In recent weeks, two dear friends wanted to know my thoughts on a Tik-Tok video of political activist Charlie Kirk responding to a comment that the U.S. Constitution only refers to the “structure of government” and is not, therefore, Christian. It is very good, but you need to know the rest of the story, both the good and the bad. This is what I told my friends and understanding what follows is key to recovering from our present mess.
 
The First Thing Kirk Gets Right
 
In the video, Kirk, without putting it in so many words, says the person he responds to is ignorant of our history, which is a common malady among Americans and most Christians I know, old and young alike. Not too long ago I was among them.
 
To help correct this malady, Kirk covers three important points remarkably well in less than two minutes. I would like to offer a few “improvements” to them.
 
Three Other Things Kirk Gets Right
 
First, Kirk correctly notes that the states that formed our constitution contained very explicit Christian oaths for those who would hold public office.[i]
 
Second, he said common law (the foundation for law in all states but Louisiana) was “inherited from Blackstone who is Christian. Common law was an outgrowth of the Scriptures.” He correctly notes three of the constitutional principles we consider fundamental are an outgrowth of Christian legal precepts: the presumption of innocence, due process, and jury of your peers.
 
Third, he notes that the Declaration of Independence expressly refers to “the law of nature and of nature’s God” as indicative of a Christian or Christianized social order at our founding.
 
By the “improvements” I am not suggesting that Kirk does not know these things, only that Q&A periods at public forums do not permit time for their inclusion. But you should know the following about William Blackstone and common law.
 
The First Improvement I Would Make—The Foundations of Common Law
 
With respect to Blackstone, Edmund Burke said there seemed to be a greater demand in America than in England for Blackstone’s Commentaries on the Law of England, which was an exposition of common law. Given it was published in 1765 and we declared our independence in 1776, it is no wonder Mr. Kirk tied our common law to Blackstone.
 
But our connection to English common law is made clearer by what U.S. Supreme Court Justice Joseph Story wrote in section 157 of the first comprehensive commentary on the U.S. Constitution, published in 1833: “The whole Structure of our present jurisprudence stands upon the original foundations of the common law.” (emphasis supplied)
 
Now let me further “improve” on Mr. Kirk’s observation by declaring in greater detail what the “original foundations” of common law are, because they are so Christian.
 
The Overtly Christian Foundations of Common Law Expounded
 
From an essay published by the University of Alabama law school, Alfred’s Doombook: The Anglo-Saxon Foundations of Magna Carta:
   
With respect to the “Biblical authority” Alfred added, let’s be more specific.
 
In King Alfred the Great and the Common Law written by Rev. Prof. Dr. F.N. Lee Department of Church History, Queensland Presbyterian Theological Seminary, Brisbane, Australia, we find:
   
Common law was so Christian that Thomas Jefferson, the Enlightenment philosopher and writer of the Declaration of Independence, thought of it as “transplanting the seeds of an establishment”![ii]
 
And this brings me to my next suggested “improvement.” The entire Christian foundation for law and the edifice of jurisprudence built on it was cast aside by “enlightened” thinkers, including those on the U.S. Supreme Court.
 
 The Second Improvement I Would Make—"The Laws of Nature and Nature’s God”
 
The last phrase in Kirk’s quotation from the Declaration—"of nature’s God”—is more of an Enlightenment-influenced addition to the conception of the “law of nature” than Christian.
 
The “law of nature” began with Cicero in his Republic, written in six books between 54 and 51 B.C., but was explicitly Christianized by the Western Roman Emperor Gratian in his work, Decretum, finished sometime after 1139 and before 1158 A.D.
 
But the addition “of nature’s God” was a token of the perversion of law being ushered in by the Enlightenment whose full bloom of Godlessness now underlies our nation’s jurisprudence. 
 
A cosmological revolution from law resting in a God-created organism (from Gratian to Blackstone) to a mechanistic view of the cosmos took place beginning with the Enlightenment (17^th and 18^th century).  And now, with the atheistic ideology of French Revolution spread throughout the West, we now live in a nihilistic conception of the cosmos.
 
I suspect few Christians appreciate that “the French Revolution . .  . marks a beak with the Church and the whole of the past.” (James McClellan, Joseph Story and the American Constitution.) 
 
I suspect a failure to appreciate this fact explains why I find so few Christian legal advocates with an interest in common law.
 
Why These Improvements Must Be Recovered: A Prime Example
 
This break in the Christian development of law through history must be recovered because, without it, all our current efforts, which are largely devoid of any use of our common law roots—"the whole of the past”—are wasted efforts long term.
 
Why would this be so? Because current arguments constantly reaffirm the atheism underlying our current jurisprudence.
 
For example, a leading Christian legal organization, Alliance Defending Freedom, that does much good work, used a graphic to tout the amicus brief it filed with the U.S. Supreme Court in defense of Tennessee’s law forbidding medical interventions to treat a minor’s gender dysphoria. I reference the graphic simply because it is demonstrative of the kind of argument made in a number of briefs submitted by Christian organizations.
 
The graphic says, “Tennessee has a right to regulate medicine consistent with biological reality and protect children from experimental medical procedures.”
 
Notice that it touts as good what Kirk tried to correct, namely, a view that the Constitution is only about “structure” and has nothing to do with substantive law.
 
Those who know our common law history and that it provides the grid for interpreting the Constitution’s words and phrases would say more than that. They would say, as my brief did, that states have a constitutional duty to protect children from the intentional infliction of injuries to their otherwise healthy bodies.
 
Let me highlight why this is important:
   
This is not a difference in strategy but a difference in understanding about the nature, foundation, and purpose of law.
 
Working Toward These Improvements
 
The understanding of the kind of world we live in—our cosmology—will bring about inevitable changes in everything else, because that’s how God created things to work. That’s why God’s revelation to us begins with the beginning—God and creation. The change in that cosmology after the French Revolution spread to the United States and brought about a perversion of our constitutional law.
 
When one gets the beginning of anything wrong, as the French Revolution did about everything, and inject its atheistic precepts into our Constitution, as the U.S. Supreme Court did in 1938,[iii] it means law and the society it shapes will continue in its current direction apart from God’s corrective judgments on us for turning away from Him.
 
It seems to me that one of those judgments is that Christians now seem unwilling or maybe even incapable of arguing that it is unlawful for civil governments to allow the sterilization of healthy children who can’t appreciate what adults are doing to them.
 
Hoping to obtain a reprieve from even worse judgments is why my new ambition is to teach a new generation of leaders what the current generation does not know.
 
If you want to be among those leaders, send an email to me at senatorfowler94@gmail.com. I want to help you learn what I have learned.