Movement from Law based on Christianity
ten year study of 15,000 political documents produced by the 55 authors
of the Constitution was completed by University of Houston political
science professor Donald Lutz and Dr. Charles Hyneman (1994).
jurist William Blackstone was third on the list of most quoted sources.
Only the Bible (34% of cited sources) and political philosopher Charles
de Montesquieu (8.3%) outranked him. Of the possible sources from which
the founders drew their ideas, perspectives, values and notions about
liberty and responsibility, the one that dominates was the Bible.
fact is, the original four-volume 1773 edition of Sir William
Blackstone's classic masterpiece Commentaries
on the Laws of England "formed the core of American
jurisprudence both before and after ratification of the U.S.
Constitution" (Vitagliano, 2015, p. 14).
introduction to the newest reprint concluded that "Sir William
Blackstones's Commentaries on the Laws of England, 1765-69, is the most
important legal treatise ever written in the English language." A
central factor in how this foundation of American law was overturned
was the rejection of Blackstone and the acceptance of Darwinism. After
the Civil War, several leading
To Law based on
164, 2015 September)
individuals embraced a new idea: Darwinian evolution. The Origin of
Species, published by Charles Darwin in 1859, had a huge impact on the
movers and shakers who saw no room in American jurisprudence for
Blackstone's God based view of nature (Vitagliano, 2015, p. 15).
Thus, the rejection of Blackstone's work began with Darwin's writing
completed 150 years ago. In short, Blackstone's work was rejected
ideas were rooted in
a Judeo-Christian view of the world. God designed the world to express
certain ideas and to operate under certain laws—and this theory is
called "Natural Law." The influence of Blackstone and other thinkers of
a similar vein led to familiar founding sentiments such as the mention
of "the Laws of Nature and Nature's God" in the Declaration of
Independence (Vitagliano, 2015, p. 14).
basis of law was, as stated by Alabama Supreme Court Justice Parker,
when God "created man and imbued him with free will to conduct himself
in all parts of life, He laid down certain immutable laws of human
nature" (Vitagliano, 2015, p. 14). And
in creating mankind,
God "gave him also the faculty of reason to discover the purpose, or
the purport, of those laws." Human laws are therefore to be the product
of people comprehending God's purposes and fashioning their own
regulations of human conduct to reflect the Divine will (Vitagliano,
2015, p. 15).
After Darwin, this legal position radically changed. One factor
involved Harvard University's president, Charles Eliot, working to
"introduce evolution into the teaching of law" by hiring Christopher
Langdell to be the new dean of Harvard Law School. Dean Langdell served
from 1870 to 1895, and during this time changed the curriculum
foundation from Blackstone's Commentaries to the so-called case law
approach, meaning basing court decisions on the writings of other
began the revolution in American jurisprudence, a process that
eventually succeeded in changing "the focus from the God who gave
immutable principles … to the judge—the man—who was writing the law"
(Parker, quoted in Vitagliano, 2015, p. 15).
studying past case decisions, judges were able to evolve the law from
Christian centered to man centered. In addition, "Further advance of
the Darwinian impulse in law came with the influence of the late U.S.
Supreme Court Justice Oliver Wendell Holmes," who served on the court
for 30 years, from 1902 until 1932. This long term enabled him to have
a major impact on American law, moving from Judeo-Christian based to
secular humanism centered.
is best known today for his Harvard
Law Review article published in 1897. In that article Holmes
opined that "every word of moral significance" should be "banished"
from law, and other ideas should be adopted that "convey legal ideas
uncolored by anything outside the law" such as theology, especially
Christian morality (1897). The result of Holmes' efforts achieved "a
complete break from Blackstone and the past" and instituted a radically
new source of legal authority, secular humanism (Vitagliano, 2015, p.
15). As a result,
separated from jurisprudence; human expertise and reason were divorced
from … ‘Natures God;' absolute truth was denied; and the responsibility
for determining truth was placed firmly in the hands of judges (Parker,
quoted in Vitagliano, 2015, p. 15).
could change this, Judge Parker opined, is the large number of lawsuits
fought today in defense of religious liberty. A problem that works
against this, maintains Judge Parker, is "While many Christians have
come to see the need for a return to founding principles in law, there
remains a large percentage of the Christian community that eschews
involvement in politics and culture" (Vitagliano, 2015, p. 15).
as Judge Parker noted, he and many others are very frustrated by those
Christians "who attempt to bury their heads in the sand and not see
their role in contending or striving for truth … Because absent their
involvement, these [secularist] trends will take down their children,
even as we see the signs of them taking down our society right now"
(Parker, quoted in Vitagliano, 2015, p. 15).
Sir William. 1773. Commentary
on the Laws of England. Oxford, Clarendon Press
Jr., Oliver Wendell. 1897. "The Path of the Law." Harvard Law Review. 10: 457
Donald and Charles Hyneman. 1994. "Toward a Theory of Constitutional
Amendment," American Political
Science Review, 88: 355-70
Ed. 2015. "Sir William Blackstone and … the Long War Against Law."
afajournal.org, pp. 14-15, January
Commentaries on the Laws of England, A Facsimile of the First Edition
of 1765-1769. 2002. Chicago: The University of Chicago Press.
Introduced by Stanley N. Katz.