UNDERSTANDING
CONSTITUTION PARTY PHILOSOPHY
THROUGH THE PREAMBLE
TO OUR PLATFORM
PART 3 of 7
“The goal of the Constitution Party is to restore American jurisprudence to its Biblical foundations…”
With this phrase, we are often accused of being theocrats – or of advocating a merger of church and state. Here is the key word to consider: RESTORE. The definition of jurisprudence is, “the science or philosophy of law.” Simply put, the philosophy of law in America was founded upon “the Laws of Nature and of Nature’s God” – the stated authority in the Declaration of Independence.
From the time of the War for American Independence to the time of the War Between the States, the primary law book in America was Sir William Blackstone’s Commentaries on the Laws of England which was published in 1760. It was widely circulated through Colonial America, and became the leading textbook for teaching law.
Blackstone defined law as “a rule of action which is prescribed by some superior and which the inferior is bound to obey.” To illustrate this concept, he goes on to explain:
“When the Supreme Being formed the universe and created matter out of nothing, He impressed certain principles upon that matter from which it can never depart, and without which would cease to be.”
Blackstone drew a parallel from the laws governing the physical world to the laws governing man’s affairs:
“Man, considered as a creature, must necessarily be subject to the laws of his Creator for he is entirely a dependent being…As man depends absolutely on his Maker for everything, it is necessary that he should, in all points conform to his maker’s will.”
Blackstone called the maker’s will the “law of nature” which was fixed when God created man:
“For as God, when He created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction o the motion, so when He created man, and endued him with free will to conduct himself in all parts of live, He laid down certain immutable laws of human nature, whereby that free will is in some degree regulated and restrained.”
“This law of nature, 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; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.”
When the Foundation Began to Change
This faith in God, creation and revelation as the foundation for law dominated legal education until a Harvard dean, Christopher Columbus Langdell not only introduced a new method of teaching law, he introduced a new faith concerning law.
While Blackstone had demonstrated that the principles and doctrines underlying the common law of England were unchanging, Langdell in his 1879 work, Cases on Contracts asserted that the law is a living thing:
Law, considered as a science, consists of certain principles or doctrines… Each of these doctrines has arrived at its present state by slow decrees; on other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of case; and much the shorted and best, if not the only way of mastering the doctrine effectually, is by studying the case in which it is embodied.
Rather than law being derived from Natural Law as verified in the Revealed Law, Langdell believed that the cases were the original sources of legal doctrine and principles. “…the case gave birth to a rule of law, which slowly evolved through a series of cases into a full-fledged legal principle.”
Langdell abandoned the historic method of teaching Christian principles of the common law in favor of the new “case-book method” which directed the student to discover law through the constantly evolving opinion of judges.
Langdell taught that the evolution of law was guided by judges. Each opinion they wrote was one more step up the evolutionary ladder. A modern law student will never understand the mind of our Founders, because our Founders did not study the scribbling of men in black, they studied the Supreme Law of the Universe – the law of nature and nature’s God. Furthermore because Langdell taught that the evolution of law always means improvement, this would further discourage anyone from even studying our Founders. After all they would be considered legal Neanderthals by comparison with the enlightened Langdell. He rejected the Creator and His Law as the moral law which governs the universe.
Langdell claimed that his method of studying the law was the truly scientific method, implying that our Founders were unscientific and therefore in error. He substituted man’s reasoning for God’s revealed truth and taught his students that the scientific understanding of law requires society to reject the notion of fixed unalterable laws. His goal has been achieved. Like a virus unleashed, Langdell’s ideas infected not only his students, but other law schools, future law professors, judges and attorneys, and a vast number of legislators as well as anyone who came through the ranks of law schools across our land. And today the average American has also began to view law in a different light altogether. Now we have reached the point where, when you explain our Founder’s view of law and government people are dumbfounded. They often conclude, “How could our Founders have been so wrong about so many things?” [4]
This drastic change in the foundation of American jurisprudence came at a time when a new faith was sweeping the academic world: “that Darwin’s theory of evolution was the key to all of life, including the law.”
“As Darwin rejected God’s revelation of the creation account of life, so Langdell rejected God’s revelation of the creation of man and the governing moral laws of the universe.” [5]
After hiring colleagues sympathetic to his philosophy and after winning the support of influential lawyers, Langdell’s teaching methods were implemented in almost every law school in the country by 1914. His case method also has remained relatively unchanged for over one hundred years. [5]
The single most influential jurist of the Twentieth Century was United States Supreme Court Justice Oliver Wendell Holmes, Jr. His massive treatise, The Common Law, supplanted Blackstone’s Commentaries as the premier text for law students. Holmes taught, “the life of the law has not been logic, but experience,” and argued that it was the responsibility of courts to direct the evolution of law. Because right and wrong do not exist in any absolute sense, judges must determine which standards are most appropriate at a given point in the evolution of a society. [6]
Consequences of this New Foundation
Law has indeed been reshaped in this country and this has brought about a transformation in America – or rather a crisis. Harvard professor Harold J. Berman observed in 1971’s Faith and Order, that a massive loss of confidence in law is one major symptom of a threatened breakdown of our culture in America. Such is the natural consequence of civil laws that stand in direct conflict with moral laws.
“In the course of time many Americans have come to a visceral loathing of all the officers of the court; judges, prosecutors and attorneys one and all. They know in their bones that something has gone terribly wrong with a system which can no longer rightly be called a justice system.” [4]
