MY NOTES REGARDING

THE BRITISH AND BIBLICAL ROOTS

OF AMERICAN GOVERNMENT

Gary Ray Branscome

The following information has been gleaned from the internet. If you read the various statements they reveal how our American system of law was derived from English law, and how it was subverted by those who had only contempt for God, and the biblical roots of our free government.

From "The Mayflower Compact, 1620" by Jean Leon Gerome Ferris. Public Domain

The Compact has its foundation in the Magna Carta (1215) that established the idea of the rule of law. The Mayflower Compact asserted it was the people, not a king, who made the law.

Between 1636 and 1671, the Plymouth Colony adopted The General Fundamentals of New Plymouth, the first legal code in colonial North America. It included statements about representative government and individual rights. Its first article was a declaration of self-rule, stating that the people of the colony:

"Do Enact, Ordain and Constitute; that no Act Imposition, Law or Ordinance be Made or Imposed upon us at present or to come, bur such as shall be Enacted by consent of the body of Freemen or Associates, or their Representatives legally assembled; which is according to the free Liberties of the free born People of England."

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The origins of the House of Commons date from the second half of the 13th century, when landholders and other property owners in the counties and towns began sending representatives to Parliament to present grievances and petitions to the king and to accept commitments to the payment of taxes.

From https://www.britannica.com/topic/House-of-Commons-British-government

House of Commons, also called Commons, popularly elected legislative body of the bicameral British Parliament. Although it is technically the lower house, the House of Commons is predominant over the House of Lords, and the name “Parliament” is often used to refer to the House of Commons alone.

History

The origins of the House of Commons date from the second half of the 13th century, when landholders and other property owners in the counties and towns began sending representatives to Parliament to present grievances and petitions to the king and to accept commitments to the payment of taxes. In the 14th century the knights and burgesses chosen as representatives (i.e., the commons) began sitting in a separate chamber, or “house,” from that used by the nobles and high clergy (i.e., the lords).

The House of Lords was initially the more powerful of the two houses, but over the centuries its powers gradually diminished. By the late 17th century, the House of Commons had gained the sole right to initiate taxation measures. The House of Lords retained its veto power over bills passed by the Commons, however, and in 1832 the only recourse of the Liberal Party government was to threaten to flood the House of Lords with new Liberal peers in order to prevent it from rejecting that government’s Reform Bill. Eighty years later the same threat was used, again by a Liberal government, to compel the Lords to approve the Parliament Act of 1911, which enabled a majority of the House of Commons to override the Lords’ rejection of a bill. Under this act, the House of Lords lost the power to delay legislation passed by the Commons for the raising and spending of revenue; it also lost the power to delay other legislation for a period beyond two years (reduced in 1949 to one year). The act also reduced the maximum duration of a parliamentary session to five years.

The membership of the House of Commons stood at 658 from 1801—when Great Britain and Ireland were united by the Act of Union to form the United Kingdom—until 1885, when it was increased to 670. In 1918 it was increased to 707. It was also changed under subsequent acts. At the general election in May 2010, 650 members were returned—533 from England, 59 from Scotland, 40 from Wales, and 18 from Northern Ireland. Each constituency returns a single member.

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Magna Carta was issued in June 1215 and was the first document to put into writing the principle that the king and his government was not above the law. It sought to prevent the king from exploiting his power, and placed limits of royal authority by establishing law as a power in itself.

The first version of it was issued in 1215 at Runnymede, an otherwise obscure field lying next to the Thames in Berkshire between Windsor and Staines. Charters granting rights and liberties to individuals and groups were issued by lords throughout society, including the king. They were written records of someone's action and were authenticated with a wax seal. Although its form was normal for the time, Magna Carta was the product of political crisis and an uprising of the leading men of England.

https://www.parliament.uk/about/living heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/

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What limits the power of the British monarchy?

In Britain, the Glorious Revolution of 1688 led to a constitutional monarchy restricted by laws such as the Bill of Rights 1689 and the Act of Settlement 1701, although limits on the power of the monarch ('A Limited Monarchy') are much older than that, as seen in our Magna Carta.

The Glorious Revolution, also called Revolution of 1688 or Bloodless Revolution, in English history, the events of 1688–89 that resulted in the deposition of James II and the accession of his daughter Mary II and her husband, William III, prince of Orange and stadholder of the United Provinces of the Netherlands.Oct 20, 2022

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THE MAGNA CARTA

In 1215, a band of rebellious medieval barons forced King John of England to agree to a laundry list of concessions later called the Great Charter, or in Latin, Magna Carta. Centuries later, America’s Founding Fathers took great inspiration from this medieval pact as they forged the nation’s founding documents—including the Declaration of Independence, the Constitution and the Bill of Rights.

For 18th-century political thinkers like Benjamin Franklin and Thomas Jefferson, Magna Carta was a potent symbol of liberty and the natural rights of man against an oppressive or unjust government. The Founding Fathers’ reverence for Magna Carta had less to do with the actual text of the document, which is mired in medieval law and outdated customs, than what it represented—an ancient pact safeguarding individual liberty.

“For early Americans, Magna Carta and the Declaration of Independence were verbal representations of what liberty was and what government should be—protecting people rather than oppressing them,” says John Kaminski, director of the Center for the Study of the American Constitution at the University of Wisconsin-Madison. “Much in the same way that for the past 100 years the Statue of Liberty has been a visual representation of freedom, liberty, prosperity and welcoming.”

When the First Continental Congress met in 1774 to draft a Declaration of Rights and Grievances against King George III, they asserted that the rights of the English colonists to life, liberty and property were guaranteed by “the principles of the English constitution,” a.k.a. Magna Carta. On the title page of the 1774 Journal of The Proceedings of The Continental Congress is an image of 12 arms grasping a column on whose base is written “Magna Carta.” Of the 60-plus clauses contained in Magna Carta, only a handful are relevant to the 18th-century American experience. Those include passages that guarantee the right to a trial by a jury, protection against excessive fines and punishments, safeguarding of individual liberty and property, and, perhaps most importantly, the forbidding of taxation without representation.

The two most-cited clauses of Magna Carta for defenders of liberty and the rule of law are 39 and 40:

39. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

40. To no one will we sell, to no one deny or delay right or justice.

The Founding Fathers credited the 39th clause as the origin of the idea that no government can unjustly deprive any individual of “life, liberty or property” and that no legal action can be taken against any person without the “lawful judgement of his equals,” what would later become the right to a trial by a jury of one’s peers.

The last phrase of clause 39, “by the law of the land,” set the standard for what is now known as due process of law.

“Magna Carta’s dominance was so great that its phraseology, ‘by the law of the land,’ was used in all American documents prior to the Constitution,” says Kaminski. “Not until James Madison introduced ‘due process’ at the national level in 1789 was it included in the 5th Amendment and later in the 14th Amendment.”

Writing in The Federalist Papers, James Madison explicitly referenced the 40th clause of Magna Carta when he wrote, “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

Other rights and protections enshrined by Magna Carta are less explicit. The protection against taxation without representation, it’s argued, comes from clause 12 of Magna Carta, which reads:

12. No scutage nor aid shall be imposed on our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the city of London.

At the time of Magna Carta’s writing, barons were chafing against specific fees levied by the crown and feudal lords. The text doesn’t explicitly call out taxation or elected representatives, because those concepts didn’t exist in the 13th century. But the Founding Fathers drew symbolic spirit from Magna Carta through 18th-century eyes.

That spirit is clearly present in the Declaration of Independence, which used Magna Carta as a model for free men petitioning a despotic government for their God-given rights to “life, liberty and the pursuit of happiness.” The Founding Fathers were reacting to decades of abuses by the British Parliament, which colonists believed had betrayed the “higher law” of Magna Carta.

“The Americans saw themselves as very conservative rebels,” Kaminski says. “They were trying to preserve their constitutional rights, not to overthrow a government.”

The influence of Magna Carta was surely felt at the Philadelphia Constitutional Convention in 1787, when the principles of due process and individual liberty fought for in the Revolutionary War were enshrined into law.

There are some clear echoes of Magna Carta in the body of the Constitution itself. Article III, Section 2 guarantees a jury trial in all criminal trials (except impeachment). And Article 1, Section 9 forbids the suspension of habeas corpus, which essentially means that no one can be held or imprisoned without legal cause.

But Magna Carta’s legacy is reflected most clearly in the Bill of Rights, the first 10 amendments to the Constitution ratified by the states in 1791. In particular, amendments five through seven set ground rules for a speedy and fair jury trial, and the Eighth Amendment prohibits excessive bail and fines. That last prohibition can be traced directly back to the 20th clause of Magna Carta:

20. For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.

But perhaps the greatest influence of Magna Carta on the Founding Fathers was their collective understanding that in drafting the U.S. Constitution they were attempting to create a Magna Carta for a new era.

“They knew exactly what they were doing,” says Kaminski. “They didn’t know if it would succeed or if it would last for centuries, but they were doing the best they could.” 

The above is from this website

https://www.history.com/news/magna-carta-influence-us-constitution-bill-of-rights

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WILLIAM BLACKSTONE

Blackstone's theories influenced the writers of the United States Constitution. Especially in the first ten amendments to this historic document. Two examples of this are in the impeachment clause and in the second amendment.

The impeachment of a public official argument uses his commentaries to explain and define what high crimes and misdemeanors means in American Constitutional law. In his essay, What Rises to the Level of an Impeachable offense, David Barton argues that the Founders understood the fundamental understanding of impeachment. He goes on to say that the impeachment process and language in the United States Constitution is based upon the long traditions of British legal history as found in the commentaries.

The second amendment right to keep and bear arms is a tradition based upon Blackstone's Commentaries. In his sources for his article on the second amendment and the right to keep and bear arms in state constitutions, Professor Eugene Volokh, cites Blackstone's commentaries as a source. This source reads in part "... to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defense."

For more information on how Blackstone and his commentaries relate to American law and order, check out St. George Tucker's Blackstone, found at the Constitution organization web site. You can view this work in html or text format. You will also want to read the introduction by John Roland to understand the reason why Tucker wrote this work.

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Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle-class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke College, Oxford, in 1738. After switching to and completing a Bachelor of Civil Law degree, he was made a fellow of All Souls College, Oxford, on 2 November 1743, admitted to Middle Temple, and called to the Bar there in 1746. Following a slow start to his career as a barrister, Blackstone became heavily involved in university administration, becoming accountant, treasurer and bursar on 28 November 1746 and Senior Bursar in 1750. Blackstone is considered responsible for completing the Codrington Library and Warton Building, and simplifying the complex accounting system used by the college. On 3 July 1753 he formally gave up his practice as a barrister and instead embarked on a series of lectures on English law, the first of their kind. These were massively successful, earning him a total of £453 (£75,000 in 2022 terms), and led to the publication of An Analysis of the Laws of England in 1756, which repeatedly sold out and was used to preface his later works.

On 20 October 1759 Blackstone was confirmed as the first Vinerian Professor of English Law, immediately embarking on another series of lectures and publishing a similarly successful second treatise, titled A Discourse on the Study of the Law. With his growing fame, he successfully returned to the bar and maintained a good practice, also securing election as Tory Member of Parliament for the rotten borough of Hindon on 30 March 1761. In November 1765 he published the first of four volumes of Commentaries on the Laws of England, considered his magnum opus; the completed work earned Blackstone £14,000 (£2,071,000 in 2022 terms). After repeated failures, he successfully gained appointment to the judiciary as a Justice of the Court of King's Bench on 16 February 1770, leaving to replace Edward Clive as a Justice of the Common Pleas on 25 June. He remained in this position until his death, on 14 February 1780.

Blackstone's four-volume Commentaries were designed to provide a complete overview of English law and were repeatedly republished in 1770, 1773, 1774, 1775, 1778 and in a posthumous edition in 1783. Reprints of the first edition, intended for practical use rather than antiquary interest, were published until the 1870s in England and Wales, and a working version by Henry John Stephen, first published in 1841, was reprinted until after the Second World War. Legal education in England had stalled; Blackstone's work gave the law "at least a veneer of scholarly respectability".[1] William Searle Holdsworth, one of Blackstone's successors as Vinerian Professor, argued that "If the Commentaries had not been written when they were written, I think it very doubtful that the United States, and other English speaking countries would have so universally adopted the common law."[2] In the United States, the Commentaries influenced Alexander Hamilton, John Marshall, James Wilson, John Jay, John Adams, James Kent and Abraham Lincoln, and remain frequently cited in Supreme Court decisions.

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How does Blackstone view divine law?

Sir William Blackstone had said in his Commentaries that the laws of God are superior in obligation to all other laws; that no human laws should be allowed to contradict them; that human laws are of no validity if they contradict God's laws and that all valid laws derive their force from the Divine original.

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Which branch of the US government

reflects Blackstone's concept?

The U.S. Constitution, especially in the division of powers, reflects what Blackstone wrote in the Commentaries. States that 'the Constitution shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby'.

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THE SUBVERSION OF AMERICAN LAW

The Transformation of American Law

by Herbert W. Titus

INTRODUCTION

“The life of the law,” wrote Oliver Wendell Holmes, Jr. in 1881, “has not been logic; it has been experience.”

With this simple sentence, Holmes began a legal revolution in America that continues to this day. Prior to the rise of Holmes, American law rested upon God’s revelation.

In 1798, Jesse Root, Chief Justice of the Superior Court of Connecticut, wrote that Anglo-American “common law was derived from the law of nature and of revelation — those rules and maxims of immutable truth and justice, which arise from the eternal fitness of things.

Less than one hundred years later, Holmes, soon to be appointed to the Supreme Judicial Court of Massachusetts, countered:

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy… even the prejudices of judges have had more to do than the syllogism in determining the rules by which men should be governed. (Emphasis added)

Holmes’s sources of law diametrically opposed those identified by Root who explained:

Law is the perfection of reason, arising from the nature of God, of man, and of things… It is universal… It is in itself perfect, clear and certain; it… cannot be changed or altered… it is superior… All positive laws are to be construed by it, and wherein they are opposed to it, they are void.

Root’s proposition that law was unchanging and unalterable contradicted Holmes who claimed:

The law embodies the story of a nation’s development through many centuries, and cannot be dealt with as if it contained only axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

Root insisted that law did not come from men and civi1 society, but from “all the works and ways of God,” including the created order, and, most especially, the Holy Scriptures:

The dignity of… [the] original [law], the… perpetuity of its precepts, are most clearly made known and delineated in the book of divine revelations; heaven and earth may pass away and all the systems and works of man sink into oblivion, but not one jot or tittle of this law shall ever fall.

Root understood that Biblical law was not limited to “religious” matters. Rather, he knew that Biblical law comprehended all “the rights and duties of man,” including property ownership, contract rights and obligations, torts (wrongs to others), crimes (wrongs against the State), and domestic and civil relations. No wonder Root called the Bible “the Magna Charta of all our natural and religious rights and liberties — and the only solid basis of our civil constitution and privileges.”

Holmes would have none of this religious stuff. To him law was “nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.”

Law, he continued, must therefore be understood from the perspective of a “bad man” — one who cares nothing about maxims, ethics or reason, but does care about “getting caught.”

In sum, Holmes perceived law to be what is practiced by men, disconnected from God. He measured law by its utility, not by it “rightness” or “wrongness.” Thus, he argued that it would be ‘a gain if every word of moral significance could be banished from law altogether.”

Holmes’s view that law is a pragmatic instrument, fashioned by men to meet the needs of society dominates law today. God’s law has been firmly rejected; judge-made “law” has taken its place. The Genesis account of creation has been thoroughly discredited; a neo-Darwinian conception of human evolutionary progress has become the driving force of legal thought. The Biblical revelation of a God-created world order has been discarded; legal analysis is now shaped by a tightly shut system of naturalistic premises.

GOD’S LAW REJECTED

At the time of America’s founding, her legal statesmen received God’s law as law. They understood God’s rules to be, as Jesse Root put it, “most energetic and coercive, for every one who violates its maxims and precepts are sure of feeling the weight of its sanctions.”

This view of God’s law followed that of Sir William Blackstone who wrote that “Law, in its most comprehensive sense, signifies a rule of action… which is prescribed by some superior, and which the inferior is bound to obey.” Blackstone’s views, in turn, mirrored the Genesis account of creation in the Holy Scriptures: Man, considered as a creature, must necessarily be subject the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as his rule of conduct.

Blackstone and his contemporaries understood God’s law to be a self-sanctioning system of rules. God did not need civil society in order to reward those who obeyed His law or to punish those disobeyed. The consequences of obedience and disobedience were built into the very created order.

This was evident from the beginning, in the account of the garden where Adam and Eve were rewarded for their obedience and punished for their disobedience without aid of any civil ruler.14 And so it has been “outside the garden,” from the time of the first recorded murder in Genesis 4 to date.

While this system of rewards and punishments may not be apparent to most people today — even to professing Christians, it was self-evident to all Americans in the founding era. What made it self-evident was their knowledge of God. In the words, of Blackstone, they knew that… the creator… infinite [in] power… [and in] wisdom… has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept… [And] the creator… in his infinite goodness… has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and if the former be punctually obeyed, it cannot but induce the latter.

This view of the effectual reign of God’s law continued to be held and espoused well into the nineteenth century. For example, John Austin in his 1832 treatise on jurisprudence reiterated that God’s rules were binding and enforced for “God is emphatically the superior of Man. For his power affecting us with pain, and of forcing us to comply with his will, is unbounded and resistless.”

Three years before Austin wrote his treatise, Justice Joseph Story of the United States Supreme Court delivered his inaugural oration as Dane Professor of Law in Harvard University, reminding his listeners that “there never has been a period, in which the Common Law did not recognize Christianity as lying at its foundations.”

In 1842, Justice Story put into practice what he preached. In his famous opinion in Swift v. Tyson19 he ruled that “law” and a court opinion are not one and the same, but that law is the “true” and “just” rule furnished by universal principles binding on all men everywhere. Such was Blackstone’s understanding when he wrote that “no human laws are of any validity, if contrary to [God’s law] and such of them as are valid derive all their force and all their authority, mediately or immediately, from the original.”

In 1857, Theodore Sedgwick, an eminent New York lawyer and a Jeffersonian Democrat, repeated with approval Blackstone’s definition of law and restated the Blackstonian proposition that all men are bound by the law of God:

Man, in whatever situation he may be placed, finds himself under the control of rules of action emanating from an authority to which he is compelled to bow, — in other words, of LAW. The moment he comes into existence, he is the subject of the will of God, as declared in what we term the laws of nature.

From this foundational proposition, Sedgwick proceeded to itemize other laws governing the affairs of men, including the moral law, the municipal or civil law, and the laws of nations. He then offered this summary to his reader:

These codes are variously enforced, but each has its peculiar sanction. They are curiously interwoven together and in their combination tend to produce that progress and improvement of the race which we believe Christianity teaches… Thus, the law of nature (the will of God), the moral law, the municipal law, and the law of nations, form a system of restraints before which the most consummate genius, the most vehement will, the angriest passions, and the fiercest desires, are compelled to bend, and the pressure of which the individual is forced to acknowledge his incapacity to resist.

Even as late as 1884, Thomas Cooley, Jay Professor of Law at the University of Michigan and a noted constitutional scholar, wrote in his introduction to a new edition of Blackstone’s Commentaries:

Even when convened to consider what shall be the terms of their government the people are not without law… The law of God precedes their action; the immutable principles of right and justice are over and about them, and cannot rightfully be ignored.

Placed against this nineteenth century backdrop, Holmes’s statements divorcing law from morality, and limiting law to nothing more than “the prophecies of what courts will do in fact,” are startling. But Holmes was not alone. Nor did he pioneer the abrupt departure from America’s founding legal heritage.

JUDICIAL OPINIONS SUBSTITUTED

Prior to Holmes’s 1881 book on the common law and his 1897 lecture on the nature of law generally, Christopher Columbus Langdell promoted the same views as Dean of the Harvard Law School. Langdell assumed that post in 1870. In 1871, he published his teaching materials on contracts. In the preface to that book, entitled Cases on Contracts, Langdell laid out his philosophy of law:

Law… consists of certain principles and doctrines… Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced… through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied.

Implicit in Langdell’s concept of law is that law is made by judges. What had been implicit in Langdell’s new case method of teaching law, Holmes made explicit in his writings and lectures on law. What Holmes began, his Harvard colleague, John Chipman Gray finished in his 1909 Carpentier Lectures at Columbia University. Published under the title, Nature and Sources of Law, Gray debunked all sources of law except one, judges: The law is made up of rules for decision which courts lay down; that all such rules are Law; that rules for conduct which courts do not apply are not Law; that the fact that the courts apply rules is what makes them Law; that there is no mysterious entity “The Law” apart from these rules; and that the judges are rather the creators than the discoverers of the Law.

As Gray trumpeted his view of law in the legal academy, Holmes continued his crusade from the bench, now the United States Supreme Court to which he had been appointed in 1902. In 1910, he dissented from Justice John Marshall Harlan’s opinion that the federal courts were free to decide a state’s common law independently from state court opinions. Holmes responded:

The law of a state does not become something outside of the state court, and independent of it, by being called the common law. Whatever it is called, it is the law as declared by state judges, and nothing else.

Seven years later, again in dissent, Holmes coined a phrase that became a favorite of his followers:

The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.

Holmes’s persistent dissents bore fruit twenty years later in Erie R. Co. v. Tompkins which overruled Justice Story’s ruling in Swift v. Tyson discussed above. Ardent Holmes disciple, Justice Felix Frankfurter, explained the significance of the Court’s reversal:

In overruling Swift v. Tyson… Erie R. Co. v. Tompkins… did not merely overrule a venerable case. It overruled a particular way of looking at law which dominated the judicial process long after its inadequacies had been laid bare… Law was conceived as a “brooding omnipresence” of Reason, of which decisions were merely evidence and not themselves the controlling formulations.

What is remarkable about Frankfurter’s statement is that he transposed Holmes’s revision of Story’s understanding of law as if it were Story’s. This kind of misrepresentation of America’s founding legal philosophy has become commonplace. Modernists simply cannot conceive that men like John Marshall, for example, really believed that law had been revealed by God and that judges discovered that law rather than made it up. Thus it is that man has become his own standard, with court opinion weighed against court opinion to determine the law, without the transcendent legal compass of Biblical law.

Even modern conservative jurists, like Chief Justice William Rehnquist, have adopted the Holmesian premise that there is no law apart from courts and their opinions. As Hadley Arkes has written, Mr. Rehnquist has come to the conclusion that judgments of right and wrong are “simply products of personal belief” and have no authoritative or binding effect on others “until they are in some way given the sanction of law.”

If that is all that law is, then it has become no more and no less than the will of judges. For it is they, and they alone, who are empowered to foist their personal values and policy preferences on the rest of society in the name of law. This did not come about by accident, but was well planned and executed beginning in the early twentieth century with a new generation of Harvard-trained lawyers engineering the coup de grace.

PROGRESSIVE EVOLUTION PROMOTED

In the July 1978 issue of the American Bar Association Journal, American historian Henry Steele Commager, after a careful review of the development of law over the first two hundred years of the nation’s history, concluded that 20th century lawyers and judges had “substituted the operations of the law of evolution for the laws of God.” This substitution began with Langdell at Harvard and continues today, permeating almost every law school classroom, law office, and courtroom in America.

Harvard President Charles William Eliot deliberately chose Langdell to head its law school in order to bring the new science of Darwin to bear on the study of law. Langdell wasted no time, introducing his new case method based upon the philosophy that law was a product of growth over time, sloughing off the old and adding the new to meet the needs of changing times.

Langdell’s new philosophy created serious problems even for Langdell. How did one know when to discard an old rule for a new one and at the same time retain the stability and certainty of law? Langdell vacillated not knowing what to do.

Langdell’s problem had not existed before because of the unchanging and eternal standard of God’s Law by which one determined whether a rule of a case, or a statute passed by a legislature, was law. But this did not cause him or his disciples to question their decision to reject divine law. Rather, they simply moved away from the Godly faith of America’s founders to a new faith in man-made evolutionary progress.

This new way began to take hold in a number of Holmes’s and Gray’s followers, chiefly Louis D. Brandeis and Felix Frankfurter. In 1922, Brandeis “expressed his strong conviction” that the United States Constitution “is a living organism… capable of growth — of expansion and adaptation to new conditions.” Frankfurter, too, saw law, especially constitutional law, as “a vital agency for human betterment.”

Who but the judges would be the agents of this progressive change? And where would the ideas come from? Justice Frankfurter wrote in 1934 that they would not come from “reading the constitution but from reading life”:

The process of constitutional interpretation compels the translation of policy into judgment, and the controlling conceptions of the justices are their “idealized political picture” of the existing social order.

Twenty years later Frankfurter wrote that the “judge… had to be historian, philosopher, and prophet” so that he might “pierce the curtain of the future… [and] give shape and visage to the mysteries still in the womb of time.” While Frankfurter restrained himself from exercising this power to the fullest as an associate justice of the Supreme Court, his colleagues on the Warren Court pounced upon this open-ended opportunity to make new law in the name of the constitution.

This god of change dominates the opinions of judges nowadays. From decisions outlawing sex discrimination to rulings limiting capital punishment, old laws are put to death on the sacrificial altar of evolutionary progress. Indeed, the very language of the law has been transformed to reflect the ideal of change. Sex distinctions are dismissed as “old”, “archaic” or “fixed notions,’ as if the talismanic labels themselves are sufficient analysis.40 The death penalty and various methods of capital punishment are measured by “the trend of enlightened opinion”, “contemporary human knowledge”, and “the evolving standards of decency that mark the progress of a maturing society.”

Frankfurter’s view of law and judges is not confined to the constitution, nor to judges. Rather, it has become the “ordinary religion of the law school classroom” where law students are taught that “man, by the application of his reason and the use of the democratic processes, can make the world a better place”:

This… approach to law and lawyering releases lawyers from the confines of outmoded conceptions and allows them to pursue social justice more openly.

Under this view of law and the role of lawyers, change has become an end itself, the greatest good that a society can pursue. And in the words of Michigan Law Professor, L. Hart Wright, “Legally inspired change… is and will continue to be an evolutionary process which will continue to change our lives in an evolutionary manner.”

Wright’s view is not atypical, but is shared by the overwhelming majority of his colleagues, as reflected in law school catalogs which almost universally extol the progressive ideal. In addition, the American Bar Association accrediting authorities insist that law schools conform to a relativistic orthodoxy in order to meet the standards of the legal profession. Any law school committed to a curriculum, the foundation for which is Bible, meets stiff opposition in the accreditation process from law professors, judges and lawyers who are absolutely opposed to any teaching based upon the revelation of God.

Having scrapped the Bible, the legal profession has adopted a whole new set of presuppositions diametrically opposed to those of America’s founders. As Professor Philip Johnson has written, law is now thoroughly saturated by a new metaphysics, that of scientific naturalism.

NATURALISM EMBRACED

Today, judges insist upon hearing “secular” arguments in their courtrooms. Generally, they do not recognize any basis for other than that which can be empirically proved. Thus, claims based upon morality or religion are summarily dismissed as improper, and in the case of religion, illegitimate.

For example, Justice Harry Blackmun in Roe v. Wade reduced the questions of liberty and life to the physically observable. He defined liberty in terms of the physical and psychological impact upon a woman who was compelled by law to bear a child that she did not want. Indeed, Justice Blackmun considered the question of whether a child was wanted or unwanted to be determined by sociological factors, as if God has nothing to with the conception of a human life.

As for life, Blackmun preferred a “scientific” definition over one based on “faith.” Thus, he concluded that conception was not an event, but a “process over time.” Having reduced life to the physiological, Blackmun invented the concept of “potential life” and, thereby, created a new category into which he placed an unborn child. In this manner, he denied to the pre-born any meaningful civil protection from the threat to their lives posed by mothers and physicians who wanted to kill them.

Had Blackmun paid attention to the Biblical foundation of life, as had America’s founders in the Declaration of Independence, he would have defined life in the terms laid down by the Bible. For the Declaration has defined the inalienable right to life in terms of the relationship that every human being has with God as Creator. Blackmun’s naturalistic metaphysic, however, drove him inexorably away from God’s revelation to the latest “embryological data.” As the writer of Ecclesiastes warned, he missed the knowledge available to him:

As thou knowest not what is the way of the spirit, nor how the bones do grow in the womb of her that is with child: even so thou knowest not the works of God who maketh all. (Eccl. 11:5)

But Blackmun’s vanity did not end with his abortion decision. In Bowers v. Hardwick, he, in dissent, upbraided Georgia’s authorities for their defense of the state’s law prohibiting sodomy:

The assertion that “traditional Judea-Christian values proscribe” the conduct involved… cannot provide adequate justification for Section 16-6-2… The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine… Thus, far from buttressing his case petitioner’s invocation of Leviticus, Romans, St. Thomas Aquinas undermines his suggestion that Section 16-6-2 represents a legitimate use of secular power.

Blackmun dismissed Georgia’s reliance upon the Scriptures as “religious intolerance” which he likened to “racial animus,” and therefore, to mere prejudice. Again, his naturalistic metaphysic precluded any consideration of Biblical law which Blackmun dismissed as “revolting… in light of the values that underlie the constitutional right of privacy.”

Blackmun insisted that the Georgia authorities prove to his satisfaction that sodomy committed by two consenting adults in the privacy of their own home causes some empirically measurable injury to the community at large. In doing so, Blackmun echoed opinions voiced over thirty years before in England and in America calling for the repeal of all criminal statutes prohibiting such sexual activity.

In 1954, the Wolfenden Committee recommended by a vote of twelve to one “that homosexual practices between consenting adults in private should no longer be a crime.” In 1955, the American Law Institute “published with its draft Model Penal Code a recommendation that all consensual relations between adults in private should be excluded from the criminal law.” In the latter case, the Institute claimed that “no harm to the secular interests of the community is involved in atypical sex practice in private between consenting adult partners.”

On the basis of these two reports, a sizeable majority of the states “reformed” their criminal codes by abolishing all sexual offenses except those involving force, minors and public activity. They did so based upon the premise that private, consensual sexual activity between adults harms no one, not even the actors.

What has happened since then has disproved the naturalistic presuppositions upon which the reform was based. But this has not deterred the so-called “sexual liberation” movement. To the contrary, the outbreak of AIDS, for example, has actually benefited the movement. At first blush, this appears to contradict the naturalistic world view of the original proponents of repeal. To the contrary, the concerns expressed about sodomy remain wholly physical, namely, the threat to the health of participants and to the general public. And the solutions proposed are themselves confined to the currently empirically measurable consequences of unbridled promiscuity. Instead of reexamining the “rightness” or “wrongness” of “the homosexual lifestyle,” the civil government is driven in its search to find preventive vaccines and cures for those threatened or stricken with the AIDS virus.

Attempts to push the concerns beyond venereal disease to a general threat to the nation’s survival based upon history or upon the Biblical account of Sodom and Gomorrah are rebuffed. Such arguments have no place in a world where “the limitations of science are taken to be limitations upon reality.”

CONCLUSION

In Matthew 16:1-3, Jesus warned the Pharisees and the Sadducees not to limit their understanding of the world to that which was physically observable and measurable. Yet, for the past one hundred years that is precisely what America’s lawyers have done. As was true of the Pharisees and the Sadducees who missed the “signs of the times,” so today’s lawyers are missing the warnings of God to those who ignore His law: And turning the cities of Sodom and Gomorrah into ashes condemned them with an overthrow, making them an ensample unto those that after should live ungodly.

In Luke 11:52 Jesus pronounced “Woe unto you lawyers! for ye have taken away the key of knowledge; ye entered not in yourselves, and them that were entering ye hindered.” Lawyers stand at the gateway of civil society. It is they who decide if the civil realm will conform to the laws of God. If they reject God’s revelation as the source of law, then they are a curse, rather than a blessing. The stakes are too high to leave law only to the lawyers.

FROM

https://lonang.com/commentaries/curriculum/the-transformation-of-american-law/

NOTE: The above statements should make it clear that the real division in our society is not between left and right, but between those who love the biblical roots of our free government and those who hate them. While we do not want churches to control the state, freedom cannot long exist in opposition to God. Christians in positions of power need to make decisions that are in accord with God’s Word. Christian lawyers need to defend their brothers in Christ against oppressive legislation. Christian parents need to control the education of their children. And, Christians everywhere need to conduct themselves in a way that is above reproach.

The enemies of God want to exclude all biblical influence from the public sector, while allowing Christians freedom only to express their beliefs in church or in private. That is not freedom that is tyranny. If we truly had freedom in this country a representative could stand up in congress and say, “I am introducing this bill to outlaw homosexual behavior because it is contrary to what the Bible says,” and everyone would say, “Put it to a vote, he has just as much right to his opinion as anyone else.