Ed Vitagliano
AFA Journal news editor
January 2015 – In his office in the Alabama Judicial Building, Alabama Supreme Court Justice Tom Parker proudly displays a four-volume 1773 edition of Commentaries on the Laws of England.
Written by William Blackstone, the famous English jurist, Commentaries formed the core of American jurisprudence both before and after the ratification of the U.S. Constitution, said Parker, who was first elected to the high court of Alabama in 2004 and reelected six years later.
An introduction in the reprint from University of Chicago Press begins with this startling sentence: “Sir William Blackstone’s Commentaries on the Laws of England, 1765-69, is the most important legal treatise ever written in the English language.”
In fact, according to a monumental 10-year study of founding-era political documents conducted by University of Houston political science professor Donald Lutz, Blackstone was third on the list of most quoted sources. Only the Bible, representing 34% of cited sources, and political philosopher Charles de Montesquieu (8.3%), were higher than Blackstone (7.9%).
Primacy of natural law
While Blackstone’s books were foundational to American law when the nation was established, the process of hollowing out Blackstone’s influence began almost 150 years ago.
Why did this happen? The short answer is that Blackstone was rejected because Blackstone’s 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.
Those laws apply to humanity as well, said Parker. “When He 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,” he said in an interview with AFA Journal. In addition, 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.
Embracing Darwin
Following the end of the Civil War, however, some 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.
“There was a really deliberate effort by the president of Harvard University [Charles Eliot] to change things, to introduce evolution into the teaching of law,” Parker said. “So he hired Christopher Langdell [as dean of Harvard Law School from 1870 to 1895], who changed from using Blackstone’s Commentaries that had these immutable principles, to a case law approach, studying the writings of judges.”
This began the process of changing American jurisprudence, a process that, while admittedly slow, would eventually succeed over the following decades.
“What they were able to do is change the focus from the God who gave immutable principles,” Parker said, “to the judge – the man – who was writing the law. By studying cases over time, they were able to show an evolution of the law.”
Further advance of the Darwinian impulse in law came with the influence of the late U.S. Supreme Court Justice Oliver Wendell Holmes.
“It is astounding how long he was there,” Parker said. “He served 30 years – from 1902 [until he] retired in 1932. … It was a long career and enabled him to have quite an impact on the law when his ideas tickled the fancy of so many out there who readily embraced them.”
Holmes is perhaps best known for “The Path of the Law,” an article that appeared in the Harvard Law Review in 1897. In that article, Holmes said, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law all together, and other words adopted which could convey legal ideas uncolored by anything outside the law.”
Throughout the infamous article, Holmes makes a complete break from Blackstone and the past. Parker said: “Morality was separated from jurisprudence; human expertise and reason were divorced from natural law – and obviously from ‘Nature’s God;’ absolute truth was denied; and the responsibility for determining truth was placed firmly in the hands of judges.”
Holmes’s article had far-reaching effects. “This is the point in time in American history when the law pivoted,” Parker said. “It changes.”
From that point on, judges began to accrue power in the American political experiment.
“In my Constitutional law class at Vanderbilt University, one of the better law schools in the country, we never read the Constitution,” Parker said, “just what judges said about it.”
This should not surprise us. If there is no absolute truth in a universal sense, why should there be any consideration given by judges to the original intent of the architects of the Constitution? Judicial activism becomes common because judges become a law unto themselves.
Hope for the future
While an ideology alien to the Founding Fathers has clearly taken root – and changed many fundamentals in jurisprudence and elsewhere – Parker is surprisingly hopeful about the future.
The reason? He said a shift began roughly 35 years ago that is something of a counter cultural movement within American jurisprudence.
“There was an obvious move of the Holy Spirit through the legal community in the late 1970s and early 1980s,” Parker said. “Lawyers across the country simultaneously were filing these lawsuits in defense of religious liberties. There was no coordination between them.”
Out of that movement arose a new generation of legal defense groups such as the American Center for Law and Justice, Liberty Counsel, Alliance Defending Freedom, Liberty Institute, Pacific Justice Institute and others. Christian law schools also began cropping up – like those at Regent University, Liberty University and elsewhere.
“So that group of lawyers who were moved by the Holy Spirit took action and created institutions that will have a long reaching effect,” he said. “The legal training being provided through these Christian law schools gives me hope. We are having brilliant legal scholars come out of those law schools. We have some leading intellectual lights in Christian jurisprudence.”
Simultaneously, Parker noted, is the important work of a new generation of culturally-minded Christians. He said powerful groups like AFA, founded in 1977 by Rev. Don Wildmon, were created to inform and equip believers and other social conservatives to engage with the critical issues of the day.
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. This is a cause of exasperation for Parker.
“I get so frustrated by those who attempt to bury their heads in the sand and not see their role in contending or striving for the truth,” he said. “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.”
Darwinian activists like Langdell and Holmes commenced the process of overturning the founding principles and refashioning American jurisprudence. All this was begun without once asking for the permission of the citizens over whom the new laws would rule.
People who love the Founding Fathers and the bedrock principles of America should at least fight back against this process and try to reverse it.
Who knows? We might even succeed in making a place on the shelf once again for William Blackstone. 
