The Movement from Law based on Christianity
To Law based on Secular Humanism

Jerry Bergman

(Investigator 164, 2015 September)



A 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).

English 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.

The 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).

The 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

influential 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 because his


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).

The 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 judges.


Thus 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).
   
By 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.
   
Holmes 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,

Morality was 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).

What 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).
   
Unfortunately, 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).


References

Blackstone, Sir William. 1773.  Commentary on the Laws of England. Oxford, Clarendon Press

Holmes, Jr., Oliver Wendell. 1897. "The Path of the Law."  Harvard Law Review. 10: 457

Lutz, Donald and Charles Hyneman. 1994. "Toward a Theory of Constitutional Amendment," American Political Science Review, 88: 355-70

Vitagliano, Ed. 2015. "Sir William Blackstone and … the Long War Against Law." afajournal.org, pp. 14-15, January

1 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.


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