The Root of Law

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Last Updated Thursday March 03, 2011 05:05 PM -0500

The Root of Law

Issues analysis
How I learned about the root of law...but not in law school

December 22, 2005
Steven Voigt
RenewAmerica analyst

If asked to name their chief influence, most lawyers would probably answer a Supreme Court justice. Others may point to a professor from law school. My answer may surprise you.

In the early fall of 2002, I was visiting friends in Nashville, Tennessee. While eating breakfast in the Pancake Pantry in downtown Nashville--a great breakfast spot, by the way--a friend suggested that I should meet a gentleman named Kendall Hewitt, who is the founder of a non-profit group called American Destiny.

To add a little more background, my friend knew of my passion for history and public policy and thought Kendall would be a good contact who shares these interests. American Destiny, my friend told me, is dedicated to teaching about the faith and inspiration of America's founding fathers. Taking my friend's advice, I decided I would meet this Kendall fellow.

Awakening to the foundations of law

So, the next time I was in Nashville, I met Kendall for lunch at another Nashville attraction, the Opryland Convention Center. We didn't eat much, because the air was thick with talk of politics and the direction of our nation. Midway through the meeting, Kendall seized a napkin and began scribbling out ideas and outlining strategy on the napkin with one hand while using the other to stretch out the corners to keep the pen from tearing it. This guy was so excited talking about history, faith, and the direction of our nation that I thought he would fall off his chair.

Eventually, our talk of history turned to the history of law. "I know a little something about law," offered Kendall. Well, up until this point I had not realized that Kendall might be a lawyer like me. I had assumed he was a non-profit director and a businessman. "So you're a lawyer?" I inquired. "Nope," he replied, "but I have read some of Blackstone, Locke, and Montesquieu." One of my eyebrows moved up nearly one half of an inch, but I offered no comment. The conversation continued.

At the time, I knew William Blackstone, John Locke, and Charles Secondat de Montesquieu were English and French natural law philosophers of the seventeenth and eighteenth centuries, but not much more. I did not understand the importance of these individuals to American government and jurisprudence. During law school, we never discussed these scholars in any detail. There was certainly no mention of these scholars in my Constitutional law course. Beyond law school, I had not heard mention of them during my first few years of practice.

My quest for knowledge

Kendall's insight struck a spark of interest and propelled me on a path of inquiry. As soon as I returned to Philadelphia, I pulled my dust-covered Constitutional law textbook from a shelf and immediately flipped to the index, expecting to find entire chapters on Blackstone, Locke, and Montesquieu that we missed during school. I wanted to discover why Kendall considered these individuals so influential to American jurisprudence, and why I had to plead ignorance about my own understanding of their place in history.

My Constitutional law textbook is thick, with 1766 pages of single-spaced esoteric text. Instead of finding entire chapters dedicated to these natural law scholars, I found that Blackstone is quoted only twice, once in a discussion about the freedom of the press and once in a discussion about the doctrine of prior restraint. The book cites to Montesquieu but once in an exposition about how much power the national government should have over individual states. The textbook does not contain a single citation to Locke. What??? 1766 pages and this is it? Was there some mistake? Maybe the names were accidentally omitted from the index. I flipped through the entire book several times scanning for their names. I double-checked the index. Nothing.

Maybe Kendall was wrong. Blackstone, Locke, and Montesquieu must not have been that important after all. They weren't in the textbook, so that proved it. Right?

Wrong. My initial spark of interest turned into a bonfire of enthusiasm. Over the subsequent year, I devoured book after book related to history and law. I camped out in libraries and bookstores in Philadelphia. Each weekend, I spent my afternoons in the Philadelphia Free Library, carefully turning the yellow, fragile pages of one hundred year old books. Most of these ancient tomes were not on the shelves, and the bespectacled librarians had to retrieve them from an underground storage room by wheeling a rickety dumb waiter down to a clerk in the basement. The cards pasted inside the back cover of these books revealed that many had not been read in decades. In the evenings, I continued my quest, relaxing in Barnes and Noble and Borders, reading more recent books. I was in academic paradise, pursuing knowledge like a lion.

I read dozens of books, diving into each text with renewed passion. I re-read Alexander Hamilton's, James Madison's, and John Jay's Federalist Papers. I read treatises written by Blackstone, Locke, and Montesquieu. I read compilations of writings by John Adams, Hamilton, Madison, Thomas Jefferson, Justice Joseph Story, and George Washington. I read books depicting the life and writings of Noah Webster, Benjamin Rush, George Whitefield, George Winthrop, Thomas Hooker, Adams, Hamilton, and many others. Continuing my quest for knowledge, I talked to experts of the founding era, including the respected author Stephen Mansfield, who is an advisor to American Destiny.

After one year of this intense study, I was able to conclude that Kendall was not entirely correct. Blackstone, Locke, and Montesquieu were not simply important to the foundation of our law and our nation; they were critically important. These natural law scholars and their writings, which were grounded in faith, influenced James Madison, Thomas Jefferson, Alexander Hamilton, John Adams, and nearly all of the leaders of the Revolution and the framers of our Constitution.

Lutz's study

Blackstone, Locke, and Montesquieu were not alone in influencing the founding fathers, but their influence and the influence of other natural law scholars including Algernon Sidney, Baron Samuel de Puffendorf, and Sir Edward Coke is undeniable. According to one ambitious study conducted in 1988 by Donald S. Lutz of the University of Houston, where Lutz examined over 3,000 political compositions written between 1760 and 1805, the most citations, 34%, were to the Bible. Beyond the Bible, 7.9% were to Blackstone, 2.9% were to Locke, and 8.3% were to Montesquieu. The chart below illustrates these statistics spread across the decades of the founding era:

Donald S. Lutz, The Origins of American Constitutionalism (Louisiana State University Press, 1988).

The complete list of citations in Lutz's study includes over 180 names, with most garnering only a fraction of a single percentage point of the total number of citations. Plainly, the fact that over one third of all citations were to the Bible is not a statistic you will find in many textbooks! As for the influence of Blackstone, Montesquieu, and Locke, imagine the remainder of the percentages trickling down over 180 other names and you will begin to understand the magnitude of their influence on American political thought in the founding era.

Throwing off the blinders

Looking back, I'm not surprised that it took someone outside of the sphere of law to open my eyes on this matter. Textbooks, including my Constitutional law textbook, trudge along the path of political correctness and wipe away every mention of faith. Since the writings of natural law scholars are chock full of references to faith, these writings are off limits in textbooks. In the same way, in textbooks, the great writings and speeches of our founding fathers have lost their luster, with this greatness diminished by clever redactions, strategically placed ellipses, and convenient paraphrasing to remove each appearance of words of faith and inspiration.

Beyond textbooks, professors only further education's willful blindness to the inspiration of our faithful fathers. With left-wing professors who dominate law schools offering students a slanted and cynical view of law, history, and the Constitution, most students learn about law in liberal cocoons and never once hear a single conservative viewpoint during all their years of study. It is pretty sad.

With biased textbooks and biased professors teaching lawyers how to be lawyers, it is no wonder that extreme liberals comprise much of the profession that I love so dearly. It is no surprise that my interest in and understanding of the history of law needed to find kindling from somewhere outside of this crowd.

Update about Kendall

These days, in addition to leading American Destiny, Kendall is a director for Compassion International, an organization that provides care to needy children around the world. Kendall occasionally wonders aloud to me whether he is doing enough, whether American Destiny can do more, whether he can do more in his sphere to make the earth a little bit of a better place. This is why I like Kendall. He has done so much, but he is never satisfied with what he has done. He does not look behind. He is not keeping a tally of his accomplishments. He always has his eye on the horizon. He is a fighter for God.

Kendall knows a little about Blackstone and other natural law scholars not because he is a lawyer, but because this knowledge is among his passions and part of his worldview. Frankly, I do not want to take anything away from my law school professors. I enjoyed my law school education, but it is telling of our time that the biggest agent of change in my legal career was not a professor or even a fellow lawyer. My biggest legal influence here on earth was a fellow named Kendall.

And, in case you are wondering, I still do have that napkin from the lunch meeting in the Opryland Convention Center. Merry Christmas, Kendall.

During a quiet moment in the upcoming Christmas and holiday season, please spend a little time visiting American Destiny at www.americandestiny.com.

RenewAmerica analyst Steven Voigt writes a column for RenewAmerica and is also executive director of Foundations of Law PAC.

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