by David Barton
In compassion to the imperfection of our internal powers, our all-gracious Creator, Preserver, and Ruler has been pleased to discover and enforce his laws by a revelation given to us immediately and directly from Himself. This revelation is contained in the Holy Scriptures. The moral precepts delivered in the Sacred Oracles form a part of the law of nature, are of the same origin and of the same obligation, operating universally and perpetually…. The law of nature and the law of revelation are both Divine: they flow, though in different channels, from the same adorable source. It is indeed preposterous to separate them from each other. The object of both is to discover the will of God and both are necessary for the accomplishment of that end.51
Zephaniah Swift, author of America’s first law text, similarly explained:
[T]he transcendent excellence and boundless power of the Supreme Deity … [has] impressed upon them those general and immutable laws that will regulate their operation through the endless ages of eternity…. These general laws …. are denominated the laws of nature.52
Other Founders were equally succinct that America’s “natural law” was derived from God and His standards:
In the supposed state of nature, all men are equally bound by the laws of nature, or to speak more properly, the laws of the Creator.53 SAMUEL ADAMS
[T]he laws of nature and of nature’s God … of course presupposes the existence of a God, the moral Ruler of the Universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and of government.54 JOHN QUINCY ADAMS
[T]he law of nature, “which, being coeval with mankind and dictated by God Himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this.”55 ALEXANDER HAMILTON (quoting Blackstone)
[The] “Law of nature” is a rule of conduct arising out of the natural relations of human beings established by the Creator and existing prior to any positive precept [human law]…. These … have been established by the Creator and are, with a peculiar felicity of expression, denominated in Scripture, “ordinances of heaven.”56 NOAH WEBSTER
[T]he … natural law was given by the Sovereign of the Universe to all mankind.57 JOHN JAY, FIRST CHIEF JUSTICE U. S. SUPREME COURT
The law of nature being coeval with mankind and dictated by God Himself is of course superior to [and] the foundation of all other laws.58 WILLIAM FINDLEY, REVOLUTIONARY SOLDIER; U. S. CONGRESS
[T]he … law established by the Creator, which has existed from the beginning, extends over the whole globe, is everywhere and at all times binding upon mankind…. [This] is the law of God by which he makes his way known to man and is paramount to all human control.59 RUFUS KING, SIGNER OF THE CONSTITUTION
God … is the promulgator as well as the author of natural law.60 JAMES WILSON, SIGNER OF THE CONSTITUTION; U. S. SUPREME COURT JUSTICE
These, and many other sources, clearly document that the Founders’ view of the “law of nature” was not secular, but rather a Biblical view.
The Primary Influence
Despite the Founders’ heavy reliance upon specific political theorists, the researchers referenced at the beginning of this chapter discovered that one direct source of inspiration for their ideas was cited far and away more than any other. In fact, the Founders cited this source four times more often than either Montesquieu or Blackstone and twelve times more often than Locke. What was that source? It was the Bible – accounting for 34 percent of the direct quotes in the political writings of the Founding Era. The following chart indicates the broad sources of the political quotes of the Founding Era:
Distribution of Citations61
The fact that the Founders quoted the Bible more frequently than any other source is indisputably a significant commentary on its importance in the foundation of our government. In fact, some have even conceded that “historians are discovering that the Bible, perhaps even more than the Constitution, is our Founding document.”63
† Blackstone is invoked as a key legal authority in the writings of Founders James Wilson, John Adams, Henry Laurens, Thomas Jefferson, John Marshall, James Madison, James Otis, James Kent, Joseph Story, Fisher Ames, et al.
† This category includes the eighteenth century philosophical writers who based their approaches to the political and social issues of the day upon scientific and intellectual reasonings. Nearly three-quarters of these citations are from conservative enlightenment writers (e.g., Montesquieu, Locke, Puffendorf, etc.) with the remainder coming from the more radical writers (e.g., Voltaire, Diderot, Rousseau, etc.).62
†† “Whigs” were those who advocated popular rights and were for American independence; Tories were those who advocated royal rights and were for submission.
††† “Common-Law” writers dealt with the “rules, principles, and customs which have been received from our ancestors and by which courts have been governed in their judicial decisions” (Webster’s 1828 Dictionary).
†††† “Classical” refers to the ancient Greek and Roman authors (i.e., Aristotle, Plato, Cicero, Virgil, Tacitus, Plutarch, etc.).
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A Changing Standard – Toward A New Constitution?
The Founders’ Biblical natural law philosophy remained the unquestioned standard for law and government until the turn of this century. At that time, a different philosophy was beginning to gain strength among judges and educators. By the mid-twentieth century, this competing philosophy, often termed “relativism” (or “pragmatism”), had become mainstream in a number of academic disciplines. The encyclopedia describes the basic tenets of relativism:
[V]iews are to be evaluated relative to the societies or cultures in which they appear and are not to be judged true or false, or good or bad, based on some overall criterion but are to be assessed within the context in which they occur. Thus, what is right or good or true to one person or group may not be considered so by others…. there [are] no absolute standards…. “Man is the measure of all things,” and … each man [can] be his own measure…. [C]annibalism, incest, and other practices considered taboo are just variant kinds of behavior, to be appreciated as acceptable in some cultures and not in others…. [Relativism] urge[s] suspension of judgment about right or wrong.1
When applied in law, “relativism” is called “legal positivism.” According to constitutional scholar and law professor John Eidsmoe, this philosophy is characterized by the following five major theses:
There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system.
Since God is not the author of law, the author of law must be man; in other words, the law is law simply because the highest human authority, the state, has said it is law and is able to back it up.
Since man and society evolve, therefore law must evolve as well.
Judges, through their decisions, guide the evolution of law.
To study law, get at the original sources of law – the decisions of judges.2
This philosophy (“positivism”) was introduced in the 1870s when Harvard Law School Dean Christopher Columbus Langdell (1826-1906) applied Darwin’s premise of evolution to jurisprudence. Langdell reasoned that since man evolved, then his laws must also evolve; and judges should guide both the evolution of law and the Constitution. Consequently, Langdell introduced the case-law study method under which students would study judges’ decisions rather than the Constitution.
Under the case-law approach, history, precedent, and the views and beliefs of the Founders not only became irrelevant, they were even considered hindrances to the successful evolution of a society. As explained by a leading relativist (John Dewey) in 1927:
The belief in political fixity, of the sanctity of some form of state consecrated by the efforts of our fathers and hallowed by tradition, is one of the stumbling-blocks in the way of orderly and directed change.3
Langdell’s case
-law approach was gradually embraced by other law schools, and the result was a diminishing belief in absolutes. In fact, within a few short years (by the 1930s), Blackstone’s Commentaries on the Law had been widely discarded. Blackstone’s was deemed to present an outdated approach to law since it taught that certain rights and wrongs – particularly those related to human behavior – did not change.
Roscoe Pound (1870-1964) strongly endorsed the positivistic philosophy introduced by Langdell. As a prominent twentieth-century legal educator, Pound helped institutionalize positivism. Having served as a professor at four different law schools and as Dean of the law schools at Harvard and at the University of Nebraska, his influence was considerable – and his vision for law was clear:
We have … the same task in jurisprudence that has been achieved in philosophy, in the natural sciences, and in politics. We have to rid ourselves of this sort of legality and to attain a pragmatic [evolutionary], a sociological legal science.4 (emphasis added)
According to Pound, no longer should it be the mission of jurisprudence to focus on the narrow field of legal interpretation; the goal should be to become a sociological force to influence the development of society.
The effects of these teachings by Langdell and Pound – and others like them – had a direct effect on the Supreme Court as individuals who embraced this philosophy were gradually appointed to the Court. For example, Oliver Wendell Holmes, Jr. (1841-1932), appointed to the Supreme Court in 1902, explained that original intent and precedent held little value:
[T]he justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end.5
Consequently, during his three decades on the Court, Holmes argued that decisions should not be based upon natural law and its fixed standards, but rather upon:
The felt necessities of the time, the prevalent moral and political theories … [for] the prejudices which judges share with their fellowmen have had a good deal more to do than the syllogism [legal reasoning process] in determining the rules by which men should be governed.6
Louis Brandeis (1856-1941), who served on the Court for 23 years following his 1916 appointment, also urged the Court to break new ground and to lead society in new directions. In New State Ice Co. v. Liebmann (1932), he declared:
If we would guide by the light of reason, we must let our minds be bold.7
Benjamin Cardozo (1870-1938), appointed to the Supreme Court in 1932, openly refused to be bound by any concept of transcendent laws or fixed rights and wrongs:
If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist.8
Like many of his predecessors, Cardozo also encouraged the Court to eliminate the use of its foundational precedents. He even condoned the prospect of the Court departing from its traditional role and instead assuming the function of lawmaker. As he explained:
I take judge-made law as one of the existing realities of life.9
Reflective of this same philosophy, Charles Evans Hughes (1862-1948), the Court’s Chief Justice from 1930 to 1941, declared that:
We are under a Constitution, but the Constitution is what the judges say it is.10
Although prominent educators and individual Justices faithfully endeavored to advance this philosophy in the first half of the century, it was not until the late 1940s that their movement had gained the sufficiently widespread number of adherents to produce radical societal change. The overall change in direction was especially visible after 1953, when Earl Warren (1891-1974) became Chief Justice of the Court. Warren’s words in Trop v. Dulles (1958) foreshadowed what was soon to become standard practice in American jurisprudence:
The [Constitutional] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.11
During Warren’s sixteen year tenure, the Court indeed became a powerful societal force, striking down numerous long-standing historical practices, while proudly acknowledging that it was doing so without precedent.12 In other words, the Court publicly announced that it had finally arrived at its fully evolutionary state, no longer being bound by history or precedent.
Despite the fact that legal positivism is frequently accompanied by dramatic social upheavals, there is one of its tenets which the public finds appealing: the fact that governments do need to change from time to time (to “evolve”) and to make some social adjustments (i.e., the ending of slavery, the granting of suffrage to women, etc.). However, despite the public’s fascination with occasional change, such change must not occur through the Court. Article V of the Constitution establishes the proper means whereby the people may adjust, or “evolve,” their government:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments.
Very simply, the people may amend the Constitution to update or modernize it as they think necessary. As Samuel Adams forcefully declared:
[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments in several parts of it as from experience has been judged necessary.13 (emphasis added)
George Washington, in his “Farewell Address,” warned America to adhere strictly to this manner of changing the meaning of the Constitution:
If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation [wrongful seizure of power]; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.14
The real danger of positivism rests not in the fact that societal corrections are needed, but rather in the fact that they are made by unelected Justices – individuals whose personal values not only often do not reflect those of “we the people” but who are virtually unaccountable to the people. If change, or societal “evolution,” is not directed by the people themselves, then our form of government becomes what Jefferson termed “an oligarchy,”15 and as Washington pointed out, “is the customary weapon by which free governments are destroyed.”
If the evolution of society still rested in the hands of the people as originally intended, then America today would still retain much of what Courts have struck down over recent decades. (For example, national polls regularly show that some three-fourths of the nation approve of voluntary school prayer;16 four-fifths of the nation oppose homosexual behavior;17 nine-tenths oppose the use of abortion as a means of convenience birth control;18 and similar numbers are recorded on numerous other issues.) Very simply, the allegedly evolving values of the nation have not been reflected in the Court’s evolution of the Constitution.
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A Constitution In a State of Flux
With the new measure of constitutionality being only the opinion of the Justices, standards now change as rapidly as the Justices. This causes an uncertainty for society; and, in fact, often establishes a dubious standard which, in effect, is no standard at all. For example:
It is constitutional for congressional chaplains to pray1 (MARSH v. CHAMBERS, 1983), but unconstitutional for students to read those prayers2 (STATE BOARD OF EDUC. v. BOARD OF EDUC. OF NETCONG, 1970).
It is constitutional to display the Ten Commandments on public property3 (ANDERSON v. SALT LAKE CITY CORP., 1973), but unconstitutional either to allow students to see them4 (STONE v. GRAHAM, 1980) or to di
splay them at a courthouse5 (HARVEY v. COBB COUNTY, 1993).
It is constitutional to begin public meetings with invocations (BOGEN v. DOTY, 1979,6 and MARSH v. CHAMBERS, 19837), but unconstitutional to allow students to hear invocations in a public meeting (LEE v. WEISMAN, 19928 and HARRIS v. JOINT SCHOOL DIST., 19949).
It was constitutional to display a crèche and depict the origins of Christmas in 198410 (LYNCH v. DONNELLY), but only five years later it was unconstitutional to do so11 (ALLEGHENY v. ACLU).
Without a transcendent basis for laws (that which both Montesquieu and Benjamin Rush identified as principles that do not change12), it is obvious that courts are unable to maintain a lasting consensus on virtually any issue. Notice several additional examples:
On Personal Appearance
On the one hand, the freedom to govern one’s own personal appearance is a fundamental constitutional right:
The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance…. [T]he Constitution guarantees … the right to govern one’s personal appearance.13 BISHOP v. COLAW, 1971; WALLACE v. FORD, 197214
