orders. Today, though, most liberals urge us to welcome "change."

Without a stable standard of right and wrong - one that doesn't "evolve" - how can we condemn human sacrifice (which in its day, after all, was the latest thing in cultural evolution)? Or how can we decide what the law should be? After all, the Nazis and communists claimed the mantle of progress for their societies. So do the proponents of abortion, and so human sacrifice has returned to the modern world under new forms and new names.

The words "evolve" and "evolution" have probably generated more sheer intellectual mush than any other words in our time. The idea of evolution has been transferred from biology, where it may mean something, to ethics and politics, where it nearly always produces confusion. To any unbiased reader, the U.S. Constitution has a clear meaning. It specifies and limits the powers of the federal government. Yet we are supposed to believe that it has "evolved" into a document that means nearly the opposite; that it allows the federal government to do nearly anything.

If you point out to the average liberal that the Constitution does not empower the federal government to impose a compulsory national health care plan, he will say, "Oh, but the Constitution is a living document! It has evolved with the times! It no longer means what it meant in the dim primeval days of Jefferson and Madison!"

Ah, the hypnotic power of the word evolve"! It's usually enough to stop further questions. The word sounds as if it means something intelligent - though perhaps a hit over our heads). But in fact, it means nothing intelligible. It turns words into rubber yardsticks of meaning. The rest is that the Supreme Court gets away with assigning its own arbitrary meanings to the Constitution and ignores the meanings inherent in the text. A fashionable school of thought even insists that inherent meaning doesn't exist, that all texts are "unstable." But if that were true, what would be the point in having either a Constitution or written law itself?

The ideal of "evolving standards" does have one, albeit sinister advantage. It removes all limits on power. It lets the state define its own authority, without the restraint of inherited meanings and shared understandings. It annihilates legal tradition and makes the interpretation of law a game without rules.

Change and development are necessary and unavoidable, even in law and public morality. But we have to distinguish the things that can and should change from the fixed principles that can keep change from becoming a devouring monster.

Unfortunately, our public educational system - Hugh Kenner calls it the Ignorance Factory - obliterates such distinctions. Americans bow their heads at the holy word "evolution" and let the court tell them what their Constitution says.

The other day I saw a youth wearing a T-shirt with the simple commandment: "Evolve." Such piety!

Reprinted from July 1993 newsletter of Summit Ministries, Postal Box 267, Manitou Springs, CO 80829

"Evolution and Legal Standards"
CSSHS • Creation Social Science & Humanities Society • Quarterly Journal

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