Harold McKinnon on "The Higher Law"

This is a remarkable excerpt from a short address delivered before a conference of the judges of the Ninth U.S. Circuit, wherein Mr. McKinnon, a Catholic lawyer from the San Francisco Bay Area in California, a severe critic of Justice Holmes, attacks the teaching of contemporary political and legal philosophers in the United States, and warns of their anti-democratic and totalitarian tendencies. It urges for a return to the natural law concepts, those that maintain that there is a Law above all law, and that human law is subject to it.

This, gentlemen, is our birthright. . . . And in this matter we are in the most unyielding dilemma. For if there is no higher law, there is no basis for saying that any man-made law is unjust . . . .; and in such case, the ultimate reason for things, as Justice Holmes himself conceded, is force. If there is no natural law, there are no natural rights; and if there are no natural rights, the Bill of Rights is a delusion, and everything which a man possesses -- his life, his liberty and his property -- are held by sufferance of government, and in that case it is inevitable that government will some day find it expedient to take away what is held by a title such as that. And if there are no eternal truths, if everything changes, everything, then we may not complain when the standard of citizenship changes from freedom to servility and when democracy relapses into tyranny.

Harold R. McKinnon, The Higher Law. An address delivered before the Conference of Federal Judges of the Ninth Circuit, at San Francisco, September 3, 1946 (Berkely: Gillick Press, 1946), p. 16.

The Ninth Circuit has the reputation of being an extremely liberal, even "rogue" court. It is obvious that they did not heed Mr. McKinnon's address.