Me, promote theocracy?  Hardly! 

How natural law scholars influenced the Founding Period and why there is a knee-jerk reaction among elites to this simple fact

Steven T. Voigt, Esquire, January 18, 2006

            After awhile, the rhetoric of Marxists and secular humanists becomes so very predictable.  In a recent column, I illustrated that natural law scholars influenced our founding fathers.  Given that these scholars’ writings are replete with references to faith, I quite predictably received a bucket of nastigrams from critics who disingenuously accused me of promoting theocracy.  It is a tiresome argument, but it is one that the left uses again and again whenever anyone dares mention that the founding fathers were men of faith and were influenced by scholars whose works centered on the consideration of faith.  Understanding this fact is not promoting theocracy.  It’s not even close.  This fact is nothing more than historical accuracy and recognition of it is simply intellectual honesty.

The founding fathers did not desire a theocracy, but they were also not paranoid of or antagonistic to faith, as are the P.C. police of today.  Instead, our faithful fathers believed that faith should play an important role in all spheres of society, including government.  They believed that the checks and balances of our tripartite system of governance would allow the good hearts and minds of all citizens – guided by faith and morality - to chart the direction of our nation.  They were opposed to the tyranny of rule by a few, and they were concerned that an aggressive and activist judiciary would upset this careful balance of power and infringe upon the fundamental rights of citizens.        

            Unfortunately, for the past several decades, education and law have been blinded by the radical, revisionist ideas of the left.  As a consequence, in crucial Constitutional law cases, courts and lawyers rarely cite the works of natural law scholars.  The most infamous example is Roe v. Wade.  There, our Supreme Court conducted only a cursory review of common law, and in doing so, it utterly misconstrued the views of natural law scholars.  The Court dedicated much more of its opinion to analyses of Greek and Roman mythology, the view toward abortion in the Persian Empire, and the oh-so-important view of the ABA on abortion.

In the next three columns, I will explore the influence of Sir William Blackstone, Charles Secondat de Montesquieu, and John Locke on our system of governance.  These columns do no justice to the contributions of these greats.  I could write entire books on these scholars and their influence.  I begin with Blackstone.        

                                                Sir William Blackstone

            Sir William Blackstone is on a short list of the greatest legal scholars in western history.  Born in London in 1723 and the son of a merchant, Blackstone attended Pembroke College in Oxford and later Middle Temple law school. Most historians view Blackstone's career as a lawyer, judge, and politician as relatively uneventful, except for one amazing achievement.  He drafted one of the greatest legal compendiums of all time - if not the greatest. Blackstone's masterpiece, the work for which he is remembered, is a four volume set of treatises titled, "Commentaries on the Law of England."  It is an achievement for which Blackstone holds my highest respect and the esteem of all who love history.

Blackstone’s Great Achievement

            To understand the enormity of Blackstone's achievement in composing this work, one must understand the practice of law in the eighteenth century. Prior to Blackstone, lawyers had few legal treatises on which to rely. Law students had little in the way of a printed record of English law from which to study. Blackstone changed this. He was a revolutionary in law, not because he made any great advancement in legal thought, not because of any great written opinion as a judge, and not because of any creative argument while practicing law.  Blackstone was a revolutionary because he changed the way that law was practiced.  As the complexity and breadth of law expanded alongside increased global commerce and rising industry, Blackstone’s authoritative compilation rose to gird legal argument around ancient maxims.  The Commentaries memorialized the spectrum of English law into a single written work, all with Blackstone’s graceful and concise writing style.  The simple fact that Blackstone compiled the expansive treatises made him a legend. 

            After Blackstone’s Commentaries were published in 1765, thousands of copies were sold. The Commentaries became the handbook for every lawyer in America.  Blackstone's Commentaries became the gold standard of legal authority.  Lawyers cited to Blackstone.  Judges relied on the legal maxims set forth in the Commentaries.  Students studied his writings. 

            Such was the magnitude of Blackstone's contribution that his Commentaries continued to be cited and quoted by lawyers, judges, and politicians during the nineteenth century and the first half of the twentieth century.  The list of individuals who discovered Blackstone even included one of our most famous presidents.  The story of this discovery is worth illustration. 

In the mid-nineteenth century, a man migrating to the west on a wagon had no room for a barrel.  When he was about to chuck the barrel from the wagon, he happened across a young, tall, and lean fellow with a scraggly beard who offered to purchase the barrel and its contents for a few coins, to take it off the man’s hands.  The pioneer, having no use for the odds and ends in the barrel – perhaps old cloth, scraps of wood, and some rusty nails – gladly sold it.  

Thoroughly pleased, the tall fellow dumped the contents of the barrel onto the ground, and was immediately crestfallen to find that the contents were mostly useless rubbish.  When he righted the barrel and peered into the bottom, however, a smile broke out on his face.  At the very bottom, a book was nestled.  As you can guess, it was a copy of Blackstone’s Commentaries.  In any event, the man flipped open the tattered cover and began to read.  One can only imagine the joy on this gentleman’s face as he sat with his back against a tree, turning the pages of Blackstone’s Commentaries, maybe even chewing on an apple with his mind lost in the words. 

The gentleman’s name was Abraham Lincoln, who of course, would later be our 16th president.  Lincoln later recalled of Blackstone’s Commentaries: “I began to read those famous works . . . The more I read, the more intensely interested I became. Never in my whole life was my mind so thoroughly absorbed. I read until I devoured them.”¹ 

Blackstone’s Enduring Influence

●          The Jury Trial

            As one example of Blackstone's influence on our Constitution and its Amendments, the right to a jury trial secured by the Sixth Amendment finds its roots in Blackstone’s writings. The Sixth Amendment states, in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

Blackstone viewed the right to a trial by a jury of one's peers as a bulwark of natural rights against arbitrary government. Blackstone penned:

"[T]he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And, if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! . . . [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals.”²

            Other natural law scholars discussed the importance of a jury trial, but none would match Blackstone’s simple eloquence.

●          The Federalist Papers

            Blackstone's influence is also seen in The Federalist Papers. The Federalist Papers, a series of 85 papers written in 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay, were designed to persuade New Yorkers to ratify the Constitution.  

As an example of Blackstone’s influence, in The Federalist No. 84, Hamilton argued that a federal bill of rights was unnecessary, perhaps even dangerous, because it could be misinterpreted over time to be a grant of power to government rather than a limitation against federal jurisdiction over matters of individual states' concern. Even though he lauded the right to a jury, Hamilton argued that such a statement in a bill of rights was unnecessary because the New York constitution expressly adopted English common law to its fullest extent and this principle was part of that common law.  In support of his argument that a jury trial was embedded in common law, Hamilton quoted the “observations of the judicious Blackstone”:

“To bereave a man of life (says he [Blackstone]) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”

The Federalist No. 84 is critical in cases where courts examine the scope of Constitutional powers, because it reveals that the founders favored a narrow scope of federal authority and would prefer that decision-making authority regarding fundamental rights remain with individual states.  

            ●          Important Supreme Court Cases

The influence of the Commentaries is apparent in seminal Supreme Court cases.  For example, in the early Supreme Court case of Marbury v. Madison,³ decided in 1803, the Supreme Court examined whether it could compel the incumbent President Thomas Jefferson to deliver the commission of an executive official appointed by the outgoing President John Adams. The Court held that there are a category of legal actions involving "political questions," which are claims falling exclusively within the discretion of the executive branch, where redress is political only and there is no right to judicial review.

            In its opinion, the Court relied heavily on Blackstone. While explaining that redress at common law is distinct from political questions within the province of the executive branch, the Court quoted Blackstone's explanation that all rights outside the jurisdiction of special tribunals have redress at common law:

"[A]ll possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a proper remedy, and every injury its proper redress.”⁴

Likewise, in United States v. Marchant & Colson,⁵ decided in 1827, the Court closely examined the right to a peremptory challenge, which is the right to reject jurors, and based its analysis on Blackstone's writings. The Court stated, in part, “Mr. Justice Blackstone, in his Commentaries (4 Bl. Comm. 353) puts it upon the ground, that the party may not be tried by persons against whom he has conceived a prejudice, or who, if he has unsuccessfully challenged them for cause, may, on that account, conceive a prejudice against the prisoner.”

●          Maxims of tort and criminal law

Blackstone also masterfully illustrated the central maxims that lie at the core of tort and criminal law.  Blackstone characterized inherent human rights, such as life and property, as “absolute rights.”  He wrote that “the principle aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature.”⁶  Blackstone stated that the laws beyond those absolute rights are “relative.”  Blackstone said that these relative laws arise from our myriad relationships and interactions in society.⁷  Thus, Blackstone’s relative laws govern the nooks and crannies in traditional law not covered by the bedrock principles of absolute law.

In a court of law, these relative duties to one another are decided by a simple standard applicable to countless scenarios.  This standard is what a reasonably prudent person would do in a similar situation.  The Supreme Court of Wisconsin succinctly described the standard as follows:

“Manifestly, not every want of care results in liability.  In order to measure care, some standards must be adopted.  Human beings must live in association with each other, as a consequence of which their rights, duties, and obligations are relative, not absolute.  We apply the standards which guide the great mass of mankind in determining what is proper conduct of an individual under all the circumstances and say that he was or was not justified in doing the act in question.  While it is true that the standard thus set up is varying and indefinite, it is nevertheless one which may be fairly and justly applied to human conduct.  Such a standard is usually spoken of as ‘ordinary care,’ being that degree of care which under the same or similar circumstances the great mass of mankind would ordinarily exercise.”⁸

            This opinion is from 1931.  The ideas are distinctly Blackstone, even though this was a time when Blackstone’s name was just beginning to fade from the books.  It would be several more decades before his name disappeared almost entirely.  Nevertheless, when this opinion was written, the trend had begun. 

In the modern era of litigation, academia and law have all but forgotten Blackstone and other natural law scholars - not just their names, but also their artful writing and their concise rationale.  Today, we are mired in a sad chapter in the book of legacy of these ancients.        

Why have some forgotten Blackstone?

If Blackstone’s views are so fundamental, why have law professors, law schools, and practitioners forgotten them?  The answer lies in the left-leaning bent of the law profession, but it also stems from the content of Blackstone’s writings.  For example, when Blackstone explained that murder is an “absolute” wrong, he did not do so with the dull, politically correct lingo of the secular humanists.  Instead, he used firm words and a straightforward analysis built around faith and morality:

“To instance in the case of murder:  this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime.  Those human laws, that annex a punishment to it, do not at all increase its moral guilt, or add any fresh obligation in foro conscientiae to abstain from its perpetration.  Nay, if any human law would allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.”⁹

I can only marvel at these graceful words, but more so at the belligerence of obtuse professors who would exclude this writing and other writings of Blackstone from teaching merely because some of the words reference faith.

            In closing, secular humanists will try forevermore to wipe away the influence of Blackstone and other ancients, but their intellectually dishonest rhetoric will inevitably fail.  There will always be a handful of lawyers, scholars, historians, and teachers – and God willing, many, many more than a handful – who will be inspired by the source material and thereafter break rank to explain what a few loud voices want so desperately to obscure.

            It is my hope and prayer that the young lions of today will seek and find the truth and then lead everyone back to the ancients of law who many have carelessly – and perilously – forgotten.

Footnotes

1. Abraham Lincoln, Henry Ketchum, The Life of Abraham Lincoln, Authorama, Public Domain Books (last viewed Jan. 9, 2004).

2. William Blackstone, Commentaries on the Law of England, Vol. III, p.121 (1765).

3. 5 U.S. 137 (1803).

4. Id. at 163.

5. 25 U.S. 480 (1827).

6. Blackstone, supra note 2 at 120.

7. Id. at 121.

8. Osborne v. Montgomery, 203 Wisc. 223, 234 N.W. 372, 375-76 (1931).

9. Blackstone, supra note 2 at 42-43.

About the Author

Steven T. Voigt is a lawyer with a premier law firm that has offices throughout the United States and Europe. After receiving his juris doctorate, Steven served as a judicial clerk to the Pennsylvania appellate court for one year before entering private practice. Steven is the executive director of Foundations of Law PAC, www.foundationsoflawpac.org, and the public policy advisor to AmericanDestiny.com. Steven was recently named a "Rising Star Super Lawyer" in a feature in the Philadelphia Magazine.

Steven has authored numerous academic law reviews, commentaries, and publications related to national public policy and law, including the books Letters to America, TYRANNY The Collapse of Traditional Law in America, and No Political Solution No Political Messiah.

To read more of Steven's works, please also visit www.VoigtonAmerica.us. To receive Steven's free monthly e-commentary related to policy and law, send your name and e-mail address to info@&ltNOSPAM>voigtonamerica.us with "subscribe" in the subject line.

The views expressed in this article belong to Steven T. Voigt personally and do not necessarily reflect the views of his employer, any entity he is associated with, or any forum where this is published.

Copyright © 2006 Steven T. Voigt

Distributed by www.ChristianWorldviewNetwork.com