A Lesson From My Past: Part Four (12-02-05)

We are nearing the end of our historical quest to find out why Supreme Court nominations have become so critical. That quest has now brought us to the latter half of the 1800s and watershed moments in 1859 and 1869.

They are deeply connected.

The first was the year Charles Darwin published his theory and challenged the origin of man. The second takes place at Harvard and challenges the origin of law.

That is the story before us.

1869. Those who were alive then might have heard the rumble if they had been listening carefully. It was the sound of a bulldozer approaching America's foundations. You may recall that we examined them last time. The Founding Fathers were deeply interested in the morals of the people, because the Republic they had established was critically dependent upon citizens governing themselves. This morality sprang from a deep religious foundation, a comprehensive Christian worldview underlying everything, including the law.

In 1869, Charles Eliot arrived as the new president of Harvard University. But he possessed a very different worldview than his predecessors, and his quest was to inculcate it into every quarter of academia. He immediately appointed Christopher Langdell as the Dean of Harvard's Law School. The faculty protested because he lacked the proper qualifications. However, in the eyes of Eliot, Langdell was perfectly qualified.

Why?

Langdell and Eliot shared the same worldview.

Both men believed in Darwin's theory of evolution and set out to make this "science" the origin of every academic discipline, beginning with law.

Up until this time, law had been consistently taught under the textbook tutelage of William Blackstone. His "Commentaries on the Law" were the primary law textbooks used to train lawyers.

Blackstone taught that every law crafted by man, if it were to be good law, must conform to God's law, found in the Scripture and in nature ("written on the conscience of men"). Blackstone was not teaching something new. Sir Edward Coke (1600s), John Locke (1700s) and others had the same perspective. They used terms like "the law of nature" and "Nature's God." Do these terms sound familiar? They should. Thomas Jefferson penned them into the Declaration of Independence.

So what happened to old Blackstone and this view of law? Langdell threw them both out. He not only tossed Blackstone, but the underlying worldview. In its place, Langdell built an evolutionary or "scientific" view of law, which he called the "case study method."

Fundamentally, Langdell taught that the origin of law resided within the ability of public officials themselves. They were to study how law had evolved up to its present form through a series of cases and to then determine what its next evolutionary step should be.

This essentially divorced law from any absolute and transcendent foundation, and elevated man, through the power of the state, to be the ultimate source of law.

This worldview spread through our education system and became the primary method taught in virtually every American law school for the last century. It eventually rose to the top of the judiciary through Oliver Wendell Holmes, Jr., Supreme Court Justice from 1902 to 1932. Can you hear it in his words?

"[Law is] simply an embodiment of the ends and purposes of a society at a given point in its history...beliefs that have triumphed and nothing more."

Hmmm... sounds like the old "survival of the fittest" perspective, doesn't it?

Well, we are now ready to put all of this together and answer our original question. We will do that next time.

See you then!