A Flawed Foundation: Christianity's Loss of Preeminent Influence on Ameican Law
Michael V. Hernandez
Regent University - School of Law
Rutgers Law Review, Vol. 56, p. 625, 2004
This Article discusses the attributes that made America's Christian foundation of law susceptible to erosion and diminishment. Part II explores how principles embraced at the nation's founding -- religious pluralism and the subordination of law and government to individual rights -- admirably contributed to a flourishing of individual liberty. However, these principles -- as well as the pervasive influence in early American law of deductive formalism based on a profound mistrust of human reason -- departed from traditional Christian teaching and led to the ascendancy of relativism. Although the Founders believed that individual rights are God-endowed, they held a lesser view of law as serving only the utilitarian purpose of protecting individual rights. This view could be seen in the early treatment of Native Americans, particularly the Cherokee Nation, which embraced Christianity and republican principles of government and thus embodied what many of the settlers and Founders claimed they hoped to accomplish with the natives. Nevertheless, when gold was discovered on Cherokee land, the federal government ignored the rule of law, violated the natives' natural rights for the sake of manifest destiny, and forced the Cherokee Nation to relinquish its natural resources and relocate west. Religious liberty flourished due to the Founders' embrace of religious pluralism. However, given the increasingly diverse expressions of faith in American society, and the numerous conflicts within American Christendom, it was impossible for Christianity to continue to provide a firm foundation for American law and society. Furthermore, the early American legal academy followed the tradition of English historical jurisprudence and, due to an extreme distrust of human reason, embraced deductive formalism. Christian natural legal scientists attempted to reform the academy through the use of a more traditional, balanced approach to the study and practice of law, but their efforts ultimately failed. Consequently, a secular reformer, Christopher Columbus Langdell, filled the void of needed reform but divorced the study and practice of law from their historical Christian roots. Langdell's reform culminated in the secularization of American law over the ensuing decades. Part III describes how race-based slavery conflicted with Christian principles and thus undermined Christianity's influence on public law and morality. When confronted with the evils of slavery, our Founders abandoned the principles of liberty proclaimed in the Declaration of Independence in favor of pragmatic compromise with a relatively small number of pro-slavery radicals. Many defenders of American slavery linked their allegedly Christian beliefs to racism without apology. Even though the Founders acted in what they perceived to be the nation's best interests, their compromise on slavery violated Christian principle and led to a devastating loss of life and liberty. The evils of slavery and the horrors of war profoundly influenced two men who helped shape the secularization of American law and society, Charles Darwin and Oliver Wendell Holmes. In the aftermath of the Civil War, Americans became deeply skeptical about the influence of Christianity on law and culture and thus were increasingly open to the influence of secular ideologies.
Number of Pages in PDF File: 86
Keywords: Legal History, Christianity, American Law, Slavery
JEL Classification: N41, K10, K19, K30, K39, K40, K49Accepted Paper Series
Date posted: March 5, 2012
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